This Software License Agreement (hereinafter referred to as “Agreement”) is entered into force as of the date of accepting this Agreement by the Licensee by accepting electronically (hereinafter referred to as the “Effective Date”) by and between,
K-MINE PTE. LTD., K-MINE Inc and LLC “RPE KAI”, LLC “KAI”, LLC “Geoinformation systems”, PC “KAI”,
The Legal Entity or Individual, which/who accepted the provisions of this Agreement electronically via the Software or Website, hereinafter referred to as the “Licensee”, on the other hand,
hereinafter collectively referred to as the “Parties” and each separately referred to as “Party”, acting voluntarily and fully realizing the meaning and consequences of their acts, have entered into this Agreement on the following:
DISCLAIMER TO THE LICENSEE
The Agreement is a legal agreement between Licensor and Licensee for the Licensor’s Software. By installing, copying, or otherwise using the Software, you agree to be bound by the terms of this Agreement and the Terms and Conditions of the Licensor. If you do not agree to the provisions of this Agreement and/or the Licensor’s Terms and Conditions, do not install, use, distribute in any manner, or replicate in any manner any part, file, or portion of the Software.
WHEREAS, the Software is protected by copyright laws, international copyright treaties, and other intellectual property laws and treaties. The Software is licensed, not sold,
WHEREAS, the Licensor notify that the Licensor is an owner of the Intellectual Property (Software) and has the right to issue this Agreement. The Licensor can be represented by another affiliated company, and the such affiliated company has the right to receive the payment under this Agreement, and
WHEREAS, the Licensee wishes to license the Software for the purpose of installing and using the Licensor’s Software, and the Licensor desires to license the Software to the Licensee,
NOW THEREFORE, the Parties hereto agree as follows:
1. TERMS AND DEFINITIONS
“Agreement” means a written agreement between the Software developer (hereinafter referred to as the “Licensor”) and the end user (hereinafter referred to as the “Licensee”) to use the Software, including the names of the software packages, the term and location of their use, and other conditions.
“Business Day” means any weekday. Other than weekends, non-working days and public holidays in the country of the Licensor’s company.
“Effective Date” means the date of execution of this Agreement.
“Intellectual Property Rights” means all intellectual property rights where in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights and these Intellectual Property Rights include copyright and related rights, database right, confidential information trade secrets, know-how, business names, trade names, trademarks, service mark passing off rights, unfair competition right, patents, petty patents, utility models, semi-conductor topography rights and rights in designs.
“License” means the right to use the Software copies (i.e. software packages in the amount and as listed in the Agreement or the invoice) granted by the Licensor to the Licensee for a specific period of time at the Licensee’s location and on the limited numbers of devices.
“Software” means a copy or copies of K-MINE packaged software for the mining industry. The amount and list of software packages are specified in the Agreement or the invoice.
“Software support” means any potential provision of the following by the Licensor to the Licensee for a fee: online help, service packs, and new Software versions when and if the Licensor makes them available.
2. SUBJECT OF THE AGREEMENT
a) The subject of the Agreement, the Licensor grants to the Licensee a non-exclusive, non-transferable license to use the Software for the purpose of installing and using the Licensor’s Software. The Licensee may use the Software in executable format for its own use and may not translate or modify the Software or incorporate them into other software without the Licensor’s permission. The Licensee may not transfer or sublicense the Software to any third party, in whole or in part, in any form, whether modified or unmodified.
b) The Licensor shall grant the Licensee the Software License(s) under the terms and conditions set forth in this Agreement.
c) By using the Software (including its installation), the Licensee confirms that the Licensee has read and understood the Agreement and agrees to its terms and conditions.
d) The Agreement shall have the effect of a signed Agreement between the Licensor and the Licensee in case of purchase against the invoice.
f) The Agreement shall have the effect of the signed Contract explained by the Licensor to the Licensee. Under all circumstances, the terms and conditions shall be supplemental to the Agreement unless expressly stated otherwise.
3. CONSIDERATION TO LICENSOR
a) The Licensee shall make payments set forth in the invoice upon delivery of the Software.
b) Licensee’s payments do not include any duties, bank fees, sales, use, excise, or similar payments The Licensee shall reimburse the Licensor in full if required to pay any such amounts.
4. SOFTWARE LICENSING
a) Scope of the Licensee’s rights
Grant the Licensee a non-exclusive right to use Software copy or copies and not the Software itself from the time of its purchase, and
Allow creating an archive or backup copies, the number of which is limited by the provisions of the Applicable Law and recognizing such copies as the Licensor’s property.
b) Term of the Software Licenses
Software Licenses may be purchased as follows:
Monthly subscription. A monthly subscription shall be paid in advance and shall give the Licensee access to the License, Software support, and any available Software updates provided by the Licensor when they become available, for a duration of one (1) month from the Effective Date. Unless renewed, the monthly subscription shall be automatically deactivated on the last day of the month. If the Licensee renews the monthly subscription by paying a renewal fee when due, the Licensee shall be given access to the License for the next calendar month, plus access to Software support and Software updates provided by the Licensor when they become available.
Annual subscription. The annual subscription shall be paid in advance and shall give the Licensee access to the License, Software support, and any available Software updates provided by the Licensor when they become available, for a duration of twelve (12) months from the Effective Date. Unless renewed, the annual subscription shall be automatically deactivated on the last day of the year. If the Licensee renews an annual subscription by paying a renewal fee when due, the Licensee shall be given access to the License for the next twelve (12) months, plus access to Software support, and any available Software updates provided by the Licensor when they become available for the next twelve (12) months.
For an indefinite period of time. The Licensee shall be given access to the License for an indefinite period of time against a one-off payment. The Licensee may also get access to Software updates and Support for an extra fee paid for relevant services for a specific period of time.
The term of Software Licenses shall be specified in the Agreement or in the invoice.
c) Access to License
The Software shall be licensed to the Licensee’s workstations.
– Local option: the Licensee uses the Software only on one Licensee’s device at a time using a dongle or an online key. The terms of such use, including the period, shall be governed by the Agreement or the invoice.
– Network option: the Licensee uses the Software on more than one device at a time using a dongle or an online key. The terms of such use, including the period, shall be governed by the Agreement or the invoice.
– Electronic option: the Licensee uses the Software using an online key/dongle accessed under the License for a specified period of time. The terms of such use, including the period, shall be governed by the Agreement or the invoice; access to Support shall be provided for the entire term of the License. Upon the expiry of the License, the Licensee shall no longer have access to the Software.
a) The Licensee does not have the right to make copies of the Software in any form except for backup and archive purposes, as described in clause a, Article IV of this Agreement.
b) The Licensee agrees to maintain records of the location and use of each copy, in whole or in part, of the Software.
c) The Software product of the Licensor and its Materials are protected by copyright, with copyright arising from creation and not requiring any formalities.
d) The Licensee does not have the right to name himself as an owner of the Software, only as the licensed user.
e) The original and any copies of the Software made by the Licensee, including translations, compilations, and updates, are the property of the Licensor.
6. INTELLECTUAL PROPERTY
The Software is protected by international law on intellectual property, including copyright.
The Licensor sharing the Software based on the Distribution License Agreement. The owner of the Software and first licensor is K-MINE LTD, a company incorporated under the Laws of the United Kingdom, with a principal place of business at Suite 1, Studio St. Nicholas Close, Elstree, Hertfordshire, England WD6 3EW.
Title to the Software and any related documentation shall remain with the Licensor or the Licensor’s official representatives as per relevant agreements. The Licensee acknowledges the title to the Software, its updates or customisations, if any, and Software documentation remains with the Licensor. The Licensee shall have no rights to the Software except as provided in this Agreement.
Title to any other software with which the Software may interact (including database management systems, etc.) shall remain with its respective owner, subject to the conditions of relevant license agreements.
If the Software contains any materials, interfaces, logos, designs, products, or something else that is not the intellectual property of the Licensor and the Licensor doesn’t have licenses for using it, third party who means itself as an owner of such materials, interfaces, logos, designs, products or something else, has the right to request to delete its intellectual property from the Software according to the procedures defined in the Digital Millennium Copyright Act (hereinafter – “DMCA”) and/or Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC (hereinafter – “EUCD”).
7. LICENSEE’S OBLIGATIONS
The Licensee shall:
– Not transfer Licenses except in cases of a merger, acquisition, or sale of the Licensee’s company; any other transfer requires the Licensor’s written consent.
– Not create or distribute Software documentation and content discrediting the honour, dignity and reputation of the Licensor and the Software.
– Not reverse engineer or use the Software, analyze the Software and/or its components to disclose ideas, technology and/or any components to build other software or reconstruct any of its components, except only to the extent expressly permitted by Applicable Law.
– Immediately notify the Licensor if the Licensee becomes aware of any unauthorised use or copying of all or any of the Software or Software documentation.
8. PROPRIETARY RIGHTS
a) The Licensee recognizes that the Licensor regards the Software as its proprietary information and confidential trade secrets of great value.
b) The Licensee agrees not to provide or to otherwise make available in any form the Software, or any portion thereof, to any person other than employees and/or contractors of the Licensee without the prior written consent of the Licensor.
c) The Licensee further agrees to treat the Software with at least the same degree of care as Licensee treats its own confidential information and in no event with less care than is reasonably required to protect the confidentiality of the Software.
a) The Licensor warrants to the Licensee that the Licensor has full power, right and authority to grant Licenses.
b) The Software and all supporting documentation are distributed “as is” and may fail to meet the Licensee’s requirements. The Licensor shall give no warranties and shall have no liability for the consequences of the use or non-use of the Software, any potential explicit or implicit losses as a result of such use, lost profits, lost revenues and/or any other kind of losses. The Licensor makes no warranties that the functionality of the Software will fully meet the Licensee’s expectations or that the Software will operate trouble-free or error-free on the Licensee’s equipment. The Licensor makes no warranties on the performance of the Software or the Licensee’s ability to use the Software.
c) The Licensee shall bear its own risks and liability for the use of the Software. The Licensee agrees to indemnify and hold the Licensor harmless from and against any and all claims and lawsuits arising from the use of the Software.
d) When purchasing Licenses, the Licensee shall be fully responsible for the payment of all taxes and fees arising at the Licensee’s location.
e) The Licensor shall not be responsible for any issues caused by any changes in computer performance or replacement of operating systems that may occur after the Licensee’s purchase of the Software.
10. SOFTWARE SUPPORT
a) If the Licensee purchases the License under a monthly (clause c, Article IV hereof) or annual (clause c, Article IV hereof) subscription plan, the Licensee shall automatically get access to Software Support services.
b) If the Licensee purchases the License for an indefinite period of time (clause c, Article IV hereof), the Licensee may get access to Software support services for an additional charge paid under an invoice.
c) The Licensor reserves the right to charge the Licensee for new Software packages not included in the Licensor’s annual Software Support program.
d) Where necessary, the Licensee shall provide the Licensor with access to the Software or hardware, if reasonably required by the Licensor to provide Software Support services.
e) In case of any conflict between the Agreement and any terms and conditions or information on the Licensor’s website, this Agreement shall prevail.
11. TERM AND TERMINATION
a) This Agreement shall come into force upon the Effective Date.
b) The Licensor may immediately terminate the Agreement by giving the Licensee a notice in writing if the Licensee violates any provisions of this Agreement.
c) This Agreement shall continue in force for twelve (12) calendar months from the Effective Date. After this term, the Agreement shall terminate automatically if the Parties do not continue the Agreement by the common writer resolution.
12. ACKNOWLEDGEMENT AND WARRANTY LIMITATIONS
a) The Licensee acknowledges that complex software is never wholly free from defects, errors, and bugs; and subject to the other provisions of this Agreement, the Licensor gives no warranty or representation that the Software will be wholly free from defects, errors, and bugs.
b) The Licensee acknowledges that complex software is never entirely free from security vulnerabilities; subject to the other provisions of this Agreement, the Licensor gives no warranty or representation that the Software will be entirely secure.
c) The Licensee acknowledges that the Licensor will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Software; and, except to the extent expressly provided otherwise in this Agreement, the Licensor does not warrant or represent that the Software or the use of the Software by the Licensee will not give rise to any legal liability on the part of the Licensee or any other person.
d) The Licensor licenses and the Licensee accepts the Terms and Conditions “AS IT IS”. The Licensor provides no warranties as to the function or use of the Software, whether express, implied, or statutory, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose. The entire risk as to the quality and performance of the Software is with the Licensee. The Licensor does not warrant that the function contained in the licensed programs will meet the Licensee’s requirements or that the operation of the Software will be uninterrupted or error-free.
13. NO ASSIGNMENT OF INTELLECTUAL PROPERTY
a) Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Licensor to the Licensee or from the Licensee to the Licensor.
14. THIRD-PARTY COMPONENTS
The Software may include the following third-party components, but not limited to:
a) PostgreSQL database management system (Portions Copyright © 1996-2020, The PostgreSQL Global Development Group; Portions Copyright © 1994, The Regents of the University of California), licensed under an Open Source license, similar to the BSD or MIT licenses.
- The License Agreement https://www.postgresql.org/about/licence/ granting permission to use, copy, modify, and distribute this software and its documentation for any purpose, without fee, and without a written agreement, provided that the above copyright notice and this paragraph and the following two paragraphs appear in all copies.
- In no event shall the developer of this software be liable to any party for direct, indirect, special, incidental, or consequential damages, including lost profits, arising out of the use of this software and its documentation, even if the developer has been advised of the possibility of such damage.
- The developer specifically disclaims any warranties, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. The software provided hereunder is on an “as is” basis, and the developer has no obligations to provide maintenance, support, updates, enhancements, or modifications.
b) Reporting software Fastreport, ©1998-2020 Fast Reports Inc.
License Agreement: https://www.fastreport.ru/ru/product/fast-report-net/license/.
c) Database connection software DotConnect for PostgreSQL, ©1997-2020Devart.
License Agreement: https://www.devart.com/dotconnect/postgresql/faq.html#q60.
d) Infragistics Winforms, Windows Forms user interface controls, ©2020INFRAGISTICS.
License Agreement: https://www.infragistics.com/legal/license.
e) Relational database management system AccessDataBaseEngine, ©2020 Microsoft.
- DirectXTex texture processing library, MIT License, © Microsoft Corp, 2011-2020. Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the “Software”), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: the above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software. The software is provided “as is”, without warranty of any kind, express or implied, including but not limited to the warranties of merchantability, fitness for a particular purpose and non-infringement. In no event shall the authors or copyright holders be liable for any claim, damages or other liability, whether in an action of Agreement, tort or otherwise, arising from, out of or in connection with the software or the use or other dealings in the software.
a) The Licensor may modify the terms and conditions of the Agreement, and the Licensee agrees to comply with the modified terms and conditions if the Licensee continues to use the Software. The Agreement shall be construed in accordance with the laws of the United Kingdom (hereinafter, the “Applicable Law”). If anything in this Agreement is held invalid, all the other terms and conditions hereof shall remain in full force and effect.
b) Any statement of the Licensor’s rights herein shall not prejudice the Licensee’s rights.
c) If any provision of this Agreement is determined to be invalid or unenforceable, the remainder of this Agreement shall remain in force as if such provision were not a part.
d) This Agreement sets forth the entire understanding between the parties with respect to the subject matter of this Agreement and merges and supersedes all prior agreements, discussions, and understandings, express or implied, concerning such matter. This Agreement shall take precedence over any additional or conflicting terms which may be contained in the Licensee’s order or the Licensor’s order acknowledgement forms.
Last updated: 13.09.23