Terms and Conditions
This Software License Contract (“Contract”) is signed by 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”); and the company that has accepted online or other legal means terms and conditions of this Contract (the “Client”).
TIMINING and the Client are also known individually as “Party” and jointly as “Parties”.
The terms in capital letters of this Contract shall have the following definitions:
“Update” means any minor Software version after the delivery and initial installation of the Software. Updates include corrections, improvements and updates made by TIMINING.
“Documentation” means manuals, and other technical and standard end-user documentation that TIMINING usually provides in Spanish or English with the Software, including changes and reviews made by TIMINING. The Documentation will be delivered in any format, including files that are machine-readable.
“Date of Signing of the Contract” will mean the date in which the Client accepts the commercial proposal of TIMINING and issues a Purchase Order, Service Order, etc. that in turn had been accepted by TIMINING or the date in which both Parties agree in writing after the said commercial proposal of TIMINING was delivered and accepted.
“Proprietary Information” makes reference to the Software and the Documentation and any other information of which rights belong to TIMINING.
“Upgrade” means any important and subject version of the software which adds new storage, features or functions and that is described as an improvement or upgrade. The Upgrade is not an Update, and the Update is not an Upgrade.
“Software” means any application software in an executable program of TIMINING, including the documentation, its updates and any copy or part of the Software. The Software will not include Upgrades that TIMINING licenses separately from the Software, unless otherwise agreed in writing between the Parties. The Software can include third-party property software when the third party had given TIMINING the right to include it as part of the Software.
“Support” means the supply of support through email or direct line telephone and the research and solution of notified problems, as it is described further on in the section “Maintenance and Support” of this Contract.
“End User” means the Client that has acquired one or more Software licenses of TIMINING for their own internal use through their employees.
2.1 License. Hereby, TIMINING grants a non-exclusive, non-transferable and limited license to the Client to install and allows access and use of the executable form of the Software, which will be limited through an USB key or software key. This key is kept by the Client and will allow the functioning of the software (node-locked license), only for its installation in the company premises in which it functions. That is to say, the use of the software will be limited to only one mining site or infrastructure (site license), for which the Client must inform TIMINING of the assigned site in which the license will be used. The license can only be transferred if the time of functioning in the site is more than 6 months (non-stop), informing TIMINING 30 days ahead for its relocation.
The Software will contain all the Updates and Upgrades that TIMINING offers for the corresponding Software, and the remote installation service of the Software in the assigned computer or server. New modules or extra applications will not be included beyond the original Software version.
2.2 Software Delivery and Installation. Once TIMINING accepts the Purchase Order for a Software, its delivery will happen when TIMINING gives the Software to the Client through its remote installation in the servers and computers assigned by the Client. If, for any reason, there should be a reinstallation of the Software in a piece of equipment, it should be done by TIMINING. In this case, the installation expenditure will be applied, prohibiting the Client from doing it on their own.
2.3 Software Activation. For the Software activation and the granting of the license and Software in the computer and server assigned by the Client, TIMINING will give the Client a physical or software activation device for each Software license acquired. Its duration will be the same as the license validity. Once the license has expired without being renewed, the Software will be deactivated and disabled, being blocked so that the End User cannot utilize it anymore, being their responsibility the loss of any existing data or information up to that date.
2.4 License Security. TIMINING reserves the right to add a security mechanism in the Software to monitor the use of the Software and check its functioning. Said mechanism can store data related to the use of the Software and to the number of times it has been copied, being TIMINING authorized as of now by the Client to receive that information in a remote way.
Additionally, the Client will allow TIMINING or its authorized agents to access the facilities, terminals and servers of the Client, fully cooperating with TIMINING in the review they may do to verify the observance of the license conditions agreed on. The Client will take all the commercially reasonable measures to help TIMINING determine in detail the observance of the terms and conditions of this Contract.
