Conversemos
TIMining
Conversemos

Terms and Conditions

SOFTWARE END USER LICENSE AGREEMENT (EULA)

This Software End User License Agreement (hereinafter, the “Agreement”) is entered into by and between TECNOLOGÍA E INNOVACIÓN EN MINERÍA SPA, Chilean Tax Identification No. 76.144.006-3, with its principal place of business at Av. Ricardo Lyon 222, Office 1304, Providencia, Santiago, Chile (hereinafter, “TIMINING”), and the company that has validly accepted, online or by any other legally valid means, the terms and conditions of this Agreement (hereinafter, the “Customer”).

TIMINING and the Customer may each be referred to individually as a “Party” and collectively as the “Parties.”

1. DEFINITIONS

The capitalized terms described below shall have the following meanings in this Agreement:

“UPDATE” means any minor version of the SOFTWARE released after the initial delivery and installation of the SOFTWARE, including corrections, enhancements and/or updates made by TIMINING.

“DOCUMENTATION” means the standard technical and end-user documentation that TIMINING ordinarily makes available in Spanish or English with the SOFTWARE, including any modifications and revisions made by TIMINING. The DOCUMENTATION may be delivered in any format, including digital media.

“AGREEMENT EXECUTION DATE” means the date on which the Customer has accepted TIMINING’s commercial proposal and has issued a Purchase Order, Service Order, or similar document, which in turn has been accepted by TIMINING, or such other date as the Parties may agree upon in writing following the delivery and acceptance of TIMINING’s commercial proposal.

“PROPRIETARY INFORMATION” means the SOFTWARE and the DOCUMENTATION, as well as any other information in which TIMINING holds proprietary rights.

“NEW VERSION” means any major software release that incorporates new capabilities, features or functions and is classified as an enhancement or upgrade. A NEW VERSION shall not constitute an UPDATE, and an UPDATE shall not constitute a NEW VERSION.

“SOFTWARE” means any TIMINING application software in executable form, including the DOCUMENTATION, UPDATES, and any copy or portion of the SOFTWARE. The SOFTWARE shall not include NEW VERSIONS that TIMINING licenses separately from the SOFTWARE, unless otherwise agreed in writing by the Parties. The SOFTWARE may include third-party software whose owners have granted TIMINING the right to include such software as part of the SOFTWARE.

“Support” means the provision of assistance by email and/or telephone hotline, together with the investigation and resolution of reported issues, as further described in the section entitled “Maintenance and Support” of this Agreement.

“END USER” means the Customer that has acquired one or more licenses to use TIMINING SOFTWARE for its own internal use through its employees.

2. LICENSE TO USE

2.1 License

Under this Agreement, TIMINING grants the Customer a non-exclusive, non-transferable and limited license to install, access and use the executable form of the SOFTWARE. Such use shall be restricted through a USB hardware key or software license key that shall remain in the Customer’s possession and enable operation of the SOFTWARE (node-based license), and solely for installation at the facilities of the company where it is to operate.

Accordingly, use of the SOFTWARE shall be limited to a single mining site or infrastructure facility (site-based license). The Customer shall inform TIMINING of the assigned site at which the license will be used. The license may only be transferred if it has been continuously operating at such site for more than six (6) months, and the Customer shall notify TIMINING at least thirty (30) days in advance of any such relocation.

The SOFTWARE shall include all UPDATES and NEW VERSIONS that TIMINING offers for the applicable SOFTWARE, as well as the remote installation service for the SOFTWARE on the designated computer or server. New modules or complementary applications additional to the original version of the SOFTWARE are not included.

2.2 Delivery and Installation of the SOFTWARE

Once TIMINING accepts a Purchase Order for SOFTWARE, delivery shall be deemed to occur when TIMINING makes the SOFTWARE available to the Customer by remotely installing it on the servers and/or computers designated by the Customer.

If, for any reason, the SOFTWARE must be reinstalled on a computer or server, such reinstallation shall be performed by TIMINING and the applicable installation charges shall apply. The Customer is prohibited from performing such reinstallation on its own.

2.3 SOFTWARE Activation

For activation of the SOFTWARE and to enable use of the license and SOFTWARE on the computer and/or server designated by the Customer, TIMINING shall provide a physical or software-based activation device for each SOFTWARE license acquired. Such activation shall remain valid for the same term as the applicable license.

