This End User Licence Agreement (“Agreement”) applies to your use of this Software and any maintenance and support services provided by or on behalf of Minemax with respect to the Software. This Agreement is legally binding and is enforceable by Minemax Pty Ltd or any Affiliate of Minemax Pty Ltd (collectively, “Minemax”).
If you (or, if you are using the Software on behalf of another person or entity such as your employer if you are using the Software in the course of your employment, that other person or entity) have executed a separate written agreement with Minemax that governs the licensing and use of the Software (such as a Minemax “Master Customer Agreement”) then that separate agreement governs your access to and use of the Software, and the terms of this Agreement shall be void and of no effect. Otherwise, your access to and use of the Software (and any associated Maintenance) is governed in all respects by this Agreement.
If you do not accept this Agreement (or you are not authorized to accept this Agreement on behalf of your employer or other person or entity on whose behalf you use the Software), then you may not install or use the Software. If you do not accept this Agreement, then please delete any copies of the Software on your system(s) and return any Software to Minemax.
Minemax reserves the right to modify the terms of this Agreement at its discretion at any time with future releases of the Software, at which point you will be asked to accept the modified Agreement.
1 – DEFINITIONS
In this Agreement:
“Academic Version” means a version of the Software for use by students and faculty of educational institutions.
“Affiliate” means any entity that, directly or indirectly, is controlled by, is under common control with, or controls, a party (“control” means the ownership of or exercise of voting control or direction over shares, securities or other voting instruments of such entity carrying fifty percent (50%) or more of the unrestricted voting rights, or ownership or exercise of other rights or powers entitling the holder thereof to direct, cause the direction of, or to manage the business of such entity).
“Approved Operating Environment” means a combination of versions of third party hardware, operating software, utilities and application software (all of which versions must continue to be actively supported by the relevant third party suppliers) which has been specified in the Documentation (or otherwise approved by Minemax) as an operating environment in which the Software may be used.
“Minemax IP” means all intellectual property rights throughout the world (whether registered or unregistered, registrable or unregistrable and including but not limited to copyright, trademarks, patents, trade secrets, designs, business names and the right to have confidential information treated as confidential) which relate to the Software, Documentation, Maintenance, any other software of Minemax and any associated software design, software license keys, screen layouts, workflows, inventions, underlying technical concepts and any related materials.
“Documentation” means all printed or electronic materials provided by Minemax in connection with the Software or Maintenance, including (without limitation) online help, “how-to” and “getting started” guides, installation and release notes, configuration guides and training or support materials.
“Documented Defect” means a material deviation between the Software and its Documentation, for which Minemax has confirmed that you have provided enough information for Minemax to replicate the deviation in an Approved Operating Environment consistent with that utilised by you.
“Employee” means an employee of each party, including contractors engaged to augment staff and/or perform duties traditionally performed by employees under such party’s direct supervision.
“Evaluation” means a temporary, limited, non-exclusive and non-transferable licence for you to access and use all or a portion of the Software for the sole purpose of evaluating the suitability of the Software for your internal business operations, issued to you by Minemax on the terms set out in this Agreement.
“Licence” means one or more limited, non-exclusive, non-transferable licences for you to access and use all or a portion of the Software, issued to you by Minemax on the terms set out in this Agreement and in an applicable Order.
“Maintenance” means Minemax’s then-current standard support and maintenance services for the Software, as amended from time to time, including: (a) the servicing of reasonable requests for remotely-provided support and assistance in connection with the Software, issued by you via communication methods nominated by Minemax from time to time (including but not limited to telephone and email-based support); (b) the supply of Updates or Upgrades for the Software, where these are made generally available by Minemax without additional charge in connection with Maintenance; and (c) corrections, workarounds or avoidance procedures for Documented Defects.
“Object Code” means computer programs assembled, compiled, or converted to magnetic or electronic binary form on software media, which are readable and usable by computer equipment.
“Order” means the document agreed and executed by both parties by which you order a Licence for the Software and/or associated Maintenance (including without limitation any proposal, quotation or similar document).
“Software” means the Minemax software in connection with which you are accepting this Agreement, and includes all Updates and Upgrades thereto and all associated Documentation.