2.5 Ownership / Ownership Rights. The Client states that he or she knows and accepts that TIMINING or their licensors are owners and retain all the rights, titles and interests, including, among others, all copyrights and ownership on and about the Software. Intellectual ownership inherent in the Software will remain with TIMINING or third parties from which TIMINING had obtained the right to grant the Software on a license.
As a consequence of the above mentioned, the license granted under this Contract does not constitute the purchase of programs nor titles, nor corresponding copyrights, so the Client will not acquire any additional right or interest besides the ones stated in this Contract or the ones related to the nature of the Software.
2.6 Restrictions / Banning of License. The Client accepts that he or she will not use, reproduce, distribute, lend, relinquish, publish or transfer (with or without remuneration) in any form or for any reason the Software, except what was expressly agreed on this Contract. In addition, it is stipulated that the Client commits to not actively commercializing the Software and to not distributing or licensing the Software. The Client will not eliminate or modify any of the notice of property of TIMINING or its licensors included in the Software or its Documentation.
3. DURATION OF THE LICENSE
3.1 Validity. The license validity for the Software will be a year from the date of signing of this Contract, except if the Parties had set in the commercial proposal or in other written form a later date.
If the Client wants to renew this license, they must communicate their decision in writing through the delivery of a Purchase Order up to 10 working days before the expiration of the corresponding validity, so as to ensure the continuity of the license and avoid the effects of its termination. Otherwise it is understood that they have chosen not to renew the license. The fact that the Software could still be used for any reason after its validity cannot be interpreted as a renewal of it or as a waiver of rights of TIMINING.
3.2 Effects of the expiration of the license. After the termination of the Software license, because of the expiration of the validity period or any other cause of termination established in this Contract, the Client shall refrain from using the Software, uninstall it and return or destroy all of its Documentation, including the return of the physical keys. They will provide a written proof of said destruction or disabling at the request of TIMINING.
4. PRICE OF THE LICENSES
4.1 Values of the license. The Client agrees to pay TIMINING the values in the terms and conditions delivered by TIMINING in their commercial proposal for each Software hired by the Client. The proposal is part of this Contract for all legal purposes. The values of license renewal will be the ones stipulated in the commercial proposal of TIMINING. If there are not any, TIMINING will be authorized to set and modify the annual values of the license, which should be informed to the Client in advance previous to the termination of the validity period. It is herein stated that, during the first billing year of each license, the Client will pay a one-time fee for the installation services which will be detailed in the corresponding commercial proposal. Furthermore, additional sums can be included for expenses.
4.2 Other TIMINING Services. If the Client requires it, TIMINING can provide additional services to the ones established in this Contract. In that case, both Parties will agree on the scope of those additional services and the values for them.
4.3 Billing, Payment, and Arrears. The Client agrees to pay for the licenses the price of the Contract and in the conditions outlined above. The billing will be done once the Purchase Order is received, which shows the commercial conditions of the commercial proposal delivered by TIMINING to the Client, and the Client shall pay the billed services within the period established.
The Client can, with a previous written agreement with TIMINING, pay through its partners or subsidiaries. In this last case, the Client declares that the origin of the funds used for the payment have a lawful origin and abide by the regulations of the Law N.° 20.393.
Without prejudice to any other right, the lack of full and appropriate payment of any amount beyond the date of payment in the terms and conditions stipulated will:
(I) yield the monthly conventional maximum interest for TIMINING on the non-payed remainder, during the whole time that passes between the due date and the real payment date; and
(ii) interrupt, without any procedure, in partial or total, the license and other services that could appear in the Contract.
4.4 Taxes. The prices of Software licenses do not include taxes, such as the Value Added Tax or any tax on similar sales, local taxes, import and customs duties, and surcharges, which will be paid additionally by the Client so that TIMINING receives the total amount they have billed. If there is any deduction of taxes on the sum due to TIMINING, the payable sums shall be increased to TIMINING, so the sum they receive after the payment of the deduction of taxes is the sum they would have received if the tax had not been levied.
