FMS License Terms and Conditions

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Updated as of September 08,2023

IMPORTANT - These License Terms and Conditions (referred to interchangeably as the “Terms and Conditions” or the “License Agreement”) form a legal contract between the customer (“Licensee”) and Wenco International Mining Systems Ltd. (“Wenco”) for the named Wenco Product. By installing, copying downloading, accessing or otherwise using the Product, the Licensee agrees to be bound by this License Agreement.  In the event of any discrepancy between a term in this License Agreement and a term in an Order Document, the defined term in this License Agreement governs for the purposes of interpreting this License Agreement. If the Licensee does not agree with this Agreement, the Licensee is not licensed to install, download, access, copy or use the Product, and will return all physical media and documentation associated with the Product to Wenco.

1.0 Definitions

Capitalized terms herein have the meaning given to them in the body of these Terms and Conditions otherwise, as set forth in the Schedule to these Terms and Conditions.

2.0  Grant of License

2.1 If any part of the Product purchase by the Licensee is a perpetual license, subject to the User’s compliance with the terms and conditions of this License Agreement, Wenco hereby grants to the Licensee a revocable, perpetual, non-exclusive, non-transferable license, non-assignable, non-sublicensable license up to the quantity of Products purchased by the Licensee to:  (a) install and use the Products; and (b) read and use the Documentation, provided by Wenco pursuant to the Order Documents; provided all of the foregoing shall be strictly for Licensee’s internal use and in accordance with these Terms and Conditions and the Order Documents.

2.2 If any part of the Product purchased by the Licensee is a term or subscription license, subject to the User’s compliance with the terms and conditions of this License Agreement, Wenco hereby grants to the Licensee a revocable, limited, non-exclusive, non-transferable license, non-assignable, non-sublicensable license for the Term (as stipulated in the Order Documents)  up to the quantity of Products purchased by the Licensee to:  (a) install and use the Products; and (b) read and use the Documentation, provided by Wenco pursuant to the Order Documents; provided all of the foregoing shall be strictly for Licensee’s internal use and in accordance with these Terms and Conditions and the Order Documents.

2.3 Notwithstanding Sections 2.1 and 2.2, the License may be transferred to another location or Affiliate with the written consent of Wenco, and on terms agreed to in writing by the Parties.  For the purposes of this Section 2.3, “transfer” means the removal of the Product from a device at one location and the installation of the Product to a device at another location. The License does not permit the use of the Product at multiple locations nor the sharing of the License between devices.

3.0 Restrictions on Use

3.1 The Product shall only be used by the User on the System provided by Wenco to the User.

3.2 The License granted to the User for use of the Product and Documentation purchased by the Licensee from Wenco upon the specific terms and restrictions contained in this License Agreement, and for solely for its own internal business use.  If the User intends to use the Product for any reason other than its own internal business purpose or if more than one instance of the Product will be in use, the User must obtain Wenco’s advance written approval, as well as purchase additional licenses from Wenco. The sole exception to the foregoing is if the User is relocating the Product to a different system or location as part of disaster recovery scenarios or for Service continuity reasons.

3.3 The License granted to the Licensee in this License Agreement does not grant to the Licensee the right to use the Product or Documentation other than for its own internal business purpose.  Without limiting the generality of the foregoing, the License granted in this License Agreement does not grant to the User the following rights:

  1. the right to distribute, sell, export, lease, transfer, assign, trade, rent, publish, license, or otherwise make available the Product, or any part thereof including the Documentation and/ or copies thereof, to any other entity.;
  2. the right to provide a service for any person by utilizing the Product and/or use the Product, or any part thereof, in any commercial manner, except for the Purpose or as specifically permitted in writing by Wenco;
  3. the right to modify, customize, alter, adapt, copy, translate, reverse engineer, decompile, decode, create derivative work based on, or disassemble the Product, or permit the same to be done by any person, except as specifically permitted in writing by Wenco;
  4. the right to bypass or breach any security device or protection used for or contained in the Product or Documentation;
  5. the right to use the Product in any manner or for any purpose that infringes, misappropriates, or ‎otherwise violates any Intellectual Property, privacy right, or other right of any person, or ‎that violates any applicable law‎;
  6. use the Product for purposes of: (i) benchmarking or competitive ‎analysis of the Product; (ii) developing, using or providing a ‎competing product or service; or (iii) any other purpose that is to ‎Wenco’s detriment or commercial disadvantage‎; or
  7. the right to use, or allow a third party to use, those entities that are contracted by the User to perform operational services or activities on the Product or on any other system or at a location other than at the minesite, except as specifically permitted in writing by Wenco.

3.4 The Product may contain technological measures designed to prevent unauthorized or ‎illegal use of the Product. The User acknowledges and agrees that Wenco may ‎use these and other lawful measures to verify the User’s compliance with the terms of this ‎License Agreement and enforce Wenco’s rights, including all Intellectual Property Rights, in and to the Product‎.

3.5 Without limiting the generality of Section 3.4, Wenco or its nominee may, in Wenco’s sole discretion on reasonable notice to the Licensee inspect and audit the User’s use of the Product and records and systems to verify Licensee’s compliance with this License Agreement, and Licensee shall reasonably cooperate and assist Wenco with such audit. Without prejudice to any other right or remedy available at law, equity or otherwise, Licensee shall: (a) reimburse Wenco for all associated audit costs where such audit reveals that Licensee is not in compliance with this License Agreement; and (b) immediately pay Wenco all amounts owing as revealed by such audit.

4.0 User Obligations

4.1 Wenco shall provide the User with procedural advice with respect to the implementation and use of the Product as requested by the User from time to time, but the User shall be solely responsible for the supervision, management and control of the Product as installed in the System including, but not limited to:

  • assuring proper machine configuration;
  • establishing and executing adequate backup plans based on alternative hardware, fault tolerant systems or manual procedures as well as re-start and recovery procedures in the event of downtime;
  • obtaining support of and maintaining the validity of Third Party Licenses;
  • ensuring that only adequately trained and Authorized Users use the Product, and ensuring that periodic purging of the historical records is done based on the maximum volume of data storage retained before degradation of the performance of the System occurs.  If poor System performance issues are identified by Wenco as attributable to an excess of data storage, then Wenco will implement at the User cost, or direct the User to implement, a remedial action selected by Wenco at its sole discretion; and
  • implementing sufficient procedures and checkpoints to satisfy requirements for security and accuracy of data input and output, as well as establishing and implementing adequate procedures and safeguards with respect to non-disclosure of the Product.

5.0 Payment

5.1 User agrees to pay Wenco all applicable license fees set forth in Wenco’s Orders Documents referencing this License Agreement.  Except as otherwise agreed to by Wenco in writing, the User agrees to pay all license fees within thirty (30) days of invoice. If the User fails to make any payment when due to Wenco, then, in addition to all other remedies that may be available to Wenco, Wenco may charge interest on the past due amount at a rate of 1.5% per month and ‎the User shall reimburse Wenco for all costs incurred by Wenco ‎in collecting any late payment of amounts due or related interest, including ‎legal fees, disbursement and charges and collection agency fees.

5.2 The Licensee shall solely be responsible for payment of all taxes, levies, duties and charges, including without limitation, sales, use, excise, value-added, goods and services taxes, custom duties, tariffs or other levies or charges imposed by any governmental entity or agency related to the Products provided under this License Agreement.  Licensee shall indemnify, defend and hold Wenco harmless from any claims, liabilities, penalties or interest arising out of any failure by the Licensee to pay such taxes as required by law.

6.0 Term and Termination

6.1 This License Agreement and the license granted hereunder shall take effect on the date set forth in Wenco’s documentation and shall remain in effect for the Term unless earlier terminated as provided herein.

6.2 Where Licensee breaches any covenant, obligation, representation or warranty, it being agreed that all breaches shall be deemed material, Wenco shall have the right to terminate this Agreement immediately, or after Licensee fails to cure said breach within a period of time defined by Wenco in writing.

6.3 For a term or perpetual License, this License Agreement (as may be amended from time to time by Wenco, with notice to User) is effective until terminated the earlier of: (i) by User, by returning to Wenco the original Product or by permanently destroying the Product, together with all copies, modifications and merged portions in any form; (ii) by Wenco, upon User’s breach of any of the terms hereof or User’s failure to pay the appropriate license fee(s); or (iii) the period of time of the term as may be specified and if not specified, then ten (10) years.

