END USER LICENSE AGREEMENT (EULA)
This SOFTWARE Use License Agreement (hereinafter referred to as the “Agreement”) is signed between TECNOLOGÍA E INNOVACIÓN EN MINERÍA SPA, taxpayer ID No from Chile N ° 76.144.006-3, domiciled at Av. Ricardo Lyon 222, Office 1304, Providencia, Santiago, Chile (hereinafter “TIMINING”); and the company that has validly accepted online or other legal means the terms and conditions of this Agreement (hereinafter the “Client”).
TIMINING and the Client are also known individually as the “Party” and collectively as the “Parties”.
The terms in capital letters described below shall have the following meaning in this agreement:
“UPDATE” means any minor version of the SOFTWARE after the initial delivery and installation of the SOFTWARE, which includes corrections, improvements and / or updates made by TIMINING.
“DOCUMENTATION” refers to standard end-user and technical documentation that TIMINING normally makes available in Spanish or English with the SOFTWARE, including modifications and revisions made by TIMINING. The documentation shall be delivered in any format, including digital media.
“AGREEMENT EXECUTION DATE” means the date on which the Client has accepted TIMINING’s commercial proposal and has issued a Purchase Order, Service Order, etc., which in turn has been accepted by TIMINING, or the date on that both Parties agree in writing after the aforementioned TIMINING commercial proposal has been delivered and accepted.
“OWNERSHIP INFORMATION” means the SOFTWARE and documentation and any other information whose rights pertain to TIMINING.
“NEW VERSION” refers to any major version and material of software that incorporates new capabilities, features or functions and that is classified as an upgrade. The NEW VERSION does not mean that it is an UPDATE, and the UPDATE does not mean that it is a NEW VERSION.
“SOFTWARE” refers to any one of TIMINING’s executable application software, including documentation, updates, and any copies or portions of the SOFTWARE. The SOFTWARE will not include New Versions separately licensed by TIMINING of the SOFTWARE, unless otherwise agreed in writing between the Parties. The SOFTWARE may include software owned by third parties who have granted TIMINING the right to include it as part of the SOFTWARE.
“SUPPORT” shall refer to the provision of help via email and / or telephone hotline and the investigation and resolution of reported problems, as further described in the section entitled “Maintenance and Support” of this Agreement.
“END USER” refers to the Client who has acquired one or more licenses to use the TIMINING SOFTWARE for its own internal use through its employees.
2. USER LICENSE
2.1 License. TIMINING hereby grants a non-exclusive, non-transferable, limited license to Client to install and permit access to and use of the executable form of the SOFTWARE, which shall be limited to a USB key or software key that shall remain in Customer’s possession and shall permit the operation of the software (per-node license); and only for installation on the premises of the company in which it operates. That is, the use of the software shall be limited to a single mining site or infrastructure (license per site), for which the Client must inform TIMINING the assigned site where the license will be used, which can only be transferred in case the time of operation at the site takes over 6 months (running) of use, having to inform TIMINING 30 days in advance for its relocation.
The SOFTWARE shall include all Updates and New Versions (upgrades) that TIMINING offers for the corresponding SOFTWARE, and the remote installation service of the SOFTWARE on the designated computer or server. No new modules or add-on applications shall be included in addition to the original SOFTWARE version.
2.2 SOFTWARE Delivery and installation. Once TIMINING accepts a Purchase Order for a SOFTWARE, delivery of the SOFTWARE will occur when TIMINING makes the SOFTWARE available to Client by remotely installing the SOFTWARE on Client’s designated servers and/or computers. In the event that the SOFTWARE must be reinstalled on a computer or server, it must be carried out by TIMINING, in which case the corresponding installation costs will apply, prohibiting the Client from doing so on their own.
2.3 SOFTWARE Activation. As per SOFTWARE activation and enable the use of the license and SOFTWARE on the computer and/or server designated by the Client, TIMINING will deliver a physical or software activation device for each SOFTWARE license purchased, whose duration will be the same as the term of the license. Once the license has expired without being renewed, the SOFTWARE will be deactivated and disabled, blocking it without the END USER being able to access to continue its use, being the responsibility of the END USER the loss of any data or information that exists at that date.