5. MAINTENANCE AND SUPPORT
5.1 Maintenance and Support. For each Software license that the Client has subscribed to, TIMINING will be in charge of its installation and subsequent Maintenance and Support during the validity period of the license. TIMINING can provide the Support Levels directly or through third parties, who for that purpose had informed the Client, during TIMINING working hours. The scope of Maintenance and Support will be the ones described below:
The Support TIMINING offers has the aim of dealing with doubts of usability as regards the functions of the Software, user management, introduction of instruments, among others. In this service, it is included:
- Support before doubts about the functioning of the application, license use.
- Support in the configuration and administration of the system.
- Support in the system control produced by some external cause such as power cut, networks, etc.
The availability of this service is from 09:00 a.m. to 6 p.m., continental Chile time zone, from Monday to Friday (8×5) and there is no limit on the number of doubts per year.
The Support Service is provided in a remote way, in which the Support Engineer delivers help to the user through remote means (telephone, VPN, video conference or any other means that allows remote communication).
5.2 Support Levels
LEVEL 1: It means requirements or needs of the Client or user of the Software that has an active support contract with TIMINING. In this category, there are requirements related to the following topics:
- User accounts management associated to the Software.
- Management of license, updates and keys for the use of the software
- System configuration
- System recovery if there are unexpected stoppages
- Basic data management associated to the Software
- Process of installation or reinstallation
- Control of the connectivity in environments Client-server, if there are any
LEVEL 2: It means requirements or needs of the Client or user of the software that has an active support contract with TIMINING. In this category, there are requirements related to the following topics:
- Software usability (interfaces)
- Questions about methods, formulas or calculations used by the Software
- Management and advanced analysis of the database.
LEVEL 3: It means requirements or needs of the Client or user of the software that has an active support contract with TIMINING. In this category, there are requirements related to the following topics:
- Notification of Software errors (bugs)
- Suggestions of improvements or new functions of the Software.
5.3 TIMINING Staff. TIMINING will provide qualified staff for the Software installation, maintenance and support.
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 in the result or responsibility. This support may have an additional cost to the license cost hired by the Client for the following cases:
- Problems caused by virus.
- Damage caused by accident, natural disaster, fire, water, war or terrorism, not correct use of the product, as well as damage caused by the intervention of non-authorized people.
- Any required service as a result of any modification of the hardware, such as server migration, modification in the configuration of the server, etc.
- Any required service as a result of malfunctioning of the hardware or a defect.
- Errors or malfunctioning due to acts attributable to the End User.
- Recovery of lost data, due to the End User’s fault.
- Maintenance and support of the systems of third parties (for example, operating system, database management systems, etc.)
- Any required service as a result of errors or malfunctioning of systems of third parties (for example, uploading of incorrect data of systems of third parties).
5.5 Software Control. The Client states and accepts that TIMINING Software have a mechanism for the capture of information about the functioning of the Software, with the sole purpose of monitoring its use, frequency, behavior, measuring its efficiency and making improvements in it. The data obtained are informed to TIMINING with said purpose, and under no circumstances there is proprietary information of the Client. There is only functioning data (for example, turning on and off the Software, etc.)
Without prejudice to the above mentioned, TIMINING will always maintain the appropriate confidentiality of the information they may have access to because of the maintenance and support, being Section 9 and other laws applicable.
6. PROTECTION OF PROPRIETARY INFORMATION AND INTELLECTUAL OWNERSHIP
6.1 The Client will maintain the confidentiality and protect the Proprietary Information from its disclosure to third parties. The Client will use the Proprietary Information only with the aim of complying with this Contract and will preserve the Proprietary Information in the strictest secret and confidentiality not only during but also after the validity of this Contract. The Client recognizes that the non-authorized disclosure of the Property Information can cause substantial economic loss to TIMINING.
6.2 The Client will not modify or alter the Software. Hereby, the Client recognizes that every modification, alteration, addition or translation of the Software that TIMINING may make will be sole and exclusive property of TIMINING.
6.3 The Client will not try to revert the compiling or disassemble the versions of the object code of the Software. The Client will not be able to revert the compiling, make reverse engineering, disassemble, modify or try to divert, or try in any other way to discover the source code of the Software, the ideas underlying, the techniques of the interface of underlying users, or the algorithm of the Software, its data structures or prepare work derived from the Software. The Client accepts that they will not use, reproduce, copy, distribute or transfer (with or without remuneration) the Software, except what was expressly agreed on this Contract.
6.4 The Client will inform their employees and subcontractors of their obligations considering this clause to ensure the compliance of said obligations. The Client will take all the reasonable and necessary measures to enforce the confidentiality agreements of the employees/subcontractors, if there is a breach of them. Additionally, the Client accepts that TIMINING will be a third party, expressed beneficiary of said agreements with full right and power to enforce their regulations if there is a breach of them.
6.5 After the termination of this Contract, the Client, at TIMINING discretion, will destroy (and, in written, will certify the destruction) and will provide a written proof of said destruction or disabling at the request of TIMINING, or return the Proprietary Information to TIMINING (including, but not limited to, the Software) in possession of the Client.
6.6 TIMINING will have the right to recover from the Client the costs, expenses and attorneys’ fees spent in the compliance of their rights considering this section. The Parties agree that any breach of this section will cause irreparable damage to TIMINING, so the financial damages will not be suitable or verifiable and TIMINING will have the right to interim or precautionary measures if there is a breach.
7. LIMITATION OF LIABILITY
7.1 The total liability of TIMINING for any claim or damage arising out or related to this Contract and the Software, independent of its way of action, either by contract, crime or others, will have the limit stated in the following clause. Additionally, under no circumstances, a party will be liable for any incidental, indirect, special, consequential or punitive damages, including, without limitation, damages for loss of profits, revenue, data or use, incurred by the other party or third parties, even if the party had knowledge, they should have known or been warned of the possibility of said damages. TIMINING will not be liable either for any type of liability for injuries or damages to third parties because of the use of the Software, stating that its use and data with which they could reinforce the results are entire and full liability of the Client. Any claim against TIMINING shall be requested in written within 4 months after the date of the incident that had presumably caused the liability, after that the right and its corresponding action will be expired, lapsed or precluded.
7.2 THE PARTIES AGREE THAT THE TOTAL LIABILITY OF TIMINING AS REGARDS THE CLIENT AND THIRD PARTIES UNDER ANY CONTRACTUAL OR EXTRACONTRACTUAL CASE, INCLUDING MAINTENANCE AND SUPPORT, IS LIMITED TO THE TOTAL SUM OF THE SOFTWARE LICENSE, PAID BY THE CLIENT IN THE PERIOD OF 1 YEAR.
8.1 Indemnification for Intellectual Ownership. TIMINING will indemnify and defend, at their expense, any lawsuit presented against the Client, as long as it is based on a claim that any Software provided under this Contract infringes a patent, copyright, trade secret or any other intellectual ownership right. TIMINING will pay all costs and damages set against the Client by a court with jurisdiction, as long as TIMINING is notified promptly in written form of that claim and receives information, reasonable assistance and exclusive power to defend or negotiate the claim. TIMINING will not come to an agreement admitting responsibility or assuming obligations on behalf of the Client without previous written consent of the Client.
8.2 Exclusions. Without prejudice to any opposite regulation defined in this Contract, TIMINING will not have any responsibility or obligation of indemnification before the Client considering this Section or any other regulation of this Contract, as long as the claim for infraction is based totally or partially on or is derived from: (i) the use of any out-of-date version of the Software by the Client if the responsibility of the Client for the infraction could have been avoided using a more recent version of the Software; (ii) the combination, operation and use of the Software with any software, equipment, material or product of third parties, as long as the responsibility of the Client for said infraction could have been avoided if that combination, use or operation was not done; (iii) the lack of application by the Client of a defect correction or a patch provided by TIMINING to the Client; or (iv) any refusal of the Client to install and use a non-infringing version of the Software provided by TIMINING to the Client free of cost for the Client, as long as said non-infringing version has, in general, the same functions. Additionally, TIMINING will not be responsible either (a) if the applicable Software is modified by the Client or third parties, including but not limited to the end user, and said modification is the cause of said infraction, misappropriation, or violation unless the modifications were made with the previous express consent of TIMINING, or (b) because of the use of the Software with any other software, computer hardware or non-approved services in writing by TIMINING or that do not abbey by the terms in this Contract.
