Last Updated: 18/04/2024
1) Definitions
a) Client means the party addressed in the Proposal, and its related body corporates.
b) Client Background IP means all title, copyright and other intellectual property rights in and to any Client Materials provided by the Client to Orepath, and any other intellectual property rights belonging to the Client at the date of this Contract;
c) Client Materials means any information or data relating to the business of the Client or its related corporations, including as to its operations, facilities, customers, employees, assets, products, sales and transactions, in whatever form the information exists, and includes any:
i) Client data accessed by any person through the provision of the Software Products;
ii) documentation or records related to Client data or information;
iii) information and reports resulting from the use or manipulation of Client data or information;
iv) specific model configuration developed for the Client; and
v) copies of any of the above.
d) Client Project IP means all title, copyright and other intellectual property rights in and to any new materials or reports generated from Client Materials in the course of performance of this Contract, and for the avoidance of doubt, including by use of the Software Products.
e) Contract means the Standard Terms, the Proposal, the EULA (if applicable) and any schedules, appendices, or amendments.
f) Contract Term means the term of the Contract as specified in the Proposal or Purchase Order. If no term is specified, then the term shall be six months from the date of the latest Purchase Order in relation to this Contract. In any event, the term shall include the full duration of any subscription Licences issued in relation to this Contract.
g) Force Majeure Event means in respect of a Party, any event or circumstance or combination of events or circumstances occurring from the start of the Contract Term, the occurrence of which is beyond the reasonable control (direct or indirect) of, and could have not been avoided by steps which might reasonably be expected to have been taken by, such Party acting as a reasonable and prudent Party, provided that an economic downturn or hardship suffered by a Party will not be deemed hereunder to be a Force Majeure Event.
A Force Majeure Event will include but not necessarily be limited to any of the following matters:
i) war, invasion, acts of government, acts of a foreign enemy, acts of terrorism, hostilities or warlike operations (whether that be declared or not), civil war, mutiny, rebellion, revolution, insurrection, military or usurped power, blockade, confiscation or destruction or requisition by order of any Authority, including prevention or denial of trade, sanctions or closure of borders;
ii) earthquake, flood, fire, drought or other physical disaster; or
iii) pandemic, infectious disease, or other medical disaster; or
iv) strike or lockout or other industrial action by employees.
h) Insolvency and Insolvent has the meaning given to it in the Corporations Act 2001 (Cth).
i) Liability means liability of any kind, whether in contract (including breach of warranty), in tort (including negligence), in strict liability, under statute, for indemnity and otherwise, for any and all injuries, claims, losses, expenses or damages arising out of or in any way related to Orepath’s services and the services of Orepath’s subcontractors, consultants, agents, officers, directors and employees from any cause or causes. The term “liable” has a corresponding meaning.
j) Licence means the licence to use the Software Products granted under clause 21)e), on the terms of this Contract.
k) Orepath means Orepath Pty Ltd (ABN: 36 663 774 785).
l) Orepath Background IP means all title, copyright and other intellectual property rights in and to the Software Products (including but not limited to any images, photographs, text, and software code incorporated into the Software Products), the accompanying Orepath Materials and any copies of them, and any other intellectual property rights Orepath has in anything as at the date of this Contract.
m) Orepath Materials means any reports, calculations, studies, recommendations, estimates, analyses, information, or documents provided by Orepath to the Client.
n) Orepath Project IP means all title, copyright and other intellectual property rights in and to any of the following developed or created pursuant to, or in the course of performing this Contract:
i) any software (including but not limited to any addition to or modification of the Software Products and any images, photographs, text, and software code incorporated into the Software Products), coding or algorithms or methodologies, but excluding any physical mining, extraction or mineral processing methodologies, which shall be Client Background IP or Client Project IP; and
ii) any accompanying Orepath Materials and modifications of them.
o) Party means a party to the Contract or to any other document or agreement and includes a permitted substitute or a permitted assign of that party.
p) Proposal means the details in the proposal letter accompanying this document.
q) Purchase Order means a document entitled ‘Purchase Order’ and issued by the Client or its Related Body Corporate for the supply of goods or services under this Contract and includes any documents annexed to or referenced within it, including any scopes of work, terms, and/or specifications.
r) Software Products means the software products provided by Orepath from time to time.
s) Standard Terms means this document.
t) User means an individual person that the Client authorises to use the Software Products and includes any person that uses the Software Products provided to the Client from any of the devices on which the Client installs the Software Product, or with any of the Client’s User details, whether or not actually authorised by the Client.
