These Terms of Service for Mining Technology Agreements (“Terms”) govern the provision of services (“Services”) pursuant to a written Subscription Purchase Agreement (“SPA”) signed by Empire Southwest, LLC (“Empire”) and by an individual or entity that is purchasing such Services from Empire (“Client”). These Terms shall apply when they are attached to an SPA or when they are incorporated by reference into an SPA. Empire and Client are sometimes referred to collectively in these Terms as the “Parties” and individually as a “Party.” These Terms and the applicable SPA (including the exhibits, schedules, and addenda attached to the SPA) are collectively referred to herein as the “Agreement.” Empire hereby rejects the terms of any purchase order or other document submitted by Client, unless the document submitted by Client is signed by a vice president of Empire. Execution of an SPA with Empire or the receipt or acceptance of Services by Client constitutes Client’s acceptance of these Terms exactly as written. For the purpose of clarity, these Terms are an agreement between Client and Dealer only, and Caterpillar, Inc. is not a Party to these Terms.
1. Services. Unless otherwise specifically stated in the SPA, the total cost and anticipated completion dates for any Services are estimates. If there is a conflict between these Terms and the SPA, these Terms shall control unless otherwise expressly agreed by the Parties in writing. Either Party may propose changes in the scope of the Services, but neither Party will be bound by any proposed change until both Parties have agreed to that change in writing. These Terms contemplate only the provision of Services; nothing in these Terms grant Client a license or right to any copyright, patent, technology, software, tools, algorithms, or any intellectual property right of Dealer or Caterpillar, Inc. The Services may be provided at Client’s Site(s) (as defined in the SPA), Dealer’s offices or at other suitable locations mutually agreed by Dealer and Client. Dealer may require access to Client’s Site(s) in order to provide the Services under these Terms. Client expressly agrees to cooperate with Dealer to arrange for Dealer access to Client’s Site(s) for such purposes and understands that any Services performed on any Client Software, hardware, equipment, or machinery may require Dealer to access the same. Client expressly understands and agrees that Dealer may access and download any data and information on any such Software, hardware, equipment, and machinery and may share the same with Caterpillar, Inc. as further set forth in the SPA.
2. Project Management. Client shall appoint an on-Site employee to receive progress reports and address problems that may arise in connection with the Services (“Site Champion”) and shall provide Dealer in writing with the name and contact information for that Site Champion on the SPA. The Site Champion and Dealer may develop administrative procedures to review performance of Services as applicable.
3. Client’s Cooperation. Dealer’s performance of Services depends upon Client’s timely and effective cooperation in connection with the Services, including providing Dealer with timely, complete, and sufficient access to appropriate Software, data, information, and appropriately skilled Client personnel, and prompt responses to questions and requests as necessary for Dealer to complete the Services. Client will make available at its cost a physical location and required office resources on Site as reasonably required for the performance of any Services at Client’s location(s). Dealer will not be liable for any failure or delays in performing the Services, to the extent that the failure or delay is caused by Client’s failure to cooperate. Dealer is entitled to and will rely upon the accuracy and completeness of data, material, and other information furnished by Client, without any independent investigation or verification. Client content and other material provided by the Client that is necessary for Dealer to provide the Services (“Client Materials”) must conform to the relevant specifications provided by Dealer. Dealer may refuse, in its sole discretion, to utilize any Client Materials if Dealer in good faith determines that the Client Materials or any portion fails to conform to the relevant specifications or could harm the reputation or goodwill of Dealer. Client grants Dealer all necessary rights to the Client Materials to perform the Services under these Terms.
4. Scheduling. Dealer will try to accommodate schedule requests of Client to the extent commercially practicable. Dealer reserves the right to change such schedule for any Services if Dealer personnel are unable to perform scheduled Services because of illness, resignation, weather, or other causes beyond Dealer’s reasonable control. Dealer will make commercially reasonable efforts to replace any such personnel within a reasonable time in order to limit impact on the schedule.
5. Cancellation or Rescheduling of Services.
a. Cancellation. Client may cancel all or part of Services upon thirty (30) days’ advance written notice. Upon cancellation of Services in progress, Client will pay all fees and expenses for work performed through the effective cancellation date (partially completed fixed fee engagements will be prorated) as well as reasonable costs related to Client’s cancellation (such as early termination of lodging arrangements). If Client terminates Services with less than thirty (30) days’ notice, Client will also pay a cancellation fee equal to the total daily rates for Dealer personnel assigned to the canceled Services for every day that the actual cancellation was less than the required thirty (30) days.
b. Rescheduling. Client may request that previously scheduled Services be rescheduled upon ten (10) business days advance written notice at no cost, other than any reasonable costs directly related to rescheduling (such as lodging cancellation charges). Dealer will make reasonable efforts to accommodate Client’s requested dates but Dealer’s ability to reschedule Services is dependent upon the availability of Dealer personnel. If the rescheduling request is made with less than ten (10) business days’ notice, Client will also pay a rescheduling fee equal to the total daily rates for Dealer personnel assigned to the rescheduled Services for every day that the actual request to reschedule was less than required ten (10) business days.