Upon expiration of the license without renewal, the SOFTWARE shall be deactivated, disabled and blocked, and the END USER shall no longer be able to continue using it. The END USER shall be responsible for any loss of data or information existing as of such date.

2.4 License Security

TIMINING reserves the right to incorporate a security mechanism into the SOFTWARE in order to track use of the SOFTWARE and verify its operation. Such mechanism may store data relating to use of the SOFTWARE and the number of times it has been copied, and the Customer hereby authorizes TIMINING to receive such information remotely.

The Customer shall also permit TIMINING or its authorized agents to access the Customer’s facilities, terminals and servers and shall fully cooperate with TIMINING in any review conducted for the purpose of verifying compliance with the agreed licensing conditions. The Customer shall take all commercially reasonable measures to assist TIMINING in determining in detail whether the terms and conditions of this Agreement are being complied with.

2.5 Ownership / Proprietary Rights

The Customer acknowledges and agrees that TIMINING or its licensors own and retain all right, title and interest in and to the SOFTWARE, including, without limitation, all copyrights and proprietary rights.

The intellectual property rights inherent in the SOFTWARE shall remain vested in TIMINING or in third parties from whom TIMINING has obtained the right to license the SOFTWARE.

Accordingly, the license granted under this Agreement does not constitute a purchase of the programs or of any title or copyright therein. The Customer shall acquire no rights or interests other than those expressly granted under this Agreement or arising from the nature of the SOFTWARE itself.

2.6 License Restrictions / Prohibitions

The Customer agrees that it shall not use, reproduce, distribute, lend, assign, publish or transfer, whether for consideration or otherwise, the SOFTWARE in any manner or for any purpose except as expressly permitted under this Agreement or as authorized in writing by TIMINING.

The Customer further agrees not to actively market the SOFTWARE and not to distribute or sublicense the SOFTWARE.

The Customer shall not remove or modify any proprietary notices of TIMINING or its licensors contained in the SOFTWARE or its DOCUMENTATION.

3. LICENSE TERM

3.1 Term

The license to use the SOFTWARE shall remain in effect for one (1) year from the Agreement Execution Date, unless the Parties have established a later date in the commercial proposal or otherwise agreed in writing.

If the Customer wishes to renew the license, it shall communicate its decision in writing by issuing a Purchase Order no later than ten (10) business days prior to expiration of the applicable term, in order to ensure continuity of the license and avoid the consequences of its expiration. Otherwise, the Customer shall be deemed to have elected not to renew the license.

The fact that the SOFTWARE may, for any reason, remain usable after expiration of the applicable license term shall not be construed as a renewal thereof or as a waiver of any rights by TIMINING.

3.2 Effects of License Termination

Upon termination of the SOFTWARE license, whether due to expiration of its term or any other ground for termination established in this Agreement, the Customer shall cease using the SOFTWARE, uninstall it, and return or destroy all DOCUMENTATION relating thereto, including the return of any physical license keys.

At TIMINING’s request, the Customer shall provide written confirmation of such destruction or disabling.

4. LICENSE FEES

4.1 License Fee

The Customer agrees to pay TIMINING the license fee within the time periods and subject to the terms set forth by TIMINING in its commercial proposal for each SOFTWARE product contracted by the Customer. Such commercial proposal shall be deemed incorporated into and form an integral part of this Agreement for all legal purposes.

License renewal fees shall be those stipulated in TIMINING’s commercial proposal. If no renewal fees are specified, TIMINING shall be entitled to establish and modify the annual license fees, provided that the Customer is informed thereof sufficiently in advance of the expiration of the applicable license term.

During the first billing year for each license, the Customer shall also pay a one-time fee for installation services, as detailed in the applicable commercial proposal. Additional amounts corresponding to expenses may also be included.

4.2 Other TIMINING Services

At the Customer’s request, TIMINING may provide services in addition to those established in this Agreement. In such event, the Parties shall agree upon the scope of such additional services and the corresponding fees.

4.3 Invoicing, Payment and Default

The Customer agrees to pay the fees for the licenses in accordance with the conditions set forth above.

TIMINING shall issue the applicable invoice upon receipt of a Purchase Order reflecting the commercial terms of the commercial proposal provided by TIMINING to the Customer, and the Customer shall pay the invoiced services within the period specified therein.

Subject to TIMINING’s prior written agreement, the Customer may make payments through its related companies or subsidiaries. In such event, the Customer represents that the funds used to make such payments are derived from lawful sources and comply with the provisions of Chilean Law No. 20,393.

