- 1 -
OPEN MINERAL PLATFORM USER AGREEMENT
1. GENERAL
1.1 All capitalised terms used in this Clause 1 bear the meanings
given in Clause 2 below.
1.2 This User Agreement (the "Agreement") governs:
(i) the access of a User to, and use of, the Platform;
(ii) the relationship between Open Mineral and each
User in connection with the Platform; and
(iii) together with any Contract to be concluded between
Users in accordance with the provisions hereof, the
contractual relationship between Users in using the
Platform.
1.3 This Agreement is located at https://openmineral.com (the
"Website").
1.4 By accepting this Agreement, each User acknowledges that it
has read, understood and agrees to be bound by the Agreement.
A User accepts this Agreement by checking the electronic tick
box where indicated.
1.5 Open Mineral reserves the right to change this Agreement at any
time, in its sole discretion. Any such changes will take effect
when posted on the Website.
1.6 IT IS THE RESPONSIBILITY OF EACH USER TO READ THE
AGREEMENT CAREFULLY ON EACH OCCASION THE
PLATFORM IS USED. THE USE OF THE PLATFORM BY A
USER SHALL SIGNIFY ITS ACCEPTANCE TO BE BOUND BY
THE THEN CURRENT TERMS OF THE AGREEMENT, AS
THE SAME MAY BE UPDATED FROM TIME TO TIME.
1.7 Open Mineral owns the Platform and in operating the Platform is
offering Users (in accordance with this Agreement) a global
digital marketplace for the trading of Raw Materials. Each User
desires to have access to the Platform so as to be able to make
use of these solutions in accordance with the provisions of this
Agreement. Each User acknowledges that the Platform is strictly
a B2B (business-to-business) market place and that it is only
intended for use of, and shall only be used by, professional
users.
1.8 Once a User has submitted its registration request and Open
Mineral has confirmed such registration with a welcome
message, the User becomes registered and is able to access
the Platform. Each User represents and warrants that all
information provided by it in connection with its registration is
complete and accurate, and that it will update such information
as soon as practicable if such information changes.
1.9 Open Mineral reserves the right to refuse any registration
request at its sole discretion, and to cancel or suspend any
registration of a User at any time at its sole discretion, without
prior notice and without assigning any reason (including, without
limitation, for non-payment of any fees due from that User
hereunder).
2. DEFINITIONS
2.1 In this Agreement (including the Recitals), unless the context
otherwise requires:
"Agreement" means this User Agreement;
"Authorised Administrator" means an authorised employee
nominated by any User who may access and use the Platform
pursuant to the terms and conditions of this Agreement, for the
sole purposes of (i) the addition of "Authorised Operators" and
"Authorised Representatives" to the User's Platform Account; (ii)
the uploading of documents to the website pursuant to sections
7 and 17 of this Agreement; and (iii) general administration of
the User's account and communication with Open Mineral;
"Authorised Operator" means an authorised employee
nominated by any User via its Authorised Administrator, who
may access and use the Platform but may not bind the User to
the sale / purchase of Raw Material, as the employee of the User
authorised by the User to do so under the terms and conditions
of this Agreement;
"Authorised Personnel" means any one of "Authorised
Administrator", "Authorised Operator" and/or "Authorised
Representative";
"Authorised Representative" means an authorised employee
nominated by any User via its Authorised Administrator, and in
respect of whom a Power of Attorney has been uploaded by the
Authorised Administrator to the website in a form acceptable to
Open Mineral who may access and use the Platform and bind
the User to the sale / purchase of Raw Material, as the employee
of the User authorised by the User to do so under the terms and
conditions of this Agreement;
"Bid" shall mean an offer to buy or sell Raw Materials in
response to a Tender;
"Business Confirmation" means a written statement issued by
the Platform confirming the terms of a Contract agreed between
two Users:
"Business Days" means a day on which banks are generally
open for commercial business in New York, Zurich and
Singapore;
"Buyer" means a User which enters into a Contract for the
purchase of Raw Materials;
"Confidential Information" means any confidential information
(however recorded or preserved) including but not limited to the
operations, processes, product information, know-how or
software relating to the Platform;
"Contract" means any concluded contract between a User and
another User in relation to Raw Materials and arranged via the
Platform, whether using the proforma contract available to Users
or any other form of contract;
"Data" means information which:
(a) is being processed by means of equipment operating
automatically in response to instructions given for
that purpose,
(b) is recorded with the intention that it should be
processed by means of such equipment,
(c) is recorded as part of a relevant filing system or with
the intention that it should form part of a relevant filing
system,
(d) does not fall within paragraph (a), (b) or (c) but forms
part of an accessible record as defined by section 68
of the Data Protection Act 1998, or
(e) is recorded information held by a public authority and
does not fall within any of paragraphs (a) to (d).
