Terms and Conditions
Thank you for choosing Hexagon Mining. These General Terms and Conditions, our EULA, and the signed Hexagon-created Order Form incorporating our proposal combined together (“Transaction Documents”) form the entire binding agreement (“Contract”) for purchasing our products and services.
- Parties. Throughout this Contract, the terms “we”, “us” or “our” refers to Hexagon Mining Inc. and its affiliates, and “you” or “your” refers to the person or company who (or on whose behalf) a signed Order Form is placed. Both we and you may, from time to time, be referenced as a “Party in the singular and “Parties” in plural. Hexagon Mining Inc., the mining technology division of the Hexagon group of companies, sells its goods and services through a variety of affiliated entities strategically located throughout the world to best serve our customers. The sole Parties to the Contract are you and the specific affiliate of Hexagon Mining indicated in the Transaction Documents. 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.
- Transaction Documents. These General Terms and Conditions, together with our EULA, and the Hexagon Order Form signed by you (together the “Transaction Documents”) constitute the entire Contract. No contractual terms from any other source, such as your company’s purchase order forms or other documents or correspondence from or by you, are applicable. This Contract supersedes and cancels all previous agreements among the parties, written and oral, with respect to its subject matter, and it may only be amended by written agreement of both parties with detailed reference to specific changes.
- 2.1.Order of Precedence. In the event of any inconsistency or ambiguity between any of the Transaction Documents, the following shall be the order of precedence, when applicable:
- 2.1.1.Hexagon Order Form
- 2.1.2.Hexagon Mining EULA
- 2.1.3.Hexagon Mining General Terms & Conditions
- 2.1.Order of Precedence. In the event of any inconsistency or ambiguity between any of the Transaction Documents, the following shall be the order of precedence, when applicable:
- Intellectual Property Rights. We or our 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, technical data, engineering work product of any kind, source code, object code, confidential information and circuit layouts. It also applies to all concepts, copyrights, developments, discoveries, enhancements, improvements, innovations, inventions, techniques and other proprietary rights related to the product(s) or related to the installation or commissioning of the product(s). You shall own the intellectual property rights in the output from the product(s) or services, subject to our limited rights as Contractor, as indicated in section in 4.1 below.
- 3.1.If you commission our services in order to modify our product(s) in any way, you agree that we will own the full intellectual property rights in such modifications and modified products, and you agree to execute any necessary documents to assign said intellectual property rights to us upon our request.
- Confidentiality. All information from or in relation your or our business is Confidential Information. This includes any information of either 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, know-how, technical data, engineering work product, source code, object code, circuit layouts 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.
4.1. Only our personnel, officers, directors, contractors (or those of affiliates and contractors) whose review of your 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, actions to perform diagnostics, actions to correct defects in software or hardware that cause unexpected or unintended results, report writing, customization, integration, activity to further improve algorithms, perform benchmarking, and provide consulting services and/or related activities necessary to support the Client or to improve or modify the products and services of Contractor.
4.2. The obligation of confidence does not apply to Confidential Information that is:
(a) 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:
(i) discloses the minimum amount of Confidential Information required to satisfy any applicable law or rules; and
(ii) 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;
(b) in the public domain otherwise than as a result of a breach of this Contract or another obligation of confidence;
(c) independently developed by the recipient; or
(d) already known by the recipient independently of its interaction with the other party and free of any obligation of confidence.
- Applicable Law. Unless otherwise stated in the Transaction Document(s), this Contract and all related documents including all exhibits attached hereto and all matters arising out of or relating to this Contract, are governed by, and construed in accordance with, the laws of the State of Arizona, United States of America, 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.
- 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.
6.1. 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.
6.2. If a dispute is not resolved by good faith negotiations after the 30-day period, either Party may initiate mediation or arbitration procedures or file suit in a court of competent jurisdiction in accordance with Clause 5, Applicable Law.
6.3. 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.