Without prejudice to any other rights available to TIMINING, failure to pay any amount in full and on time beyond its due date in accordance with the stipulated terms and conditions shall entitle TIMINING to:

(i) charge the maximum conventional monthly interest rate permitted by applicable law on all unpaid balances for the entire period between the date on which the obligation became due and the date of actual payment; and/or

(ii) suspend, without further formality, in whole or in part, the license and any other services applicable under this Agreement.

4.4 Taxes

The SOFTWARE license fees do not include taxes, such as Value Added Tax (VAT) or any similar sales tax, local taxes, import or customs duties, or surcharges, all of which shall be paid additionally by the Customer so that TIMINING receives the full amount invoiced.

If any withholding tax applies to amounts owed to TIMINING, the amounts payable to TIMINING shall be increased so that the net amount received by TIMINING after such withholding equals the amount TIMINING would have received had no such withholding tax applied.

5. MAINTENANCE AND SUPPORT

5.1 Maintenance and Support

For each SOFTWARE license subscribed to by the Customer, TIMINING shall be responsible for its installation and subsequent Maintenance and Support throughout the term of the license.

TIMINING may provide the applicable Support Levels directly or through third parties identified to the Customer for such purpose, during TIMINING’s business hours.

The scope of Maintenance and Support shall be as follows:

TIMINING’s Support service is intended to address questions regarding the usability and functionality of the SOFTWARE, user management and related matters. The service includes:

  • Support regarding questions concerning application operation and license use.
  • Support for system configuration and administration.
  • Assistance in restoring the system following external events such as electrical outages, network interruptions and similar events.
  • Availability from 9:00 a.m. to 6:00 p.m., Chile continental time, Monday through Friday (8×5), with no restriction on the number of support inquiries per year.
  • Support is provided remotely, whereby a support engineer assists the user through remote means, including telephone, VPN, videoconference or any other means enabling remote communication.

5.2 Support Levels

LEVEL 1: Refers to requests or needs of the Customer and/or SOFTWARE user who has an active Support agreement with TIMINING. This category includes requests relating to:

  • Management of user accounts associated with the SOFTWARE.
  • Management of licenses, UPDATES and keys used to operate the SOFTWARE.
  • System configuration.
  • System recovery following unexpected shutdowns.
  • Basic management of data associated with the SOFTWARE.
  • Installation or reinstallation processes.
  • Connectivity monitoring in client-server environments, where applicable.

LEVEL 2: Refers to requests or needs of the Customer and/or SOFTWARE user who has an active Support agreement with TIMINING. This category includes requests relating to:

  • SOFTWARE usability and interfaces.
  • Questions regarding methods, formulas or calculations used by the SOFTWARE.

LEVEL 3: Refers to requests or needs of the Customer and/or SOFTWARE user who has an active Support agreement with TIMINING. This category includes requests relating to:

  • Notification of SOFTWARE errors (bugs).
  • Suggestions for SOFTWARE improvements or new functionality.

5.3 TIMINING Personnel

TIMINING shall provide qualified personnel for the installation, maintenance and support of the SOFTWARE.

5.4 Extraordinary Circumstances Requiring Maintenance and Support

It is expressly agreed that TIMINING shall provide assistance to the Customer and its users, without any obligation to achieve a specific result and without liability, and such assistance may be subject to additional charges beyond the license fee paid by the Customer, in the following circumstances:

  • Problems caused by viruses.
  • Damage caused by accidents, natural disasters, fire, water, acts of war or terrorism, improper use of the product, or intervention by unauthorized persons.
  • Services required as a result of hardware modifications, including server migrations, server configuration changes and similar modifications.
  • Services required as a result of hardware malfunction or failure.
  • Errors or malfunctions attributable to the END USER.
  • Recovery of data lost due to acts or omissions attributable to the END USER.
  • Maintenance and support of third-party systems, including operating systems and database management systems.
  • Services required as a result of errors or malfunctions of third-party systems, including the loading of incorrect data from third-party systems.

5.5 SOFTWARE Monitoring

The Customer acknowledges and agrees that TIMINING SOFTWARE incorporates a mechanism for collecting information concerning operation of the SOFTWARE solely for purposes of monitoring its use, frequency and behavior, measuring its performance, and making improvements thereto.

The data obtained is transmitted to TIMINING for such purposes and shall under no circumstances include the Customer’s proprietary information; rather, it shall be limited to functionality-related data (e.g., whether the SOFTWARE is turned on or off).