“Source Code” means the human-readable source code version of the Software, and any accompanying comments or other programmer documentation.
“Third-Party Software” means Object Code versions of software licensed by Minemax from third parties and sublicensed to you pursuant to an Order.
“Updates” means subsequent releases, corrections, or revisions to the Software provided by Minemax under this Agreement.
“Upgrades” means subsequent versions of the Software provided by Minemax.
2 – LICENCE GRANT
2.1 Licence Grant. Subject to the terms, conditions and restrictions set forth in this Agreement and any applicable Order, Minemax grants you a limited, non-exclusive, non-transferable Licence to use the Software for your internal business operations.The terms of the Licence (as set out in the applicable Order), explain how you may use the Software and describe the restrictions that apply to your use of the Software (for example, the number of named or concurrent users who may access the Software under the Licence, the specific Software modules or functionality licensed to you, the expiry date of the Licence if the Licence is a non-perpetual, fixed-term Licence, and any geographical or other usage restrictions that apply) and you must comply with those restrictions at all times. You acknowledge that the Software may collect usage data, and may analyze such data, among other analysis and protection procedures, to limit your access to (and use of) the Software to the scope of use permitted under the applicable Licence, or to cause the Software to cease to operate without prior notice upon expiry or termination the Licence or this Agreement. The Software may cause your computer to connect to the internet and/or to a licence server automatically for Licence validation and the Software may require activation or registration prior to use. Attempting to circumvent (or “hacking”) the security, access-control or other features of the Software is prohibited and may contravene applicable laws. You acknowledge that the Software may contain features designed to validate whether the Software has been validly licensed to you by Minemax or an authorized Minemax distributor or reseller, and to disable it or restrict its functions in the event of it being found to be counterfeit or not validly licensed. Minemax may inform you of any adverse findings via the Software itself (for instance, via a pop-up notification) or via other means. Please report any piracy of the Software or other unauthorised use or distribution of the Software to Minemax (see http://www.Minemaxsoftware.com/contact/ for local Minemax contact details). No assurance exists that pirated or counterfeit versions of the Software will operate as intended or will be free from malicious components, like malware, which could pose a threat to your (or your organisation’s) work, computer network or security.Minemax does not grant you any licence to the Source Code of the Software. The computer readable media containing the Software may also include modules or functionality of the Software (or other software programs other than the Software) for which you are not granted a Licence. You may not make use of any module or functionality of the Software for which you have not expressly obtained a Licence under an applicable Order. Any rights not expressly granted in this Agreement or the applicable Order, are expressly reserved.If you are installing the Software pursuant to an Evaluation issued by Minemax, then you must: (a) only access and use the Software (and any results or output obtained from the Software) for the sole purpose of evaluating the suitability of the Software for your internal business operations (and you must not use the Software for any other purpose); and (b) only access and use the Software for the duration of the Evaluation and in accordance with any instructions provided by Minemax in conjunction with the Evaluation.Except for your use of the Software pursuant to a limited, temporary Evaluation, if you (or, if you are using the Software on behalf of another person or entity with their permission, that other person or entity) have not validly purchased a Licence for the Software, or if your Licence has expired (in the case of a non-perpetual, fixed-term Licence) or has been terminated, then you may not install, use or copy the Software.
2.2 Restrictions. Except as otherwise expressly set forth in an applicable Order, you must not, nor may you permit any third party to, directly or indirectly: (a) reverse engineer, disassemble or decompile the Software; (b) sublicense, rent, lease or otherwise transfer the Software; (c) use the Software for any third-party use including, but not limited to, training, facilities management, time-sharing, service bureau use or data processing; (d) publish the results of any benchmark tests performed on the Software; (e) attempt to circumvent or render inoperative any usage restriction features contained in the Software; (f) remove, obscure, alter or move Minemax’s and its licensors’ proprietary notices on the Software or the Documentation; (g) use any Third-Party Software except solely in conjunction with the Software and except under Third-Party Software licensor terms and conditions, which terms and conditions are incorporated herein by reference and/or set forth in the applicable Order; or (h) if applicable, use, or distribute the Academic Versions for any commercial purpose, competitive research, consulting or other non-academic purposes or for any purpose other than for use by students and faculty of educational institutions. Any interface information necessary to achieve interoperability of the Software with independently created computer programs, may be provided by Minemax at Minemax’s then-current fees upon your written request and subject to execution of an applicable Order.