6.4. 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 of competent jurisdiction.
6.5. If you dispute any portion of the amount claimed in an invoice submitted by us, you must pay the portion of the amount stated in the invoice which is not in dispute, and must notify us 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 you will pay the amount finally resolved together with interest on that amount at the rate of 1.5% per month.
- Amendment and Modification. Any amendments, modifications, dispute resolutions, or variations of the Contract, including these General Terms and Conditions and Transaction Documents, must be in writing and signed by both Parties in order to be valid and binding.
- Severability. If any provision of the Contract, including in the Transaction Documents, 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.
- 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.
- 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.
- 10.1. Affiliated and related entities of Hexagon Mining Inc. are intended third-party beneficiaries of these terms and may in their own right enforce such terms.
- Limitation of Liability. To the extent permitted by law, the Parties agree and understand that:
- 11.1. 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.
- 11.2. For all other damages, our aggregate liability under this Contract is limited to replacement, repair, or refund of the price paid, at our sole option.
- 11.3. Under no circumstance shall our liability to you exceed the aggregate amounts paid by you for the particular product or service in question during the past twelve month period.
- 11.4. Neither Party’s liability is limited by this Contract 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 the other Party to incur damages.
- 11.5. You are solely responsible for the accuracy, reliability, and sufficiency of all data and specifications provided to us. We shall have no liability in connection with any information provided by you, or for the omission of any information that should have been provided by you.
11.6.If you are purchasing products that collect Personally Identifiable Information (“PII”) or Sensitive Personal Information (“SPI”), you agree that you are completely and fully responsible for the security proper protection of such information in accordance with all applicable law. You understand and agree that you fully assume this risk and that you shall indemnify, defend and hold us harmless against any claim, complaint, law suit, judgment, ,damages assessment, settlements loss or cost or other action of any kind pertaining to the release or improper treatment or failure to keep secure any PII or SPI collected by you while using our products.
11.7.We shall not be held liable for, and you agree to indemnify us from, any and all damages resulting from you engaging a third party to provide services, training, or maintenance with regard to any of our products. If you engage a third party to service our combined software and/or hardware products, any applicable warranties for such will be null and void.
- Indemnification. We will indemnify you 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 our products (hardware and software) and services (“Infringement Claim”). You must immediately notify us of any Infringement Claim. You may not institute or defend proceedings in connection with an Infringement Claim unless you first obtain our written consent.
- 12.1. You must comply with all applicable laws and all instructions for use of our products or services. If any claim is made against the us by any third party arising out of your improper use of our products or services, you shall indemnify, defend and hold us and our officers, employees, affiliates and agents against all claims, costs, damages, expenses, and reasonable attorney fees.
- 12.2. You are solely responsible for your employees’ and contractors’ use of the product(s) and compliance with these terms and conditions. You will ensure such persons are aware of the responsibilities in this regard.
- 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 timely provided to you.
- Insurance. We will maintain in effect at all times the appropriate levels of insurance coverage, including if applicable, workers’ compensation, travel, comprehensive general, professional and commercial liability coverage.
- 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.
15.1. 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.
15.2. 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.
15.3. 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.
- 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 all applicable anti-corruption legislation.
- 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.
- Payment. These terms apply to all transactions. Please see your Transaction Documents for any specific or additional payment terms or instructions.
- 18.1. Taxes.
Unless otherwise specified in the Transaction Document(s), the amount due to us 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, you are 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 us under this Agreement.
- 18.2. Invoices 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.
- 18.3. Late Payments.
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.
- 18.1. Taxes.
- 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 firstname.lastname@example.org . 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).
- 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.
- 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.
- Qualifying Cause of Delay. The following circumstances shall extend any completion date target and provide us with the right to receive payment for the associated costs if applicable:
- 22.1. an act or omission by you,
- 22.2. a latent condition,
- 22.3. piracy, strikes, embargoes, industrial action or industrial conditions,
- 22.4. a suspension of work ordered by you
- 22.5. a change in the Law,
- 22.6. a Force Majeure event,
- 22.7. variations of scope, and
- 22.8. an event or circumstance beyond our reasonable control.
