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Accord de licence pour l’utilisateur final (End User License Agreement - English Only)
IMPORTANT – READ CAREFULLY:
This End-User License Agreement (“EULA” and “Agreement”) is a binding legal agreement between KPI Digital d/b/a « KPI Mining Solutions” located at 2600 Alfred Nobel, Saint Laurent, QC, Canada (“Licensor”) and the person or entity identified on the Proposal as the licensee of the Software and the Documentation (« Licensee”).
Licensor provides the software solely on the terms and conditions set forth in this agreement and on the condition that licensee accepts and complies with them. By clicking the “accept” button in the installer you
(a) accept this agreement and agree that licensee is legally bound by its terms; and
(b) represent and warrant that:
(i) you are 18 years of age or older/of legal age to enter into a binding agreement; and
(ii) if licensee is a corporation, governmental organization, or other legal entity, you have the right, power, and authority to enter into this agreement on behalf of licensee and bind licensee to its terms. If licensee does not agree to the terms of this agreement, licensor will not and does not licence the software to licensee and you must not install the software or documentation.
Not with standing anything to the contrary in this agreement or your or licensee’s acceptance of the terms and conditions of this agreement, no licence is granted (whether expressly, by implication or otherwise) under this agreement, and this agreement expressly excludes any right concerning any software that licensee did not acquire lawfully or that is not a legitimate, authorized copy of licensor’s software.
1. Definitions
“Additional Software” means updates, patches, new functionality, supplements, plugins, custom modifications or new functionality specific to the Licensee’s needs, or other add on components of the Software.
“Authorised User” means a Representative of the Licensee entitled under this EULA to access or use the Software under a User License. For greater clarity, Authorized Users may include Licensee’s employees or Licensee’s contractors.
“Confidential Information” has the meaning set forth in Section 6.
“Disclosing Party” has the meaning set forth in Section 6.1.
“Documentation” means user manuals, technical manuals, and any other materials provided by Licensor, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software.
“Embedded Materials” means any third-party software, images, or other media which may be licensed by Licensor from a Third Party and embedded in the Software.
“EULA” means this document and any amendment or addendum provided by Licensor to the Licensee.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“License Fees” means the licence fees, including all taxes thereon, described in the Proposal and paid or required to be paid by Licensee for the licence granted under this EULA.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“Proposal” means the order form filled out and submitted by or on behalf of Licensee, and accepted by Licensor, for Licensee’s purchase of the licence for the Software granted under this EULA including a number of User Licenses.
“Receiving Party” has the meaning set forth in Section 6.1.
“Release” means any update or new version of the Software or Documentation.
“Representative” means, with respect to a party, that party’s employees, officers, directors, consultants, agents, independent contractors, service providers, and legal advisors.
“Software” means the software that accompanies this EULA, including computer software, Additional Software, Releases and associated media, printed materials, ‘online’ or electronic documentation, internet-based services and Embedded Materials.
« Term” has the meaning set forth in Section 12.1.
“Third Party” means any Person other than Authorized Users.
“User License” means a license or licenses granted by Licensor under this EULA to the Licensee to permit an Authorised User to access and run the Software. The Proposal outlines the subscribed number of licenses to the Software. For greater clarity, the Licensee is permitted to allow concurrent access and use of the Software by Authorized Users. The Licensee is not permitted to allow concurrent access and use of the Software by Authorized Users above the number of concurrent Authorized Users described in the Proposal.