8.3 Indemnification for personal injuries / damage to property. The Client will defend, indemnify and exempt of any responsibility to TIMINING, its directors, authorities, employees, and agents from any claim, damage, loss and expenses of third parties related to death, injury or disability of any person or damage or destruction of any property (including, without limitation, the loss of use of any property) that arises out or results from the Client’s acts or omissions that must indemnify. Additionally, they shall indemnify, at their own expense, and defend any lawsuit or claim (false, fraudulent or unfounded) that allege said injury or damage and will pay all attorneys’ fees, court fees, rewards and any other cost and expense related to said lawsuits or claims. In that case, TIMINING will notify in written form to the Client that they should indemnify no later than (10) days after having received notification of any claim that requests indemnification. The Client will have exclusive control in the defense of the claim and of any negotiation for its agreement or commitment, but will not be able to accept any agreement that implies admitting responsibility without first having previous written consent of TIMINING. At the expense of the Client, TIMINING will cooperate reasonably in the defense of any claim.
9. CONFIDENTIAL INFORMATION
9.1 General. For the purpose of this clause, “Confidential Information” means all confidential information disclosed (either in writing, orally or other means, directly or indirectly and before or after the date of beginning of validity) by one Party in this Contract with the other Party in accordance with this Contract, including all the information transmitted to the recipient Party through training or other way, as regards the products, operations, processes, plans or intentions, information, technical specifications, know-how, design rights, trade secrets, research, data of Clients, financial data, commercial opportunities and commercial matters of the Party which discloses information. The Confidential Information of TIMINING will include, without limitation, the Software, the concepts of technical design, architecture and structure of the Software, design materials, technical documentation, training material, user documentation, data model, reports, prices, financial information, names of Clients.
Each party will protect the Confidential Information of the other party from the non-authorized use and disclosure. All the Confidential Information disclosed by any Party to the other Party considering this Contract will be used by the recipient Party only in relation to the compliance of this Contract by authorized employees that are involved in the use of Confidential Information and that have agreed in writing to be linked by the terms and conditions of a confidentiality agreement that will not be less restrictive that the terms and conditions of this Contract. In general, each party will have the same degree of care for the Confidential Information that they use to protect their own Confidential Information, but, in any case, no less than a reasonable care, including, among other, the established requirements in this Contract.
9.2 Governmental Disclosure. None of the Parties will limit the disclosure of Confidential Information of the other Party in accordance with a court or governmental order, but in that case, said disclosure will be only to the extent that is ordered, provided that the Party received an order (a) it will notify at the appropriate time to the other Party so that it can intervene in the response of said order, or (b) if it is not possible to notify at the appropriate time, it will try to limit the disclosure and obtain a confidential treatment or a protection order from the court or government for said information.
9.3 Exclusions. The obligations and limitations related to the Confidential Information in this Contract will not be applied to the information that is or becomes:
- at any time, public domain that it is not because of the breach of this Contract by the recipient Party; or
- at any time received legitimately from a third party that has the right and it transmits it to the recipient Party without any obligation of confidentiality; or
- legitimately known by the recipient Party without any limitation on its use or disclosure previous to the reception of it from the revealing Party, according to what is identified in writing previous to the date in which the revealing Party disclosed it to the recipient Party; or
- developed in an independent way by the staff of the recipient Party that did not have access to the Confidential Information received by the revealing Party; or
- generally granted to third parties by the revealing party without any restriction related to its use or disclosure.