2.4 License Security. TIMINING reserves the right to incorporate a security mechanism in the SOFTWARE to monitor the use of the SOFTWARE and verify its operation. This mechanism may store data related to the use of the SOFTWARE and the number of times it has been copied, and TIMINING is authorized by the Client to receive such information remotely.
Furthermore, Customer shall allow TIMINING or its authorized agents access to Customer’s facilities, terminals and servers, otherwise cooperating fully with TIMINING in such review as the latter may make for the purpose of verifying that the agreed licensing conditions are being met, with Client taking all commercially reasonable steps to assist TIMINING in determining in detail compliance with the terms and conditions of this Agreement.
2.5 Property / Property Rights. The Client hereby declares to know and accept that TIMINING or its licensors own and retain all rights, titles and interests, including, but not limited to, all copyrights and proprietary rights in and on the SOFTWARE. The intellectual property rights inherent to the SOFTWARE shall remain with TIMINING or third parties from whom TIMINING has obtained the right to license the SOFTWARE.
As a consequence of the foregoing, the license granted under this Agreement does not constitute the purchase of the programs or the corresponding titles or copyrights, and the Client shall not acquire any rights or interests in addition to those indicated in this Agreement or in accordance with the nature of the SOFTWARE.
2.6 License Restrictions / Prohibitions. The Client hereby agrees that the SOFTWARE will not be used, reproduced, distributed, loaned, assigned, published or transferred (with or without consideration) in any way or for any reason, except as expressly provided in this Agreement or written authorization from TIMINING. Furthermore, it is stipulated that the Client agrees not to actively market the SOFTWARE and not to distribute or license the SOFTWARE. The Client shall not remove or modify any of the proprietary notices of TIMINING or its licensors contained in the SOFTWARE or its DOCUMENTATION.
3. DURATION OF THE LICENSE
3.1 Validity. The term of the license to use the SOFTWARE shall be one year from the date of execution of this Agreement, unless a later date has been fixed by the Parties in the commercial proposal or otherwise in writing.
In the event that the Client wishes to renew this license, it must communicate in writing its decision to do so by sending a Purchase Order up to 10 business days prior to the expiration of the corresponding term, in order to ensure the continuity of the license and avoid the effects of its termination; otherwise, it will be considered as if the Client has chosen not to renew the license. The fact that the SOFTWARE could continue to be used for any reason after its validity cannot be construed as a renewal of it or a waiver of rights on the part of TIMINING.
3.2 Effects of License termination. Upon termination of the SOFTWARE license due to expiration of the term or any other grounds for termination set forth in this Agreement, the Client shall refrain from using the SOFTWARE, uninstall the SOFTWARE and return or destroy all SOFTWARE DOCUMENTATION, including the return of physical keys, and shall provide written verification of such destruction or disabling upon TIMINING’s request.
4. LICENSE PRICE
4.1 License Fee. The Client undertakes to pay TIMINING the price of the license in the terms and conditions provided by TIMINING in its commercial proposal for each SOFTWARE contracted by the Client, which is understood to form part of this Agreement for all legal purposes. The renewal prices of the licenses shall be those stipulated in TIMINING’s commercial proposal, and in case there are none, TIMINING shall be entitled to fix and modify the annual license values, which shall be informed to the Customer in due time before the end of the term. It is noted that, in the first year of invoicing for each license, the Client shall pay a one-time fee for installation services, which shall be detailed in the corresponding commercial proposal. Additional amounts corresponding to expenses may also be included.
4.2 Other TIMINING Services. If required by the Client, TIMINING may provide additional services to those established in this Agreement. In such case, both Parties shall agree on the scope of such additional services and the values associated therewith.
4.3 Billing, Payment and Default. The Client undertakes to pay the price of the Agreement for the licenses under the conditions indicated above. Invoicing shall be done once the Purchase Order that reflects the commercial conditions of the commercial proposal delivered by TIMINING to the Client has been received, and the Client must pay for the services billed within the term established therein.