- Language. These General Terms and Conditions may be made available in other languages for your convenience. In case of dispute concerning Contract interpretation, the English language version shall be controlling.
- Additional Terms.
24.1 Subscription Terms.
If you are using our products on a subscription basis, the following additional terms and conditions apply:
- 1.)Minimum Term for Subscription Products
- Mining Operations Products and Mining Safety Products have a minimum subscription term of 3 years.
- Mine Planning products have a minimum subscription term of 1 year.
- 2.)Subscription Benefits.
Your subscription price includes the product price, warranty, and maintenance and support for the duration of the term of your subscription. However, any onsite services you require such as training, consulting services or other field services will be billed separately.
- 3.)Subscription Requirements.
3.1 Subscription payments must be paid annually prior to the commencement of the subscription term.
3.2 You may not cancel any subscription prior to the end of the subscription term.
3.3 You may add additional licensed users at any time during the term of your subscription; their term shall be prorated to match the term of your subscription.
3.4 You must be under an active subscription in order for all of the firmware and software to be functional. If you fail to extend your subscription at the end of its term, our products will not function upon the termination or expiration of your subscription term.
3.5 You must agree to allow us onto any and all sites utilizing products on a subscription basis for purposes of ensuring that you are not in breach of any of these General Terms and Conditions, and you understand and agree that if you are found to be in breach, we, in our sole discretion, may terminate our Contract.
3.6 Any offer by us to buy back or upgrade your products or offer you credits to be applied toward future spares needs is contingent upon your return to us of any units being replaced or upgraded.
4.) Renewal Considerations.
4.1 In order to be granted subscription renewals, your account with us must be current.
4.2 Upon the expiration of your subscription term, you will have the opportunity to cancel your subscription, extend your
Subscription or upgrade your products.
24.2 Software Purchases.
If you are purchasing use or subscription rights to our software, or products containing any software, our End User License Agreement (“EULA”) comprises part of your Transaction Documents and is binding upon you. Your use of our software is conditioned upon your acceptance of our EULA. If you do not agree to the terms of our EULA, located at www.hexagonmining.com/terms-and-conditions then DO NOT INSTALL THE SOFTWARE and return it to us in accordance with the instructions in the EULA.
We highly recommend and in many instances require that you purchase software maintenance coverage for your software products. Software Maintenance coverage addresses bug fixes, new versions, and remote troubleshooting and should be purchased at the same time software is licensed to avoid any gaps in coverage. If your order does not include maintenance coverage, please ensure that it is added to your purchase for full software protection.
24.3 Services Purchases.
If you are purchasing services related to our products such as training, consulting services, commissioning and installation services, the following additional terms and conditions apply:
- 1.)General Conditions Applicable to Services Purchases.
- Your annual maintenance payments must be received before your expiration date to avoid application of late fees.
- Benefits provided to you as part of a Support Package (as described more fully below) are available only if you are current on annual maintenance payments for all Hexagon products at your location.
- You will be responsible for all direct travel and lodging expenses associated with any services project. All travel expenses including without limitation flights, travel time, accommodations, meals and rental vehicles will be billed to you at cost plus 10% of such cost. All travel expenses will be billed to you unless you and we agree otherwise in writing.
- Our intellectual property, including without limitation our ideas, inventions, know-how, discoveries, improvements, techniques, technical data, drawings, trade secrets and engineering work product of any kind remains our sole property, even if any such intellectual property was developed or discovered during our work for you. The data generated by you from utilizing our products is solely your intellectual property.
- 2.) Hardware Services.