"Data Protection Legislation" means the Data Protection Act
1998, the EU Data Protection Directive 95/46/EC, the Regulation
of Investigatory Powers Act 2000, the Telecommunications
(Lawful Business Practice) (Interception of Communications)
Regulations 2000 (SI 2000/2699), the Electronic
Communications Data Protection Directive 2002/58/EC, the
Privacy and Electronic Communications (EC Directive)
Regulations 2003, the Swiss Federal Act on Data Protection
(235.1) and all applicable laws and regulations relating to
processing of personal data and privacy, including where
applicable the guidance and codes of practice issued by the
Information Commissioner;
"Intellectual Property Rights" means patents, rights to
inventions, copyright and related rights, trade marks, business
names and domain names, rights in get-up, goodwill and the
right to sue for passing off, rights in designs, rights in computer
software, database rights, rights to use, and protect the
confidentiality of, confidential information (including know-how
and trade secrets) and all other intellectual property rights, in
each case whether registered or unregistered and including all
applications and rights to apply for and be granted, renewals or
extensions of, and rights to claim priority from, such rights and
all similar or equivalent rights or forms of protection which
subsist or will subsist now or in the future in any part of the world;
- 2 -
"KYC" means all relevant Know Your Customer documentation
required to obtain satisfactory evidence of the identity and
address of each User as is required by law in order for it (and/or
for Open Mineral in running the Platform) to comply with
applicable anti-money laundering laws, sanctions checks and
KYC requirements;
"Personal Information" means any data provided by either
Open Mineral or a User, which relates to a living individual who
can be identified from the data, or from data and other
information, in the possession of, or which is likely to come into
the possession of, either Open Mineral or a User;
"Platform" means the trading platform owned and operated by
Open Mineral in accordance with this Agreement;
"Platform Account" means an account created with Open
Mineral to access and use the Platform;
"Power of Attorney" means a document signed by a director or
officer of the User in a form acceptable to Open Mineral
confirming the authority of a proposed Authorised
Representative to act on behalf of that User;
"Raw Materials" means any material which is traded on the
Platform;
"Seller" means a user which enters into a Contract for the Sale
of Raw Materials;
"Tender" means an offer submitted onto the Platform by a User
that is to sell or buy Raw Materials through the Platform which
shall set out a description of the Raw Materials to be sold or
bought all in accordance with clause 7.
"User" means a User registered in accordance with Clause 3 of
this Agreement accessing the Platform via its Authorised
Personnel in accordance with this Agreement
"Website" means https://openmineral.com/
3. ACCOUNT REGISTRATION
3.1 In order to access and use the Platform, a User must firstly
create an account with Open Mineral (the "Platform Account")
via its nominated Authorised Administrator.
3.2 When the Authorised Administrator creates a Platform Account
on behalf of the User, and each time the Authorised
Administrator adds an Authorised Representative or an
Authorised Operator to the User's Platform Account, the
Authorised Administrator must:
(i) create a username that is not used by or on behalf of
the User for any other website or online service;
(ii) create a password (consisting of at least six
characters that are a combination of letters (both
uppercase and lowercase) and numbers or special
characters) that is not used by or on behalf of the User
for any other website or online service;
(iii) provide accurate and truthful information as is
required of it on opening of the Platform Account;
(iv) maintain and promptly update its Platform Account
information;
(v) maintain the security of its Platform Account;
(vi) promptly notify Open Mineral if it discovers or
otherwise suspects any suspicious or unauthorised
activity or any security breaches related to its Platform
Account; and
(vii) take responsibility for all activities that occur under its
Platform Account and accept all risks of any
authorised or unauthorised access to its Platform
Account.
Each User is entitled to add any number of Authorised Personnel
to its Platform Account.
Open Mineral may require any User to change any username
and/or password at any time upon written notice.
3.3 Open Mineral may at any time make changes to the Platform as
it thinks fit in its absolute discretion. Each User accepts any
period of unavailability of the Platform whilst any such updates
are carried out to the Platform by or on behalf of Open Mineral.
3.4 Notwithstanding that Open Mineral may monitor the content of
the Platform, each User acknowledges and agrees that Open
Mineral is under no obligation to do so.