The Client may, with a prior written agreement with TIMINING, make the payment through its related companies or subsidiaries. In the latter case, the Client hereby declares that the origin of the funds used to make the payment is of lawful origin and complies with the provisions of Law No. 20.393.
Without prejudice to any other rights, failure to pay in full and on time any amount beyond the date of payment in the manner and under the conditions stipulated shall cause:
(i) accrue in favor of TIMINING the maximum conventional monthly interest on the unpaid balances, for all the time elapsing between the date on which the obligation should have been fulfilled and the date of its effective payment; and/or
(ii) to suspend without further action, in whole or in part, the license and other services that may apply to the Agreement.
4.4 Taxes. SOFTWARE license prices do not include taxes, such as Value Added Tax or any similar sales tax, local taxes, import and customs duties, and surcharges, which shall be paid additionally by the Client in order for TIMINING to receive the full amount it has invoiced. If any withholding tax is applied on the amounts due to TIMINING, the amounts payable to TIMINING will need to be increased so that the amount you receive after payment of the withholding tax is the amount you would have received if the tax had not been applied.
5. MAINTENANCE AND SUPPORT
5.1 Maintenance and Support. For each SOFTWARE license that the Client has subscribed, TIMINING will be responsible for its installation and subsequent Maintenance and Support for the term of the license. TIMINING may provide the Support Levels directly or through third parties that for this purpose have informed the Client, during TIMINING business hours. The scope of Maintenance and Support will be as described below:
The Support offered by TIMINING is aimed at answering usability questions regarding SOFTWARE functionalities, user management, among others. This service includes:
- Support in case of doubts about the operation of the application, use of licenses.
- Support in the configuration and administration of the system.
- Support with the system due to any external cause such as power outage, network outage, and others.
- The availability of this service is from 09:00 to 18:00, continental Chile time, from Monday to Friday (8×5) and there is no restriction on the number of consultations per year.
- The Support Service is provided in remote support mode, where the Support Engineer delivers help to the user by remote means (telephone, VPN, videoconference, or any other means that allows remote communication).
5.2 Support levels
LEVEL 1: It refers to requirements or needs of the Client and / or user of the SOFTWARE that has an active support agreement with TIMINING. This category includes requirements associated with the following topics:
- Management of user accounts associated with the SOFTWARE
- Management of licenses, updates and Software keys
- System configuration
- System recovery in case of unexpected shutdowns
- Basic data management associated with the SOFTWARE
- Installation or reinstallation process
- Monitoring of connectivity in Client-server environments if any
LEVEL 2: Refers to requirements or needs of the Client and/or Software user who has an active support contract with TIMINING. This category includes requirements associated with the following topics:
- SOFTWARE usability (interfaces)
- Queries about methods, formulas or calculations used by the SOFTWARE
LEVEL 3: It refers to requirements or needs of the Client and / or user of the SOFTWARE that has an active support agreement with TIMINING. This category includes requirements associated with the following topics:
- SOFTWARE error notification (bugs)
- Suggestions for improvements or new SOFTWARE functionalities.
5.3 TIMINING staff. TIMINING will provide qualified personnel for the installation, maintenance and support of the SOFTWARE.
5.4 Extraordinary Situations that require Maintenance and Support. It is expressly established that TIMINING will provide support to the Client and its users without any obligation of result or responsibility, and this support may have an additional cost to the cost of the license subscribed by the Client, for the following cases:
- Problems caused by viruses.
- Damage caused by accident, natural disaster, fire, water, acts of war or terrorism, improper use of the product, as well as damage caused by the intervention of unauthorized persons.
- Any services required as a result of any hardware modifications, such as server migration, server configuration modifications, etc.
- Any service required as a result of hardware malfunction or failure.
- Errors or malfunctions due to events attributable to the fault of the END USER.
- Recovery of lost data, due to the fault of the END USER.
- Maintenance and support of third-party systems (for example, operating system, database management systems, etc.).
- Any services required as a result of errors or malfunctions of third-party systems (for example, loading of incorrect data from third-party systems)
5.5 SOFTWARE Monitoring. The Client hereby declares and accepts that the TIMINING SOFTWARE has a mechanism for capturing information on the operation of the SOFTWARE for the sole purpose of tracking its use, frequency and behavior, measuring its performance, and making improvements to it. The data obtained is transmitted to TIMINING for this purpose, and under no circumstances does it cover proprietary information of the Client, but only refers to functionalities data (eg: turning the SOFTWARE on or off, etc.).
Notwithstanding the foregoing, TIMINING shall always maintain due confidentiality of the information to which it may have access on the occasion of maintenance and support, Section 9 and other applicable legal regulations being applicable.
6. PROTECTION OF OWNER INFORMATION AND INTELLECTUAL PROPERTY
6.1 Client shall maintain confidentiality and protect the PROPRIETARY INFORMATION from disclosure to third parties, shall use the PROPRIETARY INFORMATION only for the purpose of the performance of this Agreement, and shall hold the PROPRIETARY INFORMATION in the strictest confidence and secrecy both during and after the term of this Agreement. The Client hereby acknowledges that the unauthorized disclosure of OWNERSHIP INFORMATION may cause substantial economic loss to TIMINING.
6.2 The Client shall not modify or alter the SOFTWARE. The Customer hereby 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 Customer shall not attempt to reverse compile or disassemble object code versions of the SOFTWARE; nor shall Customer decompile, reverse engineer, disassemble, modify or attempt to derive or otherwise attempt to discover the SOFTWARE source code, underlying ideas, underlying user interface techniques or algorithms of the SOFTWARE and its data structures, or prepare derivative works of the SOFTWARE. The Client hereby agrees that it will not use, reproduce, copy, distribute or transfer (with or without consideration) the SOFTWARE, except as expressly provided in this Agreement.
6.4 The Client shall inform its employees and subcontractors of their obligations under this clause in order to ensure compliance with said obligations. The Client will take all reasonable and necessary measures to enforce the confidentiality agreements of the employees / subcontractors in case of breach thereof. The Client also accepts that TIMINING will be a third party, express beneficiary of said agreements with full rights and power to enforce their provisions in the event of non-compliance.
6.5 Upon termination of this Agreement, the Client, at TIMINING’s discretion, shall destroy (and, in writing, certify destruction) and provide written verification of such destruction or disablement at TIMINING’s request or return to TIMINING of OWNERSHIP INFORMATION (including, but not limited to, SOFTWARE) in Customer’s possession.
6.6 TIMINING shall be entitled to recover from the Client its costs, expenses and attorneys’ fees incurred in the performance of its rights under this section. The Parties hereby agree that any breach of this section will cause irreparable damage to TIMINING, therefore the monetary damages will not be adequate or verifiable, and TIMINING will therefore be entitled to precautionary or precautionary measures in the event of such breach.
7. LIMITATION OF LIABILITY
7.1 The total responsibility of TIMINING for any claim or damage resulting from or related to this Agreement and the SOFTWARE, regardless of its form of action, whether by contract, crime or otherwise, will have the limit indicated in the following clause. Further, in no event shall a party be liable for any incidental, indirect, special, consequential or punitive damages, including, without limitation, damages for lost profits, data or use, incurred by the other party or any third party, even if the party knew, should have known or has been advised of the possibility of such damages. TIMINING will not be responsible for any kind of liability for injury or damage to third parties resulting from the use of the SOFTWARE, noting that its use and the data that may feed the results are the sole and total responsibility of the Client. Any claim against TIMINING must be requested in writing within 4 months from the date of the event allegedly giving rise to the liability, after which the right and its respective action shall be deemed extinct, expired or precluded.
7.2 The parties hereby agree that TIMINING’s total liability towards the customer and third parties under any contractual or extra-contractual assumptions, including maintenance and support, is limited to the total amount of the SOFTWARE license, paid by the customer in the period of 1 year.
8.1 Indemnification for Intellectual Property. TIMINING will indemnify and defend, at its expense, any claim brought against the Client, if and to the extent based on a claim that any SOFTWARE provided under this Agreement infringes a patent, copyright, trade secret or other intellectual property right, at its own expense and all costs and damages imposed on Client by a court of competent jurisdiction, provided that TIMINING is promptly notified in writing of such claim and is given notice, reasonable assistance and the exclusive power to defend or negotiate the claim. TIMINING will not reach any agreement admitting responsibility or assuming obligations on behalf of the Client without the prior written consent of the Client.