2.3 Approved Operating Environment. The Software must only be used in an Approved Operating Environment. Minemax makes no representation and gives no warranty regarding the suitability of any Approved Operating Environment. Unless otherwise expressly set out in the applicable Order, Minemax is not responsible for the provision of any hardware, operating system, database server or client software, application software or any other items required to enable you to install and use the Software in an Approved Operating Environment (and you must procure all such items at your expense).
2.4 Delivery. Unless otherwise specified in any Order, the Software (including any Updates or Upgrades thereto) will be delivered to you electronically.
2.5 Copies of Software. You may make a reasonable number of backup copies of the Software, consistent with your normal backup or disaster recovery procedures, or as otherwise permitted under the applicable Order. You must maintain a log of the number and location of all originals and copies of the Software, which shall be provided to Minemax upon request. Any copies made for disaster recovery purposes may not be used by you in any manner except in the event of a disaster. In the event of a disaster which causes you to use any backup copy of the Software, you must promptly inform Minemax of the disaster and must stop using such copy promptly after the disaster is abated.
2.6 Certification. On Minemax’s request, but not more than once per year, you must furnish Minemax with a signed certification verifying that your use of the Software is in accordance with the terms and conditions of this Agreement and any applicable Order.
2.7 Your Data. When data storage is included with the Software, Minemax recommends that you continue to back up your content regularly. Minemax may create reasonable technical limits on your content, such as limits on file size, storage space, processing capacity, and other technical limits. Minemax may suspend your ability to store data until you are within the storage space limit associated with your account.
3 – MAINTENANCE
3.1 Maintenance. You may elect to procure Maintenance for the Software pursuant to an Order agreed by the parties. Minemax will provide Maintenance for the period of time set forth in the Order (the “Maintenance Period”). Any such Maintenance will be provided by Minemax or its Affiliates or subcontractors using commercially reasonable efforts and subject to the terms of this Agreement, the Order and Minemax’s applicable maintenance and support policies in effect at the beginning of the then-current Maintenance Period. Minemax’s obligation to provide you with Maintenance for Third-Party Software is limited to providing you with the Maintenance that the third-party licensor provides to Minemax. If you order Maintenance, then you may not exclude any portion of the total Software licensed by you from that Maintenance. Only genuine Software is covered by Maintenance.
3.2 Maintenance Renewal. Minemax reserves the right, at any time in its sole discretion, to vary the fees applicable to Maintenance by providing written notice to you (which varied fees will apply from the next applicable Maintenance renewal and thereafter). Third-Party Software Maintenance fee increases may exceed the applicable Maintenance Fee increases applied to the Software. Unless otherwise set forth in the applicable Order, Maintenance fees after the initial Maintenance Period are due on the first day of the last month of the prior Maintenance Period. If applicable, Minemax may prorate Maintenance fees so that Maintenance fees for all Software licensed by you are renewable on the same date even if the Software was not ordered on the same date. In the event that you decline or terminate Maintenance, and you subsequently order or reinstate Maintenance, you shall pay: (a) the cumulative Maintenance fees for that period during which Maintenance was declined or terminated at the fee for your last year of Maintenance plus all applicable price increases; and (b) an additional Maintenance reinstatement fee; in addition to (c) Maintenance fees for the current Maintenance Period at the then-current list price.
3.3 Exclusions from Maintenance. Minemax shall not be obliged to provide Maintenance in respect of: (a) improper use of the Software; (b) Software that has been the subject of unauthorised alteration or modification; (c) failure to comply with the directions of Minemax including any reasonable requests for assistance; or (d) use of the Software outside of an Approved Operating Environment.
Without limitation, Minemax reserves the right not to provide support and assistance to you, where you have not made reasonable attempts to deploy Updates or Upgrades offered by Minemax in connection with the Maintenance. Minemax further reserves the right not to provide support and assistance to you in conjunction with Maintenance, if you have not received reasonable training in the use of the Software. You must reasonably cooperate with Minemax by providing access to your Approved Operating Environment, to the extent required to diagnose or resolve issues with the Software.
3.4 Customisations. Minemax shall not be responsible for providing Maintenance for any customisations or modifications to the Software. If Minemax agrees to provide Maintenance for customisations or modifications to the Software, then additional Maintenance fees may apply.
4 – PAYMENT
4.1 Fees. You must pay to Minemax the fees set forth in each agreed Order. Unless otherwise provided in the applicable Order, all fees are due upon the Effective Date thereof, and are payable to Minemax within thirty (30) days of the date set forth on each invoice issued by Minemax without set-off, deduction or other withholding. The fees set out in any Order are non-cancellable and non-refundable. Any fees payable by you hereunder that are not paid when due shall accrue interest at a rate equal to the lesser of: (a) 1.5% per month; or (b) the maximum amount allowed by applicable law. You agree to pay to Minemax all reasonable costs and expenses of collection, including reasonable attorneys’ fees and court costs, incurred by Minemax to collect payments due. If any invoice for Licence fees is not paid when due, then Minemax may, upon five (5) days prior written notice, recover or disable the applicable Software until such payment is made in full. If any invoice for Maintenance is not paid when due, Minemax may suspend performance of the applicable Maintenance until such payment is made in full. For the avoidance of doubt, Minemax may (unless otherwise expressly set out in any Order) vary the price list applicable to the Software from time to time in its absolute discretion.
4.2 Taxes. You are liable for any and all sales tax, use tax, excise, value added tax (“VAT”), goods and services tax (“GST”), customs fees or other similar taxes to be paid by either party in connection with this Agreement, including withholding taxes arising from international transactions. If you are exempt from the payment of any such taxes, then you must provide Minemax with a valid tax exemption certificate or proof of your direct payment of taxes to the applicable taxing authority, otherwise you must pay to Minemax all such taxes. Subject to the foregoing, Minemax is solely responsible for any taxes based on its income.
5 – PROPRIETARY RIGHTS
5.1 Ownership. You acknowledge and agree that: (a) Minemax owns the Minemax IP; (b) Minemax will own all intellectual property and other rights associated with any modifications, enhancements, adaptations or translations of the Minemax IP and all such rights shall absolutely vest in Minemax (or its nominee) from the moment that creation of the relevant material commences; and (c) neither this Agreement, nor any Licence granted to you pursuant to this Agreement or any Order, grants you any intellectual property or other rights in the Minemax IP and all such rights are expressly reserved by Minemax.
You acknowledge that the Software is a valuable asset of Minemax and is supplied to you on a restricted and confidential basis. You must keep the Software confidential and must not cause or permit disclosure of the Software to anyone other than persons authorised to use the Software pursuant to this Agreement. The Software is protected by copyright and other intellectual property laws and treaties. Unauthorised copying or distribution of the Software or any part of it is prohibited. Fines and other criminal penalties or civil remedies may apply if this prohibition is contravened. Minemax will enforce its rights under the law to the greatest extent possible. Minemax, its respective product names and the Minemax logo are registered or unregistered trademarks of Minemax.
Minemax’s licensors own all right, title, and interest in and to all Third-Party Software including, without limitation, all patent, trademark, copyright, trade secret, and other intellectual property rights related thereto.
5.2 Assignment of Rights; Cooperation. If you acquire any rights in the Minemax IP or any modifications, enhancements, adaptations or translations of the Minemax IP (by operation of law or otherwise), then you hereby assign all such rights to Minemax (or its nominee). You must give Minemax all reasonable assistance and must execute all documents necessary to assist or enable Minemax to identify, perfect, preserve, register and/or record such assignment and Minemax’s right, title, and interest in the Minemax IP.
6 – LIMITED WARRANTIES
6.1 Software Limited Warranty. Minemax warrants that, subject to this clause 6, the Software will perform without Documented Defects (“Software Warranty”) for a period of three (3) months following the earlier of: (a) delivery of the Software to you; or (b) the start of any implementation services provided by Minemax for the Software (the “Software Warranty Period”). Warranties related to any Third-Party Software, if any, shall be specified in the applicable Order. You must notify Minemax in writing of any claim under the Software Warranty prior to the end of the Software Warranty Period (the “Software Warranty Notice”). You must give Minemax sufficient access, including remote access, to the Software and your Approved Operating Environment, and sufficient information and time, to allow Minemax to replicate the Documented Defect.
6.2 Maintenance Limited Warranty. Minemax warrants that the Maintenance will be performed in a professional manner consistent with generally accepted industry practise (the “Maintenance Warranty”). Written notice of any claim under the Maintenance Warranty must be made within thirty (30) calendar days of completion of the Maintenance which you allege was not performed consistently with the Maintenance Warranty.
6.3 Warranty Obligations of Minemax.
6.3.1 Minemax’s sole obligation under the Software Warranty shall be to provide corrections of, or avoidance procedures for, the Documented Defect identified in the Software Warranty Notice.
6.3.2 Minemax’s sole obligation under the Maintenance Warranty shall be to re-perform the Maintenance which was not as warranted.
6.3.3 TO THE EXTENT PERMITTED BY LAW, THIS SECTION SETS FORTH YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE MINEMAX LIMITED WARRANTIES.
6.4 Limitations. The Minemax Limited Warranties shall not apply: (a) to any customisations of or modifications to the Software; (b) if the Software is not used in an Approved Operating Environment or in accordance with the Documentation, this Agreement and any applicable Order; (c) if the Software has been implemented, customized, modified, enhanced or altered by you or any third party; (d) if you are not using the most recent version of the Software and the Documented Defect has been remedied in the newer version; (e) to any error or defect caused by you, any third party, or any third-party software, or Force Majeure; (f) to any error or defect arising as a result of drawings, designs or specifications provided by you; (g) to any additional user, server or instance licences of the Software for which the Software Warranty has already expired; or (h) to any Updates.
6.5 DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN (BUT OTHERWISE TO THE MAXIMUM EXTENT PERMITTED BY LAW) THE SOFTWARE AND MAINTENANCE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND MINEMAX MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE OR MAINTENANCE INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, AND MINEMAX EXPRESSLY DISCLAIMS ANY SUCH WARRANTIES. MINEMAX DOES NOT WARRANT THAT: (a) THE SOFTWARE OPERATES UNINTERRUPTED; (b) ALL SOFTWARE ERRORS CAN BE CORRECTED; (c) THE APPLICATIONS CONTAINED IN THE SOFTWARE ARE DESIGNED TO MEET ANY OF YOUR BUSINESS REQUIREMENTS; OR (d) THE INFORMATION OR DATA PROVIDED IS ACCURATE OR ERROR-FREE. YOU ACKNOWLEDGE THAT YOU HAVE ASSESSED FOR YOURSELF THE SUITABILITY OF THE SOFTWARE FOR YOUR REQUIREMENTS AND THAT YOU ARE RESPONSIBLE FOR THE USE OF AND RESULTS OBTAINED FROM THE SOFTWARE.
6.6 HIGH RISK ACTIVITIES. WITHOUT LIMITING THE GENERALITY OF SECTION 6.5 ABOVE, THE SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE INCLUDING, WITHOUT LIMITATION, IN THE OPERATION OF NUCLEAR FACILITIES OR COMMUNICATION SYSTEMS, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE (COLLECTIVELY, “HIGH RISK ACTIVITIES”). MINEMAX EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.
6.7 DATA SERVICES DISCLAIMER. YOU ACKNOWLEDGE AND AGREE THAT, WHERE ANY ORDER INCLUDES THE PROVISION OF DATA, INFORMATION, ANALYSES, OR MODELS, MINEMAX OBTAINS ITS DATA FROM THIRD-PARTY SOURCES, THE DATA MAY NOT BE COMPLETELY THOROUGH AND ACCURATE AND YOU SHALL NOT RELY ON MINEMAX FOR THE ACCURACY OR COMPLETENESS OF THE DATA AND/OR INFORMATION SUPPLIED. YOU ACCEPT ALL SUCH DATA AND/OR INFORMATION ON AN “AS IS” AND “AS AVAILABLE” BASIS.
7 – INDEMNIFICATION
7.1 General Indemnification. Except for claims covered by clause 6.6 above and 7.2 below, each party (“Indemnifying Party”) must indemnify and defend the other party (“Indemnified Party”) against any third party claim, including costs and reasonable attorney’s fees, in which the Indemnified Party is named because of negligent conduct or wilful misconduct by the Indemnifying Party or its Employees while performing its obligations pursuant to this Agreement or any Order, which result in death, personal injury or property damage; provided that (a) the Indemnified Party gives the Indemnifying Party prompt notification in writing of any such claim and reasonable assistance, at the Indemnifying Party’s expense, in the defence of such claim; and (b) the Indemnifying Party has the sole authority to defend or settle such claim as long as such settlement shall not include a financial obligation on the Indemnified Party.
7.2 Infringement Indemnification. Minemax will indemnify and defend you against any claim brought against you by third parties alleging that use of the Software in conformity with this Agreement and any applicable Order: (a) infringes a patent, copyright or trademark; or (b) misappropriates any third party trade secret (collectively, an “Infringement Claim”); provided that (i) you give Minemax prompt notification in writing of any such Infringement Claim and reasonable assistance, at Minemax’s expense, in the defence of such Infringement Claim; and (ii) Minemax has the sole authority to defend or settle such Infringement Claim and such settlement must not include a financial obligation applicable to you.
7.3 Indemnification Limitations. Minemax shall have no obligation for any Infringement Claim arising out of or relating to: (a) a Software modification created by you or at your direction or at the direction of a third party; (b) use of the Software other than in accordance with the terms of this Agreement, the Order or the Documentation; (c) use of the Software in combination with any other hardware, software or other materials where, absent such combination, the Software would not be the subject of the Infringement Claim; (d) use of the Software or a version thereof for which Minemax no longer offers Maintenance; (e) use of the Software without your implementation of all applicable Maintenance; or (f) any Third-Party Software.
7.4 Effect of Infringement Claim. If an Infringement Claim is or, in Minemax’s reasonable belief, is likely to be asserted, then: (a) Minemax may require you to discontinue use of the applicable Software immediately; and (b) Minemax will, at its sole option, either (i) procure for you the right to use and exercise your rights with respect to the Software; (ii) replace the affected Software with other non-infringing Software or modify the affected Software to make it not infringing while retaining substantially similar functionality; or (c) if the remedies set forth in sections (b)(i) and (b)(ii) are not commercially feasible, as determined by Minemax in its sole discretion, terminate the affected Order, in whole or in part, and any Licences granted therein, and pay to you a pro rata refund of the fees paid by you for the applicable Licence depreciated on a five-year straight line basis (together a pro rata refund of unused Maintenance fees paid by you if applicable).
7.5 Exclusive Remedy. THE PROVISIONS OF THIS SECTION STATE THE SOLE, EXCLUSIVE AND ENTIRE LIABILITY OF MINEMAX TO YOU, AND ARE YOUR SOLE REMEDY WITH RESPECT TO, ANY CLAIM OR ALLEGATION OF INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
8 – LIMITATIONS OF LIABILITY
8.1 EXCEPT FOR CLAIMS ARISING OUT OF (a) INFRINGEMENT OF MINEMAX INTELLECTUAL PROPERTY RIGHTS; (b) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (c) THE PARTIES’ INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE IN ANY AMOUNT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOODWILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS OR CORRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 XCEPT FOR CLAIMS ARISING OUT OF (a) BREACH OF MINEMAX INTELLECTUAL PROPERTY RIGHTS; OR (b) THE PARTIES’ INDEMNIFICATION OBLIGATIONS, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR AN AMOUNT OF DAMAGES IN EXCESS OF THE FEES PAID OR PAYABLE BY YOU TO MINEMAX FOR THE MAINTENANCE TO WHICH THE CLAIM RELATES, OR, IN THE CASE OF LIABILITY RELATING TO THE SOFTWARE WARRANTY, THE SOFTWARE LICENCE FEES PAID OR PAYABLE BY YOU TO MINEMAX.
8.3 EACH PARTY ACKNOWLEDGES THAT THE FEES REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES AND THAT MINEMAX WOULD NOT ENTER INTO THIS AGREEMENT OR ANY APPLICABLE ORDER WITHOUT THESE LIMITATIONS ON ITS LIABILITY. NOTWITHSTANDING THE FOREGOING, SECTIONS 8.1 AND 8.2 SHALL NOT APPLY TO LIABILITIES THAT CANNOT BE LIMITED BY LAW.