2.1 Any modification to our machines or other onsite equipment we own must be performed by authorized onsite personnel. Such modifications may include, without limitation, mounting brackets, drilling holes for cables, or providing power to system. Our field support personnel may provide assistance regarding such modifications at our current list labor rate.
2.2 We will supply prefabricated brackets where practical. You will be responsible for providing the metal required to fabricate custom brackets at your sole expense.
2.3 Any part of the project that requires boilermaker or electrician labor must be supplied by you at your sole cost.
2.4 All lifting equipment required to complete or support the installation and commissioning of this proposal must be supplied by you at your sole expense, including without limitation, crane and EWP equipment suitable for the task and equipment authorized operators and riggers where required.
2.5 All high precision systems will require a qualified surveyor to measure fixed positions for accuracy tests during commissioning. Any required surveying work must be supplied by you at your sole expense.
- 3.)Communications Requirements.
3.1 Our operating systems requires an IP based network in order to communicate effectively.
3.2 To ensure adequate radio coverage for the mine and accurate pricing for such coverage, a formal site survey must be performed before binding pricing can be provided to you for radio coverage. Any radio coverage pricing provided to you are therefore our estimations only, and are based on information available at the time.
3.3 Our operating systems are supplied with a communications device capable of operating on a standard IP based network.
- 4.)Office System Requirements
4.1 You must provide us with remote access capability.
4.2 Your 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 our ongoing support.
4.3 Your server must have email account to enable our remote support, along with SMTP for sending mail via a standard port (25). You must allow us any necessary relaying, and provide us with your server name and email address. You must also provide IMAP for receiving mail via a standard port (143).
4.4 We must have local administrator rights on the server in order for us to provide remote support.
The server will be set up by us in cooperation with your IT representatives.
4.5 The server must be a dedicated server for the Leica and Jigsaw DB applications only. This is to avoid application and real-time database conflicts. Servers and IT infrastructure are not provided in our Proposals.
4.6 If you are purchasing Jview, you must acquire at your own cost an SQL Server 2008 Software License. We do not provide this license to you as part of our services.
4.7 You are responsible for providing all IT infrastructure such as servers, laptops, desktops, switches, etc.
- 5.)Installation and Commissioning
5.1 We will organize our employee labor and/or contract labor as required. All laborers will adhere to your workplace health and safety policies.
5.2 We will provide our personnel and our contract labor with generic inductions and medical examinations. If you require further inductions or medical information, all costs of obtaining and communicating anything additional will be charged back to you, and inductions beyond the generic will be charged on a daily list price rate per person.
5.3 If the scope of the project changes after we have provided you with our Proposal, installation and commissioning pricing will be revised accordingly.
5.4 If access to the site and equipment is delayed through no fault of ours, and such delay gives rise to any additional cost whatsoever, you will be solely responsible for paying such costs Our labor costs for any time delays incurred are $165 per person hour, which shall be charged above and beyond the quoted installation price.
5.5 You must provide us with a workshop or other roofed area for executing your installation. Where this is not made available to us, or other conditions are present that impair or prevent altogether our installation progress, the time lost will be charged to you as “wait time”. The project schedule will be adjusted accordingly where wait times have occurred. System start-up and calibration shall be performed by us in conjunction with your operators and maintenance personnel.
5.6 Training of operators, maintenance and office staff is a required and material aspect of the installation and commissioning process. We shall provide pricing for standard training packages upon request.
5.7 The levels of custom engineering and/or software development required is based upon the initial description of the scope only. Additional formal discussions are required to finalize a mutually agreed scope of work.
5.8 We shall supply you with standard interconnection diagrams.
5.9 You must make available reasonable technical and wiring diagrams for the mobile equipment (eg. antennas or other types of communication equipment connecting to our FMS to the servers and other communications). Your failure to provide this information could lead to additional wait time and cost, which will be charged to you at the daily list price per person.
5.10 Where parts or equipment are deemed Confined Space, you are required to procure a suitably trained and authorized person, or you will be responsible for the costs to train and authorize our installer. This may exclude some dragline install work where we may supply a confined space trained installer.