Notwithstanding the foregoing, TIMINING shall at all times maintain due confidentiality with respect to information to which it may gain access in connection with maintenance and support. Section 9 of this Agreement and all other applicable legal provisions shall apply.

6. PROTECTION OF PROPRIETARY INFORMATION AND INTELLECTUAL PROPERTY

6.1

The Customer shall maintain the confidentiality of and protect the PROPRIETARY INFORMATION against disclosure to third parties, shall use the PROPRIETARY INFORMATION solely for purposes of performing this Agreement, and shall maintain the PROPRIETARY INFORMATION in strict confidence both during and after the term of this Agreement.

The Customer acknowledges that unauthorized disclosure of PROPRIETARY INFORMATION may cause substantial financial loss to TIMINING.

6.2

The Customer shall not modify or alter the SOFTWARE. The Customer acknowledges that all modifications, alterations, additions or translations of the SOFTWARE that TIMINING may make shall be the sole and exclusive property of TIMINING.

6.3

The Customer shall not attempt to reverse compile or disassemble the object-code versions of the SOFTWARE, nor shall it decompile, reverse engineer, disassemble, modify, attempt to derive, or otherwise attempt to discover the source code of the SOFTWARE, the underlying ideas, underlying user-interface techniques, algorithms or data structures thereof, nor shall it prepare derivative works based on the SOFTWARE.

The Customer agrees that it shall not use, reproduce, copy, distribute or transfer, whether for consideration or otherwise, the SOFTWARE except as expressly permitted under this Agreement.

6.4

The Customer shall inform its employees and subcontractors of their obligations under this Section in order to ensure compliance therewith.

The Customer shall take all reasonable and necessary measures to enforce confidentiality agreements applicable to its employees and subcontractors in the event of any breach thereof.

The Customer further agrees that TIMINING shall be an express third-party beneficiary of such agreements, with full right and authority to enforce their provisions in the event of a breach.

6.5

Upon termination of this Agreement, the Customer shall, at TIMINING’s discretion, destroy the PROPRIETARY INFORMATION in its possession, including, without limitation, the SOFTWARE, and certify such destruction in writing, or return such PROPRIETARY INFORMATION to TIMINING.

At TIMINING’s request, the Customer shall provide written verification of such destruction or disabling.

6.6

TIMINING shall be entitled to recover from the Customer all costs, expenses and attorneys’ fees incurred in enforcing its rights under this Section.

The Parties agree that any breach of this Section may cause irreparable harm to TIMINING for which monetary damages would be inadequate or difficult to ascertain. Accordingly, TIMINING shall be entitled to seek injunctive or other interim or precautionary relief in the event of such breach.

7. LIMITATION OF LIABILITY

7.1

TIMINING’s total liability for any claim or damages arising out of or relating to this Agreement or the SOFTWARE, regardless of the form of action, whether in contract, tort or otherwise, shall be subject to the limitation set forth in the following subsection.

In no event shall either Party be liable for any incidental, indirect, special, consequential or punitive damages, including, without limitation, damages for loss of profits, lost revenue, loss of data or loss of use incurred by the other Party or any third party, even if such Party knew, should have known, or had been advised of the possibility of such damages.

TIMINING shall likewise have no liability for personal injury or damage suffered by third parties arising from use of the SOFTWARE. The Customer acknowledges that use of the SOFTWARE and the data used to generate its results are entirely and exclusively the responsibility of the Customer.

Any claim against TIMINING must be submitted in writing within four (4) months following the date of the event alleged to have given rise to liability, after which the corresponding right and cause of action shall be deemed extinguished, expired or otherwise barred.

7.2

The Parties agree that TIMINING’s aggregate liability to the Customer and third parties under any contractual or non-contractual theory, including Maintenance and Support, shall be limited to the total amount of the SOFTWARE license fees paid by the Customer during a one (1)-year period.

8. INDEMNIFICATION

8.1 Intellectual Property Indemnification

TIMINING shall indemnify and defend, at its own expense, any action brought against the Customer to the extent based on a claim that any SOFTWARE provided under this Agreement infringes any patent, copyright, trade secret or other intellectual property right.

TIMINING shall bear all costs and damages awarded against the Customer by a court of competent jurisdiction, provided that TIMINING is promptly notified in writing of such claim and is provided with information, reasonable assistance and exclusive authority to defend or negotiate settlement of the claim.

