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Terms and Conditions

Thank you for choosing Hexagon Mining! The terms and conditions herein, along with those in the Proposal/Quote, become the exclusive and binding agreement between the Client and the Contractor when the terms are accepted by acknowledgment in any form, including email communication or Client issuing a purchase order, by installing or accessing the product, and/or commencement of performance by Contractor.

 

GENERAL Terms and Conditions

  1. Relationship. The parties are deemed to be independent contractors and neither party is an agent or employee of the other party. Nothing in the Contract will be construed as creating a joint venture, employment or agency relationship between the parties.
  2. Contract (Entire Agreement). These Terms and Conditions, together with the Transaction Documents (Proposal or Quote), constitute the entire agreement (Contract) between the parties. This Contract supersedes and cancels all previous agreements among the parties, written and oral, with respect to its subject matter. This Contract may only be amended by written agreement of both parties with detailed reference to specific changes.
    1. THE TERMS AND CONDITIONS FOR THE SALE OF PRODUCTS AND SERVICES ARE LIMITED TO THOSE STATED HEREIN AND IN CONTRACTOR’S TRANSACTION DOCUMENTS. ANY ADDITIONAL TERMS AND CONDITIONS SUCH AS THOSE ON A PURCHASE ORDER, SHALL NOT APPLY. These Terms and Conditions shall override any contrary or additional terms or conditions (if any) contained in, or referred to, in any purchase order form or other document or correspondence from or by the Client, and no addition, alteration, or substitution of these terms will bind the Contractor or form part of any contract unless it is expressly accepted in writing by a person authorized to sign on the Contractor’s behalf.
    2. Order of Precedence. In the event of any inconsistency or ambiguity between Contract documents, the following shall be the order of precedence, when applicable:
      1. Transaction Documents (Proposal/Quote) from Contractor outlining the specific details of the software, hardware, or services. If there are multiple Transaction Documents, the latest dated document shall prevail over the earlier dated document(s).
      2. Hexagon Mining General Terms & Conditions.
      3. Hexagon Mining Software End User License Agreement (EULA).
      4. Hexagon Mining Hardware Terms and Conditions.
      5. Hexagon Mining Professional Services Terms and Conditions.
      6. Hexagon Mining Annual Support/Active Customer Care Description.
    3. Parties. The parties to the Contract are only your company (referred to as “you” or “Client” or “Customer, including your company’s employees, officers, and directors), and the specific affiliate(s) of Hexagon Mining indicated in the Transaction Documents (e.g. Leica Geosystems Mining Inc., Leica Geosystems Pty Ltd., MineSight, Mintec Inc., SAFEmine Ltd., and/or Devex), from whom you have purchased products or services (referred to as “Contractor” or “Licensor,” and also including its employees, officers, and directors). While together these affiliates form Hexagon Mining, it is agreed that no affiliate company in Hexagon Mining shall be liable for the products or services of the other affiliates.
  3. Intellectual Property Rights. Contractor and/or its licensor owns and retains all intellectual property rights in the product(s) or services subject to the Contract. This includes intellectual property rights in software and hardware products, and industrial and intellectual property rights throughout the world including copyright, patents, trademarks, designs, trade secrets, know-how, confidential information and circuit layouts. It also applies to all concepts, copyrights, developments, discoveries, enhancements, improvements, innovations, inventions, echniques and other proprietary rights related to the product(s) or services. These intellectual property rights are protected by numerous local and international laws and treaties. Client retains all intellectual property rights in its data and output from the product(s) or services, subject to the limited rights of Contractor set out in 4.1 below.
    1. If Client has commissioned Contractor to modify Contractor’s product(s) in any way, Client agrees that the Contractor will own the full intellectual property rights in such modified products, and Client agrees to execute any necessary documents to assign said intellectual property rights to Contractor.
  4. Confidentiality. All information from or in relation to Contractor’s or Client’s business is Confidential Information. This includes any information of a party regarding the business or affairs of the party, the customers, employees, contractors of, or other persons doing business with the party, the terms of Agreements between the parties, Proposals, attachments, negotiations, pricing, Trade Secrets, and any other information which is by its nature confidential. Both parties agree to keep such information confidential and not to use or disclose it to any other party, except as set forth below, without the written permission of the party whose information it is.
    1. Only Contractor personnel, officers, directors, contractors (or those of affiliates and contractors) whose review of the Client’s Confidential Information is necessary and appropriate shall have access to the Confidential Information. Necessary and appropriate uses include actions to achieve the purposes of the Contract, to perform diagnostics, to correct defects in software or hardware that cause unexpected or unintended results, report writing, customization, integration, to further improve algorithms, do benchmarking, provide consulting services and/or related activities necessary to support the Client or to improve or modify the products and services of Contractor.
    2. The obligation of confidence does not apply to Confidential Information that is:
      1. required to be disclosed by applicable law or the rules of any stock exchange on which the recipient’s securities are listed, as long as the recipient:
        1. discloses the minimum amount of Confidential Information required to satisfy any applicable law or rules; and
        2. before disclosing any information, gives a reasonable amount of notice to the discloser and takes all reasonable steps (whether required by the discloser or not) to maintain that Confidential Information in confidence;
      2. in the public domain otherwise than as a result of a breach of this Contract or another obligation of confidence;
      3. independently developed by the recipient; or
      4. already known by the recipient independently of its interaction with the other party and free of any obligation of confidence.
  5. Applicable Law. Unless otherwise stated in the Transaction Document(s), this Agreement and all related documents including all exhibits attached hereto and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of Arizona, United States of America (except to avoid irreparable harm that is more likely than not to occur in the absence of immediate performance of this Contract), without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Arizona. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
  6. Dispute Resolution. Neither party shall start arbitration or court proceedings (except proceedings seeking interlocutory or equitable relief) regarding a dispute arising out of this Contract unless it has complied with this clause.
    1. A party claiming a breach has arisen must notify the other party of the details of the dispute. On receipt of notification, each party will negotiate in good faith to resolve the dispute within 30 days, involving as necessary the managers or senior officers of the parties.
    2. If a dispute is not resolved by good faith negotiations after the 30-day period, either party may initiate arbitration procedures or file suit in a court of competent jurisdiction in accordance with Clause 5, Applicable Law.
    3. Each party shall bear its own costs in both mediation and arbitration; however, the parties shall share the fees and expenses of both the mediators/arbitrators equally. In the event of a lawsuit resulting in a non-negotiated judgment, the losing party shall be responsible for the prevailing party’s costs, including reasonable attorney’s fees and court costs accrued related to the lawsuit.
    4. All aspects of arbitration and mediation shall be treated as confidential. Pursuant to 4.2 (a) above, before making any permitted disclosure, a party shall give written notice to the other party and afford such party a reasonable opportunity to protect its interests. Judgment made on an arbitrators’ award may be entered in any court having jurisdiction.
    5. If Client disputes any portion of the amount claimed in an invoice submitted by Contractor, the Client must pay the portion of the amount stated in the invoice which is not in dispute, and must notify the Contractor in writing within 7 days of receipt of the invoice of the reasons for disputing the remainder of the invoice. If, after good faith discussions, it is determined that some or all of the amount in dispute ought to have properly been paid at the time of the first invoice, then the Client will pay the amount finally resolved together with interest on that amount at the rate of 1.5% per month.
  7. Amendment and Modification. Any amendments, modifications, dispute resolutions, or variations of the Contract, including the Terms and Conditions and Transaction Documents, must be in writing and signed by both parties in order to be valid and binding.
  8. Severability. If any provision of the Contract, including in the Transaction Documents and Terms and Conditions, is held invalid, unenforceable, or illegal for any reason, the Contract will remain otherwise in full force apart from such provision(s). If the parties can come to agreement on how to modify such provision(s) to the minimum extent necessary to render the provision valid, legal, equitable, and enforceable, then the Contract shall be deemed to be so modified.
  9. Waiver. No right of either party will be taken to be waived except by notice in writing signed by each party. Any failure by either party to enforce any clause of this Contract, or any forbearance, delay or indulgence granted by one of the parties will not be construed as a waiver of that party’s rights under the Contract.
  10. Third-Party Beneficiaries. Unless specifically designated elsewhere in your Transaction Documents or another part of the Terms and Conditions, the parties do not confer any rights or remedies upon any person other than the parties to this agreement and their respective successors and permitted assigns.
    1. Affiliated and related entities of Hexagon Mining are intended third-party beneficiaries of these terms and may in their own right enforce such terms.
  11. Limitation of Liability. To the extent PERMITTED BY LAW, the parties agree and understand that:
    1. NEITHER PARTY, NOR THEIR SUBCONTRACTORS OR VENDORS, WILL BE LIABLE TO THE OTHER PARTY, WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES BY CLIENT, OR FOR THE LOSS OF REVENUE OR PROFITS (BOTH DIRECT AND INDIRECT), LOSS OF BUSINESS, LOSS OF INFORMATION OR DATA, OR OTHER INFORMATION OR FINANCIAL LOSS ARISING OUT OF OR IN CONSEQUENCE WITH THE SALE, INSTALLATION, MAINTENANCE, USE, PERFORMANCE, FAILURE, OR INTERRUPTION OF THE SOFTWARE, PRODUCTS, AND/OR SERVICES, EVEN IF THE PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. For all other damages, the Contractor’s aggregate liability under this Contract is limited to replacement, repair, or refund of the price paid, at the Contractor’s option.
    3. Under no circumstance shall the Contractor’s liability to Client exceed the aggregate amounts paid by Client for the particular product or service in question.
    4. Neither party’s liability is limited by this Agreement to the extent that as a result of its reckless disregard for the consequences of any act or failure to act, or its intentionally causing those consequences, such party causes any party or nonparty to incur damages.
    5. The aforementioned limitations of liability for damages will not be affected if any remedy provided herein shall fail of its essential purpose. In the event that applicable law does not allow the complete exclusion or limitation of liability of claims and damages as set forth herein, liability and damages are then limited to the greatest extent permitted by applicable law.
    6. Client is solely responsible for the accuracy, reliability, and sufficiency of all data and specifications provided to the Contractor. Contractor shall have no liability in connection with any information provided by Client, or for the omission of any information that should have been provided by Client.
    7. Contractor shall not be held liable for, and Client will indemnify Contractor from, any and all damages resulting from Client engaging a third party to provide services, training, or maintenance with regard to any of Contractor’s products. If Client engages a third party to service Contractor’s software or hardware products, any applicable warranties will be null and void.
  12. Indemnification. Contractor will defend, indemnify and hold Client harmless from and against all claims, judgments, damages, liabilities, settlements, losses, costs and expenses arising from or relating to claims of infringement of intellectual property rights regarding the Contractor’s products (hardware and software) and services. Client must promptly notify Contractor of any such claim. Client may not institute or defend proceedings in connection with a claim unless Client first obtains Contractor’s written consent.
    1. Client must comply with all applicable laws and all instructions for use of Contractor’s products or services. If any claim is made against the Contractor by any third party arising out of Client’s improper use of Contractor’s products or services, the Client shall indemnify, defend and hold harmless the Contractor and its officers, employees, affiliates and agents against all claims, costs, damages, expenses, and reasonable attorney fees.
    2. Client is solely responsible for its employees’ and its contractors’ use of the product(s) and compliance with these terms and conditions. Client will ensure such persons are aware of the responsibilities in this regard.
  13. Assignment/Sub-Contracting. Neither party shall assign any obligations or rights under the Contract without the prior written consent of the other party, such consent not to be unreasonably withheld. Notwithstanding anything to the contrary contained in the Contract, Contractor’s rights and obligations under the Contract may be assigned to and assumed by any affiliate or parent company. Written notice of such assignment shall be provided in a timely manner.
  14. Insurance. Contractor will maintain in effect at all times the appropriate insurance coverage, including if applicable, workers’ compensation, travel, comprehensive general, professional and commercial liability coverage. 
  15. Force Majeure. Neither party will be liable for any delay or failure to perform its obligations pursuant to the Contract if such delay is due to Force Majeure - circumstances beyond the reasonable control of the party which result in the party being unable to observe or perform on time an obligation under the Contract. Such circumstances include, but are not limited to, Acts of God, lightning strikes, earthquakes, floods, storms, fires, natural disasters, acts of war, terrorism, riots, civil commotion, strikes, import or export controls or other governmental restrictions, internet failure, postal delays.
    1. If a delay or failure to perform is caused by Force Majeure, the performance of that party’s obligations will be suspended, and the affected party will be entitled to a reasonable extension of time for performing such obligations.
    2. If a delay or failure to perform exceeds 60 days due to Force Majeure, either party may terminate the Contract by providing written notice to the other party.
    3. If the Contract is terminated due to Force Majeure, the parties will negotiate in good faith any payments or refunds that are due and equitable.
  16. Anti-Bribery/Anti-Corruption. Both parties affirm that it is their policy and practice to comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption, including but not limited to the UK Bribery Act 2010, the U.S. Foreign Corrupt Practices Act, the Australia Bribery of Foreign Public Officials Act 1999, and any other relevant law. The parties further affirm that they have and shall maintain in place throughout the term of the Contract, adequate procedures to ensure compliance with the relevant laws.
  17. Non-Solicitation. During the term of this engagement and for a period of one year thereafter, each party agrees that its personnel shall not, without the other party’s written consent, directly or indirectly employ, solicit, engage, or retain the services of such personnel of the other party. In the event a party breaches this provision, the breaching party shall be liable to the aggrieved party for an amount equal to thirty percent of the annual base compensation of the relevant personnel in his or her new position. The aggrieved party shall also be entitled to seek injunctive or other equitable relief. This provision shall not restrict the right of either party to solicit or recruit generally in the media.
  18. Payment. These terms apply to all transactions. Please see your Transaction Documents for any specific or additional payment terms or instructions.
    1. Taxes. Unless otherwise specified in the Transaction Document(s), the amount due to Contractor is exclusive of taxes, duties, and other charges imposed or levied by a governmental entity in connection with the subject matter of this Contract. If applicable, Client is responsible for all costs for customs documentation, duties, taxes (including VAT and GST), and other charges or fees payable in respect of or in connection with the services, software, or products supplied by the Contractor under this Agreement.
    2. All invoices are due upon receipt. An invoice that remains unpaid after 30 days of receipt is considered late and will accrue interest at the rate of 1.5% per month.
    3. In cases of late payment, as defined in Section 18.2 above, Contractor reserves the right to suspend or cancel further performance of the Contract until payment is received. In cases of a history of late payments, Contractor reserves the right to require full payment prior to performing subsequent services or sales.
  19. Notices. Notices under the Contract may be delivered by hand, by mail to the addresses of the Parties specified in the Transaction Documents, or by email to their representatives, with a courtesy copy (“cc”) to legal.mp@hexagonmining.com . Notice will be taken to be given, in the case of hand delivery, upon written acknowledgement of receipt by a duly authorized employee of the receiving party, and in the case of mail, upon confirmation provided by the postal service, and in the case of email, when the recipient acknowledges having received that email (with a “read receipt” constituting acknowledgment of an email for purposes of this section).
  20. Survival. All provisions that are intended by their nature to survive performance of this Contract shall survive such performance and/or the expiration or termination of this transaction.
  21. Export and Embargo Restrictions. You hereby agree that you will not carry, bring, export, transfer or in any other way convey Hexagon Mining products to any country or territory where such presence is forbidden by international policies or export laws as set by the United States of America and other countries whose laws are applicable to you or the Contractor.
  22. Qualifying Cause of Delay. The following circumstances shall allow the Contractor to obtain an extension of time and receive payment for the associated costs if applicable:
    1. an act or omission by the Client,
    2. a latent condition,
    3. piracy, strikes, embargoes, industrial action or industrial conditions,
    4. a suspension by the Client,
    5. a change in the Law,
    6. a Force Majeure event,
    7. variations of scope, and
    8. an event or circumstance beyond the reasonable control of the Contractor.
  23. Language. These terms and conditions may be made available in other languages for Client’s convenience. In case of dispute concerning the interpretation of these terms, the English language version shall be controlling.
  24. Additional Terms. Attached with these Terms and Conditions, additional terms, supplied by Contractor, related to your particular transaction, will apply in accordance with the Order of Precedence set out in section 2.2.

 

SOFTWARE End User License Agreement (EULA)

  1. Application. This EULA applies to all Hexagon Mining software products. Additional terms and conditions regarding specific types of licences (including cloud-based licenses, regional and global licenses, etc.) are also applicable and are further detailed in your Transaction Documents.
  2. Background. Client agrees to use the software according to the terms and conditions contained in this EULA.
    1. This Agreement is a License agreement regarding USE of software, and NOT an agreement for the sale of software rights.
    2. The terms contained herein apply to all Hexagon Mining application software and materials, which includes the media on which Client received it, if any, as well as to any related software such as updates, patches, and related materials.
    3. “License” means the rights Client receives to use Hexagon Mining software and materials, as well as the restrictions imposed and the allocation of liability. The terms of the License are explained in this Agreement and related Transaction Documents Client has received.
    4. Obligations. The License places upon Client certain obligations to protect the software and related materials from unauthorized use, reproduction, distribution or publication. Client shall promptly notify Contractor if Client becomes aware of any infringement of Contractor’s intellectual property rights in the software.
      1. Client affirms that it has clear policies and procedures designed to prevent software piracy in any form, and that it does not allow its employees to use pirated software (i.e. software not legally licensed to the user) in their work for Client.
      2. If requested by Contractor, the Client will issue a notice in a form approved by the Contractor to all relevant employees, advising such persons of the Client’s obligations under this Contract and also advising of the possible civil and criminal consequences of a breach due to unauthorized use or copying of the software.
    5. When doing business with any entity regarding Hexagon Mining software, it is Client’s responsibility to ensure that entity is appropriately affiliated with the Contractor and is not in violation of copyright, trademark, or other intellectual property laws. Please inform your Hexagon Mining representative if you ever have any questions in this regard.
    6. Client agrees to notify the Contractor in a timely manner of any breach of security or unauthorized use of the software.
    7. Any rights not specifically granted in this Agreement are reserved to the Contractor.
  3. Acceptance. By installing and/or using a Hexagon Mining software product, Client is certifying that it has read and agrees to all the terms of the Contract, including the End User License Agreement, the Terms and Conditions, and the Transaction Document(s). If Client does not agree to these terms, do not install or use Hexagon Mining software.
  4. Authorization. By installing this software, you certify that you are an authorized representative of Client.
  5. Term of License. Upon payment of applicable License fees, and subject to the terms of the Contract, the Contractor grants to Client a non-exclusive, non-sublicensable, non-transferable (except with written permission), irrevocable (except as set forth in the termination provisions) License to install and operate the software, commencing on the date of delivery to Client.
  6. License Conditions. The licensed software may only be used pursuant to this Agreement:
    1. Client agrees to follow industry standards to protect the software and related materials from unauthorized use, misuse, reproduction, distribution or publication. Client’s License may come with a key or “dongle” which enables installation and use of the software. This key is a valuable asset and must be protected carefully. If a key/dongle is lost or stolen, Client may be responsible for replacement costs, penalties, and other fees solely at the discretion of Contractor.
    2. Client may only install the software as outlined in this EULA and the Transaction Documents.
    3. Client may install the software on a central server for the purpose of maintaining copies of the software programs in a central location.
    4. Unless otherwise stated in the Transaction Documents, each License used to operate the software may not be used concurrently on different computers. Use of the software License is restricted to the License-holder at a single location or on a single personal computer. Creating simultaneous multiple users for a License by any means is prohibited. The software can be run in a virtual environment at a single location/site, provided the number of users does not exceed the number of Licenses at any given time.
    5. Client may transfer the software and related documentation between related Client sites only with prior written consent from the Contractor, not to be unreasonably withheld, and payment of applicable transfer fees.
    6. Unless otherwise provided in the Transaction Documents, transfer between time zones is prohibited. By installing the software, Client agrees to submit to the Contractor upon request, if applicable, a copy of the user log for any License. If a License has been used in violation of this EULA, Client will be responsible for all fees that would have been incurred by obtaining a new License for the separate time zone or use, and Contractor may terminate Client’s contract at its discretion.
    7. Some or all of the software may be licensed to Client on a trial basis. Client’s rights to use trial software are limited to the trial period, and all restrictions and obligations outlined in this EULA apply during and after said trial period.
    8. Client is responsible for following the Contractor’s recommendations regarding technical specifications, system requirements, proper installation, proper use, and other user guidelines provided by Contractor, available upon request.
    9. Client shall not remove, delete, alter or obscure any trademarks, copyright, proprietary notices, labels, or marks from the software or documentation, or from any third-party software incorporated into the Contractor’s software.
    10. The Documentation received from Contractor is licensed to the Client for the duration of the License. The Client may copy or reproduce the Documentation to the extent reasonably required for the purpose of using the Licensed Software. All right, title, and interest in and to such copies shall belong to the Contractor. The Client must ensure that the copies are clearly marked with a notice stipulating that the Documentation belongs to the Contractor and must not be reproduced.
    11. Client agrees to notify the Contractor of any problems with the software, and ideas for enhancements to the software, which come to Client’s attention during the period of this EULA, and Client hereby assigns to the Contractor all right, title and interest to such enhancements in the software and all property rights therein, including without limitation all patent, copyright, trade secret, mask work, trademark, moral right or other intellectual property rights.
  7. Third Party Components. The software coordinates with and/or contains, with permission, third party components. From time to time the Contractor will alert Client to update software Client may be using in conjunction with the software in order to facilitate compatibility. Client shall be responsible for third party software version updates when specified.
    1. This Agreement is between Client and Contractor. Client agrees, however, that the rights, restrictions and protections that apply to the software also apply to any third party components embedded within the software.
    2. The owners of third party components are beneficiaries of this Agreement with the right to enforce its restrictions and protections.
  8. Restrictions and Protections. Client must follow these restrictions and protections:
    1. Client is not allowed to modify, translate, reverse engineer, decompile, disassemble, make any attempt to discover the source code of the software, or create derivative works based on the software or its related materials. To the extent that the software incorporates its own or third-party developed interfaces or libraries (for example, DLL files), Client is not allowed to invoke such interfaces, or use such interfaces as a development tool.
    2. Client shall not attempt to defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any software protection mechanisms for and/or in the software, including, without limitation, any such mechanism used to restrict or control the functionality of the software or derive the source code or the underlying ideas, algorithms, structure or organization form of the software.
    3. The various components of the software are licensed as a single unit. Client may NOT separate the components and install them on different devices.
    4. Client shall not sublicense, assign, resell, share, pledge, rent, gift, or otherwise transfer or grant any rights in the software or related documentation or components in any form to any person not a party to this Agreement without the prior written consent of the Contractor. Client agrees that it will not disclose to another party any Trade Secrets of the Contractor, or Proprietary Information of the Contractor, including Confidential Information related to the software or related products. Proprietary Information means pricing, terms set out in any Transaction Documents, and any other information related to the software or the Contractor that is not generally known in the mining industry.
  9. Termination. If the Contract is terminated for any reason, the relevant terms of the Contract pertaining to liability, export, and protection of intellectual property rights remain permanently binding on the parties to the Contract.
    1. The Contractor may immediately terminate the Contract if Client breaches any terms contained herein. Should termination occur due to breach, the license is revoked; Client shall cease use of the software and related materials, return the software to the Contractor, and destroy or return all copies of the software and related materials that Client may possess. The items to be returned to the Contractor include, but are not limited to, all proprietary information including any documentation, flow charts, media, hardware keys, license files and all related materials. Within 10 days after termination of the Contract due to breach, Client shall certify to the Contractor in writing that Client has returned all items furnished to it under the Contract.
    2. Licenses are not refundable.
  10. Warranty. The Contractor warrants to Client that the Contractor has the legal right to enter into the Contract and to license the software to Client free and clear of any lien, claim, or encumbrance.
    1. The Contractor warrants that, at the time of initial installation, the software will substantially conform to published specifications, provided that it is used properly and is used on the computer hardware and with the operating system for which it was designed.
    2. Other than as previously stated, the software and related materials are provided “AS IS”. There are no other expressed or implied warranties of any kind to be granted or assumed under the Contract, including, without limitation, those of merchantability and fitness for a particular purpose or intended use, concerning the performance, capacity, capability, and quality of the software and/or its program modifications and enhancements.
    3. If the applicable law mandates a different warranty than stated herein, the warranty will then be limited to the greatest extent permitted by applicable law.
    4. The Contractor does not warrant that Client’s use of the software will be error free or free from interruption or failure. Client hereby acknowledges that said software may become unavailable or interrupted due to any number of factors, including but not limited to periodic system maintenance, acts of God, technical failure, user error, hardware failure, telecommunications infrastructure problems, viruses, denial of service attacks, increased or fluctuating demand, actions and omissions by third parties, or any other cause reasonably beyond the control of the Contractor. The Contractor expressly disclaims any express or implied warranties other than those specifically contained in the Contract or mandated by applicable law.
    5. The Client’s sole and exclusive remedy for breach of warranty is repair or replacement of the warranted software.
  11. User Data. Client is solely responsible for the accuracy and use of user data and the selection and use of the application.
  12. Upgrades. To be eligible for upgrades to software licenses, Client must be current with Annual Support/Active Customer Care services.
  13. Non-Acceptance. If Client does not intend to accept the software under the terms of this EULA, then do not install it. Return everything received from the Contractor within 10 days of receipt for a refund. In this case, Client shall bear any costs related to returning the license and its associated accessories, documentation, media, etc. to Contractor.
  14. Performance Guarantee. Contractor does not and will not guarantee any financial results which may be expected by Client in regards to the software herein licensed. Contractor’s guarantee, subject to the warranty terms stated here in, is solely limited to the adequate functioning of the Software based on its technical specifications and according to the terms and conditions established by this EULA.

