Terms and Conditions
SOFTWARE LICENSE AGREEMENT
THIS AGREEMENT is entered into as of the date set forth in this Agreement, (the “Effective Date”), by and between TECNOLOGÍA E INNOVACIÓN EN MINERÍA SPA, Rol Único Tributario de Chile (Chilean Taxpayer ID) N° 76.144.06-3, with the main residence in Ave. Ricardo Lyon 222, Office 1304, Providencia, Santiago, Chile (“TIMINING” or “LICENSOR”); and that person and/or entity listed below as Licensee, hereafter referenced as “LICENSEE”
WHEREAS, Licensee wishes to license Licensed Programs, and TIMINING desires to license this Licensed Programs to licensee.
NOW THEREFORE, the parties hereto agree as follows:
1. GRANT OF LICENSE
Subject to the terms and conditions of the Agreement, TIMINING grants to Licensee a non-exclusive, non-transferable license to use the Licensed Programs identified in Exhibit A (the “Licensed Programs”). Licensee may use the Licensed Programs in executable format for its own use, and may translate or modify the licensed programs or incorporate them into other Licensed Programs. Licensee may not, however, transfer or sublicense the Licensed Programs to any third party, in whole or in part, in any form, whether modified or unmodified.
2. CONSIDERATION TO TIMINING
a. Licensee shall pay, upon delivery of the Licensed Programs, the license fees set forth in Exhibit A attached hereto.
b. License fees do not include any shipping, duties, bank fees, sales, use, excise or similar taxes due. If Licensor is required to pay any such amounts, Licensee shall reimburse Licensor in full.
Licensee may make copies of the Licensed Program in executable code form as necessary for use by Licensee and for backup or archive purposes. Licensee agrees to maintain records of the location and use of each copy, in whole or in part, of the Licensed Programs. Each Licensed Program is copyrighted but unpublished by TIMINING. Licensee agrees to reproduce and apply the copyright notice and proprietary notice of TIMINING to all copies made hereunder, in whole or in part and in any form, of Licensed Programs.
The original and any copies of the Licensed Programs, made by Licensee, including translations, compilations, partial copies, modifications, and updates, are the property of TIMINING. No ownership interest in the Licensed Programs is hereby granted to Licensee.
5. PROPRIETARY RIGHTS
Licensee recognizes that TIMINING regards the Licensed Programs as its proprietary information and as confidential trade secrets of great value. Licensee agrees not to provide or to otherwise make available in any form the Licensed Programs, or any portion thereof, to any person other than employees of Licensee without the prior written consent of TIMINING. Licensee further agrees to treat the Licensed Programs with at least the same degree of care with which Licensee treats its own confidential information and in no event with less care than is reasonably required to protect the confidentiality of the Licensed Programs.
TIMINING reserves the right to add a security mechanism to the Licensed Programs for the purpose of monitoring the use and functionality of the Licensed Programs. This security mechanism may store data related to the use of the Licensed Programs, including but not limited to the number of times the Licensed Programs may have been copied. Such information may be provided to TIMINING through remote programming and/or other access.
Licensee hereby authorizes TIMINING or its authorized agents to access the facilities, terminals and servers of the Licensee, and shall fully cooperate with TIMINING in any investigation related to Licensee’s compliance with TIMINING license conditions.
The license granted hereunder shall continue for a period of twelve (12) months, unless and until terminated pursuant to Section 7 hereof and subject to Licensee’s proper performance of its obligations hereunder.
Licensee may renew by means of a written Purchase Order for such renewal within 10 days prior to the time the license expires. In the event no such written Purchase Order is not received by TIMINING within the time set forth above, no renewal shall occur. Use of the Licensed Programs after the date of the expiration of this Agreement does not act as a waiver of any rights set forth herein.
TIMINING may terminate this Agreement if Licensee is in default of any of the terms and conditions of this Agreement and fails to correct such default within ten (10) days after written notice thereof from TIMINING.
8. TERMINATION CERTIFICATE
In the event of termination, Licensee will immediately discontinue use of the Licensed Programs. Within one (1) month after termination of this Agreement, Licensee will furnish to TIMINING a certificate which certifies with respect to each of the Licensed Programs that, through its best effort and to the best of its knowledge, the original and all copies, in whole or in part and in any form, of each of the Licensed Programs have been destroyed. The provisions of Sections 4, 5, 8, 11, and 13 hereof shall survive any termination of this Agreement.
9. MAINTENANCE SUPPORT
Licensor will provide to Licensee the following support with respect to the Licensed Programs:
(i) If during the first year of this Agreement, Licensee notifies Licensor of a substantial program error respecting the Licensed Programs, or Licensor has reason to believe that error exists in the Licensed Programs and so notifies Licensee, Licensor shall at its expense verify and attempt to correct such error within thirty (30) working days after the date of notification. If Licensee is not satisfied with the correction, then Licensee may terminate this Agreement, but without refund of any amount paid to Licensor or release of any amounts due Licensor at the time of termination.