TIMINING shall not enter into any settlement admitting liability or assuming obligations on behalf of the Customer without the Customer’s prior written consent.

8.2 Exclusions

Notwithstanding anything to the contrary in this Agreement, TIMINING shall have no liability or indemnification obligation to the Customer under this Section or any other provision of this Agreement to the extent an infringement claim is based in whole or in part upon or arises from:

(i) the Customer’s use of any version of the SOFTWARE that is not current, where the Customer’s liability for infringement could have been avoided by using a more recent version of the SOFTWARE;

(ii) the combination, operation or use of the SOFTWARE with any third-party software, equipment, materials or products, where the Customer’s liability for such infringement could have been avoided in the absence of such combination, use or operation;

(iii) the Customer’s failure to apply a defect correction or patch provided by TIMINING; or

(iv) the Customer’s refusal to install and use a non-infringing version of the SOFTWARE provided by TIMINING at no cost to the Customer, provided that such non-infringing version generally performs the same functions.

TIMINING shall likewise have no liability:

(a) where the applicable SOFTWARE has been modified by the Customer or any third party, including, without limitation, an END USER, and such modification gives rise to the infringement, misappropriation or violation, unless such modifications were made with TIMINING’s prior express consent; and/or

(b) for use of the SOFTWARE in connection with any other software, computer hardware or services not approved in writing by TIMINING or not in compliance with the terms of this Agreement.

8.3 Indemnification for Personal Injury / Property Damage

The Customer shall defend, indemnify and hold harmless TIMINING and its directors, officers, employees and agents from and against all third-party claims, damages, losses and expenses relating to the death, injury or disability of any person, or damage to or destruction of any property, including, without limitation, loss of use thereof, arising out of or resulting from the Customer’s own acts or omissions for which indemnification is required.

The Customer shall also, at its own expense, defend against all actions or claims, whether false, fraudulent or unfounded, alleging such injury or damage and shall pay all attorneys’ fees, court costs, awards and all other costs and expenses associated with such actions or claims.

TIMINING shall provide the Customer with written notice of any claim for which indemnification is sought no later than ten (10) days after receiving notice thereof.

The Customer shall have exclusive control over the defense of the claim and any negotiations for settlement or compromise, provided that it may not enter into any settlement involving an admission of liability without first obtaining TIMINING’s prior written consent.

At the Customer’s expense, TIMINING shall reasonably cooperate in the defense of any such claim.

9. CONFIDENTIAL INFORMATION

9.1 General

For purposes of this Section, “Confidential Information” means all information of a confidential nature disclosed, whether in writing, orally or by any other means, directly or indirectly, and whether before or after the effective date, by one Party to the other pursuant to this Agreement.

Confidential Information includes all information communicated to the receiving Party through training or otherwise concerning the disclosing Party’s products, operations, processes, plans or intentions, information, technical specifications, know-how, design rights, trade secrets, research, Customer data, financial data, business opportunities and business affairs.

TIMINING’s Confidential Information shall include, without limitation, the SOFTWARE, technical design concepts, software architecture and structure, design materials, technical documentation, training materials, user documentation, data models, reports, pricing, financial information and Customer names.

Each Party shall protect the other Party’s Confidential Information from unauthorized use and disclosure.

All Confidential Information disclosed by either Party to the other pursuant to this Agreement shall be used by the receiving Party solely in connection with performance of this Agreement and only by authorized employees involved in the use of such Confidential Information who have agreed in writing to be bound by confidentiality obligations no less restrictive than those contained in this Agreement.

Each Party shall exercise at least the same degree of care in protecting the other Party’s Confidential Information as it exercises in protecting its own Confidential Information of a similar nature and, in all cases, no less than reasonable care, including the requirements established in this Agreement.

9.2 Governmental Disclosure

Neither Party shall be prohibited from disclosing the other Party’s Confidential Information pursuant to a court or governmental order, provided that such disclosure shall be made only to the extent required by such order and that the Party receiving the order shall:

(a) promptly notify the other Party so that it may intervene or otherwise respond to such order; or

(b) if timely notice cannot be provided, seek to limit the disclosure and obtain confidential treatment or a protective order from the applicable court or governmental authority with respect to such information.