 

HARDWARE and OPERATIONS

  1. CAUTION OF PERSONAL INJURY. All Hexagon Mining products, including but not limited to traffic awareness, collision avoidance, fatigue monitoring systems, fleet management systems, high precision guidance and mine monitoring products, are intended as additional tools in determining potential danger and managing mining activity such as traffic threats. These products are to support, not replace, an alert and conscientious driver, operator, or other qualified personnel. No product or device can detect all threats within the detection window. Contractor’s products are not designed as a substitute for proper safe driving and visual monitoring and scanning procedures – a vigilant, effective person is required at all times in all situations. The operator of the vehicle remains fully responsible for operating the vehicle and ensuring the safety of the passengers, pedestrians, and other traffic. Never use Hexagon Mining products for applications other than their intended and authorized use. Never use Hexagon Mining products as an emergency stop device or in any other application where failure of the products could result in personal injury. Before installing, handling, using, or servicing any Hexagon Mining product, consult the data sheet, manuals, and application notes, and make yourself thoroughly familiar with the operations and limitations. Failure to comply with these instructions could result in serious injury or death.
  2. Responsible Use. Client is responsible for following the Contractor’s recommendations regarding system requirements, proper installation, proper use, and other user guidelines provided by Contractor, available upon request.
  3. Restrictions. Client must not decompile, disassemble, reverse assemble, reverse engineer, reverse compile, or otherwise manipulate the whole or any part of the hardware, nor directly or indirectly allow or cause a third party to do so.
  4. Warranty. The Contractor warrants to the original end user (“Client”) that the hardware product(s) manufactured by the Contractor will substantially conform to published specifications and that they will be free from material defects in workmanship and materials, under normal use, for 6 months from the date such product(s) leave the Contractor’s premises (ex works).
    1. Note. For products that are repaired or replaced by the Contractor, a different warranty may apply and will be specified in the Transaction Documents.
    2. This warranty does not cover consumables, such as cables, reflectors, antennas, bulbs, fuses, batteries, nor third party products. It also does not cover normal wear and tear or deterioration.
    3. This warranty does not apply to defects which are caused by inappropriate use, faulty maintenance, incorrect installation, faulty repair by Client, alterations carried out by Client without written consent, nor to any product that has not been stored, installed or used within the specifications recommended by the Contractor. It also does not apply to damage or malfunctions resulting from the use of the hardware products in conjunction with ancillary or peripheral equipment when Contractor determines that there is no fault with the hardware products.
    4. The warranty is exclusive and is in lieu of all other warranties, terms or conditions, express or implied, either in fact or by operation of law, statutory or otherwise, including warranties, terms or conditions of merchantability, fitness for a particular purpose, satisfactory quality and non-infringement, any warranties arising by usage of trade, course of dealing or course of performance, any warranty that the software is compatible with any particular hardware or software, all of which are expressly disclaimed.
    5. If the applicable law mandates a different warranty, the warranty will then be limited to the greatest extent permitted by applicable law.
    6. Within the warranty period, if the product is proven to be defective, the Contractor shall repair and/or replace the goods, in the Contractor’s sole discretion, free of charge to the Client. The defective goods shall be returned to the Contractor’s designated premises at the Client’s expense. The Client shall at its own expense arrange for any dismantling and reassembly of equipment other than the Contractor’s product(s), to the extent that it is necessary to remedy the defect.
    7. In lieu of the above remedies, the Contractor shall be entitled, in its sole discretion, to refund the price of the defective product(s).
    8. System Software. System Software, defined as operating software and/or firmware necessary for switching on and running the product(s), shall be under the same warranty as the hardware as outlined herein. This warranty does not apply to “application software,” which is the pre-installed or loadable on-board software and/or office or PC-based software for particular operations of the products and/or data. Such “application software” is covered by the warranty provisions outlined in the End User License Agreement.
    9. To obtain warranty service, contact the authorized representative designated in your Transaction Documents. It is very important to contact us as soon as possible after the discovery of a possible defect, at least within 14 days if not sooner.
  5. Risk of Loss and Title. Unless otherwise provided in the Transaction Documents, risk of loss of the hardware products will pass to Client upon shipment if Contractor ships, or upon pick up at Contractor’s offices, and Client is responsible for providing and maintaining insurance against loss for the full replacement value of those products.
    1. If picking up, Client will be responsible for the transport of the products from Contractor’s premises to its site(s), and for unloading and unpacking the products.
    2. If picking up, Client will prepare and load the products in accordance with industry practice for transportation at Contractor’s premises so as to reasonably minimize the risk of loss or damage to the products during transit.