2. License
2.1 Subject to and conditional on payment of the Licence Fees and Licensee’s strict compliance with all terms and conditions set forth in this EULA, Licensor grants a non-exclusive, non-transferable, non-sub-licensable limited license to the Licensee (License) during the Term to use, solely by and through its Authorized Users, the Software, and the Documentation solely as set forth in this EULA and subject to all conditions and limitations set forth in this EULA. The Software is for the Licensee’s own use and must not be used by others or for marketing or redistribution, whether alone or as a component of any other product. This licence grants Licensee the right, exercisable solely by and through Licensee’s Authorized Users, to:
Install in accordance with the Documentation, the Software. Each copy of the Software must only be installed on a computer or virtual machine, owned or leased, and controlled by, Licensee. The Licensee has the right to make a reasonable number of copies of the Software solely for backup purposes, provided that Licensee shall not, and shall not allow any Person to, install or use any such copy other than if and for so long as the copy installed in accordance with the preceding sentence is inoperable and, provided further that Licensee uninstalls and otherwise deletes such inoperable copy. All copies of the Software made by the Licensee:
(a) will be the exclusive property of the Licensor;
(b) will be subject to the terms and conditions of this EULA; and
(c) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
Use and run the Software as properly installed in accordance with this EULA and the Documentation, solely as set forth in the Documentation. The Licensee shall maintain an internal list of Authorized Users. The Licensee shall ensure that the number of concurrent Authorized Users accessing and running the Software does not exceed the number of User Licenses to which they are subscribed
Download or otherwise make one (1) copy of the Documentation per copy of the Software installed in accordance with this EULA and use such Documentation solely in support of its licensed use of the Software in accordance herewith. All copies of the Documentation made by Licensee:
(a) will be the exclusive property of Licensor;
(b) will be subject to the terms and conditions of this EULA; and
(c) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
Transfer – If Licensor provides written consent to the Licensee for installation of the Software on another system (Other System), the Licensee must ensure that the terms of this EULA are complied with by users of the Other System.The Licensee indemnifies Licensor for all costs, damages and losses Licensor suffers arising from the installation and use of the Software on the Other System.
2.2 The licenses granted are subject to the condition that the Licensee must ensure the maximum number of concurrent Authorized Users running the Software does not exceed the number of User Licenses for which the necessary License Fees have been paid to Licensor. The Licensee may purchase additional User Licenses at any time on payment of the appropriate Fees to Licensor.
2.3 An amendment or addendum to this EULA may accompany the Software. Any amendment or addendum forms part of the license terms as if they were included in this document and, together, form the terms of this EULA. To the extent that any inconsistency arises between the amendment or addendum and these terms, the relevant provisions of the amendment or addendum will apply to the extent of the inconsistency.
2.4 Subject to the terms of this EULA, and unless terminated earlier in accordance with this EULA, licenses are time limited under “Subscription” or “Monthly Rental” options, with expiration dates based on Fees payments as described in the Proposal.
3. Use Restrictions
3.1 Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
(a) use (including make any copies of) the Software or Documentation beyond the scope of the licence granted under Section 2;
(b) except as expressly set forth in Section 2 copy the Software or Documentation, in whole or in part;
(c) modify, correct, translate, adapt, enhance, further develop, or otherwise create derivative works, enhancements or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
(d) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
(e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
(f) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy provided on or with the Software or Documentation, including any copy thereof;
(g) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software and Documentation, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service (SaaS), cloud, or other technology or service;
(h) use the Software or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Software could lead to personal injury or severe physical or property damage including:
(i) power generation systems;
(ii) aircraft navigation or communication systems, air traffic control systems, or any other transport management systems;
(iii) safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; and
(iv) military or aerospace applications, weapons systems, or environments;
3.2 No Implied Right. Except for the limited rights and licences expressly granted under this EULA, nothing in this EULA grants, by implication, waiver, estoppel, or otherwise, to Licensee or any Third Party any Intellectual Property Rights or license, nor other right, title, or interest in or to the Software or Documentation, and Licensor’s Confidential Information.
3.3 Third-Party Materials. The Licensee must not directly or indirectly access or use any Third-Party Materials independently of the rest of the Software.
4. Responsibility for Use of Software
Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software or Documentation, whether such access or use is permitted by or in violation of this EULA.
5. Intellectual Property Rights
Licensee acknowledges and agrees that that all right, title, and interest in and to the Software and Documentation are owned by the Licensor. Licensee does not acquire any ownership interest in the Software or Documentation under this EULA, or any other rights thereto, other than to use the same in accordance with the licence granted and subject to all terms, conditions, and restrictions under this EULA. Licensor reserves and shall retain its entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this EULA. Licensee shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Software and fully cooperate with Licensor in any legal action taken by Licensor to enforce its Intellectual Property Rights.
6. Confidential Information
6.1 In connection with this EULA each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 6.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, datasets, parameters, models, model hyperparameters, data uploaded by an Authorized User to the Software, optimization output of the Software, ore body and geospatial models, geological models, geological parameters, mine planning models, mine planning parameters, mine planning constraints, production constraints, production objectives, production strategy and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”. Without limiting the foregoing, the Software and Documentation are the Confidential Information of Licensor.
6.2 Exclusions. Confidential Information does not include information that:
(a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this EULA;
(b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ non-compliance with this EULA;
(c) was or is received by the Receiving Party on a non-confidential basis from a Third Party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or
(d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
6.3 Protection of Confidentiality Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this EULA;
(b) except as may be permitted by and subject to its compliance with Section 6.4, not disclose or permit access to Confidential Information other than to its Representatives who:
(i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this EULA;
(ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 6.3; and
(iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 6.3;
(c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;
(d) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 6; and
(e) promptly notify the Disclosing Party of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information and use its best efforts/cooperate with Disclosing Party to prevent further unauthorized use or disclosure.
6.4 Notwithstanding any other provisions of this EULA, the Receiving Party’s obligations under this Section 6 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
6.5 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall:
(a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 6.3; and
(b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 6.5, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other authority having jurisdiction that such Confidential Information will be afforded confidential treatment.
7. Maintenance and Additional Software
7.1 This EULA applies to Additional Software that Licensor may make available to the Licensee after the date the Licensee obtains its initial copy of the Software, in conjunction with any amendment or addendum Licensor provides with the Additional Software.
7.2 Offer of Releases. From time to time Licensor may provide the Licensee with new Releases applicable to the Software, the cost of which is included in the License Fees.
7.3 Acceptance of Release
(a) The Licensee is not obliged to accept or install a Release.
(b) If the Licensee elects not to accept or install a new Release:
(i) Licensor will not be liable for any loss or damage that the Licensee suffers as a result of any defects in the Software which are remedied by the Release;
(ii) the Licensee acknowledges that Licensor may not be able to adequately support or remedy the Licensee’s issues according to the Support and Maintenance Agreement, if one has been made; and
(iii) the Licensee acknowledges that support is only provided for the Software and the Releases specified in Schedule A of the Support and Maintenance Agreement and according to the terms of the Support and Maintenance Agreement, if one has been made. If no agreement has been made according to the Support and Maintenance Agreement, then the Licensor is not entitled to any support of the Software.
8. License Fee
8.1 In consideration of the grant of the License by Licensor for the Software and the Documentation, the Licensee must pay the License Fee. All Licence Fees and Support Fees are payable in advance in the manner set forth in the Proposal and are non-refundable. Any renewal of the licence hereunder shall not be effective until the fees for such renewal have been paid in full.
8.2 The Licensee will pay all Fees and any applicable taxes. Licensor will work with the Licensee to avoid any withholding tax if exemptions, or a reduced treaty withholding rate, are available. If Licensor qualifies for a tax exemption, or a reduced treaty withholding rate, Licensor will provide reasonable documentary proof. The Licensee will provide Licensor reasonable evidence that it has paid the relevant authority for the sum withheld or deducted.
9. Embedded Materials
The Software may include software, content, data, or other materials, including related documentation, that are owned by Persons other than Licensor and that are provided to Licensee on licensee terms that are in addition to and/or different from those contained in this EULA (”Third-Party Licences”). A list of all materials, if any, included in the Software and provided under Third-Party Licences can be found in the installation folder containing the Software. Ownership of all Intellectual Property Rights in such Third-Party Materials remains with the respective owners thereof. Licensee is bound by and shall comply with all Third-Party Licences. Any breach by Licensee or any of its Authorized Users of any Third-Party Licence is also a breach of this EULA.
10. Licensing Mechanisms and Penalties
10.1 The Software includes license protection mechanisms designed to manage and protect the Intellectual Property Rights of Licensor and its third-party suppliers. The Licensee must not modify or alter these mechanisms to try to defeat the Software use rules that the mechanisms are designed to enforce. Licensor may immediately terminate this EULA, and any license granted under it, if any attempt is made to modify or alter these mechanisms.
10.2 The Software may also include a security mechanism to detect installation or use of unlicensed copies of the Software, and collect and transmit data to Licensor, and/or its affiliates or agents, about suspected unlicensed copies. Data collected does not include any customer data created with the Software. By using the Software, the Licensee consents to such detection and collection of data, as well as its transmission and use if suspected unlicensed copies are detected. Licensor will use this data only for the purpose stated in this section 10.
10.3 If at any time Licensor reasonably suspects the Software has been distributed to or obtained by any person without Licensor’s written consent or that Embedded Materials is being varied, accessed or used independently of the Software, or that the Licensee is otherwise in breach of a term of this EULA, Licensor may require the Licensee to provide an unqualified certificate executed by the Licensee’s auditor verifying the Licensee’s compliance with the terms of this EULA.
10.4 If the Licensee’s auditor does not provide the unqualified certificate within 90 days of Licensor issuing the request to the Licensee (or such longer period as Licensor may in its sole discretion agree), the Licensee will be considered to be in breach of the terms of this EULA and Licensor may terminate this EULA and all licenses granted under it.
10.5 Where a breach involves the distribution or use of Software outside the terms of the User License or any Additional User License or involves the use or attempted use or distribution of Embedded Materials, Licensor and/or any thirdparty owner of the Embedded Materials may retrospectively charge the Licensee a fee calculated on the number of prohibited distributions or uses using the relevant list prices that Licensor and/or any third party owner of the Embedded Materials charges for the Software or Embedded Materials (as applicable). These charges are in addition to any other right or claim that Licensor or any third party owner of the Embedded Materials may have against Licensee and are in addition to any other Fees payable by Licensee under this EULA.
11. Publicity
11.1 The Licensee grants Licensor the right to include the Licensee as a customer of Licensor in Licensor’s promotional material, including on its website.
11.2 The Licensee may withdraw the rights given under section 11.1 by 30 days written notice to Licensor.
12. Term and Termination
12.1 This License is effective from the start date of provided on the Proposal, until the expiry date provided on the Proposal, unless terminated in accordance with this section.
12.2 Licensor may terminate this License immediately by notice in writing if:
(a) the Licensee fails to pay the Fees by the due date; or
(b) the Licensee is in breach of any term or condition of this License or the Support and Maintenance Agreement and such breach is not remedied within fourteen (14) days of written notice from Licensor.
(c) if Licensee files an assignment in bankruptcy or has a bankruptcy order made against it under any bankruptcy or insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, receiver-manager, monitor, or custodian for all or a substantial part of its property.
12.3 The Licensee may terminate this License immediately by notice in writing if Licensor becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration or ceases or threatens to cease conducting its business in the normal manner.
12.4 Upon termination of this License for whatever reason:
(a) the Licensee must prevent all access to the Software and Documentation and all Authorised Users must cease all use of the Software and Documentation;
b) the Licensee must cease using and destroy all copies of the Software and Documentation from the Licensee’s hardware and system and any Other System and delete or destroy all copies of the Software and Documentation and Documentation in its possession, custody or control and permanently erase or cause to be erased from its and its Authorized Users’ computer systems, files, and storage media all copies of the Software and Documentation of Licensor obtained, made, or authorized to be made by Licensee or on Licensee’s behalf. No expiration or termination shall affect Licensee’s obligation to pay all Licensee Fees that may have become due before such expiration or termination, or entitle Licensee to any refund;
(c) the Licensee may be required to provide Licensor with an unqualified certificate executed by the Licensee’s auditor verifying compliance with section 12.4(a) and 12.4(b);
(d) Licensor may repossess the Software and Documentation and any of Licensor’s property in the possession, custody or control of the Licensee; and
(e) Licensor will be discharged from any further obligations under this License.
12.5 Decommissioning of the Software by the Licensee will terminate this EULA between Licensor and the Licensee.
12.6 Termination is without prejudice to any rights Licensor may have as a result of breach of this License by the Licensee or an Authorised User.
13. Assignment or other Transfer
13.1 The Licensee can only assign this License to succeeding parties in the case of a merger, acquisition or change of control if:
(a) the Licensee notifies Licensor within sixty (60) days of the assignment;
(b) the assignee agrees to be bound by the terms and conditions of this EULA; and
(c) upon assignment or transfer, the assigning licensee makes no further use of the Software and deletes or destroys all copies of the Software in its possession, custody or control.
13.2 Any purported assignment or transfer of the Software by the Licensee other than in accordance with the requirements of this section 13 will be void and will entitle Licensor to terminate this EULA in accordance with section 12.