5.11 Materials and tools required for installation work will be transported by your preferred courier company at your sole expense.
5.12 You must make available to us all OEM protocols that we will interface to, including obtaining agreement from the OEM for their use where required. We shall not be held responsible either financially or for delays where such protocols are not made available.
- 6.)Taxes You are responsible for amounts equal to any taxes and/or duties, whether federal, state or local, however designated, that may be validly levied or assessed based upon our proposal. Taxes payable by you shall be billed as a separate item on you invoice. Taxes are not included in the pricing provided in your Proposal.
24.4 Hardware and Operations Products Purchases.
If you are purchasing hardware and mining operations products, the following additional terms and conditions apply:
- 1.)WARNING AND CAUTION REGARDING PERSONAL INJURY: 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 intended to support, AND DO NOT REPLACE, an alert and conscientious driver, operator, or other qualified personnel. No product or device can detect all threats within the detection window. Our 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 and in all situations. The vehicle operators remain fully responsible for operating the vehicle and ensuring the safety of the passengers, pedestrians and other traffic. 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 familiarize yourself thoroughly with the product’s operation and limitations. Failure to comply with these instructions could result in serious death or injury, given the inherent danger of a mining operation.
- 2.)Responsible Use. You are responsible for following our guidance regarding system requirements, proper installation and use. You must not decompile, disassemble, reverse engineer, reverse assemble, reverse compile or otherwise manipulate the whole or any part of the hardware, or directly or indirectly allow or cause a third party to do so.
- 3.)Warranty. We warrant to the original end user that the hardware product(s) we manufacture will substantially conform to published specifications and will be free from material defects in workmanship and materials, under normal use only, for 90 days from the date such product(s) leave our premises Ex Works. To obtain warranty service, contact the authorized representative designated in your Transaction Documents. It is very important to contact us immediately after the discovery of a possible defect. In the event that you fail to notify us of a possible defect within 14 days after discovery, and you continue to use the affected product, our warranty is no longer valid.
This warranty does not cover normal wear and tear or consumables such as, without limitation, cables, reflectors, antennas, bulbs, fuses, batteries, or third party products. This warranty also does not apply to defects which are caused by inappropriate use, faulty maintenance, incorrect installation, faulty repair by you, alterations carried out by you without our written consent, or to any product that has not been stored, installed or used within the specifications recommended by us, or damage or malfunctions resulting from the use of the hardware products in conjunction with ancillary or peripheral equipment when we determine that there is no fault with the hardware products. This warranty is exclusive and is in lieu of all other warranties, terms and conditions, express or implied, either in fact or by operation of law, including warranties of fitness for a particular purpose, merchantability, any warranties arising by usage of trade, course of dealing or course of performance, or any warranty that the software is compatible with any particular hardware or software, all of which are expressly disclaimed. If applicable law mandates a different warranty, the warranty will be limited to the greatest extent permitted by applicable law.
Within the warranty period, if the product is proven to be defective, then we shall repair or replace the goods in our sole discretion, free of charge. The defective goods shall be returned to our designated premises at your expense. We shall at our expense arrange for any dismantling and reassembly of equipment other than our products, to the extent that it is necessary to remedy the defect.
Our warranty for 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 set forth herein. Our warranty for System Software expressly does NOT apply to Application Software, defined as pre-installed or loadable on-board software and/or office or PC-based software for particular operations of the products and/or data.
- 4.)Risk of Loss and Title. Unless otherwise provided in the Transaction Documents, risk of loss regarding hardware products will pass to you upon shipment if we are shipping products to you, or upon pick up at our offices. You are responsible for providing and maintaining insurance against loss for the full replacement value of the products.
- If picking up, you will be responsible for the transport of the products from our premises to your site, and for unpacking and unloading the products. If picking up, you will prepare and load products in accordance with industry practice for transportation at our premises so as to reasonably minimize the risk of loss or damage to the products during transit.
- Unless otherwise provided by applicable law, title to the products will pass when you have paid for them in full. You hereby grant, and we retain a security interest in the products until payment in full has been received by us. Title to any software provided with the hardware products remains with us or with the manufacturer of the relevant software, as applicable.
- 5.) Manuals. We shall supply or make available to you all applicable operating manuals and safe working procedure manuals for the hardware products.
- 6.)Aging Hardware. We reserve 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 our prior evaluation regarding the provision of maintenance. If we refuse to provide maintenance, we will suggest a replacement item suitable to your needs, with pricing based on our most recent price list.
- 7.)Cancellation. If you cancel a product or hardware order at any point in the purchase and installation process, your cancellation shall only be effective upon your payment to us for all materials procured and services rendered in reliance on the order prior to its cancellation.
- 8.)Storage. We will not, at any time, or under any circumstances, be held accountable for guarding, storing or keeping any piece of hardware safe from harm and/or environmental conditions at your facilities. Such responsibility shall be your sole responsibility.
- 9.)Communications Requirements (if applicable). We may require an IP based network in order to communicate. We supply no telemetry or communications infrastructure. We will arrive on site supplied with a communications device capable of operating on a standard IP based network.
- 10.)Office System Requirements (if applicable). Your server must have unimpeded permanent VPN and email access (or other agreed remote access). A fast VPN connection is vital for remote set up, and will greatly facilitate ongoing support. Also, an email account is required on your server for remote support. SMTP for sending mail shall be via a standard port (25). Any necessary relaying should be allowed. You will be responsible for supplying us with a server name and email address. You shall provide us with IMAP for receiving mail via a standard port (143), and you must provide us with the logon name and password as well. We must have local administrator rights on your server, and it must be dedicated for our applications only to avoid application and real-time database conflicts. We will set up your server in cooperation with your IT representatives. We provide no additional IT infrastructure such as laptops, desktops and the like.
- 11.)Installation and Commissioning (if applicable). Our personnel have undergone generic inductions and medical examinations. If you require specific further induction and medical examinations, these costs will be charged back to you, including the time spent on such matters.
Our installation and commissioning pricing, where quoted in a proposal, may be revised if the scope of the project changes after the initial Proposal. Our installation and commissioning pricing may also be revised if access to the project is delayed through no fault of ours. Time delays for access to equipment will be charged to you at an additional cost.
System start up and calibration will be performed by our personnel in conjunction with your operators and maintenance personnel. You must make available reasonable technical and wiring diagrams for the mobile equipment. If this is not timely made available, you will be billed and you accept to pay extra costs associated with the delay. You must make available all OEM protocols that we will interface with, including agreements from the original manufacturer for their use. We will not be liable for any way for losses, liabilities, or penalties where the protocols were not made available to us.
- 12.)Miscellaneous (if applicable).
- Partial shipments of orders are only completed on your specific request, and are conditioned upon your agreement to pay the Invoice for the completed portion of the order on our standard General Terms and Conditions.
- Any of our high precision systems will require a qualified surveyor to measure fixed positions for accuracy tests during the commissioning process. You will be responsible for retaining the surveyor at your cost if such services are necessary.
- Any modification to machines or other onsite equipment must be performed by authorized, onsite personnel. This may include, without limitation, mounting brackets, drilling holes for cables, providing power for the system, etc. Our field engineers may, in limited circumstances, be able to provide assistance if requested by you. Any such work is performed at your risk, and you agree that we shall not be held liable for any damage or losses related to such work.
- You are responsible for supplying all lifting equipment required to complete or support the installation and commissioning, including without limitation, crane and suitable EWP equipment, along with authorized operators and riggers where required.