4. USE OF THE PLATFORM: COMPLIANCE WITH LAW AND
REGULATION
4.1 Each User agrees not to use the Platform in any manner or for
any purpose that could:
(i) interfere with, disrupt, negatively affect or inhibit other
Users from using the Platform;
(ii) damage, disable, overburden or impair the
functioning of the Platform;
(iii) damage or adversely affect the reputation of Open
Mineral and/or the Platform;
(iv) infringe any applicable law or regulation, including
without limitation relating to competition, anti-trust,
sanctions, export control, trade embargo, boycott,
anti-terrorism, foreign trade control, non-proliferation,
anti-money laundering, anti-bribery, defamation or
obscenity.
4.2 It shall be each User's responsibility to comply with any legal
requirements regarding the use of the Platform of the respective
countries, or the country, from which the User accesses the
Platform. Each User undertakes not to engage in any activity
that may be harmful to and/or negatively affect the operation of
the Platform, including but not limited to its servers, software,
content, infrastructure, code, availability, system security or
other Users of the Platform. Specifically, without limitation, the
following activities are prohibited: interference with the
Platform's encryption systems, data transmissions and security
systems or bypassing thereof; distributing, copying or
republishing any part of the Platform in any other channel or
medium, whether manually or in an automated fashion
(scraping); uploading any false information; uploading of viruses,
worms or similar software; use of any automated system to
access the Platform if such system produces more traffic or
server requests than manual conventional use; impersonation or
misrepresentation of the User's identity and its affiliations;
collection of personal information of other Users such as
usernames or IP addresses.
4.3 Where Raw Materials are put for tender on the Platform no User
shall contact or attempt to contact by any means of
communication any other User in respect of those Raw
Materials, or in respect of raw materials with the same or similar
specification, directly or indirectly, other than via the Platform
until the earlier of (i) the delivery date of the final shipment of
those Raw Materials; or (ii) 45 days after the Raw Materials are
initially put for tender on the Platform. If any User is found to be
in breach of this Clause 4.3, it shall be liable to Open Mineral for
any damages incurred on a full indemnity basis.
4.4 If Open Mineral believes, in its sole discretion, that a violation of
this Agreement may, or is likely to occur, or has occurred, Open
Mineral reserves the right to immediately investigate such
suspected violation(s).
4.5 Each User shall promptly and fully indemnify Open Mineral for
any claim, damage, loss, liability or cost (including legal cost)
arising from a breach of the Agreement by that User, in
accordance with clause 14 of this Agreement.
5. ACCESS TO AND USE OF THE PLATFORM:
5.1 Open Mineral, in consideration of the payment of fees by a User
to it as set out in clause 6 below, and for the further consideration
set out herein, agrees to provide each User with access to, and
use of, the Platform, in accordance with this Agreement. Open
Mineral hereby grants each User a non-exclusive, non-
transferable revocable licence (with no right to sub-license) to
access and use the Platform, throughout the continuation of this
Agreement with that User, and subject to the provisions hereof.
The Platform is to enable Users to sell or buy Raw Materials
through the Platform as set out in this Agreement.
5.2 Each User is responsible for its own use of the Platform and uses
it at its own risk, except where specifically stated in this
Agreement.
5.3 A User may access and use the Platform through any Authorised
Personnel. All such Authorised Personnel (as may be updated
from time to time) shall be notified to Open Mineral in writing
ahead of their first use of the Platform including as to whether
- 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
another User.
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. TERM
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
immediate effect.
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
Property Rights.
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
- 4 -
worldwide rights to any Open Mineral trademark and any Open
Mineral logo.
10.5 Open Mineral may make use of any information uploaded to the
Platform or provided to Open Mineral by any User, including the
identity and location of any User and publish and/or make the
same available to third parties. Such information may be so
used by Open Mineral in the normal course of its business.
10.6 Open Mineral may make use of any information posted on the
Platform by any User to assign a rating to each User at its sole
discretion. The issue of a rating by Open Mineral shall be a
statement of opinion issued in good faith and shall not be relied
upon by any User. The issue of any rating by Open Mineral shall
not be a statement of fact or a recommendation. Each User must
accordingly make its own study and evaluation of each other
User prior to entering into a Contract.
11. DATA PROTECTION
11.1 Open Mineral and each User shall comply with any notification
requirements under the Data Protection Legislation and both
Open Mineral and each User will duly observe their obligations
under the Data Protection Legislation, which arise in connection
with this Agreement.
11.2 Each User consents to Open Mineral holding, owning and
processing Data relating to it for legal, personnel, administrative
and management purposes in relation to its operation of the
Platform.