13.3 Licensor may assign its rights and obligations under this EULA without the consent of the Licensee. Any permitted assignee shall be bound by the terms and conditions of this EULA.
14. Disclaimer and Limitation of Remedies
14.1 Licensor warrants to the Licensee that the Software conforms in all material respects to the Software Documentation, provided the Software is used in accordance with ordinary industry practices and conditions and not modified. However, Licensor does not warrant that the operation of the Software will be uninterrupted or error free.
14.2 Except for the limited warranty set forth in section 14.1, the software and documentation are provided to licensee “as is” and with all faults and defects without condition or warranty of any kind. To the maximum extent permitted under applicable law, licensor, on its own behalf and on behalf of its affiliates and its and their respective licensors and service providers, expressly disclaims all conditions and warranties, whether express, implied, statutory, or otherwise, with respect to the software and documentation, including all implied conditions and warranties of merchantability, fitness for a particular purpose, title, quiet possession and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage, or trade practice. without limiting the foregoing, the licensor provides no condition, warranty, or undertaking, and makes no representation of any kind that the licensed software will meet the licensee’s requirements, achieve any intended results, be compatible or work with any other software, applications, systems, or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.
14.3 In no event will licensor or its affiliates, or any of its or their respective licensors or service providers, be liable to licensee or any third party for:
(a) any:
(i) use, interruption, delay, or inability to use the software;
(ii) lost revenues or profits;
(iii) delays, interruption, or loss of services, business, or goodwill;
(iv) loss or corruption of data;
(v) loss resulting from system or system service failure, malfunction, or shutdown;
(vi) failure to accurately transfer, read, or transmit information;
(vii) failure to update or provide correct information;
(viii) system incompatibility or provision of incorrect compatibility information;
(ix) breaches in system security; or
(b) any consequential, incidental, indirect, special, punitive, or exemplary damages, in each case whether arising out of or in connection with this EULA, breach of contract, tort (including negligence), or otherwise, regardless of whether such damages were foreseeable and whether or not the licensor was advised of the possibility of such damages. In no event will licensor or its affiliates, or any of its or their respective licensors or service providers, be liable to licensee or any third party for: damage to hardware running the software or degraded performance of tenanted virtual machines running along with the software.
14.4 In no event will the collective aggregate liability of licensor and its affiliates, including any of its or their respective licensors and service providers, under or in connection with this EULA or its subject matter, under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, exceed the total amount paid to the licensor pursuant to this EULA for up to twelve (12) months of the specific services, that are the subject of the claim.
14.5 The limitations set forth in section 14.3 and section 14.4 shall apply even if the licensee’s remedies under this EULA fail of their essential purpose.
14.6 The express warranty provided in section 14.1 is limited to the Licensee and is not transferrable. Licensor grants no other warranty, either express or implied, with respect to the use of the Software.
14.7 Nothing in this License is intended or will be construed as excluding or modifying any statutory rights, warranties or conditions which are applicable to this License or the Software and which by virtue of any legislation may not be modified or excluded.
15. Indemnity
15.1 If the Software becomes or may become the subject of a claim of infringement of any third party’s Intellectual Property Rights, Licensor may, at its sole option and discretion:
(a) procure for the Licensee the right to use the Software free of any liability;
(b) replace or modify the Software to make it non-infringing; or
(c) refund any License Fees related to the Software by the Licensee.
15.2 The remedies set out in section 15.1 are the sole liability of Licensor and the exclusive remedy of the Licensee for any infringement of Intellectual Property Rights by Licensor in the Software or any other items provided by Licensor under this EULA.
15.3 The Licensee acknowledges and agrees that if the Licensee breaches this EULA and Licensor or a third party owner of Embedded Materials suffers any loss, damage, cost or expense directly or indirectly as a result of the breach, Licensor or the third party owner of the Embedded Materials may bring an action directly against the Licensee.
15.4 The Licensee will indemnify Licensor and hold Licensor harmless against all costs, expenses, losses and claims made against Licensor as a result of any infringement of Licensor’s or any third party’s Intellectual Property Rights arising from the Licensee’s or an Authorised User’s modification of any part of the Software or other items provided by Licensor or any breach of this EULA.
15.5 The Licensee agrees that the Licensee must commence any action arising out of or related to this EULA or the Software or the Licensee’s use of the Software within one (1) year of the loss or damage arising. After that time the Licensee agrees that any cause of action will be permanently barred.
16. Privacy
16.1 Licensor may collect certain data and information from the Licensee and you and the Authorised Users in connection with your and their use of the Software, and otherwise in connection with this EULA.
16.2 Any data or information will be collected and used by Licensor in accordance with Licensor’s privacy policy (available on Licensor’s website at https://kpimining.com/) as amended or updated from time to time).
17. Dispute Resolution
17.1 The parties agree to comply with the dispute resolution provisions of this section 17 in respect to any dispute which arises between the parties in respect to this EULA prior to commencing any litigation or arbitration.
17.2 Dispute notice. If there is a dispute between the parties, either party may give a notice to the other succinctly setting out the details of the dispute and stating that it is a dispute notice given under this section 17.
17.3 Notice in response. Within 5 Business Days after the delivery of the dispute notice, the recipient must deliver to the other party a notice in response:
(a) acknowledging the party’s receipt of the dispute notice;
(b) stating that it is a notice given under this section 17.3; and
(c) succinctly setting out any information it believes is directly relevant to the dispute.
17.4 Initial meeting
(a) The parties must meet within 10 Business Days after the date of delivery of the dispute notice and attempt to resolve the dispute.
(b) Each party must use its best endeavours to resolve the dispute and act in good faith.
17.5 Arbitration
Any controversy, dispute, disagreement, or claim not resolved within 10 Business Days of the meeting held pursuant to section 17.4 arising out of, relating to or in connection with this EULA or any breach thereof, including any question regarding its existence, validity, or termination, shall be finally and conclusively resolved by arbitration under the Rules of INSTITUT DE MÉDIATION ET D’ARBITRAGE DU QUÉBEC (“IMAQ”). The following provisions shall govern any arbitration hereunder:
Any controversy, dispute, disagreement, or claim not resolved within 10 Business Days of the meeting held pursuant to section 17.4 arising out of, relating to or in connection with this EULA or any breach thereof, including any question regarding its existence, validity, or termination, shall be finally and conclusively resolved by arbitration under the Rules of INSTITUT DE MÉDIATION ET D’ARBITRAGE DU QUÉBEC (“IMAQ”). The following provisions shall govern any arbitration hereunder:
(a) the legal seat of arbitration shall be Montréal, Québec and Canada.
(b) there shall be one arbitrator agreed to by the Parties within twenty (20) days of receipt by the respondent of the request for arbitration or in default thereof appointed by the IMAQ in accordance with its rules.
(d) the Parties shall equally share the fees of the arbitrator and the facility fees.
(e) the Parties shall each bear their own legal costs and expenses of the arbitration.
(f) any decision of the arbitrator shall be final and binding on the Parties and their respective successors and assigns and there shall be no right to appeal such decision, whether on a question of law, a question of fact, or a mixed question of fact and law.
(g) the governing law of the arbitration shall be the provincial laws of Quebec and federal laws of Canada.
(h) the arbitration procedures, hearings, documents and award shall remain strictly confidential between the parties.
17.6 Agreement remains in force.
The parties must each continue to perform their respective obligations under this agreement pending resolution of the dispute.
17.7 Injunctions.
Nothing in this section 17 prevents any of the parties from commencing injunctive relief where damages may be an inadequate or inappropriate remedy.
17.8 Survival.
This section 17 survives rescission, termination or expiry of this EULA.
18. Restrictions
18.1
The Software and Documentation may be subject to Canadian export control laws. The Licensee shall not, directly or indirectly, export, re-export, or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule, or regulation. The Licensee shall comply with all applicable federal laws, regulations, and rules and complete all required undertakings (including obtaining any necessary export licence or other governmental approval), before exporting, re-exporting, releasing, or otherwise making the Software or Documentation available outside Canada.
18.2
The Licensee must:
(a) determine the existence and application of any local laws prior to any proposed export and must obtain all necessary authorisations and permits; and
(b) not export the Software in violation of any applicable legal restrictions on the export.