(ii) In the case that Licensee has technical questions in the use of the Licensed Programs during the 1st year of this Agreement, Licensee may submit those questions to Licensor. Licensor shall provide consulting to answer such questions without charge to Licensee up to a maximum of sixteen (16) hours for each licensed program.
(iii) If Licensee desires to continue the Licensed Programs support specified in this section, Licensee shall pay to Licensor the maintenance fee(s) set forth in Exhibit A.
10. DELIVERY OF LICENSED PROGRAMS
TIMINING shall use its best efforts to deliver the Licensed Programs promptly after receipt of the purchase order and export license (if required). Such delivery may be through remote installation or other means. Upon delivery of the Licensed Programs, TIMINING shall provide a physical or software activation device for each Licensed Program acquired by Licensee.
11. WARRANTY DISCLAIMER
TIMINING licenses, and Licensee accepts, the licensed programs “AS IS.” TIMINING PROVIDES NO WARRANTIES AS TO THE FUNCTION OR USE OF THE LICENSED PROGRAMS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LICENSED PROGRAM IS WITH LICENSEE. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED PROGRAMS WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED PROGRAMS WILL BE UNINTERRUPTED OR ERROR FREE.
12. PATENT AND COPYRIGHT INDEMNITY
TIMINING will defend at its own expense any action brought against Licensee to the extent it is based on a claim that the Licensed Programs used within the scope of the license granted hereunder infringe any patent, copyright or other proprietary right of a third party. TIMINING will pay any costs, damages or attorney fees finally awarded against Licensee in such action which are attributable to such claim, provided TIMINING is promptly notified in writing of such claim, may control the defense and/or settlement of such claim, and is provided with all requested assistance, information and authority. In the event that a Licensed Program becomes, or in TIMINING’s opinion is likely to become, the subject of a claim of infringement of any patent, copyright or trade secret, TIMINING may at its option either secure Licensee’s right to continue using the Licensed Programs, replace or modify the Licensed Programs to make them not infringing, or provide Licensee with a refund of the license fee less depreciation on a 1 (one) year, straight-line basis. TIMINING shall have no liability for any claim of patent, copyright or trade secret infringement based on the use of a Licensed Program in any form other than the original, unmodified form provided to Licensee or the use of a combination of the Licensed Programs with hardware, Licensed Programs or data not supplied by TIMINING where the used Licensed Programs alone in their original, unmodified form would not constitute an infringement.
13. LIMITATION OF LIABILITY
TIMINING’S LIABILITY TO LICENSEE UNDER ANY PROVISIONS OF THIS AGREEMENT FOR DAMAGES FINALLY AWARDED SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID HEREUNDER BY LICENSEE TO TIMINING.
IN NO EVENT SHALL TIMINING BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENT/IAL DAMAGES, INCLUDING LOSS OF USE, LOSS OF PROFITS OR INTERRUPTION OF BUSINESS, HOWEVER CAUSED OR ON ANY THEORY OF LIABILITY.
All notices in connection with this Agreement shall be in writing and may be given by certified, registered, or first class mail or personally delivered at the address set forth on the front page. For purposes of this Agreement, a notice shall be deemed effective upon personal delivery to the party or if by mail five days after proper deposit in a mail box.
This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective representatives, successors and assigns except as otherwise provided herein.
In the event any provision of this Agreement is determined to be invalid or unenforceable, the remainder of this Agreement shall remain in force as if such provision were not a part.
17. GOVERNING LAW/FORUM
This Agreement shall be governed and interpreted by the laws of the State of Utah, Salt Lake County, Utah shall be the appropriate venue and jurisdiction for the resolution of any disputes hereunder. Both parties hereby consent to such personal and exclusive jurisdiction.
This Agreement and the licenses granted by it may not be assigned, sublicensed, or otherwise transferred by Licensee without the prior written consent of TIMINING.
19. EXPORT REGULATIONS
Licensee understands that TIMINING may be subject to regulation by agencies of the country in which TIMINING or Licensee is situated, which may prohibit export or diversion of certain technical products to certain countries. Licensee warrants that it will comply in all respect with the export and re-export restrictions set forth in the export license for the Licensed Programs and all other applicable export regulations. Licensee agrees to indemnify and hold TIMINING harmless from any loss, damages, liability or expenses incurred by TIMINING as a result of Licensee’s failure to comply with any export regulations or restrictions.
20. ENTIRE AGREEMENT
This Agreement sets forth the entire understanding between the parties with respect to the subject matter hereof, and merges and supersedes all prior agreements, discussions and understandings, express or implied, concerning such matters. This Agreement shall take precedence over any additional or conflicting terms which may be contained in Licensee’s purchase order or TIMINING’s order acknowledgment forms.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the Effective Date.
ONE-TIME LICENSE FEE
NOTES: License fee excludes any taxes, shipping and/or insurance charges, and any bank transfer fees.. Code maintenance is free during the first year; thereafter, code maintenance is available annually with maintenance fee listed above.