8.2 Exclusions. Notwithstanding anything to the contrary set forth in this Agreement, TIMINING shall have no liability or indemnification obligation to Client under this Section or any other provision of this Agreement, provided that the infringement claim is based in whole or in part on or arises out of: (i) Client’s use of any non-current version of the SOFTWARE, if Client’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, material or product, provided that Client’s liability for such infringement could have been avoided absent such combination, use or operation; (iii) Client’s failure to apply a defect correction or patch provided by TIMINING to Client; or (iv) any refusal by Client to install and use a non-infringing version of the SOFTWARE provided by TIMINING to Client free of cost to Client, provided that such non-infringing version generally performs the same functions. Further, TIMINING shall also not be liable (a) if the applicable SOFTWARE is modified by Client or third parties, including but not limited to the end user and such modification is a cause of such infringement, misappropriation or violation unless 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 which do not comply with the terms of this Agreement.
8.3 Compensation for Personal Injury / Property Damage. The Client will defend, indemnify and hold TIMINING, its directors, officers, employees and agents harmless from and against all claims, damages, losses and expenses of third parties in relation to the death, injury or disability of any person or damage or destruction of any property (including, without limitation, loss of use of any property) arising from or resulting from the Client’s own acts or omissions to be indemnified. Customer shall further indemnify, at its own expense, and defend against all claims or demands (false, fraudulent or groundless) alleging such injury or damage and shall pay all attorneys’ fees, court costs, awards and all other costs and expenses in connection with such claims or demands. In this case, TIMINING will notify the Client in writing that it must compensate no later than ten (10) days after receiving notification of any claim requesting compensation. Customer shall have sole control of the defense of the claim and of any settlement or compromise negotiations, but may not agree to any settlement involving admission of liability without first obtaining TIMINING’s prior written consent. At the Client’s expense, TIMINING will reasonably cooperate in the defense of any claim.
9. CONFIDENTIAL INFORMATION
9.1 General. For purposes of this clause, “Confidential Information” means all information of a confidential nature disclosed (whether in writing, orally or otherwise and whether directly or indirectly and whether before or after the Effective Date) by a Party to this Agreement to the other Party pursuant to this Agreement, including all information transmitted to the receiving Party by training or otherwise, with regard to the products, operations, processes, plans or intentions, information, technical specifications, know-how, design rights, trade secrets, research, Client data, financial data, business opportunities and business affairs of the disclosing Party. TIMINING’s Confidential Information shall include, without limitation, the SOFTWARE, technical design concepts, software architecture and structure, design materials, technical documentation, training material, user documentation, data model, reports, pricing, financial information, Client names.
Each party will protect the other party’s Confidential Information from unauthorized use and disclosure. All Confidential Information disclosed by either Party to the other Party under this Agreement will be used by the receiving Party solely in connection with the performance of this Agreement by authorized employees who are involved in the use of Confidential Information and who have agreed to in writing to be bound by the terms and conditions of a confidentiality agreement that shall be no less restrictive than the terms and conditions of this Agreement. Generally, each party shall exercise the same degree of care for Confidential Information that it uses to protect its own Confidential Information, but in any event not less than reasonable care, including, but not limited to, the requirements set forth in this Agreement.
9.2 Government Disclosure. Neither Party shall be limited to disclosing Confidential Information of the other Party pursuant to a court or governmental order, but in such event such disclosure shall be made only to the extent so ordered and provided that the Party receiving an order shall (a) timely notify the other Party so that it may intervene in response to such order, or (b) if timely notice cannot be given, seek to limit disclosure and obtain confidential treatment or a court or governmental protective order for such information.