SOFTWARE End User License Agreement (EULA)
- Application. This EULA applies to all Hexagon Mining application software products and products containing software. Additional terms and conditions regarding specific types of licenses (including cloud-based licenses, regional and global licenses, etc.) may also be applicable and would be further detailed in your Transaction Documents. You agree to use the software according to the terms and conditions contained herein.
- 2.1.This is a License agreement regarding your permission to USE our software, or a subscription for such use for a limited duration and NOT an agreement for the sale of our software rights.
- 2.2.The terms contained herein apply to all Hexagon Mining application software and related materials, which includes the media on which you received it, if any, as well as to any related software such as updates, patches, and related materials.
- 2.3.“License” means the rights you receive 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 EULA and related Transaction Documents you have received.
- 2.4.Licensee Obligations. This EULA places upon you certain obligations to protect the software and related materials from unauthorized use, reproduction, distribution or publication (“Infringement”). You must promptly notify us if you become aware of any infringement of our intellectual property rights in the software.
- 2.4.1.You affirm that your firm 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 you. If requested by us, you will issue a notice in a form approved by us 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.
- 2.5.When doing business with any entity regarding Hexagon Mining software, it is your responsibility to ensure that such entity is appropriately affiliated with us 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.
- 2.6.You agree to notify us immediately of any known or suspected breach of security or unauthorized use of the software.
- 2.7.Any rights not specifically granted in this EULA are reserved to us as Licensor.
- Acceptance. By installing and/or using a Hexagon Mining software product, you are agreeing that you have read and accept all the terms of the Contract, including this End User License Agreement, the General Terms and Conditions, and the other applicable Transaction Document(s). If you do not agree to this term, do not install or use Hexagon Mining software.
- Authorization. Upon your employees’ installation of our software, your employee is certifying that he/she is an authorized user hereunder. You are required to ensure that no employees install or use our software whom you did not intend (and pay applicable rate) to be an authorized user.
- License Grant Subscription and non-subscription. Upon payment of applicable license fees, and subject to the terms of this EULA and the Transaction Documents, we grant to you solely for your internal business operations, a limited, non-exclusive, non-sublicensable, non-transferable (except with written permission), revocable (in accordance with the termination provisions) License to: (a) use the software during the subscription term, subject to the applicable license type restrictions (as specified herein and/or on an Order Form); or (b) install and operate the software, commencing on the date of delivery to you. For purposes of clarity, with respect to MiiNT and any applications being licensed from the MiPlan product line and any other software being procured on a subscription basis, the license is granted for the limited term of the duration of the initial Active Customer Care Term set forth in the applicable Transaction documents, and is subject to certain additional terms and conditions as indicated herein.
- License Conditions. The licensed software may only be used pursuant to this EULA:
- 6.1.You agree to follow industry standards to protect the software and related materials from unauthorized use, misuse, reproduction, distribution or publication. Your 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, you may be responsible for replacement costs, penalties, and other fees solely at our discretion.
- 6.2.You may only install the software as outlined in this EULA and the Transaction Documents.
- 6.3.You may install the software on a central server, solely for the purpose of maintaining copies of the software programs in a central location.
- 6.4. 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, except as set forth herein. 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. However, with respect to the reporting module in MiiNT from the MiPlan product line, we grant to you a limited non-exclusive, non-sublicensable, non-transferrable, multi-user, concurrent connection license to use the Software comprising the MiiNT Reporting Module for the amount of licenses specified within the schedule of the contract.
- 6.5.You may transfer the software and related documentation between your sites only with prior written consent from us and payment of applicable transfer fees.
- 6.6.Unless otherwise provided in the Transaction Documents, transfer between time zones is prohibited. By installing the software, you agree to submit to the us, upon request, if applicable, a copy of the user log for any License. If a License has been used in violation of this EULA, you will be responsible for all fees that would have been incurred by obtaining a new License for the separate time zone or use, and we may terminate your Contract at our sole discretion.
- 6.7.Some or all of the software may be licensed to you on a trial basis. Your 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.