19. Survival
19.1
The provisions of clause 1 (Definitions), 3 (Use Restrictions), 5 (Intellectual Property Rights), 10 (Licensing Mechanisms and Penalties), 12 (Term and Termination), 14 (Disclaimer and Limitation of Remedies), 16 (Privacy), 17 (Dispute Resolution), 18 (Restrictions), 20.2 (Law), 21 (Interpretation) survive rescission, expiry or termination of this EULA.
20. General
20.1
The Licensee must immediately advise Licensor if at any time the Licensee becomes aware of any breach of its obligations under this EULA.
20.2 Governing Law. This EULA and all related documents, and all matters arising out of or relating to this EULA, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the Quebec and the federal laws of Canada applicable therein.
20.3 Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from, or relating to this EULA, including all statements of work, exhibits, schedules, attachments, and appendices attached to this EULA, the services provided hereunder, and all contemplated transactions, shall be instituted in the courts of the Quebec and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action, litigation, or other proceeding brought in any such court. Each Party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
21. Interpretation
21.1 Severability
(a) Subject to section 21.1(b), if a provision of this document is illegal or unenforceable in any relevant jurisdiction, it may be severed for the purposes of that jurisdiction without affecting the enforceability of the other provisions of this document.
(b) Section 23.1(a) does not apply if severing the provision materially alters the:
(i) scope and nature of this document; or
(ii) the relative commercial or financial positions of the parties; or
(iii) would be contrary to public policy.
21.2 Entire Agreement
This EULA and any addendums or supplements included with the Software and any Software Support and Maintenance Agreement entered into between the parties:
This EULA and any addendums or supplements included with the Software and any Software Support and Maintenance Agreement entered into between the parties:
(a) constitute the entire agreement between the parties about its subject matter and supersedes all prior contracts, arrangements and understandings in relation to that subject matter; and
(b) may only be altered in writing signed by all parties. Licensor’s consent may be withheld at its complete discretion with requirement to provide reasons.
21.3 General
In this document, unless the context otherwise requires:
In this document, unless the context otherwise requires:
(a) a reference to:
(i) the singular includes the plural and the plural includes the singular;
(ii) a recital, clause, schedule or annexure is a reference to a clause of or recital, schedule or annexure to this document and references to this document include any recital, schedule or annexure;
(iii) any contract (including this document) or other instrument includes any variation or replacement of it and as it may be assigned or novated;
(iv) a statute, ordinance, code or other law includes subordinate legislation (including regulations) and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(v) a person or entity includes an individual, a firm, a body corporate, a trust, an unincorporated association or an authority;
(vi) a person includes their legal personal representatives (including executors), administrators, successors, substitutes (including by way of novation) and permitted assigns;
(vii) a group of persons is a reference to any two or more of them taken together and to each of them individually;
(viii) a reference to a day or a month means a calendar day or calendar month;
(b) the meaning of any general language is not restricted by any accompanying example and the words ‘includes’, ‘including’, ‘such as’, ‘for example’ or similar words are not words of limitation;
(c) the words ‘costs’ and ‘expenses’ include reasonable charges, expenses and legal costs on a full indemnity basis;
(d) headings and the table of contents are for convenience only and do not form part of this document or affect its interpretation;
(e) if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;
(f) the time between two days, acts or events includes the day of occurrence or performance of the second but not the first act or event;
(g) a provision of this document must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the document or the inclusion of the provision in the document.
21.4 Notices. Each Party shall deliver all notices, requests, consents, claims, demands, waivers and other communications under this EULA (each, a “Notice”) in writing and addressed to the other Party at the addresses set forth on the Proposal (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). Notices sent in accordance with this Section will be conclusively deemed validly and effectively given:
(a) on the date of receipt, if delivered by personal delivery, or by a nationally recognized same day or overnight courier (with all fees prepaid);
(b) upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “read receipt” function, as available, return email or other form of written acknowledgment), if delivered by email.
21.5 Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this EULA, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this EULA shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
21.6 Language. The Parties have expressly required that this EULA and all related documents, including notices and other communications, be drafted in the English language only. Les Parties ont expressément exigé que la présente convention ainsi que tous les documents qui s’y rattachent, incluant les avis et les autres communications, soient rédigés en langue anglaise seulement.
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