11.3 Open Mineral has implemented various technical and
organisation measures designed to reasonably protect the
User's personal information and reasonably prevent
unauthorised use of the Platform. However, Open Mineral
cannot guarantee that these measures will not be circumvented
by unauthorised third parties. The User provides his personal
information at its own risk.
12. REPRESENTATIONS AND WARRANTIES
12.1 Each User hereby represents and warrants to Open Mineral that:
(i) it has the right, power and authority to enter into this
Agreement, and the execution, delivery and
performance of this Agreement by it has been duly
authorised by all necessary corporate or other action
required by it;
(ii) it is a limited company validly existing under the laws
of its jurisdiction of incorporation;
(iii) it currently operates and, at all times while this
Agreement is in effect, will operate, its business in
compliance with the applicable law of the jurisdiction
in which it operates;
(iv) it shall only use the Platform as permitted by this
Agreement; and
(v) it shall not act in contravention of any clause of this
Agreement.
13. LIABILITY AND DISCLAIMER
13.1 Each User acknowledges and accepts that neither Open Mineral
nor any officer, affiliate, director, shareholder, agent or employee
thereof shall be liable to that User for any damages, costs,
expenses, or losses of any kind (including but not limited to
direct, indirect, incidental, punitive and/or consequential
damages, costs, expenses or losses) and whether arising
directly or indirectly in relation to:
(a) the use of the Platform by a User, including but not
limited to arising as a result of any failure in
performance of the Platform and/or unauthorised use
a User's Platform Account;
(b) the suspension and/or termination of a User's use of
the Platform pursuant to this Agreement;
(c) the quality or quantity of any Raw Materials
contracted through the Platform;
(d) the performance of any Contract concluded via the
Platform.
Nothing in this Agreement shall limit or exclude the liability of
Open Mineral or each User for any event which cannot be
excluded under applicable law. Each User expressly agrees that
its use of the Platform is at its sole risk.
13.2 Without limiting Clause 13.1 above, Open Mineral makes no
representation, warranty or guarantee as to, and shall not be
responsible for, the accuracy or completeness of any information
contained on the Platform or the operation of the Platform.
13.3 Without limiting Clause 13.1 above, Open Mineral is not liable
for any direct, indirect, incidental, intangible or consequential
damages, costs, expenses or losses, resulting in any way from
any defects, viruses, internal or external malware or other issues
with the infrastructure involved in the access or use of the
Platform. Open Mineral is neither liable for any interception,
modification or misuse of information exchanged between the
User and Open Mineral nor for the abuse of the Platform, loss of
data, use of software made available on the Platform nor for any
third party claims related to the use of the Platform.
13.4 Open Mineral undertakes reasonable efforts to provide
complete, accurate and current information from trustworthy
sources. In no case however shall Open Mineral warrant, or be
deemed to have warranted, whether explicitly or implicitly, that
the information provided on the Platform is complete, accurate
or up to date. Any decisions of the User based on the
information provided by the Platform or by Open Mineral are
taken at the User's own risk.
14. INDEMNITY
14.1 Each User shall indemnify Open Mineral against all liabilities,
damages, costs, expenses and losses (including but not limited
to any direct, indirect, incidental, punitive and/or consequential
damages, costs, expenses or losses (calculated on a full
indemnity basis)) suffered or incurred by Open Mineral arising
out of or in connection with:
(i) any breach by that User of the representations and
warranties contained in clause 12;
(ii) any breach by that User of any other term of this
Agreement; or
(iii) the preservation of Open Mineral's rights under this
Agreement, and/or enforcement of this Agreement.
15. CONFIDENTIALITY
15.1 Each User undertakes that it shall not disclose to any person any
Confidential Information (however recorded or preserved)
including but not limited to the operations, processes, product
information, know-how or software relating to the Platform
except as permitted by clause 15.2.
15.2 Each User may disclose Confidential Information:
(i) to its employees, officers, representatives or advisers
who need to know such information for the purposes
of exercising its rights or carrying out its obligations
under or in connection with the Agreement. Each
User shall ensure that its employees, officers,
representatives or advisers to whom it discloses
Confidential Information comply with this clause 15;
and
(ii) as may be required by law, a court of competent
jurisdiction or any governmental or regulatory
authority.
16. PRIVACY
16.1 To the extent that either Open Mineral or a User has access to,
or obtains Personal Information either as a result of exercising
its rights, or in the course of fulfilling its obligations under this
Agreement, it must treat or deal with such Personal Information
in a manner that complies with, and does not contravene, the
requirements and principles contained in Data Protection
Legislation.