8.4 IN NO EVENT, REGARDLESS OF CAUSE, SHALL MINEMAX BE LIABLE TO YOU OR ANY THIRD PARTY FOR PENALTIES.
9 – TERM AND TERMINATION
9.1 Term. This Agreement shall become effective as of the date and time that you: (a) check the “I Accept …” option to acknowledge and accept this Agreement; or (b) commence using the Software (whichever is earlier) and shall continue in effect, except as otherwise set forth in an applicable Order, unless terminated under clause 9.2 below.
9.2 Termination. This Agreement may be terminated as follows:
(a) by either party thirty (30) calendar days after providing the other party with written notice of the other party’s material breach of this Agreement (or any Order), unless during such thirty (30) day period the breaching party has (i) cured such breach; or (ii) if cure within thirty (30) days is infeasible, provided the non-breaching party with a written plan reasonably acceptable to the non-breaching party to cure such breach and made substantial progress to cure within the thirty (30) day period;
(b) by Minemax ten (10) calendar days after Minemax provides you with notice of your failure to remit timely payment to Minemax; or
(c) immediately by either party if the other party becomes insolvent, makes an assignment for the benefit of creditors, appoints (or has appointed on its behalf) a trustee, receiver or similar officer, or commences a proceeding seeking reorganisation, liquidation or similar relief under any bankruptcy, insolvency or similar debtor-relief statute.
9.3 Effect of Termination.
9.3.1 Upon termination of this Agreement by you pursuant to clause 9.2(a) or 9.2(c), above: (a) all amounts due and owing by you to Minemax for Licences under this Agreement will be immediately payable, and Minemax shall be entitled to retain any and all fees paid by you, except that Minemax shall refund to you any unearned, prepaid Maintenance fees; and (b) all of Minemax’s Maintenance obligations will cease.
9.3.2 Upon termination of this Agreement by Minemax for any reason set forth in clause 9.2, above: (a) all amounts due and owing by you to Minemax under this Agreement will be immediately payable and Minemax shall be entitled to retain any and all fees paid by you; (b) your use of the Software must immediately cease; and (c) all of Minemax’s Maintenance obligations will cease. Within thirty (30) days of termination of this Agreement pursuant to this subsection, you must destroy or return to Minemax all copies of the Software, Documentation and any other Minemax IP, and you must certify to Minemax that all copies have been destroyed or returned.
9.4 Upon expiration of any non-perpetual, term-based Licence to use the Software, (a) all amounts due and owing by you to Minemax under the applicable Order will be immediately payable and Minemax shall be entitled to retain any and all fees paid by you; (b) your use of the Software must immediately cease; and (c) all of Minemax’s obligations concerning such Software will cease. Within thirty (30) days of the expiration, you must destroy or return to Minemax all copies of the Software, Documentation and any other Minemax IP, and you must certify to Minemax that all copies have been destroyed or returned.
9.5 Survival. The terms of this Agreement or any Order that by their nature should survive termination, shall survive termination including, without limitation, the provisions concerning protection of proprietary rights, disclaimers, indemnification and limitations of liability.
10 – GENERAL PROVISIONS
10.1 Assignment. You may not assign, sublicense or otherwise transfer this Agreement, any Order (or any Licence issued thereunder), nor any rights, duties or obligations set forth therein, in whole or in part, whether directly or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Minemax, and any attempt to do so without the express prior written consent of Minemax shall be deemed void. Minemax’s consent may be conditioned upon payment by you of a transfer, assignment or other fee, and such condition shall not be deemed unreasonable.
10.2 Right to Injunctive Relief. You acknowledge that a breach of your obligations with respect to Minemax’s proprietary rights will cause irreparable injury to Minemax and will entitle Minemax to seek injunctive or other equitable relief.
10.3 Dispute Resolution Process. Except for claims relating to breach of the Minemax IP, neither party will invoke formal dispute resolution procedures other than in accordance with this clause. Any party may give the other party written notice of any dispute not resolved in the normal course of business. Within ten (10) calendar days after delivery of such notice, executives of the parties who have authority to resolve the dispute will meet to attempt to resolve the dispute. If the matter has not been resolved within ten (10) days after the disputing party’s notice, or if the executives fail to meet within the ten (10) day period, either party may then proceed to litigation (or an alternative dispute resolution mechanism, such as mediation, binding arbitration or expert determination) at its discretion.