    3. Unless otherwise provided by applicable law, title to the products will pass to Client when Contractor issues its invoice. Title to any software provided with the hardware products remains with Contractor or with the manufacturer of the relevant software, as applicable. In the event applicable law does not recognize a security interest in retained title, Client hereby grants and Contractor retains a security interest in the products until payment, in full, has been received by the Contractor for such products delivered and services performed. The Client grants the Contractor the right to perfect its security interest by filing any registrations, notices, or other filings as may be required in the Contractor’s sole discretion.
  6. Documentation. Contractor shall supply or make available to Client all applicable operating manuals and safe working procedure manuals for the hardware products.
  7. Hardware Aging and Contractor’s Right to Refuse to Provide Maintenance. Contractor reserves the right to refuse to provide maintenance and/or support to any piece of hardware that is older than 3 years from the date of the original purchase. Any piece of hardware which has reached or exceeded such age will be subject to Contractor’s prior evaluation regarding the provision of maintenance. If Contractor refuses to provide maintenance under these circumstances, Contractor will suggest a replacement item suitable to Client’s needs which will be purchased at Client’s will, based on Contractor’s most recent price list.
  8. Termination. If Client cancels a product or hardware order after its delivery to Client’s site, but prior to its use or installation, all such product must be returned to Contractor at Client’s expense in resalable condition, which means it is undamaged, factory sealed in the original manufacturers’ packaging, and is complete with all manuals, cables, etc. Client is responsible for shipping the product(s) back to Contractor. If after receiving and inspecting the product(s) the Contractor finds it meets the requirements above, Client’s account will be credited the applicable value of the returned product less a restocking fee of 15%. If the Contractor reasonably determines that the product is not resalable, the Contractor will send the product back to Client and no credit will apply.
  9. Storage. Contractor shall not, at any time, be held responsible or accountable for guarding, storing or keeping any piece of hardware safe from harm and/or environmental conditions at Client’s facilities. Such responsibility or accountability shall rely on Client solely.
  10. Hardware & Services Additional Terms – if applicable
    1. Any high precision systems will require a qualified surveyor to measure fixed positions for accuracy tests during commissioning. A surveyor may need to be supplied by the Client.
    2. Any modification to machines or other onsite equipment must be performed by authorized onsite personnel. This may include, but is not limited to, mounting brackets, drilling holes for cables, providing power for system, etc. Hexagon Mining Field Engineers may, in limited circumstances, be able to provide assistance if requested by Client. Any such work is done at Client’s risk, and Client agrees that Hexagon Mining shall not be liable for any damage or losses related to such work.
    3. All lifting equipment required to complete or support the installation and commissioning (if applicable) will need to be supplied by the Client, including crane and EWP equipment suitable for the task, and equipment authorized operators and riggers where required.
  11. Communications – if applicable
    1. Contractor may require an IP based network in order to communicate.
    2. No telemetry or communications infrastructure is supplied by Contractor. Contractor will arrive on site supplied with a communications device capable of operating on a standard IP based network.
  12. Office System Requirement – if applicable
    1. Client server must have unimpeded permanent VPN and email access (or other remote access). A fast VPN connection is vital for remote setup and will greatly facilitate ongoing support.
    2. Email account is required on the Client server for remote support. SMTP for sending mail via a standard port (25). Any necessary relaying should be allowed. Server name and email address need to be supplied by Client. IMAP for receiving mail via a standard port (143). Server name, logon name and password need to be supplied by Client.
    3. Contractor must have local administrator rights on the Client server. Server name, logon name and password need to be supplied by Client.
    4. Contractor will set up server in cooperation with Client’s IT representatives. The server is to be a dedicated server for the Contractor applications only. This is to avoid application and real-time database conflicts.
    5. No IT infrastructure is provided by Contractor. Servers, laptops, desktops, switches, etc. will all need to be supplied by Client.
  13. Installation and Commissioning – if applicable
    1. Contractor will provide personnel with generic inductions and medicals. Where further induction and medicals are required, these costs will be charged back to the Client.
    2. Installation and commissioning pricing, where quoted, may be revised if the scope of the project changes after the Proposal expires.
    3. Installation and commissioning pricing, where quoted, may be revised if access to the equipment is delayed through no fault of the Contractor. Any time delays for access to equipment will be charged to Client at an additional cost.
    4. System start-up and calibration will be done by Contractor personnel in conjunction with Client’s operators and maintenance personnel.
    5. The Client is required to make available reasonable technical and wiring diagrams for the mobile equipment. If this is not made available in a timely manner, the Client will be responsible for extra costs and lost time.
    6. The Client is required to make available all OEM protocols that Contractor will interface to, including agreements from the original equipment manufacturers (OEMs) for their use. Contractor will not be held responsible for any losses, liabilities, or penalties where said protocols are not made available.
  14. Miscellaneous – if applicable
    1. Partial shipments of orders are only completed on specific request of the Client, and are conditional on agreement to pay Invoice for the completed portion of the Order at standard terms.