9.3 Exclusions

The obligations and restrictions relating to Confidential Information under this Agreement shall not apply to information that:

  • is or becomes part of the public domain through no breach of this Agreement by the receiving Party;
  • is lawfully received from a third party having the right to disclose such information to the receiving Party without any confidentiality obligation;
  • was lawfully known by the receiving Party without restriction on its use or disclosure prior to receipt from the disclosing Party, as evidenced by written records predating disclosure by the disclosing Party;
  • is independently developed by personnel of the receiving Party who had no access to the Confidential Information received from the disclosing Party; or
  • is generally made available to third parties by the disclosing Party without restrictions relating to its use or disclosure.

9.4 Data Protection

Each Party represents and warrants to the other that it complies with all applicable data protection laws and has obtained all authorizations required under applicable law with respect to personal data transmitted or made available by one Party to the other for processing in connection with performance of this Agreement.

Each Party shall indemnify the other Party against any costs, claims, liabilities and demands arising in connection with any breach of this warranty.

10. TERMINATION OF THE AGREEMENT

10.1 Termination for Breach

If a Party fails to cure a breach of any material obligation under this Agreement within thirty (30) days following receipt of notice describing such breach, the non-breaching Party may immediately terminate this Agreement upon written notice.

10.2 Immediate Termination

If either Party becomes bankrupt or insolvent, commences liquidation proceedings, is dissolved, or ceases doing business, the other Party may immediately terminate this Agreement upon written notice.

10.3 Effects of Termination

Termination of this Agreement shall not affect either Party’s obligation to pay any amounts accrued and owing to the other Party under this Agreement prior to the effective date of termination.

11. DISPUTE RESOLUTION

Any dispute, question or difficulty arising between the Parties in connection with this Agreement or any supplementary or amending documents, whether relating to its interpretation, performance, validity, termination or any other matter connected with this Agreement, shall be resolved by arbitration in accordance with the Rules of the Arbitration Center of the Santiago Chamber of Commerce (Cámara de Comercio de Santiago A.G.).

The Parties hereby confer a special and irrevocable mandate upon the Santiago Chamber of Commerce A.G. to appoint, upon the written request of either Party, an arbitrator acting both at law and in equity (árbitro mixto) from among the members of the roster of arbitrators of the Arbitration Center of said Chamber.

No appeal or other remedy shall lie against the arbitrator’s decisions, and the Parties expressly waive any such remedies.

The arbitrator shall be expressly empowered to decide any matter concerning the arbitrator’s own competence and/or jurisdiction.

12. GENERAL PROVISIONS

12.1 Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the Republic of Chile.

12.2 Jurisdiction

The Parties submit to the jurisdiction of the courts of the Republic of Chile, subject to the arbitration provision set forth above.

12.3 Assignment

All terms and conditions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and permitted assigns of the Parties.

Except as expressly provided in this Agreement, neither this Agreement nor any rights, interests or obligations of either Party hereunder may be assigned or delegated without the prior written consent of the other Party.

Any unauthorized assignment or delegation shall be null and void.

12.4 Survival

Each Party’s obligations under this Agreement concerning the use and disclosure of Confidential Information shall survive for five (5) years following termination of this Agreement.

Following expiration of the confidentiality obligations specified in the preceding sentence, use of Confidential Information shall remain subject to applicable law, including, without limitation, patent and copyright laws.

12.5 Waiver

No failure or delay by either Party in exercising any right or remedy shall constitute a waiver thereof.

12.6 Severability

If any provision of this Agreement is held to be invalid, void or unenforceable, the remaining provisions shall remain in full force and effect.

12.7 Entire Agreement

This Agreement, including all Exhibits or Schedules attached hereto and incorporated herein by reference, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior discussions, proposals, negotiations, representations, commitments, writings, agreements and other communications, whether oral or written, between the Parties concerning such subject matter.

This Agreement may not be amended except by a written agreement signed by a duly authorized representative of each Party.

12.8 Force Majeure

If either Party is prevented from performing or is unable to perform any of its obligations under this Agreement, other than a payment obligation, due to an act of God or force majeure event, fire, flood, earthquake, war, strike, blockade, epidemic, destruction of production facilities, riot, insurrection, material unavailability, or any other cause beyond the reasonable control of the Party invoking this Section, and provided that such Party has used commercially reasonable efforts to mitigate the effects thereof, such Party shall promptly notify the other Party in writing.

Performance of the affected obligations shall be excused, and the time for performance shall be extended for the period during which performance is delayed or prevented by such event.

If the force majeure or act of God circumstances continue for more than forty-five (45) days, either Party may terminate this Agreement.