10.4 Third Party Beneficiaries. Third-Party Software licensors shall be third party beneficiaries to this Agreement for purposes of enforcing their rights with respect to the applicable Third-Party Software.
10.5 Independent Contractors. Nothing in this Agreement or in the course of dealings between you and Minemax shall be deemed to create between you and Minemax a partnership, joint venture, association, employment relationship, co-ownership or any other relationship other than an independent contractor relationship. Nothing in this Agreement or in the course of dealings between you and Minemax shall be deemed to empower either party to act for, bind or otherwise create or assume any obligation on behalf of the other, and neither party shall hold itself out as entitled to do the same.
10.6 Severability, No Adverse Construction. If any provision of this Agreement or any Order is held to be invalid or unenforceable, then that provision shall be deemed modified only to the extent necessary to render it valid or eliminated, as the case may be, and the remainder of this Agreement (or the relevant Order, as applicable) shall be enforced and construed as if the provision had been included as modified or as if it had not been included, as the case may be. No provision of this Agreement (or any Order) is to be construed adversely against a party on the grounds that the party was responsible for the preparation of that provision, or the preparation of this Agreement or the relevant Order generally.
10.7 Waiver. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver on any other occasion or of any other provision.
10.8 Publicity. Minemax shall have the right to identify you as a customer of Minemax as part of Minemax’s marketing efforts, including in customer lists and press releases.
10.9 Governing Law. This Agreement is governed by the laws of England and Wales.
10.10 Restricted Rights. All U.S. government users license the Software with only those rights stated herein, including, without limitation, the following: The Software may be transferred to the U.S. government only with the prior written consent of an officer of Minemax and solely as restricted computer software.
10.11 Export Control Notice. You acknowledge that the Software is, in part, of U.S. origin and is subject to U.S. and other applicable export restrictions. You agree not to disclose, use, export or re-export, directly or indirectly, the Software and any information provided by Minemax or the “direct Product” thereof as defined in the Export Control Regulations of the United States Department of Commerce, except in compliance with such regulations. You acknowledge your obligation to comply with all applicable export control laws in your use, export or re-export of the Software. You shall defend, indemnify, and hold Minemax and its licensors harmless from and against any and all claims, judgments, awards, and costs (including reasonable legal, including attorneys’ fees) arising out of your noncompliance with applicable export laws.
10.12 Audit Rights. Minemax shall have the right during the term of this Agreement and for up to one (1) year after the termination or expiry of this Agreement, upon reasonable written notice and during normal business hours, to audit your compliance with the terms of this Agreement and any applicable Order. Audits will be made no more than once in any twelve (12) month period. If an audit reveals that you have underpaid for licensed Software based on your actual use of such Software, then you will pay Minemax, promptly upon demand by Minemax: (a) the applicable license fees at Minemax’s then-current list prices; (b) additional associated fees for any Maintenance at Minemax’s then-current list prices; (c) any applicable late charges; and (d) if an audit reveals that you have underpaid for licensed Software by five percent (5%) or more, Minemax’s reasonable costs of conducting the audit. If an audit reveals you are utilising the Software in a manner not permitted by this Agreement or the applicable Order then you agree to take, at your expense, all reasonable corrective action requested by Minemax.
10.13 Force Majeure. Other than for payments due, neither party will be liable to the other for any failure or delay in performance due to circumstances beyond its reasonable control including, without limitation, acts of God, labour disruption, war, terrorist threat or government action; provided that if either party is unable to perform its obligations for one of the foregoing reasons it shall give prompt written notice thereof to the other party and the time for performance, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.
10.14 No Set-Off. Each Order for Licences to use the Software or for Maintenance, represents a separate and independent contractual obligation. You will not withhold or set-off payments that are due and payable under any Order because of the status of another Order or this Agreement, or any other agreement with Minemax.
10.15 Choice of Language. The original of this Agreement is in English. If this Agreement is translated into any other language the English version shall control.