 

PROFESSIONAL SERVICES

  1. Professional Services. Professional Services as defined here include training, workflow optimization, customization, project assistance, consulting, mine planning studies, mineral resource studies, and similar activities. Installation or Implementation may be a separate Professional Service, or in some cases may be included in the initial purchase price – please refer to the Transaction Documents for details. Professional Services do not include technical support for the software, updates, upgrades, defect corrections, or hardware maintenance. Those items are considered Annual Support/Active Customer Care.
  2. Scheduling. Work schedules are subject to Contractor’s resource availability, Proposal/Quote approval, receipt of purchase order, and/or required advance payment. The parties will work together to achieve the best possible timeframe when finalizing the services Schedule.
    1. Due to ever-changing travel conditions around the world, it may be necessary for a party to reschedule pending travel. If this occurs, the parties will promptly contact each other to coordinate a revised schedule.
    2. In the event the Client delays the commencement of work or wishes to modify the previously agreed upon Schedule and/or Scope, Client will reimburse Contractor for non-refundable or additional expenses incurred, if any, due to Client’s delay or change in the Schedule and/or Scope.
  3. Testing/Hazard Training. If Client requires risk reduction / hazard recognition / induction or similar training at the Location, or if Client requires that Contractor personnel undertake drug/alcohol testing prior to going to the Location, Client may be charged at the standard hourly rate for the time spent by Contractor personnel in such training/testing.
  4. Client Point of Contact. Contractor will provide the services as outlined in the Transaction Documents, under the premise that the services are performed under the direction of a Client Point of Contact who is sufficiently qualified and skilled to evaluate results and has decision-making authority. Additional support of a Systems Administrator with administrative rights may also be required.
  5. Data Accuracy. If Client provides data/specifications to Contractor, then Client accepts full responsibility for the accuracy, reliability, and sufficiency of the data and/or specifications provided to Contractor, and for decision making by the Client’s employees.
  6. Deadlines. Contractor may have to extend deadlines if the Client data, specifications, or site information and clearances (if applicable) are not received in a timely manner and/or data received needs to be modified or updated or contains significant errors. Schedules may also need to be revised and additional costs incurred by Client if Client does not have available a Systems Administrator with the necessary administrative rights, or if the appropriate software has not been correctly installed on Client’s computer(s) (if applicable).
  7. Delays and Additional Costs. If Contractor is unable to perform services due to Client actions, such as, but not limited to, unavailability of trucks, unauthorized radio frequencies, incapability of obtaining site clearances or credentials for Contractor’s personnel, etc., then Client shall pay the Contractor’s hourly rate for the duration of the delay. Also, data received after the services have commenced may necessitate additional review, recalculation, re-analyses, or re-design, adding to an increase in the time needed to perform the services and additional costs to Client.
  8. Warranty. Unless otherwise stated in the Transaction Document(s), Contractor will warrant the services performed (including scripts) for a period of 30 days from completion. This warranty shall immediately become void if Client data or specifications are inaccurate, upon wrongful acts or omissions of Client personnel, or for any misuse, alterations, or modifications made to Contractor’s software or hardware by the Client.
  9. Accommodations. In so far as the Services are to be performed at Client’s premises or facilities:
    1. Client must provide access, working space, and normal office amenities such as internet access, printers, office supplies, computers, servers, access to the network subject to Client’s information policies, etc.
    2. Unless otherwise provided in the Transaction Documents, Client must provide on-site transportation and drivers as necessary.
    3. Client must at all times ensure that such premises comply with all relevant health and safety regulations.
    4. Client must provide a safe and non-hazardous working environment for the provision of the Services.
  10. Additional Services. Any services added/requested after the initial Proposal/Quote is approved, or such services that are added due to circumstances, including data correction, will be detailed in an addendum to the Proposal/Quote and invoiced at the rate specified in your Proposal/Quote.
  11. Services Standards. Services will meet professional standards of skill, care, and diligence consistent with the customary and prudent industry practices.
  12. Termination. Subject to a 30-day notice to Contractor, Client may cancel the proposed services prior to completion. In such case, Client will reimburse Contractor for all billable hours and services performed prior to the cancellation date, together with all expenses already incurred. In the case of training services, if cancelled after training has started, then Client may be invoiced for the full time allocated to training.
  13. Suspension. Client may suspend the Services under this Contract at any time, subject to:
    1. 30-day written notice; and,
    2. Payment of all associated costs; and
    3. An extension of time as applicable.
    4. Where a period of suspension extends beyond 90 days, Contractor shall have the right to terminate this Contract without penalty to itself.

 

Annual Support/Active Customer Care

  1. Background. Support services are an essential part of Hexagon Mining products. Contractor’s dedicated development professionals continuously test, update, and integrate the latest software and hardware technologies, providing new and enhanced functionalities with the goal of improving the productivity of our clients. New techniques and improved algorithms result in faster analysis of results, the ability to investigate more options, greater hardware capabilities, and improvements to the efficiency of staff using the software. These new technological advances are integrated throughout our product packages as part of our Annual Support/Active Customer Care package. With a current Annual Support/Active Customer Care package, you will receive technical support and all standard updates to the packages you have purchased, at no additional charge.
  2. Payment. Unless otherwise stated in the Transaction Document(s), Hexagon Mining Annual Support/Active Customer Care fees are due and payable annually in advance. Annual Support / Active Customer Care will automatically renew for a further one-year period unless either party gives written notice of its intention to terminate it no later than 60 days prior to the expiration of the current annual support period. Client will receive notice in a timely manner to renew and the price for renewal. If the annual support fees payment is not received when due, a 10% reinstatement charge will be applied to the amount due.
  3. Annual Support includes:
    1. Technical Support. Unless otherwise stated in the Transaction Document(s), technical support is available 7 days a week through Hexagon Mining regional offices via email, internet and telephone. In many countries, toll-free telephone numbers are provided for support. Technical Support representatives may provide assistance for the installation of Enhancements, Corrections and Updates. Technical support does not include consulting and/or training services. The Contractor will notify Client when the requested technical support becomes consulting and/or training.
    2. Software Updates. As the Contractor updates the content of its software programs, the Contractor will make available to the Client software updates for any term for which Client’s annual services have been paid. The technical support specialist will be happy to assist you with the download and installation process, if it is required.
    3. Software Enhancements and Fixes. All Hexagon Mining technical support representatives may receive notification of software errors and will ensure that reported errors are directed appropriately. After receipt of notification of a Software error, the Contractor will resolve any errors or find a temporary solution within a reasonable period of time and may include corrections to errors in new releases of the software. The Contractor will provide client with Enhancements and Fixes when available.
    4. Hexagon Monthly Newsletter. Receive an electronic version of the monthly Hexagon Mining newsletter with valuable information for our Clients.
    5. MineSight users. The annual MineQuest Seminar provides MineSight clients an opportunity to exchange experiences with various applications, attend workshops and presentations and help to chart the course for new development. (Note: The Seminar and some meals are provided by the Contractor at no cost to Client. Transportation, lodging and other meals are at Client’s own expense).
  4. Annual Support does not include:
    1. Out-of-Scope Issues. Services not included in Annual Support/Active Customer Care include professional services: user training, software customization, implementation and consulting.
    2. Reported problems are out of scope when it is determined that such problems are not related to Hexagon Mining software and fall beyond the scope of the Contractor’s responsibility. Examples of such unrelated problems include, but are not limited to, CLIENT’s host or applications software, CLIENT’s hardware or cabling, power or environmental conditions, and human error.
    3. Hardware Support. Annual hardware support services, if applicable, will be described in the Transaction Document(s).
  5. Termination. Annual Support/Active Customer Care fees are non-refundable. 

 

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