2) Contract
Orepath agrees deliver to the Client the consulting services and/or software Licenses outlined in the Proposal, in accordance with these Standard Terms. The Proposal, these Standard Terms, and the EULA (if the Proposal includes Licenses) collectively form the complete agreement between Orepath and the Client, replacing any prior discussions or agreements in any format.
Importantly, any terms (or terms referenced) on a Purchase Order do not form part of this agreement.
3) Validity of Proposal
The Proposal is valid for 30 days from its date.
4) Currency
All amounts are in Australian Dollars (unless expressly stated otherwise) and exclude GST and any other taxes.
5) Governing Law
This Contract is governed by laws of the Western Australia.
6) Severability and Survival
Any provision of this Contract that violates a law, is unenforceable, or is void will be deemed void, and all remaining provisions of this Contract will continue in force. However, Orepath and the Client will in good faith attempt to replace any invalid or unenforceable provision with a replacement that mimics the original intent of the voided provision.
7) Force Majeure
a) If either Party to this Contract is prevented from or delayed in performing any of its obligations under this Contract by a Force Majeure Event, then it will notify the other Party in writing of the nature and expected duration of such Force Majeure Event and of the obligation, the performance of which is delayed or prevented and both Parties will thereupon be excused from the performance or punctual performance, as the case may be, of their respective obligations from the date of such notification, for so long as the circumstances or prevention or delay may continue, except as otherwise provided herein.
b) A Party claiming Force Majeure must use its best endeavors to remove or overcome the effects of that Force Majeure as quickly as possible.
c) If by virtue of the preceding, the Parties are excused from the performance or punctual performance of any obligation for a continuous period of ninety (90) days and provided that such performance is still excused, then either Party may at any time thereafter, by written notice to the other Party, terminate this Contract forthwith. Notwithstanding any other terms of this Contract, in the event of a termination pursuant to this clause, the Parties will each absorb its own costs and losses occasioned by termination and neither of them shall have the right to claim damages or any other amount from the other of them, provided, however, to the extent either Party has an obligation arising from any activity prior to the Force Majeure Event which can be performed despite a declaration of such Force Majeure Event, such Party shall be required to perform said obligations.
8) Interpretation
a) Rules for interpreting the Contract
Headings and catchwords are for convenience only, and do not affect interpretation. The following rules apply in interpreting the Contract, except where the context makes it clear that a rule is not intended to apply.
i) A reference to:
(1) (legislation) legislation:
(a) is to that legislation as amended, re-enacted or replaced; and
(b) includes any regulations, by-laws or other subordinate legislation issued under it;
(2) (documents/agreements) a document or agreement, or a provision of a document or agreement, is to that document, agreement or provision as amended, supplemented, replaced or novated;
(3) (persons) a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person;
(4) (parts of things) anything (including a right, obligation or concept) includes each part of it;
(5) (number) a singular word includes the plural, and vice versa; and
(6) (gender) a word which suggests one gender includes the other genders.
(7) (time) is to the local time in Perth;
(8) ($ or dollars) is a reference to the lawful currency of Australia;
(9) (obligation) includes a warranty or representation and a reference to a failure to observe or perform an obligation includes a breach of warranty or representation;
ii) (parts of speech) If a word is defined, another grammatical form of that word has a corresponding meaning.
iii) (examples) If an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing.
iv) The words subsidiary, holding company, substantial holding and related body corporate have the same meanings as in the Corporations Act.
v) A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
vi) (GST wording) Words defined in the GST Law have the same meaning in the Contract unless the context otherwise requires.
vii) The word applicable when used of a Law is used to refer to any relevant Law of a jurisdiction in or out of Australia, and also to any relevant judgment, order, policy, guideline, official directive or request (even if it does not have the force of Law) of any Authority or regulatory body, such as a stock exchange, within or outside Australia.
viii) A rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of the Contract or any part of it.
b) Precedence
In the event of an inconsistency between any documents, the following list specifies the priority of each document, with #1 having the highest priority:
1. Amendments to the Proposal
2. The Proposal
3. Amendments to the Standard Terms
4. The Standard Terms
5. The EULA (if applicable)
c) Business Days
If the day on or by which a person must do something under the Contract is not a business day in Western Australia, the person must do it on or by the next business day.
d) Multiple parties
If a party to the Contract is made up of more than one person, or a term is used in the Contract to refer to more than one party:
i) an obligation of those persons is joint and several;
ii) a right of those persons is held by each of them severally; and
iii) any other reference to that party or term is a reference to each of those persons separately, so that (for example) a representation, warranty or undertaking is given by each of them separately.
e) Survival
This clause survives the termination or expiry of the Contract.
9) Payment
a) Payments are due within 30 days of the end of the month in which the invoice is issued.
b) In the event the Client disputes the content of the invoice, the Client shall inform Orepath within 5 business days of the invoice date. The Parties will work together in good faith to resolve any dispute before the due date of the payment.
If any disputed amounts are paid but later agreed to not be payable, Orepath will provide a credit to a future invoice, or a refund only if it is unlikely there will be sufficient future invoices to fully offset the amount in dispute.
10) Insurances
Orepath shall maintain the following insurance coverage during the term of its engagement:
a) Professional Indemnity insurance in respect of the supply of the services to cover for liability to a limit of not less than $5,000,000 in relation to any one claim and $10,000,000 in the aggregate;
b) Public and Product Liability insurance that provide cover for general public and products liability to a limit not less than $10,000,000 in respect to any one occurrence arising out of the same or original cause and unlimited in the aggregate for public liability as to the number of claims but limited in the aggregate to $20,000,000; and
c) Workers Compensation insurance that:
i. complies with all statutory requirements including providing any compulsory statutory workers’ compensation benefits; and
ii. provides common law liability as required by law in Western Australia.
d) Orepath will provide the Client with certificates of currency for such insurances upon request.
e) Orepath does not maintain motor vehicle insurance, as it owns no motor vehicles and its employees do not have permission to operate motor vehicles at any customer site.
11) Intellectual Property (IP) Rights
a) Orepath Background IP and Orepath Materials
i) All Orepath Background IP is and shall continue to be owned by Orepath. In particular, the Software Products and Orepath Materials are protected by copyright laws and international treaty provisions. Therefore, the Client must treat the Software Products and Orepath Materials like any other copyrighted material, and may not copy it, except as expressly permitted under this Contract.
ii) Orepath grants the Client the non-transferable right to use the Orepath Materials provided by Orepath to the Client under this contract, for the purpose of using the Software Products in accordance with the Licence and for any other purpose set out in the Proposal. Except to the extent that purpose expressly includes provision to other parties, Orepath Materials are for use within the Client’s organization only. Orepath may revoke this right if the Client does not pay all amounts due, or if the Client breaches this Contract.
iii) Subject to clause 11)b), Orepath may use (and grant any third party any rights in respect of) any Software Products and Orepath Materials as it sees fit.
b) Client Background IP and Client Materials
i) The Client Materials will at all times be the property of the Client, and the Client owns and shall continue to own the Client Background IP.
ii) The Client grants Orepath a licence to use the Client Materials and the Client Background IP for the purposes of:
(1) Performing Orepath’s obligations under this Contract;
(2) Modifying and developing the Software Products and the Orepath Materials, provided that such modifications and developments shall not incorporate any Client data or other confidential Client information.
c) Project Intellectual Property
i) Orepath shall own all Orepath Project IP, and this Orepath Project IP shall immediately vest in Orepath upon its creation.
ii) Subject to clause 11)b), the Client hereby unconditionally assigns (including as an assignment of future property under section 197 of the Copyright Act 1968 (Cth) and in equity) and agrees to assign and do all things necessary to assign to Orepath all Orepath Project IP which the Client or any of its employees or contractors may have or become entitled to.
iii) If the Software Products (or any modification or enhancement of them) of any Orepath Materials embody any methodologies or processes in respect of which the Client owns Client Background IP, the Client shall retain such rights, but grants Orepath a perpetual, irrevocable, transferrable and sub-licensable licence to use, adapt and reproduce the same as part of the Software Products.
iv) The Client shall own all Client Project IP, and that Client Project IP shall immediately vest in the Client upon its creation.
v) Orepath hereby unconditionally assigns (including as an assignment of future property under section 197 of the Copyright Act 1968 (Cth) and in equity) to the Client all Intellectual Property Rights in and to the Client Project IP and Client Materials which Orepath may have or become entitled to and agrees do all things necessary to assign those rights to the Client.
vi) To extent that any intellectual property is generated in the course of undertaking the Contract that is not otherwise covered by this clause, then the ownership of that intellectual property shall rest with the Party that would be entitled to such ownership under law and that Party grants the other party an irrevocable, world-wide royalty free licence to use, copy, modify and exploit such intellectual for the purposes of its business.
d) Further Steps
Each party must, if required by the other, do all further things and execute all further documents necessary to assign to that other party any intellectual property rights that this Contract provides are to vest in or be transferred to that other party.
12) Confidentiality
a) Orepath Obligations
i) Orepath will not:
(1) use the Client Materials except as required for the performance of this Contract, or for the development and modification of the Software Products (in a manner that does not result in the disclosure of the Client Materials)
(2) reproduce the Client Materials in whole or in part in any form except as required for the performance of this Contract; or
(3) disclose the Client Materials to any third party or persons not authorised by the Client to receive it, except with the prior written consent of the Client.
ii) The obligations of Orepath under this clause apply until Orepath no longer has a copy of the Client Materials.
b) Client Obligations
i) The Client will not:
(1) use the Orepath Materials except as required for the performance of this Contract
(2) reproduce the Orepath Materials in whole or in part in any form except as required for the performance of this Contract; or
(3) disclose the Orepath Materials to any third party or persons not authorised by Orepath to receive it, except with the prior written consent of Orepath.
ii) The obligations of the Client under this clause apply until the Client no longer has a copy of the Orepath Materials.
13) Maximum Liability
The Client expressly agrees that to the fullest extent permitted by law, Orepath’s maximum liability to the Client for claims arising from or in relation to Orepath's professional acts, errors, or omissions in or related to the provision of Software Products or consulting services is $50,000. To the fullest extent permitted by law, Orepath is not liable for any indirect, special, incidental, punitive, exemplary or consequential damages of any nature, nor is Orepath liable for any loss of profit, loss of revenue, loss of goodwill, loss of data, loss of production or use, business interruption or loss of opportunity or other commercial or economic loss.
This limitation does not apply to Orepath’s liability for loss or damage that arises in relation to:
i) personal injury or death of any person,
ii) breach of confidentiality,
iii) liability arising out of or in connection with any criminal acts, fraud, deliberate default, reckless misconduct, or willful misconduct by Orepath or any of Orepath’s personnel,
iv) liability covered by the insurances that Orepath is required to effect under this Contract (in which case, Orepath’s liability is limited to the amount of the insurance cover required); or
v) liability covered under Orepath’s intellectual property rights indemnity in clause 21)h)i).
14) No Third-Party Rights
The Software Products, consulting services, and Orepath Materials prepared for or provided to the Client under this Contract are for the Client’s own use in accordance with these terms and conditions, and not for the use of any third parties.
15) Client Indemnity
The Client will indemnify and hold harmless, and on request defend, Orepath and its subcontractors, consultants, agents, officers, directors, and employees from and against any and all claims, liabilities, damages, losses, and expenses (including lawyers’ fees and other costs of litigation, arbitration or
mediation) arising out of or in any way related to any third party claims regarding any use of or reliance on the products, services, or Orepath Materials provided to the Client, however, such indemnification does not apply to such claims, damages, losses or expenses to the extent caused by the indemnified person’s gross negligence or willful misconduct.
16) Orepath Indemnity
Orepath will indemnify and hold harmless, and on request defend, the Client and its subcontractors, consultants, agents, officers, directors, and employees from and against any and all claims, liabilities, damages, losses, and expenses (including lawyers’ fees and other costs of litigation, arbitration or
mediation) arising out of or in any way related to any third party claims regarding any use of or reliance on the Client Materials provided to Orepath, however, such indemnification does not apply to such
claims, damages, losses or expenses caused by the indemnified person’s gross negligence or willful misconduct.
17) Unforeseen Occurrences
If any unforeseen conditions or occurrences are encountered that are outside Orepath’s control which, in Orepath’s reasonable opinion, significantly affect or may affect the recommended scope of work, then Orepath will notify the Client. After such notification, the Client and Orepath will negotiate as to what part of the original scope can be completed, and if appropriate re-scope and agree upon an amended proposal.
18) Time bar
Any claim that has not been commenced by the filing of legal proceedings, other than a claim for payment of an invoice rendered prior to that time, may not be brought and shall barred on and from the earlier of:
a) 12 months from the date on which the claim first arose;
b) the day 12 months from the completion of the relevant services (and the services shall be considered complete no later than the earlier of the issue of the final invoice for the relevant services or date of delivery of the finalized report (if any)).
19) Termination
a) If at any time a Party becomes Insolvent, then subject to the restrictions in the Corporations Act 2001 (Cth) the other Party may terminate the Contract with immediate effect by giving written notice.
b) A Party may terminate the Contract in whole or in part, by 14 day’s notice to the other Party, if:
i) the other Party is in breach of any provision of this Agreement and the breach is not capable of remedy;
ii) the other Party is in breach of any provision of the Contract which is capable of remedy and fails to remedy that breach at its own expense and to the reasonable satisfaction of the Party within 14 days after receipt of a notice from the Party specifying the breach; and
iii) the Party is expressly entitled to exercise a right of termination under any other provision of these terms and conditions.
c) Without prejudice to any other rights, Orepath may terminate or suspend this Contract, the Licences, and any rights the Client has under this Contract if the Client or any of its Users fail to comply with the terms and conditions of this Contract. In such event, the Client must destroy any and all copies of the Software Products. Orepath shall be entitled to damages for the Client’s breach and loss of the Client’s obligations under this Contract, including without limitation full payment of all monies due for the full term of any subscription.
d) The Client may terminate the Contract in its entirety by providing to Orepath thirty (30) days written notice of termination. For the avoidance of doubt, the Client shall not be entitled to a refund of any monies paid in advance, and must pay 100% of all monies that would have been due until the end of the full subscription period.
e) Either Party may terminate this Contract as it relates to the provision of services (but not any Software Products or Licences) by 7 days’ written notice to the other party.
f) In the event of termination for any reason, the Client must pay Orepath for services performed up to the termination date, and reasonable termination expenses, including demobilisation costs (if any).
g) On termination, both parties will be released from their obligations under Contract (other than confidentiality and other obligations expressed or intended to operate after termination or the end of the Contract). The Client must destroy any and all copies of the Software Products and all copies of Orepath Materials (other than one copy, for the exclusive purposes of its corporate records and insurances). Orepath must destroy all copies of Client Materials (other than one copy, for the exclusive purposes of its corporate records and insurances).
h) The Client will pay Orepath for all time spent and all costs, expenses, and fees incurred (including lawyers’ fees on a solicitor-client basis) as a result of or in connection with any breach by the Client, or suspension or termination of services in consequence of such a breach.
20) Consulting Services
If the Proposal includes any consulting services, the consulting services are provided with the following additional terms.
a) Consulting rates escalate annually on 1 July. The Client will be notified of any escalation three months in advance.
b) Orepath reserves the right to substitute consultants for suitably qualified alternatives.
c) The Client is responsible for reasonable travel and accommodation costs and incidentals.
d) Orepath consultants’ point of departure is Perth, Australia.
e) Travel time will be charged at standard rates to a maximum of 10 hours in a 24-hour period.
f) Travel costs and other incidentals incurred by Orepath in execution of the services will be on-charged at cost.
g) Estimates in the Proposal are based on the information available regarding the project at the time of quotation. However, Orepath charges for the actual time and materials used, which may be less or more than the estimate. Orepath shall keep the Client updated if estimates are likely to be exceeded.
h) Except as otherwise set out in the Proposal, Orepath will submit invoices to the client monthly for the preceding month's consultancy services, and a final bill upon completion of the services.
i) Standard of Care
Orepath’s consultancy services will be performed with a standard of professional care, meaning the generally accepted professional practices for the provision of services of that kind. Notwithstanding that agreement, Orepath expressly disclaims, and the Client waives all warranties, express or implied in relation to those services or any materials developed or supplied as part of those services.
j) Statutory Warranties
Where legislation implies into this Proposal any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of, or exercise of, or liability under such condition or warranty, the condition or warranty will be deemed to be included in this Contract. However, Orepath's liability for any breach of such condition or warranty will be limited (to the extent allowable by law) to, or to the cost of, supplying the services again, at Orepath’s discretion.
21) Software Licenses
If the Proposal includes any software licenses, the software licenses are provided with the following additional terms.
a) Product Descriptions
i) Haulage Fleet Simulator
Estimate the performance of a mine haulage fleet in a simulated virtual environment. Account for traffic, queuing at sources and destinations, refueling/recharging, and planned/unplanned
breakdowns. Test different road configurations, truck models, and infrastructure limits in different scenarios. Communicate the results clearly with 3D animations and integrated reporting.
b) The software requires a constant high-bandwidth connection to the internet. All models are saved on secure servers hosted on Microsoft Azure accessed using SSL encryption. Models can be very large in size, and therefore a reliable, high-bandwidth internet connection is required at all times when using the software.
c) Subscription prices escalate annually on 1 July. Escalations are capped at 7% for active licenses. The Client will be notified of any escalation three months in advance.
d) Licensing Options
i) Licenses on 12-month terms are:
(1) invoiced in advance for the full license term.
(2) entitle the Client to access the Licence for a full year. The Licence will automatically deactivate at the end of the full year (unless the Client renews).
ii) Licenses on 1-month terms are:
(1) invoiced monthly in advance.
(2) entitle the Client to access the Licence for a full month. The Licence will automatically deactivate at the end of the month (unless the Client renews it).
e) Licence
i) Upon entry into this Contract, the Client is granted a right to install the Software Products as set out in the Proposal and use them in order to process its data.
ii) Orepath grants the use of the Software Product according to a Named-User License model.
For each Named-User Licence purchased, Orepath grants to the Client one (1) non-transferable, non-exclusive, royalty-free licence to use the Software Product (as set out in the Proposal) and install that Software Product on the Client’s machine(s) for the Client’s internal use. With each
named-user license, the Software Product may be run by a single User logged in to the software on a single computer (a User may, however, run multiple instances of the Software Product on the same computer).
For example, if the Client purchases two licenses, it can nominate two individual Users to use those licenses. If one of the individuals moves to a different team and a new person takes their place, the license can be transferred to the new individual without any fee.
For the avoidance of doubt, note that this licence is not a concurrent-user license.
iii) The Client may change which Users are assigned to the license a maximum of one time per 48-hour period.
iv) Use of the Software Product on computers not owned by the Client or Orepath is not permitted.
v) By installing or accessing a Software Product, the Client and the User agree to the EULA. The Client agrees to require each of its Users to comply with the EULA.
vi) The Licence is granted to the Client, and it and the rights under it may not be assigned, transferred or sub-licensed by the Client to any person or entity. If the Client sells the whole of the business in respect of which the licence is granted, on application by the Client and the purchaser, Orepath may, in its absolute discretion, agree to novate the Licence to the purchaser.
f) Automatic Updates
Updates to the Software Products become automatically available and distributed via internet services to all active Users during the subscription term, including:
(1) Major releases with new features and functionality
(2) Minor releases with bug fixes for stability and speed
g) Minimum System Requirements
The system requirements depend on the size and nature of the User’s data set. The minimum requirements set out below will only allow modelling of a small, trimmed data set.
• Processor – Intel i7
• System RAM – 16 GB (64 GB recommended)
• Video RAM – 2 GB (8 GB recommended)
• Video Driver – Driver no more than 12 months old
• Monitor Resolution - 1920x1080 (3840 x 2160 recommended)
• Video Connection – HDMI or DisplayPort (USB not supported)
• Hard Drive – Solid State Drive with sufficient free space
• Power Connection – AC Power (Battery not supported)
• Operating System – Windows 11 x64
• .NET Framework – Latest Official Release
h) Warrantees and Limitations
i) IP warranty
Orepath represents and warrants that:
(1) use of the Software Products and Orepath Materials in accordance with this Contract will not infringe the rights, including the intellectual property rights, of any person; and
(2) it has all authorizations it requires to grant the Licence to the Client under this Contract.
ii) Indemnity against Infringement
(1) Orepath will indemnify the Client against any damages (including costs) that may be awarded or reasonably agreed to be paid to any third party in respect of any claim or action that the normal operation, possession or use of the Software Product by the Client infringes the intellectual property rights of the third party (Intellectual Property Infringement) (other than by reason of use of information or another product that infringes those third party rights with the Software Product), up to an aggregate maximum of $10,000,000 under this Contract, provided that the Client:
(a) gives notice to Orepath of any Intellectual Property Infringement on becoming aware of the same; and
(b) gives Orepath the sole conduct of the defense to any claim or action in respect of an Intellectual Property Infringement and does not at any time admit liability or otherwise attempt to settle or compromise the said claim or action except under the express instructions of Orepath; and
(c) acts in accordance with the instructions of Orepath and gives to Orepath such assistance as it shall require in respect of the conduct of the said defense including without prejudice to the generality of the foregoing the filing of all pleadings and other Court process and the provision of all relevant documents.
(2) In the event of an Intellectual Property Infringement or alleged Intellectual Property Infringement, Orepath shall be entitled at its own expense to do any of the following:
(a) procure the right for the Client to continue using the Software Product; or
(b) make such alterations, modifications or adjustments to the Software Product that they become non-infringing without incurring a material diminution in function; or
(c) replace the Software Product with non-infringing substitutes provided that such substitutes do not entail a material diminution in function; or
(d) direct the Client to cease using the Software Product, and refund to the Client any payments made in respect of the Software Product for any period following that direction.
(3) Orepath shall have no liability to the Client (and the above indemnity shall not apply) in respect of an Intellectual Property Infringement to the extent it results from any breach of the Client’s obligations under this Contract.
iii) Rectification
Orepath does not warrant that the Software Products are free from bugs, errors or other program limitations, but agrees to use reasonable endeavors to rectify any such matters that are identified in accordance with the terms of this Contract.
iv) Limitations
(1) Orepath does not take any responsibility for any damage suffered as a result of using, modifying, or distributing the Software Products or any information derived from their use.
(2) The Client agrees that it will not use the Software Product to develop derived works that offer similar functionality to the Software Product for use by unlicensed parties nor will it expose any of the features of the Software Product for use by an unlicensed third party.
(3) The Client may develop derived works as long as usage of those derived works is for internal use only, and any derived work, which is software, also requires the usage of a Licence of the Software Product. Any such derived work being software shall be subject to the terms of this Contract, and the Client must cease using that derived work upon ceasing to be entitled to use the Software Product.
(4) From the commencement of the Licence until twelve (12) months after the date this Contract and the Licence is terminated or ends, the Client shall not create software that might directly compete with any of the Software Products it previously licensed.
(5) The Client may not modify the Software Products in any manner.
(6) The Client shall not, nor allow others to copy, in whole or in part, emulate, sub-license, sell, transfer, exploit, alter, modify or adapt the Software Products nor decompile, decrypt, dissemble or reverse engineer the Software Products or any part of them nor attempt to do such thing.
(7) The Client may not provide or make available copies of, rent, lease or sub-licence or disseminate in any other manner the Software Product or any associated Orepath Materials (including training materials and videos and user manuals) to any third party (other than the Client’s IT service providers for the sole purpose of installing or operating the Software Products for the purpose of the Client’s business). The Client may not use (or permit any other person to use) the Software Product for the benefit of, or the purpose of providing services to, any third party (including without limitation, processing data for or on behalf of a third party).
(8) The Client may not remove any proprietary notices or labels on the Software Products.
v) No other warranties
Orepath expressly disclaims any warranty for the Software Products not expressly set out in this Contract. The Software Product and any related documentation is provided "as is" without warranty of any kind, either express or implied, including, without limitation, to the extent permitted by law, any implied warranties or merchantability, fitness for a particular purpose, or non-infringement. The entire risk arising out of use or performance of the Software Product remains with the Client.
i) Service Levels
The support services set out in this section will be provided by Orepath for the life of the subscription License of the Software Product, while the license fees are fully paid.
i) Support is included for all Users with a valid named-user license. This support includes:
(1) Email support for technical issues and general product help.
(2) Ability to log bug reports and feature requests.
(3) Updates to any system integration modules associated with a breaking change in a new release.
ii) Support services are not intended to replace software training or consulting services. Users may be required to undergo training prior to receiving support if:
(1) the subject matter of the User’s inquiries is covered in a training course, and
(2) the quantity of the User’s inquiries is excessive in Orepath’s ultimate discretion.
iii) Support can be accessed by Users by email on inquiry@orepath.com or directly via the software’s Support function (if any).
iv) Critical Issues
Critical Issues are defined as issues which prevent the user from using the Software Product and for which there is no known workaround.
A response will be provided within one business day; the support technician will work with the User to duplicate the issue and ideally provide a workaround.
If the issue cannot be resolved by the support technician, the issue will be escalated to the developers, who will provide a workaround or software patch within 5 business days.
v) Major Issues
Major Issues are those which are annoying or clearly unintended behavior which materially adversely affect the user’s ability to use the software efficiently. This includes Critical Issues for which a workaround is available.
A response will be provided within one business day; the support technician will work with the User to duplicate the issue and ideally provide a workaround, if none is already known.
If the issue cannot be resolved by the support technician, the issue will be escalated to the developers, who will track the issue in the internal Orepath bug tracking system for possible inclusion in a future software patch and provide a response within 5 business days as to when the issue is likely to be resolved.
vi) Minor Issues
Minor Issues are those which does not materially affect the usability of the software. This includes bugs like misspellings and all enhancement requests.
A response will be provided within one business day; the support technician will work with the User to duplicate the issue, and log within the internal Orepath bug tracking system for possible inclusion in a future software patch.
vii) Limitations
(1) The Client’s IT department is expected to provide support to users for general software and hardware issues not directly related to the Software Products.
(2) Users require local administrator access on their computer to install the Software Products. If a User does not have local administrator access, the Client’s IT must install the Software Product for the user.
(3) The User may be required to download and use a newer version of the software periodically to receive support. Orepath generally supports major releases for only one year from their release date.
Further, it may not be possible to duplicate the same outcome possible in a previous version of the software in a newer version of the software if there have been changes to the underlying calculation engine. Orepath attempts to minimize the likelihood of this occurring, but it is never guaranteed.
(4) Support will not be provided if the User’s computer does not meet the minimum specifications.
(5) For support to effectively resolve bugs, the User may be required to send data and assist support in duplicating the issue. If the User is requested by Orepath to send information and assist in the duplication of the issue, but the User cannot for any reason, no support in relation to that issue will be provided to the User.
(6) Whether a User’s issue is a bug in the software or intended behavior is determined in Orepath’s ultimate discretion.