IMPORTANT - These SmartCap License Terms and Conditions (“License Agreement”) forms a legal contract between the customer (“Licensee”) and Wenco International Mining Systems Ltd. (“Wenco”) for products and services the Licensee purchases (or other acquires the right to access or use) as listed in the Order Documents (the “Product(s)”). By ordering, purchasing, installing, copying, downloading, accessing or otherwise using the Product, the Licensee agrees to be bound by this License Agreement.
Capitalized terms herein have the meaning given to them in the body of this License Agreement otherwise, as set forth in Section 17 below. In the event of any discrepancy between a term of this License Agreement and a term in an Order Document, the term of this License Agreement governs for the purposes of interpreting this License Agreement.
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 this License Agreement 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 this License Agreement 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.
3.1 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:
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.
4.1 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:
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.
6.1 The term of this License Agreement takes effect as of the Effective Date and shall continue in force and effect until the expiration of the license as set forth in Section 6.2 herein, (“Term”), unless otherwise terminated earlier as provided in this License Terms.
6.2 Subject to the conditions specified in this License Agreement and any relevant Order Document, Wenco provides the Licensee with one or more of the following options:
6.3 Wenco has the right to terminate any License for the following reasons:
6.4 User agrees that upon termination of this License Agreement, the User shall:
6.5 The following provisions shall survive the termination of this Agreement: Section 5 (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.
7.1 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:
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.
8.1 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 oft he 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.
9.1 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 defense 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.
10.1 For a period of ninety (90) days from the Start-Up Date, Wenco warrants (and for greater certainty, such warranty is in favor 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.
10.2 TO THE EXTENT APPLICABLE, THE WARRANTY IN SECTION 10.1 IS IN LIEU OF ANY AND ALL OTHER REPRESENTATION AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, DURABILITY FOR A REASONABLE PERIOD OF TIME, AND ANY OTHER WARRANTY IMPLIED AT DOCUMENTATION, AND OTHER PRODUCTS, INFORMATION, MATERIALS, AND SERVICES PROVIDED BY WENCO ARE POVIDIDED "AS IS". WITHOUT LIMITING THE FOREGOING, WENCO MAKES NO CONDITION OR WARRANTY OF ANY KIND THAT THE PRODUCT OR DOCUMENTATION, OR ANY OTHER THIRD PARTY GOODS, SERVICES, TECHNOLOGIES, OR MATERIALS (INCLUDING ANY PRODUCT OR HARDWARE), OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET THE USER’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITHANY OTHER GOODS, SERVICES, TECHNOLOGIES, OR MATERIALS (INCLUDING ANY PRODUCT, HARDWARE, SYSTEM OR NETWORK).
10.3 Wenco’s entire liability and Licensee’ssole and exclusive remedy for breach of this limited warranty shall be, in Wenco’ssole discretion either: (a) correct the defective Product, or repair or replacesuch Product; or (b) accept the return of the Product and refund the licensefee paid by Licensee, subject to an equitable reduction thereof. Licensee mustnotify Wenco in writing of any defective Product within the limited warrantyperiod.
10.4 This limited warranty is voidwhere the failure of the Product is from:
10.5 f 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).
11.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT WILL WENCO BE LIABLE TO THE USER OR ITS SUCCESSORS, ASSIGNS, SUBSIDIARIES, ASSOCIATES, AFFILIATES, OR CLIENTS FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, AND LOSS OF BUSINESS INFORMATION) ARISING OUT OF OR IN CONNECTION WITH THIS LICENSE AGREEMENT, OR ARISING FROM ANY DEFECT, ERROR, FAULT, OR FAILURE TO PERFORM WITH RESPECT TO THE PRODUCT, EVEN IF WENCO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DEFECT, ERROR, FAULT, OR FAILURE (WITH THE EXCEPTION OF WILLFUL OR GROSS MISCONDUCT ON THE PART OF WENCO OR ITS AGENTS). THE USER ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY WENCO TO UNDERTAKE ITS OWN DUE DILIGENCE WITH RESPECT TO THE CONFIGURATION, APPLICATION AND PERFORMANCE OF THE PRODUCT.
11.2 IN NO EVENT WILL WENCO’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS LICENSE AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE LESSER OF CDN$100,000 OR THE AMOUNTS ACTUALLY PAID BY THE USER.
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.
13.1 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 license 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.
14.1 Both Parties agree that they will comply with all applicable laws and regulations in performing their respective obligations under this License Agreement.
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.
15.1 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.
16.1 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. Buyer agrees that these License Agreement may be amended from time to time without notice for non-material changes. Seller will notify Buyer of material changes to these License Agreement. It is the Buyer's responsibility to review these License Agreement periodically for any updates or changes. The continued use of the Product by the Buyer after the effective date of any amendments constitutes acceptance of the updated License Agreement.
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, mining technology and computer terminology which are not otherwise defined in this License Agreement shall have the meanings normally attributed thereto in the mining, mining technology, 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. 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.
In these Terms and Conditions, the following terms have the following meanings: