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OPEN MINERAL PLATFORM SERVICE PROVIDER AGREEMENT
1. GENERAL
1.1 All capitalised terms used in this Clause 1 bear the meanings
given in Clause 2 below.
1.2 This Service Provider Agreement (the "Agreement") governs:
(i) the access of a Service Provider to, and use of, the
Platform;
(ii) the relationship between Open Mineral and each
Service Provider in connection with the Platform; and
(iii) together with any Services Contract to be concluded
between a Service Provider and a User in accordance
with the provisions hereof, the contractual relationship
between Service Providers and Users in using the
Platform.
1.3 This Agreement is located at https://openmineral.com (the
"Website").
1.4 By accepting this Agreement, each Service Provider
acknowledges that it has read, understood and agrees to be
bound by the Agreement. A Service Provider 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 SERVICE PROVIDER
TO READ THE AGREEMENT CAREFULLY ON EACH
OCCASION THE PLATFORM IS USED. THE USE OF THE
PLATFORM BY A SERVICE PROVIDER 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 Service Providers (in accordance with this Agreement) a
global digital marketplace in which to offer, accept and arrange
Trade Services with Users. Each Service Provider desires to
have access to the Platform so as to be able to arrange and
provide these solutions in accordance with the provisions of this
Agreement. Each Service Provider 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 Service Provider has submitted its registration request
and Open Mineral has confirmed such registration with a welcome
message, the Service Provider becomes registered and is able to
access the Platform. Each Service Provider 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 Service Provider 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 Service
Provider hereunder).
2. DEFINITIONS
2.1 In this Agreement (including the Recitals), unless the context
otherwise requires:
"Agreement" means this Service Provider Agreement;
"Authorised Administrator" means an authorised employee
nominated by any Service Provider 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 Service Provider'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 Service Provider's account and
communication with Open Mineral;
"Authorised Operator" means an authorised employee
nominated by any Service Provider via its Authorised
Administrator, who may access and use the Platform but may not
bind the Service Provider to the provision of Trade Services, as
the employee of the Service Provider authorised by the Service
Provider 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 Service Provider 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 Service Provider to the provision of Trade
Services, as the employee of the Service Provider authorised by
the Service Provider to do so under the terms and conditions of
this Agreement;
"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 Raw Materials
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;
"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;
"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;
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"Personal Information" means any data provided by either Open
Mineral or a Service Provider, 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 Service Provider;
"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 Service Provider in a form acceptable to Open
Mineral confirming the authority of a proposed Authorised
Representative to act on behalf of that Service Provider;
"Raw Materials" means any material which is traded on the
Platform;
"Raw Materials 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;
"Seller" means a User which enters into a Raw Materials
Contract for the sale of Raw Materials;
"Service Provider" means a provider of Trade Services to Users
and registered in accordance with Clause 3 of this Agreement
accessing the Platform via its Authorised Personnel in
accordance with this Agreement.
"Services Bid" shall mean an offer to provide Trade Services in
response to a Services Request;
"Services Contract" means any concluded contract between a
Service Provider and a User for the provision of Trade Services
and arranged via the Platform;
"Services Request" means a request or tender submitted onto
the Platform by a User for the provision of Trade Services to it
through the Platform which shall set out a description of the Trade
Services required in accordance with clause 7.
"Trade Services" means services given by a Service Provider to
a Buyer or a Seller relating to the trading of Raw Materials and
shall include (but not be limited to) freight broking services;
shipping and carriage of goods; insurance broking and insurance
provision; and Raw Material inspection and provision of sampling
and assaying services.
"Trade Services Confirmation" means a written statement
issued by the Platform confirming the terms of a Services
Contract agreed between a Service Provider and a User.
"User" means a User defined by and registered in accordance
with Clause 3 of a User Agreement.
"User Agreement" means an agreement between Open Mineral
and a User governing, in accordance with its terms:
(i) the access of the User to, and use of, the Platform;
(ii) the relationship between Open Mineral and the User in
connection with the Platform; and
(iii) together with any Raw Materials Contract to be
concluded between Users in accordance with the
provisions of the User Agreement, the contractual
relationship between Users in using the Platform.
"Website" means https://openmineral.com/
3. ACCOUNT REGISTRATION
3.1 In order to access and use the Platform, a Service Provider 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 Service Provider, and each time the Authorised
Administrator adds an Authorised Representative or an
Authorised Operator to the Service Provider's Platform Account,
the Authorised Administrator must:
(i) create a username that is not used by or on behalf of
the Service Provider 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 Service Provider 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 Service Provider is entitled to add any number of Authorised
Personnel to its Platform Account.
Open Mineral may require any Service Provider 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 Service Provider
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 Service Provider 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 Service Provider agrees not to use the Platform in any
manner or for any purpose that could:
(i) interfere with, disrupt, negatively affect or inhibit Users
or other Service Providers 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 Service Provider'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 Service Provider 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, Users or other Service Providers 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 Service Provider's identity and its
affiliations; collection of personal information of Users or other
Service Providers such as usernames or IP addresses.
4.3 Where a Services Request is submitted to the Platform, no
Service Provider shall contact or attempt to contact by any means
of communication the User of the Trade Services set out in the
Services Request, or in respect of the same or similar services,
directly or indirectly, other than via the Platform until 30 days after
the Services Request are initially put for tender on the Platform.
If any Service Provider 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. 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).
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4.4 Each Service Provider 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 Service
Provider, 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
Service Provider to it as set out in clause 6 below, and for the
further consideration set out herein, agrees to provide each
Service Provider with access to, and use of, the Platform, in
accordance with this Agreement. Open Mineral hereby grants
each Service Provider 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 Service Provider, and subject to the provisions hereof. The
Platform is to enable Users to sell or buy Raw Materials through
the Platform and for Users to request and be provided with Trade
Services from Service Providers as set out in this Agreement.
5.2 Each Service Provider 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 Service Provider 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 they are an Authorised Representative or Authorised
Operator. The Service Provider is wholly and solely responsible
for use of the Platform by any of its Authorised Personnel.
6. PAYMENT OF FEES
6.1 A Service Provider that executes a Services Contract shall pay to
Open Mineral a success fee for that Services Contract agreed via
the Platform in accordance with the terms of this clause 6.
6.2 The fee or commission payable by a Service Provider to Open
Mineral in relation to a Services Contract shall be as set out in the
separate Schedule of Fees provided to the Service Provider upon
initial registration and updated from time to time.
6.3 The continued use by the Service Provider of its Platform Account
indicates the consent of the Service Provider to pay fees and/or
commission in accordance with the Schedule of Fees from time
to time in place.
6.4 On or before the date of completion of the performance of the
Services Contract, the Service Provider shall upload to the
Platform its invoice to the User for the provision of the Trade
Services, , upon which Open Mineral will issue its invoice (the
"Invoice").
6.5 The Invoice shall be issued to the Service Provider by Open
Mineral based on either (i) the Service Provider's invoice
uploaded to the Platform; or, if no invoice has been uploaded (ii)
the volume and terms of the Services Contract agreed between
the Service Provider and the User.
6.6 The Invoice shall be paid in full, without set off or deduction, by
the Service Provider within 3 Business Days of receipt.
7. SERVICES CONTRACT FORMATION
7.1 Each Service Provider may agree with a User to provide Trade
Services through the Platform. Service Providers and Users may
elect to contract with one another using their own agreement.
Open Mineral has no liability or obligation to any User or Service
Provider for any rights and/or obligations arising between a
Service Provider and a User under any Services Contract.
7.2 A User that wishes to procure Trade Services through the
Platform may submit a Services Request onto the Platform which
shall set out a description of the Trade Services it requires.
7.3 A Service Provider that wishes to respond to a Services Request
may do so by replying to the Services Request (i) via the Platform;
and/or (ii) via contacting Platform Administrator. Users and
Service Providers are free to negotiate details of the Services
Request via the Platform.
7.4 When a Service Provider and a User have agreed the terms of
the Services Contract, the User submitting the initial Services
Request shall upload the details of the transaction to the Platform
whereupon a Trade Services Confirmation will be issued to the
Service Provider and the User via email by the Platform
Administrator. When the Service Provider and the User have both
signed the Trade Services Confirmation electronically via the
Platform mechanism the Services Contract will be deemed to
have become legally binding on the terms set out in the Trade
Services Confirmation and the Service Provider will be liable to
Open Mineral in accordance with the terms set out at Clause 6 of
this Agreement. Until the Trade Services Confirmation has been
signed by the Service Provider and the User, no binding
agreement is in place.
7.5 Following signature of the Trade Services Confirmation, the
Service Provider and the User shall negotiate and agree all other
terms of the Services Contract which. Either (i) the Services
Contract or alternatively (ii) the Invoice(s) shall be in any event
uploaded to the Platform not more than 30 days after signature of
the Trade Services Confirmation. Service Providers agree and
commit that documents shall be promptly uploaded onto the
Platform as they are issued, including but not limited invoices,
payment confirmations, sampling and assay certificates, freight
broking arrangements, freight contracts, shipping documents and
insurance documents. Service Providers shall submit documents
on a per-shipment basis where a Services Contract provides the
Trade Services are provided for more than one shipment of Raw
Materials.
7.6 Each Service Provider shall be entitled to accept and/or reject a
Services Request outright and/or to enter into negotiations with a
User in relation to a Services Request before accepting the same
in accordance with Clause 7.4 above.
7.7 A Services Request may be cancelled or modified until the
acceptance of a Services Bid on the terms set out in the Services
Request by the User or the Service Provider.
7.8 A Services Bid may be withdrawn at any time prior to acceptance
by a User.
7.9 If, following formation of the Services Contract, there is a breach
of contract by the Service Provider which is sufficient to permit the
User to cancel the Contract, the Seller may re-open the Services
Request for negotiation with other Service Providers.
8. TERM
8.1 This Agreement shall, as regards a Service Provider, commence
on the date that a Service Provider accepts this Agreement and
shall continue indefinitely as between Open Mineral and that
Service Provider unless otherwise suspended or terminated by
Open Mineral or a Service Provider 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 Service Provider. Open
Mineral may do so without assigning any reason there for.
9.2 In the event of such suspension by Open Mineral, any reaccess
by the Service Provider to the Platform shall be determined by
Open Mineral in its sole discretion.
9.3 In the case of termination by Open Mineral, the Service Provider
shall no longer be entitled (or able) to access or use the Platform,
with immediate effect.
9.4 A Service Provider 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 Service Provider under clause 9.4, shall have the effect of
terminating this Agreement as between that Service Provider,
Open Mineral and all Users and other Service Providers, but
without prejudice to any and all rights and obligations that may
have accrued up until the point of termination as between that
Service Provider, Open Mineral and any User, including without
limitation as to the continuation of any Services Contract
concluded by the Service Provider with any User in accordance
with its terms and the payment of any sums due by the Service
Provider 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
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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 Service Provider 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 Service Provider, 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 Service Provider
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
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 Service Provider,
including the identity and location of any Service Provider 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 Service Provider to assign a rating to each
Service Provider 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 Service Provider. The issue
of any rating by Open Mineral shall not be a statement of fact or
a recommendation. Each Service Provider must accordingly
make its own study and evaluation of each other User prior to
entering into a Services Contract.
11. DATA PROTECTION
11.1 Open Mineral and each Service Provider shall comply with any
notification requirements under the Data Protection Legislation
and both Open Mineral and each Service Provider will duly
observe their obligations under the Data Protection Legislation,
which arise in connection with this Agreement.
11.2 Each Service Provider 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 Service Provider provides his personal information
at its own risk.
12. REPRESENTATIONS AND WARRANTIES
12.1 Each Service Provider 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 Service Provider 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 Service Provider, including
but not limited to arising as a result of any failure in
performance of the Platform and/or unauthorised use
a Service Provider'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 supply of Trade Services contracted
through the Platform;
(d) the performance of any Services Contract concluded
via the Platform.
Nothing in this Agreement shall limit or exclude the liability of
Open Mineral or each Service Provider for any event which
cannot be excluded under applicable law. Each Service Provider
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
Service Provider 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 Service Provider's
own risk.
14. INDEMNITY
14.1 Each Service Provider 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 Service Provider of the
representations and warranties contained in clause 12;
(ii) any breach by that Service Provider 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 Service Provider 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 Service Provider may disclose Confidential Information:
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(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 Service
Provider 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 Service Provider 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 Service
Provider 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.
17.2 Each Service Provider 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 Service Provider, and/or constitute either
Open Mineral or any Service Provider the agent of the other,
and/or authorise either Open Mineral or any Service Provider to
make or enter into any commitment for or on behalf of any other
party.
18.2 Open Mineral and each Service Provider 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 Service Provider 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) or the Service
Provider(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 Service Provider to make any
payment under this Agreement; and/or
(b) to any Services Contract (unless specifically provided
therein and then in accordance with its terms).
20. MISCELLANEOUS
20.1 A Service Provider 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 Service Provider 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.