- 3 -
they are an Authorised Representative or Authorised Operator.
The User is wholly and solely responsible for use of the Platform
by any of its Authorised Personnel.
6. PAYMENT OF FEES
6.1 A User that executes a Contract shall pay to Open Mineral a
success fee for that Contract agreed via the Platform in
accordance with the terms of this clause 6.
6.2 The fee payable by a User to Open Mineral in relation to a
Contract shall be as set out in the separate Schedule of Fees
provided to the User upon initial registration and updated from
time to time.
6.3 The continued use by the User of its Platform Account indicates
the consent of the User to pay fees in accordance with the
Schedule of Fees from time to time in place.
6.4 On or before the last day of a scheduled shipment, Open Mineral
will issue an invoice (the "Provisional Invoice") to the parties to
the Contract in accordance with this Clause 6 and the Schedule
of Fees at the time in place. The invoice shall be based on the
provisional invoice to be issued by the Seller to the Buyer.
6.5 The Provisional Invoice shall be issued to the User by Open
Mineral based on either (i) the Seller's provisional invoice
uploaded to the Platform; or, if no invoice has been uploaded (ii)
typical assays, terms of the Contract and current market prices.
6.6 The Provisional Invoice shall be paid in full, without set off or
deduction, by the Users within 3 Business Days of receipt.
6.7 When the Seller uploads to the Platform its final invoice to the
Buyer when the final price of the Raw Materials is known, Open
Mineral will issue its final invoice (the "Final Invoice").
6.8 The Final Invoice shall be issued to the User by Open Mineral
based on either (i) the Seller's final invoice uploaded to the
Platform; or, if no invoice has been uploaded (ii) typical assays,
terms of the Contract and current market prices, taking into
account the Provisional Invoice amount.
6.9 The Final Invoice shall be paid in full, without set off or deduction,
by the Users within 3 Business Days of receipt.
7. CONTRACT FORMATION
7.1 Each User may agree with another User the sale and/or
purchase of Raw Materials through the Platform. Users may
elect to contract with one another on the basis of the proforma
contracts available to Users of the Platform, or may alternatively
contract using their own agreement. Open Mineral has no
liability or obligation to any User for any rights and/or obligations
arising between Users under any Contract.
7.2 A User that wishes to buy and/or sell Raw Materials through the
Platform may submit a Tender onto the Platform which shall set
out a description of the Raw Materials the subject thereof.
7.3 A User that wishes to respond to a Tender may do so by (i)
entering a Bid via the Platform; (ii) making a counter-offer on the
Platform and/or (iii) responding to the User submitting the
Tender on the Platform secure messaging system. Users are
free to negotiate details of the Tender via the Platform.
7.4 When Users have agreed the terms of the Contract, the User
submitting the initial Tender shall upload the details of the
transaction to the Platform whereupon a Business Confirmation
will be issued to the Users. When the Users have both signed
the Business Confirmation electronically via the Platform
mechanism the Contract will be deemed to have become legally
binding on the terms set out in the Business Confirmation and
the Users will be jointly liable to Open Mineral in accordance with
the terms set out at Clause 6 of this Agreement. Until the
Business Confirmation has been signed by both Users, no
binding agreement is in place.
7.5 Following signature of the Business Confirmation, the Users
shall negotiate and agree all other terms of the Contract which,
when finalised, shall be promptly uploaded to the Platform by the
Users' Authorised Administrators. The Contract shall be in any
event uploaded to the Platform not more than 30 days after
signature of the Business Confirmation. Users agree and
commit that documents shall be promptly uploaded onto the
Platform as they are issued, including but not limited to
provisional and final invoices, payment confirmations, assays,
shipping documents and insurance documents. Users shall
submit documents on a per-shipment basis where a Contract
provides for more than one shipment of Raw Materials.
7.6 Each User shall be entitled to accept and/or reject a Tender
outright and/or to enter into negotiations with another User in
relation to a Tender before accepting the same in accordance
with Clause 7.4 above.
7.7 A Tender may be cancelled or modified until the acceptance of
a Bid on the terms set out in the Tender by either User.
7.8 A Bid may be withdrawn at any time prior to acceptance by
7.9 If, following formation of the Contract, there is a breach of
contract by the Buyer which is sufficient to permit the Seller to
cancel the Contract, the Seller may re-open the Tender for
negotiation with other Users.
8.1 This Agreement shall, as regards a User, commence on the date
that a User accepts this Agreement and shall continue
indefinitely as between Open Mineral and that User unless
otherwise suspended or terminated by Open Mineral or a User
in accordance with clause 9 of this Agreement.
9. SUSPENSION OR TERMINATION
9.1 Open Mineral may for any reason immediately, in its sole
discretion and without prior notice, suspend or terminate the
access to, and use of, the Platform by a User. Open Mineral
may do so without assigning any reason therefor.
9.2 In the event of such suspension by Open Mineral, any reaccess
by the User to the Platform shall be determined by Open Mineral
in its sole discretion.
9.3 In the case of termination by Open Mineral, the User shall no
longer be entitled (or able) to access or use the Platform, with
9.4 A User shall be entitled to terminate this Agreement with Open
Mineral upon 30 days' notice in writing to Open Mineral.
9.5 Termination of this Agreement by Open Mineral under clause
9.1, or by a User under clause 9.4, shall have the effect of
terminating this Agreement as between that User, Open Mineral
and all other Users, but without prejudice to any and all rights
and obligations that may have accrued up until the point of
termination as between that User, Open Mineral and any other
User, including without limitation as to the continuation of any
Contract concluded by the User with any other User in
accordance with its terms and the payment of any sums due by
the User to Open Mineral.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Open Mineral's Intellectual Property Rights, whether on the
Website, the Platform or in this Agreement, remain the sole and
exclusive property of Open Mineral. Other than as expressly set
out in this Agreement, no material from the Platform may be
reproduced, or used in any way, and the parties acknowledge
that to do so would be a breach of Open Mineral's Intellectual
10.2 Each User shall acquire no rights of any kind in or to Open
Mineral's Intellectual Property Rights and shall not make any use
of the same for any reason except as expressly authorised in
this Agreement or otherwise in writing by Open Mineral.
10.3 Each User's Intellectual Property Rights remains the sole and
exclusive property of such User, but each User hereby grants to
Open Mineral a licence in respect of that User's Intellectual
Property Rights to be used by Open Mineral for the purposes of
giving effect to this Agreement, for usage in connection with the
Platform and/or for using, reproducing, publishing or creating
other works from the same in the ordinary course of its business.
10.4 Open Mineral reserves all rights (including copyrights, patents,
trademarks and any other intellectual property rights) with
regards to all information (including designs, texts, graphics and
code) disclosed on or through the Platform. Each User
acknowledges that it is prohibited to copy, publish in any way,
distribute, multiply, modify or download any information on the
Platform without the prior written consent of Open Mineral or the
proprietor of the respective Intellectual Property Rights. Any
Open Mineral trademark is the exclusive property of Open
Mineral. The User acknowledges Open Mineral's exclusive