9.4 Data protection. The Parties guarantee mutually that they abbey by every applicable law of data protection and that have obtained all the necessary authorizations according to what the applicable law demands related to personal data transmitted or granted by one party to the other for its processing within the compliance of this Contract, and will indemnify the other Party for any cost, claim, responsibility and lawsuit intervening in relation to the breach of this guarantee.
10. TERMINATION OF THE CONTRACT
10.1 Termination for breach. If one Party does not compensate for the breach of any material obligation considering this Contract within (30) days after the reception of notification that describes said breach, the Party which is not breaching can immediately terminate this Contract with previous written notification of it.
10.2 Immediate Termination. If one Party declares bankruptcy, insolvency or begins liquidation management, it is dissolved or stops doing business, the other Party can terminate immediately this Contract with previous written notification.
10.3 Effects of Termination. The termination of this Contract will not affect the obligation of any Party to pay any amount that could have yielded from the other Party considering this Contract before the effective date of termination.
11. RESOLUTION OF DISPUTES
Any doubt or difficulty that arises between the Parties because of this Contract or its supplementary or amending documents, whether its interpretation, compliance, validity, termination or any other cause related to this contract, it will be solved through arbitration, as stated in the Regulations of the Arbitration Centre of Santiago Chamber of Commerce, A.G.
The Parties give special irrevocable order to Santiago Chamber of Commerce A.G. So that, at the written request of any of them, the Chamber appoints the mixed arbitrator from the member of the arbitral body of the Arbitration Centre of that Chamber.
Against the decisions of the arbitrator there will be no appeal, that means the Parties expressly renounce it. The arbitrator is specially qualified to solve any matter related to their competency or jurisdiction.
12. GENERAL REGULATIONS
12.1 Applicable law. This Contract will be governed by the laws of the Republic of Chile.
12.2 Jurisdiction. The Parties obey the jurisdiction of the court of the Republic of Chile and the previous arbitral clause.
12.3 Assignability. All the terms and conditions of this Contract will be binding, for the benefit of the corresponding successors and any assignee authorized by the Parties, and will be enforceable. Except it is specifically stated in this Contract, neither this Contract nor any of the rights, interests or obligations of any Party can be transferred or delegated by any Party without previous written consent of the other Party. Any non-authorized transfer or delegation will be invalid and ineffective.
12.4 Survival. The obligations of each Party in this Contract as regards the use and disclosure of the Confidential Information will survive (5) years after the termination of this Contract. Once the obligations ended as regards the Confidential Information stated in the previous phrase, the use of the Confidential Information will be governed by applicable legislation, including, among others, the legislation on patents and copyright.
12.5 Resignation. Any absence or delay by any Party in the exercise of any right or appeal will not constitute a resignation of it.
12.6 Divisibility. If any regulation of this Contract is considered invalid, void or inapplicable, the rest of the regulation will remain fully into force and effect.
12.7 Complete agreement. This Contract, including all of its Annexes attached to this Contract that are included through this reference, establish the complete agreement between the Parties as regards the object of this Contract and will end and replace all previous discussions, proposals, negotiations, representations, commitments, documents, agreements and other communications, oral and written, between the Parties as regards the object of this Contract. This Contract cannot be modified except through a written agreement signed by a properly authorized representative from each Party.
12.8 Force Majeure. If anything prevents any Party to abbey by or cannot abbey by any of the obligations considering this Contract (not a payment obligation) due to any unforeseeable case or force majeure, fire, flood, earthquake, war, strike, blockade, epidemic, destruction of production facilities, riots, uprising, material unavailability or any other cause out of reasonable control of the Party who appeals to this section, and if said Party had used commercially reasonable efforts to reduce its effects, said Party will notify quickly in writing to the other Party. The compliance of the affected obligations will be excused and the time for the execution will be extended during the period of delay or inability due to said events. If the circumstances of force majeure or unforeseeable case exceed the 45 days, any of the Parties can terminate this Contract.