- 6.8.You must follow our recommendations regarding technical specifications, system requirements, proper installation, proper use, and other user guidelines provided by us, available upon request.
- 6.9.You 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 our software.
- 6.10. The Documentation received from us is licensed to you for the duration of the License. You may only 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 us. You must ensure that the copies are clearly marked with a notice stipulating that the Documentation belongs to us and must not be reproduced.
- 6.11. You agree to notify us of any problems with the software and ideas for enhancements to the software, which come to your attention during the period of this EULA, and you hereby assign to the us 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.
- 6.12. As part of our continuous and ongoing effort to enhance the utility and accuracy of its applications, we collect anonymous usage statistics from all of our customers. By utilizing the software and consenting to this EULA, you consent to allow the collection of anonymous usage statistics. If you do NOT consent to such statistics collection, you must configure the application accordingly in order to opt out of the collection of statistics.
- Third Party Components. The software may coordinate with and/or contain, with permission, third party components. From time to time the we will alert you to update software you may be using in conjunction with the software in order to facilitate compatibility. You shall be responsible for third party software version updates when specified.
- 7.1.This EULA is between you and us. You agree, however, that the rights, restrictions and protections that apply to the software also apply to any third-party components embedded within the software.
- 7.2.The owners of third party components are beneficiaries of this EULA with the right to enforce its restrictions and protections.
- Restrictions and Protections. We own all right, title and interest in and to the software and any derivative works thereof, and no other license to the software is granted to you by implication, estoppel or otherwise.
- 8.1.You are not allowed to modify, translate, reverse engineer, decompile, disassemble, make any attempt to discover the source or object 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), you are not allowed to invoke such interfaces, or use such interfaces as a development tool.
- 8.2.You 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.
- 8.3.The various components of the software are licensed as a single unit. You may NOT separate the components and install them on different devices.
- 8.4.You may 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 EULA without our prior written consent. You agree that you will not disclose to another party any Trade Secrets or Proprietary Information of ours, including Confidential Information related to the software or related products as defined in the General Terms and Conditions as part of the Transaction Documents. For purposes of this EULA, Confidential Information also includes pricing, terms set out in any of the Transaction Documents, and any other information related to the software or to us that is not generally known in the mining industry.
- 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.
- 9.1.We may immediately terminate the Contract if you breach any terms contained herein. Should termination occur due to breach, the license is revoked; you shall cease use of the software and related materials, return the software to the us, and destroy or return all copies of the software and related materials that you may possess. The items to be returned include, but are not limited to, all Confidential Information as defined in our General Terms and Conditions, 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, you shall certify to us in writing that you have returned all items furnished to you under the Contract.
- 9.2.Licenses are not refundable.
- Warranty. We warrant that we have the legal right to enter into the Contract and to license the software to you free and clear of any lien, claim, or encumbrance.
- 10.1. We warrant 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.
- 10.2. 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.
- 10.3. 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.
- 10.4. We do not warrant that your use of the software will be error free or free from interruption or failure. You hereby acknowledge 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 our control. We expressly disclaim any express or implied warranties other than those specifically contained in the Contract or mandated by applicable law.
- 10.5. Your sole and exclusive remedy for breach of warranty is repair or replacement of the warranted software at our sole discretion.
- User Data. You are solely responsible for the accuracy and use of user data and the selection and use of the application.
- Upgrades. To be eligible for upgrades to software licenses, you must be current with Annual Support/Active Customer Care services.
- Non-Acceptance. If you do not intend to accept the software under the terms of this EULA, then do not install it. Return everything received from us within 10 days of receipt for a refund. In such case, you shall bear any costs related to returning the license and its associated accessories, documentation, media, etc. to us.
- Performance Guarantee. We do not and will not guarantee any financial results which may be expected by you in regards to the software herein licensed. Additionally, we will not accept any Key Performance Indicators (“KPIs”) assessed by you.