17. KNOW YOUR CUSTOMER INFORMATION AND
ADHERENCE TO APPLICABLE LAWS
17.1 As part of the Account Registration procedure each User shall,
via its Authorised Administrator, upload to the Platform all
relevant Know Your Customer ("KYC") documentation as may
be requested of it by Open Mineral in accordance with Open
Mineral's KYC Policy for Open Mineral to obtain satisfactory
evidence of the identity and address of each User as is required
by law in order for it to comply with applicable anti-money
laundering laws, sanctions checks and KYC requirements.
- 5 -
17.2 Each User and Open Mineral each represents and warrants that
they shall adhere to all applicable laws and regulations, including
without limitation relating to competition, anti-trust, sanctions,
export control, trade embargo, boycott, anti-terrorism, foreign
trade control, non-proliferation, anti-money laundering, anti-
bribery, defamation or obscenity.
18. NO PARTNERSHIP OR AGENCY
18.1 Nothing in this Agreement is intended to, or shall be deemed to,
establish any partnership or joint venture, or relationship of
employer-employee or any other such relationship, between
Open Mineral and any User, and/or constitute either Open
Mineral or any User the agent of the other, and/or authorise
either Open Mineral or any User to make or enter into any
commitment for or on behalf of any other party.
18.2 Open Mineral and each User confirms that it is acting on its own
behalf and not for the benefit of any other person.
19. FORCE MAJEURE
19.1 Neither Open Mineral nor any User shall be liable in any way in
respect of any matter which may constitute any failure or delay
in performing this Agreement arising by reason of force majeure,
namely, circumstances beyond its reasonable control including
(but not limited to) acts of God, perils of the sea or air, fire, flood,
drought, explosion, sabotage, accident, embargo, riot, civil
commotion, electrical failure, telecommunication failure or
interruption, unauthorised third party installation of malware on
Open Mineral's operating systems, the unavailability or
interruption of the Internet, water damage, legislative statute,
action by public authorities, war, strike, lockout and any other
industrial disputes (whether or not involving the party's own
employees) (each a "Force Majeure Event"). Notwithstanding
this clause each party shall use all reasonable endeavours to
continue to perform its obligations under this Agreement for the
duration of the Force Majeure Event.
19.2 If a Force Majeure Event occurs, the affected party shall give
written notice to Open Mineral or the User(s), as the case may
be, contains full details of the Force Majeure Event, as soon as
is practical after the occurrence of the Force Majeure Event. The
party giving the notice shall be relieved of its obligations during,
but not longer than, the continuance of the Force Majeure Event.
19.3 The affected party shall use its best efforts to remove the cause
of the Force Majeure Event and shall begin or resume
performance of its suspended obligations as soon as possible
after that cause has been removed. If such event continues for
30 days, either party may terminate this Agreement.
19.4 The provisions of this clause 19 shall not apply:
(a) to any obligation of a User to make any payment
under this Agreement; and/or
(b) to any Contract (unless specifically provided therein
and then in accordance with its terms).
20. MISCELLANEOUS
20.1 A User may not transfer or assign any or all of its rights or
obligations under this Agreement.
20.2 No failure or delay by Open Mineral to exercise any right or
remedy provided under this Agreement or by law shall constitute
a waiver of that or any other right or remedy, nor shall it prevent
or restrict the further exercise of that or any other right or remedy.
20.3 This Agreement may not be varied except with the prior written
consent of Open Mineral.
20.4 This Agreement does not give rise to any rights under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term
of this Agreement.
20.5 This Agreement may be executed in any number of counterparts
each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
20.6 Each User and Open Mineral shall sign and/or execute such
further documents or otherwise do all such reasonable acts and
things as may be necessary and appropriate to ensure the full
force and effect of this Agreement.
20.7 This Agreement and any dispute or claim (including non-
contractual disputes or claims) arising out of or in connection
with it or its subject matter or formation shall be governed by and
construed in accordance with the law of England and Wales.
21. ARBITRATION
21.1 Any and all disputes or claims arising out of or in connection with
this Agreement, including any questions regarding its existence,
validity or termination, shall be referred to and finally resolved by
the London Court of International Arbitration in accordance with
the LCIA rules in force at the relevant time, with any arbitration
to be heard in London in the English language before one
arbitrator, save that any party shall be entitled to seek temporary
and interim relief from a court for the purposes of protecting its
intellectual property rights until such time as the relevant issue
has been decided by arbitration as set out above.