6.4 For a subscription License, this License Agreement is effective until the User’s Subscription Term expires without being renewed; by Wenco upon User’s breach of any of the terms hereof; User’s failure to pay the appropriate Subscription License fee(s); or, the Subscription is otherwise terminated.

6.5 User agrees that upon termination of this License Agreement,  the User shall:

  • immediately cease using the Product, or any part or copies thereof;
  • within 5 days of after termination of this License Agreement, Licensee shall at Wenco’s option, either return to Wenco, or certify destruction of the Product, all copies thereof, wherever located, and backups to the extent reasonably possible;
  • on written request, return to Wenco all Documentation generated by or descriptive of the Product including, without limitation, User Manuals, object code listings, source code listing, machine code translations, functional specifications, screen dumps or reproductions, and Product printouts; and
  • on written request, forthwith furnish to Wenco a certificate in form and substance satisfactory to Wenco certifying to the destruction of the Product licensed in this License Agreement and the return of all Documentation.
  • The following provisions shall survive the termination of this Agreement: Section 5 within 5 days of after termination of this License Agreement, Licensee shall at Wenco’s option, either return to Wenco, or certify destruction of the Product, all copies thereof, wherever located, and backups to the extent reasonably possible;

6.6 (Payment) such that any outstanding monies due are immediately payable upon termination; Section 8 (Intellectual Property); Section 9 (Indemnity); Section 10 (Limited Warranty); Section 11 (Limitation of Liability), Section 12 (Confidential Information), Section 13 (Feedback and User Data) and any other provisions which by their nature are intended to survive termination of this License Agreement will also so survive.

7.0 Support

7.1 Where the User does not purchase support services for the Product, (i)Wenco will provide bug fixes for 12 months from the Start-Up Date; and (ii) Wenco will not have any obligations to provide Product upgrades or provide support to the User beyond the 90 days Warranty Period.

7.2 If the User has a valid and current System Support Agreement, Wenco shall, unless expressly stated otherwise in the System Support Agreement:

  • provide bug fixes in a timely manner, including for CSS listed in the Purchase Agreement.  At the sole discretion of Wenco, bug fixes may be made to the original version of the Product or bug fixes may be made by replacing some or all of the Product with a newer version that contains at a minimum the functionality originally provided in the License;
  • identify to the User an account manager who will be the primary point of contact with Wenco for the term of this License Agreement, and notify the User immediately of any change in identity of the account manager;
  • provide the User with access to periodic, updates, and enhancements to the Product as defined and released by Wenco, in Wenco’s sole discretion (each, an “Update”);
  • provide support services to the User in respect only of the most recent two (2) Major Versions made generally available by Wenco to its users (e.g., if the current Major Version is 6.1, Wenco would no longer provide support services on version 5.X or previous versions, but would provide them on version 6.0.X and 6.1.X). The foregoing support services will be provided on a charge-by-use basis of a rate per hour, at the then current market rate.  Wenco does not guarantee any level of support with respect to versions of the System that are more than two (2) Major Versions old; and
  • Since bug fixes are typically applied only to new System Releases, any bug fixes required to maintain the operation of a System two versions older than the then-current System Release will require that the User upgrade to the latest Major Version and Wenco will charge User an upgrade fee (in addition to any professional services required to implement the Major Upgrade, to the extent agreed upon by the User and Wenco) for any such bug fixes. The upgrade fee will be equal to the SSA payments that would have been paid to Wenco had the User elected to remain in the SSA program.

7.3 By using an Update, User agrees: (i) to voluntarily terminate its right to use any previous version of the Product, except to the extent that the previous version is required to transition to the Update; and (ii) acknowledges and agrees that any obligation that Wenco may have to support the previous version(s) of the Product will end upon availability of the Update. If an Update is provided, User will take prompt action to install such Update as directed by Wenco. If User fails to do so, User acknowledges that the Product may not work correctly or that User will not be able to take advantage of all of the Product’s available features. In such event, Wenco will not be liable for additional costs the User may incur because of its failure to install such Update.

8.0 Intellectual Property

8.1 ALL PRODUCTS AND OTHER INTELLECTUAL PROPERTY ARE PROPRIETARY PRODUCTS OF WENCO AND ARE PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL TREATIES. TITLE TO PRODUCTS AND ALL COPIES, MODIFICATIONS AND MERGED PORTIONS OF PRODUCTS SHALL AT ALL TIMES REMAIN WITH WENCO. The Product is licensed pursuant to this License Agreement, not sold.  All rights are reserved. The Parties hereby acknowledge and agree that Wenco is and will remain the sole and exclusive owner of all right, title and interest in and to the Product and Documentation, including all Intellectual Property Rights related thereto, subject only to the limited license granted to the User herein.

8.2 The User agrees to enter into such further agreements and execute any and all documents as may be reasonably required to protect Wenco’s Intellectual Property Rights in the Product, and where applicable the Intellectual Property Rights of Wenco’s suppliers.

8.3 The User will refrain from, and will not allow any person to engage in, making any act or omission that derogates from or infringes upon such exclusive proprietary rights of Wenco in the Product.  In the event that the User becomes aware that a third party or third parties are using the Product, or any part thereof, or infringing upon any proprietary rights of Wenco to the Product, the User shall promptly notify Wenco of all facts known to it relating to such use.

8.4 The Product may be delivered with third party software, including without limitation, commercial and open source software. All third party software is licensed according to separate license terms and conditions, the applicable license agreement governing such software is incorporated herein by reference. By installing, copying or using third party software, Licensee agrees to be bound by all the terms and conditions contained in the applicable Third Party License agreement. Wenco makes no claim of ownership in or to third party software. Wenco recommends the third party applications listed in the applicable product Minimum System Specification documentation for use with the Product, available as part of installation of the System. The User is responsible for regularly reviewing the recommended applications in the Minimum System Specification documentation, as may be updated from time to time.

9.0 Indemnity

9.1 Wenco shall indemnify and hold the Licensee harmless from and against any claims, demands, expenses, liabilities, and judgements arising out of, or in connection with, any claim that the Product infringes any existing patent, copyright, trademark or right of ownership of any third party as aforesaid (each, an “Infringement Claim”).  If the Product is held to infringe, or is believed by Wenco to infringe, the rights of a third party, Wenco shall, at its expense and sole option to (i) procure for User the right to continue using the Product; (ii) modify the Product to make it non-infringing, but functionally the same; (iii) replace the Product with one which is non-infringing, but functionally the same; or, (iv) provide a prorated refund to Licensee of the actual amount Licensee paid Wenco for the Product.  Wenco has no obligation to indemnify and hold the Licensee harmless from and against any claims, demands, expenses, liabilities, and judgements arising out of, or in connection with this License Agreement other than as specifically set out this Section 9.1.

9.2 The Licensee hereby agrees to defend, indemnify, and hold harmless Wenco, its Affiliates, and its and their respective officers, ‎directors, ‎employees, agents, successors, and assigns from and against any and all losses, damages, liabilities, ‎deficiencies, ‎actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind ‎‎(including ‎without ‎limitation all ‎reasonable professional costs and ‎expenses) ‎arising ‎out of or resulting from: (a) any claim relating to Licensee’s breach of any representation, ‎warranty, or obligation ‎under this License Agreement or under any other agreements or acknowledgments executed in ‎connection ‎herewith from ‎time to time; and (b) any claims that any intellectual property right or other right of any person, or any law, is or will be infringed, misappropriated, or otherwise violated by (i) any use or combination of the Product by or on behalf of User with any hardware, product, ‎system, network, service or other matter whatsoever that is neither ‎provided by Wenco nor authorized by Wenco in this License Agreement and (ii) information, materials or technology or other matter whatsoever directly ‎or indirectly provided by the Licensee or directed by the Licensee to be ‎installed, combined, integrated or used with, as part of, or in connection ‎with the Product or Documentation‎ (each, a “Licensee Claim”).

‎9.3 Each Party shall promptly notify the other Party in writing of any Infringement Claim or Licensee Claim, as applicable, for which such Party believes it is entitled to be indemnified under Section 9. The Party ‎seeking indemnification (the "Indemnitee") shall cooperate with the other Party (the ‎‎"Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately ‎take control of the defence and investigation of such Infringement Claim or Licensee Claim, as applicable, and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the ‎Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations ‎under this Section will not relieve the Indemnitor of its obligations under this Section 9.3, except to the extent that the Indemnitor can demonstrate that it has been materially ‎prejudiced as a result of such failure. The Indemnitee may participate in and observe the ‎proceedings at its own cost and expense with counsel of its own choosing.

10.0 Limited Warranty

10.1 For a period of ninety (90) days from the Start-Up Date, Wenco warrants (and for greater certainty, such warranty is in favour only of User) that the Product will perform on the System and is fit for purpose intended (the “Warranty Period”).  The Warranty Period does not include new functionality or new modules not purchased under an Order Document.


10.3 Wenco’s entire liability and Licensee’s sole and exclusive remedy for breach of this limited warranty shall be, in Wenco’s sole discretion either: (a) correct the defective Product, or repair or replace such Product; or (b) accept the return of the Product and refund the license fee paid by Licensee, subject to an equitable reduction thereof. Licensee must notify Wenco in writing of any defective Product within the limited warranty period.

10.4 This limited warranty is void where the failure of the Product is from:

  • a defect in, or malfunction of, designated User hardware or any other User equipment used in association with the System;
  • the use of the Product on computer hardware or a computer configuration other than that provided in the System;
  • the User’s or any other third party’s negligence, abuse, misapplication or misuse of ‎the Product, including any use of the Product other than ‎as specified in the Documentation;
  • any failure to keep or store the Product correctly;
  • any failure to keep all or part of any equipment on which Product operates clean;
  • failure to promptly install all System Releases to the Product that ‎Wenco makes available to the User;
  • electrostatic discharge or magnetic fields;
  • the misconfiguration of the Product or its use in conjunction with any non-Wenco supplied Product;
  • any damage occasioned by an Event of Force Majeure;
  • the usage of the System for a scheduling methodology or to produce a result that is deemed to be in conflict with the design of the System;
  • any modification, customization, alteration, or adaptation of the Product by any other party other than Wenco or an authorized agent of Wenco, including but not limited to any modification, customization, alteration, or adaptation of the Product by the User;
  • use of the Product on computer equipment that fails to meet minimum hardware requirements documented by Wenco;
  • interference from other (non-Wenco approved) systems that access or use the same computers or databases used by the Product;
  • the User’s breach of any provision of this License Agreement; or
  • any other cause not within the control of Wenco and which could have been prevented by the exercise of reasonable diligence by the User.

10.5 If the User requests that Wenco rectify a failure in the Product as a result of any of the reasons set out under Section 10, the User shall provide a written request for such rectification to Wenco.  In consideration of Wenco’s services in rectifying such failure at the User’s written request, Wenco shall be entitled to charge the User a Supplementary Service Fee.  The User acknowledges and agrees that Wenco does not have an obligation to accept such request and acceptance of a request does not guarantee resolution of the failure.

10.6 The warranty in Section 10.1 apply only if the User: ‎(a) notifies Wenco in writing of the warranty breach before the expiration of the applicable Warranty ‎Period; (b) has promptly installed all System Releases to the Product that ‎Wenco previously made available to the User; and (c) as of the date of notification, is in ‎compliance with all terms and conditions of this License Agreement (including the payment of all ‎License Fees then due and owing).‎

11.0 Limitation of Liability



12.0 Confidential Information

12.1 The User understands that Wenco possesses information and data, tangible or intangible, including, without limitation, Wenco’s Intellectual Property, that was developed, created, and/or discovered by Wenco, and/or which has become known to or has been conveyed to Wenco, which has commercial value in Wenco’s day-to-day business and is not public and not generally known in the industry or to competitors of Wenco, regardless of whether such information and data is marked as proprietary or confidential (“Wenco Confidential Information”). Wenco considers Wenco Confidential Information to be proprietary and confidential. The User agrees to treat and maintain as proprietary and confidential such Wenco Confidential Information and any information or data provided by Wenco, in whatever form, as User would treat User’s own proprietary and confidential information and data, but in any event, no less than with reasonable care, and to comply with all license requirements, copyright, patent, trademark, and trade secret laws as they may pertain to any Wenco Confidential Information or other information or data provided by Wenco.

13.0 Feedback and User Data

13.1 Wenco acknowledges that, as between Wenco and User, User owns all right, title, and interest  in and to the User Data. User hereby grants to Wenco and its Affiliates a non-exclusive, perpetual, irrevocable, royalty-free, worldwide licence to reproduce, distribute, and otherwise use and display the User Data and perform all acts with respect to the User Data as may be necessary for Wenco to provide the Services to User, and to reproduce, distribute, modify, and otherwise use and display User Data incorporated within the Aggregated Data.

13.2 If the User transmits any communications or materials to Wenco by mail, email, telephone, or otherwise, suggesting or recommending changes to the Product or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Wenco is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. The User hereby assigns to Wenco on the User’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Wenco is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although Wenco is not required to use any Feedback.

14.0 Compliance and Export Control

14.1 Both Parties agree that they will comply with all applicable laws and regulations in performing their respective obligations under these Terms and Conditions.

14.2 The Licensee agrees that shall comply with the customs, import and export laws, and regulations of their governing entity or agency for their jurisdiction and all other applicable customs, import and export laws, and regulations pertaining to the Product and Documentation under this License Agreement. Licensee shall ensure that no Product or Documentation, or any portion thereof, are imported or exported, directly or indirectly, in violation of said laws. Licensee shall arrange for documentation or permits related to the import or export of such Product or Documentation, as required by applicable law. Licensee agrees to indemnify, defend and hold Wenco harmless from any breach of Licensee’s obligations under this Section 14.

15.0 Events of Force Majeure

15.1 In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached this License Agreement, for any failure or delay in fulfilling or performing any term of this License Agreement, when and to the extent that such failure or delay is caused by an Event of Force Majeure. Notwithstanding the foregoing, all of the User’s payment obligations hereunder will continue during any Event of Force Majeure, regardless of the Party experiencing such Event of Force Majeure.

15.2 In the event of any failure or delay caused by an Event of Force Majeure, the affected Party shall give written notice as soon as reasonably practicable to the other Party stating the period of ‎time the occurrence is expected to continue and use commercially reasonable ‎efforts to end the failure or delay and minimize the effects of such Event of Force Majeure.‎

16.0 General

16.1 Entire Agreement.  User acknowledges that User has read this License Agreement, understands it, and agrees to be bound by its terms and conditions. User further agrees that this License Agreement, together with Order Documents, is the complete and exclusive statement of the agreement between User and Wenco relating to the subject matter of this License Agreement and that this License Agreement supersedes any proposal or prior agreement, oral or written, and any other communications between User and Wenco relating to the subject matter of this License Agreement.

16.2 Amendment. No amendment or other modification of this License Agreement shall be valid or binding on either Party hereto, unless in writing and executed by the Parties.

16.3 Severability. Whenever possible, each provision of this License Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. However, if any provision of this License Agreement shall be held to be indefinite, invalid, illegal or otherwise void or unenforceable, the entire License Agreement shall not fail on account thereof, and the remaining provisions of this License Agreement shall continue in full force and effect.

16.4 Injunction. In the event of a material breach of this License Agreement, the Parties agree that as monetary damages may be an inadequate remedy, Wenco is entitled to seek injunctive relief, in addition to other remedies available at law, equity or otherwise including reasonable legal fees and costs incurred in obtaining such injunctive relief and such damages as a court of competent jurisdiction shall award.

16.5 Code of Conduct.  As a wholly owned subsidiary of Hitachi Construction Machinery Co, Ltd. (‘HCM”), Wenco follows HCM’s Codes of Conduct.  Wenco reasonably expects its customers and vendors to follow the Codes as well, which can be found on HCM’s Codes of Conduct page.

16.6 No Waiver. No omission or delay of either Party hereto in requiring due and punctual fulfilment by the other Party of the obligations of such Party hereunder shall be deemed to constitute a waiver of its right to require due and punctual fulfilment, or a waiver of any of its remedies hereunder.

16.7 Independent Parties. The Parties hereto are independent, and neither Party is the agent, joint venture, partner or employee of the other, and no Party shall be able to bind the other Party.

16.8 Further Acts. The Parties covenant and agree to make all applications, execute all other deeds, documents, instruments and assurances, and do such further and other acts as may be necessary or desirable to carry out the true intent and meaning of this License Agreement, and to give full effect to the transactions contemplated or intended hereby.

16.9 Assigns. This License Agreement shall inure to the benefit of and are binding upon the Parties hereto and their respective successors and permitted assigns.

16.10 Headings. Headings and captions are for the purposes of convenience only, and are not to be construed as part of this License Agreement.

16.11 Use of Trademark. The User shall not issue or release any announcement, statement, press release or other ‎publicity or marketing materials relating to this License Agreement or, unless expressly permitted ‎under this License Agreement, otherwise use Wenco’s trademarks, service marks, trade ‎names, logos, domain names, social media handles, or other indicia of source, association, or ‎sponsorship, in each case, without the prior written consent of Wenco.

‎16.12 Industry Terms. Terms of mining, fleet dispatch and computer terminology which are not otherwise defined in this License Agreement shall have the meanings normally attributed thereto in the mining, fleet dispatch, data processing and computer industries, unless the context of the use of such terminology would suggest otherwise.

16.13 Time is of Essence. Time is hereby expressly made of the essence with respect to the performance of the Parties’ of their respective obligations under this License Agreement.

16.14 Language. This License Agreement has been prepared in English and the Parties expressly agree that English shall be used as the official language of choice in any dispute or arbitration process.

16.15 Governing Law. This License Agreement shall be governed in all respects by the laws of the Province of British Columbia, and the Federal laws of Canada, as applicable in British Columbia, without regard to the conflict of law provisions therein, and each Party irrevocably submits the exclusive jurisdiction of the provincial courts of British Columbia, and the federal courts sitting in that Province for the purposes of any proceeding arising out of this License Agreement.

16.16 Counterparts. This License Agreement may be executed electronically or digitally and in counterparts, each of which when so executed and delivered shall be deemed original, but such counterparts together shall constitute but one and the same instrument.

Schedule to License Terms and Conditions


In these Terms and Conditions, the following terms have the following meanings:

  • "Affiliate” means any company, partnership, joint venture or other corporate entity which controls, is controlled by, or which is under the same management or control of a party to this License Agreement.
  • Aggregated Data” means data and information related to the User’s use of the System and Services that is used by Wenco in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
  • Commissioning Date” refers to the date 30 days from the Start Up Date or the date where the User officially begins utilizing the Product licenses purchased, whichever is the sooner.
  • "Documentation" means any and all electronic or written materials, functional specifications, operating instructions, manuals, reference materials, papers or other materials of any nature whatsoever that are provided to the User by Wenco including but not limited to User Manuals and Training Manuals.
  • Event of Force Majeure” means an event caused by circumstances beyond a Party’s reasonable control, including, without limitation, acts of God, flood, fire, earthquake, tsunami,  explosion, war, terrorism, invasion, riot or ‎other civil unrest, embargoes or blockades in effect on or after the date of this License Agreement, ‎national or regional emergency (including without limitation any declaration made by public health authority), pandemic, outbreak of disease, strikes, labour stoppages or slowdowns or other industrial ‎disturbances, passage of law or any action taken by a governmental or public authority, ‎including imposing an export or import restriction, quota or other restriction or prohibition, or ‎any complete or partial government shutdown, or national or regional shortage of adequate ‎power or telecommunications or transportation‎.
  • Hardware” means computer hardware (e.g. office and mobile) purchased and supplied by Wenco pursuant to the Order Documents or by other agreement of the Parties.
  • Intellectual Property” includes:
    (a) Documentation, including but not limited to, design documentation, drawings, specifications, moulds, models, mock-ups, prototypes, specimens, samples, artwork, patented articles, processes or inventions, written information, other documents;
    (b) all materials or things, including patents, copyright, rights in circuit layouts, registered designs, trademarks, trade secrets, photographs, video tapes, Product, statements, diagrams, Systems, technical information, plans, drawings, calculations, tables, schedules whether existing, created, improved or developed before, during or after the Commencement Date;
    (c) All Services, results, information, data, Aggregated Data, and material brought into existence or obtained by or on behalf of Wenco in the course of, as a result of, in connection with, arising out of, or derived from, in any way the performance of the License Agreement, including without limitation, Wenco’s monitoring of User’s access to or use of the Services, but does not include User Data.
    (d) Any application or right to apply for registration of any of the rights in paragraphs a, b or c of this Section (h).
  • "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 conferred by statute, common law or equity in or in relation to Intellectual Property.
  • "License Fees" means the Product license fees charged by Wenco to the User as part of the Order Documents.
  • Major Version” means a version of the System internally designated as “Major” by Wenco pursuant to the “System Version.Major.Minor” method of System version control used by Wenco, and for greater certainty:

    In #.X.X, each successive # is a Major Version (as a new System version);
    In X.#.X, each successive # is a Major Version; and
    In X.X.# (and X.X.#.X and so on), each successive # is not a Major Version.
  • Order Documents” means a purchase agreement, purchase order, proposal or quotation, invoice or any other document confirming the order of the Products by the Licensee from Wenco which is the subject of these Terms and Conditions.
  • Product” means and includes without limitation, the software and all associated media and applications (including all updates, upgrades, modifications and future versions thereof, as applicable), purchased by User from Wenco pursuant to the Order Documents.
  • Party” means each of Wenco or the User, and “Parties” means Wenco and User  together.
  • "Representative” means in respect of each party, a person(s) who provide direction in and receives, communication on behalf of the party with respect to the License, and includes the party’s directors, officers, employees, contractors, agents, consultants, legal and accounting advisors.
  • Services” means the services and developments provided for under the Order Documents, including if applicable, Supplementary Services.
  • Start-Up Date” refers to the date when the defined fleet in the Order Documents is equipped with all Hardware and Product, the core System application is installed, and the System is operating and providing benefits for 72 hours without failure. Minor services, Product provisions, or functionality may be outstanding and identified for completion prior to Commissioning Date.
  • Supplementary Service” means a service, provided by Wenco to User, that is not contemplated under this License Agreement including, but not limited to, services related to special requirements.
  • Supplementary Service Fee” means a fee incurred by the performance of a Supplementary Service, said fee being based on an agreed billable rate that will be documented either in the System Support Agreement, or another document as notified by Wenco.
  • "System" means Wenco’s proprietary systems which is inclusive of fleet management, maintenance, machine guidance, asset health and business intelligence applications, as set forth in the Order Documents. System includes Hardware, Product, and Third Party Licenses required to support the functionality of the System.
  • System Support Agreement” means the agreement entered into by Wenco and the User for the provision of ongoing system support and Product upgrades.  This is an annual agreement.
  • "Term” means:(i) for a term or subscription license, the period of time specified in the Order Documents; and (ii) for a perpetual license, an indefinite period unless the license is terminated in accordance with the provisions of these Terms and Conditions.
  • Third Party Licenses" means licenses that are required by the User from third parties to support and use the System.
  • Training Manuals” means digital or hard copy documents developed by Wenco.
  • Update” means broadly available modification to the Product provided by Wenco, including without limitation, patches, updates, improvements and fixes. The release of an Update is at Wenco’s sole discretion.  All Updates are subject to these Terms and Conditions unless other terms of use are provided by Wenco in writing.
  • "User" means the Licensee and its employees, clients, contractors, agents and consultants of the Licensee that use the Product and/or Documentation. Licensee and User are used interchangeably throughout this License Agreement.
  • User Data” means information, data and other content, in any form or medium that is collected, downloaded, or otherwise received directly or indirectly from the User by or through the Services or that incorporates or is derived from the processing of such information, data or content by or through the Services. For the avoidance of doubt, User Data does not include Aggregated Data or any other information reflecting the access or use of the Services by or on behalf of the User.
  • User Manuals" means any and all User guides and help files provided as part of the Product systems installed.