9.3 Exclusions. The obligations and limitations regarding Confidential Information in this Agreement shall not apply to information that is or becomes:
at any time in the public domain other than due to a breach of this Agreement by the receiving Party; or
at any time legitimately received from a third party who has the right and transmits it to the receiving Party without any obligation of confidentiality; or
lawfully known to the receiving Party without any limitation on its use or disclosure prior to receipt thereof from the disclosing Party, as evidenced in writing prior to the date of disclosure by the disclosing Party to the receiving Party; or
independently carried out by personnel of the receiving Party who have not had access to the Confidential Information received from the disclosing Party; or
generally made available to third parties by the disclosing party without any restriction regarding use or disclosure.
9.4 Data protection. The Parties warrant to each other that they comply with all applicable data protection laws and have obtained all necessary approvals as required by applicable law regarding personal data transmitted or made available by one Party to the other for processing within the performance of this Agreement, and shall indemnify the other Party against any costs, claims, liabilities and demands made in relation to any breach of this warranty.
10. AGREEMENT TERMINATION
10.1 Termination for Default. In the event a Party fails to cure a breach of any material obligation under this Agreement within thirty (30) days after receipt of notice describing such breach, the Party not in breach may immediately terminate this Agreement upon written notice thereof.
10.2 Immediate termination. In the event that a Party declares bankruptcy, insolvency, or commences liquidation proceedings, dissolves or ceases to do business, the other Party may immediately terminate this Agreement upon written notice.
10.3 Termination Effects. The termination of this Agreement will not affect the obligation of either Party to pay any amount that may have accrued from the other Party under this Agreement prior to the effective termination date.
11. DISPUTE RESOLUTION
Any doubt or difficulty arising between the Parties in connection with this Agreement or its supplementary or amending documents, whether it refers to its interpretation, performance, validity, termination or any other cause related to this agreement, shall be resolved by arbitration, in accordance with the Rules of the Arbitration Center of the Santiago Chamber of Commerce.
The Parties confer an irrevocable special mandate to the Chamber of Commerce of Santiago AG so that, at the written request of any of them, it designates the mixed arbitrator from among the members of the arbitration body of the Arbitration Center of that Chamber.
There shall be no appeal against the arbitrator’s resolutions, and the Parties expressly waive them. The arbitrator is specially empowered to resolve any matter relating to his competence and/or jurisdiction.
12. GENERAL PROVISIONS
12.1 Applicable law. This Agreement shall be governed by the laws of the Republic of Chile.
12.2 Jurisdiction. The Parties submit to the jurisdiction of the courts of the Republic of Chile, and to the preceding arbitration clause.
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 any permitted assigns of the Parties. Except as specifically provided in this Agreement, neither this Agreement nor any of the rights, interests or obligations of either Party may be assigned or delegated by either Party without the prior written consent of the other Party. Any unauthorized assignment or delegation will be null and void.
12.4 Survival. The obligations of each Party under this Agreement with regard to the use and disclosure of Confidential Information will survive five (5) years after the termination of this Agreement. Once the obligations with regard to Confidential Information set forth in the preceding sentence have been completed, the use of Confidential Information will continue to be governed by applicable law, including, but not limited to, patent and copyright law.
12.5 Waiver. Any failure or delay by either Party in exercising any right or remedy shall not constitute a waiver thereof.
12.6 Severability. In the event that any provision of this Agreement is considered invalid, null or unenforceable, the remaining provisions shall remain in full force and effect.
12.7 Entire Agreement. This Agreement, including all Exhibits attached to this Agreement which are incorporated by this reference, sets forth the entire agreement between the Parties with regard to the subject matter of this Agreement, and shall terminate and supersede all prior discussions, proposals, negotiations, representations, undertakings, writings, agreements and other communications, both oral and written, between the Parties with regard to the subject matter of this Agreement. This Agreement may not be modified except by a written agreement signed by a duly authorized representative of each of the Parties.
12.8 Force Majeure. In the event that any Party is prevented from performing or is unable to perform any of its obligations under this Agreement (other than an obligation to pay) due to any act of God or force majeure, fire, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability or any other cause beyond the reasonable control of the Party invoking this section, and if such Party has used commercially reasonable efforts to mitigate its effects, 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 by the period of delay or inability to perform due to such occurrences. If the circumstances of force majeure or fortuitous event exceed 45 days, either Party may terminate this Agreement.