6. Fees and Expenses. Hourly rates or fees for Services performed shall be set forth in the applicable SPA, but if not specified Client shall pay Dealer on a time and materials basis at Dealer’s then-current hourly rates. Fees for Services are subject to annual adjustment in accordance with Dealer’s prevailing rates for such Services. Estimated fees for Services under these Terms may not include travel or other expenses, which may be invoiced separately. Unless otherwise stated in the SPA, invoices are due thirty (30) days from the date of the invoice. Any unpaid balance not received within thirty (30) days from the date of the invoice will incur interest at a rate of either 1.5% per month or the rate permitted by applicable law, whichever is higher. In the event any fee is not paid when due, Dealer may suspend provision of all Services, together with access to any Software, until all amounts are paid in full. Client is responsible for paying any sales, use or value-added tax that may be generated as a result of the Services, excluding any taxes on Dealer’s income. All payment obligations are non-cancelable, and payments are nonrefundable.
7. Space and Resources. Client will make available at its cost a physical location and required office resources on Site as reasonably required for the performance of any Services at Client’s location(s).
8. Termination. Either Party may terminate the Services in the event of a material breach by the other Party that remains uncured for thirty (30) days following written notice of the breach. The termination rights set forth in this Section may be exercised without penalty or other obligation on the part of the terminating Party and are without prejudice to any other rights or remedies the terminating Party may have under these Terms or at law or in equity.
9. Warranties and Disclaimers. Each Party represents that it has validly entered into the SPA (including these Terms) and has the legal power to do so. Client further warrants that it will use all Services in compliance with all applicable laws, rules, and regulations. Dealer represents and warrants that all Services will materially conform to the specifications and requirements set forth in the applicable SPA.
THE EXPRESS WARRANTIES IN THIS SECTION ARE IN LIEU OF, AND DEALER DISCLAIMS (ON BEHALF OF ITSELF, CATERPILLAR, INC., AND ALL THIRD PARTY LICENSORS), ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, RELATED TO THESE TERMS OR THE SERVICES, WHETHER ARISING BY LAW, CUSTOM OR USAGE IN THE TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT DEALER IS AWARE OF ANY SUCH PURPOSE). NEITHER DEALER, CATERPILLAR, INC. NOR ANY THIRD-PARTY LICENSOR MAKES ANY REPRESENTATION OR WARRANTY THAT CLIENT’S USE OF ANY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
INFORMATION TRANSMITTED AND RECEIVED THROUGH THE INTERNET CANNOT BE EXPECTED TO REMAIN CONFIDENTIAL, AND DEALER DOES NOT GUARANTEE THE PRIVACY, SECURITY, AUTHENTICITY OR NON-CORRUPTION OF ANY INFORMATION SO TRANSMITTED, OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET. DEALER SHALL NOT BE RESPONSIBLE FOR ANY CONSEQUENCES WHATSOEVER OF CLIENT’S CONNECTION TO OR USE OF THE INTERNET, AND DEALER SHALL NOT BE RESPONSIBLE FOR ANY USE BY CLIENT OR ITS AUTHORIZED USERS OF ANY INTERNET CONNECTION IN VIOLATION OF ANY RULE, LAW OR REGULATION.
10. Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR INTENTIONAL MISCONDUCT, DEALER’S TOTAL LIABILITY FOR ANY BREACH OF THESE TERMS OR THE PROVISION OF ANY SERVICES WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE TO DEALER BY CLIENT IN THE PREVIOUS TWELVE (12) MONTHS FOR THE SERVICES GIVING RISE TO THE DAMAGE. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR PROFITS, OR FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS) RELATED TO THESE TERMS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY.
11. Confidentiality. Except as otherwise provided in these Terms or with the consent of the other Party, each Party (as a “Receiving Party”) agrees that these Terms and all information concerning the other Party (the “Disclosing Party”) that is provided by or on behalf of the Disclosing Party to the Receiving Party and that is identified as confidential at the time of disclosure (“Confidential Information”), shall remain strictly confidential and secret using the same manners and methods that the Receiving Party uses to protect its own confidential information of a similar nature, but at least reasonable manners and methods. Notwithstanding the foregoing, the Receiving Party is hereby authorized to deliver a copy of any such information (a) to any person pursuant to a subpoena issued by any court or administrative agency, (b) to its accountants, attorneys, or other agents on a confidential basis or to those of its employees, contractors or other personnel who have a need to know in order to complete the Receiving Party’s obligations under these Terms and who are bound by similar confidentiality obligations, and (c) otherwise as required by applicable law, rule, regulation, or legal process, provided the Receiving Party provides the Disclosing Party with notice as soon as practicable to allow the Disclosing Party an opportunity to respond to such requirement and prevent such disclosure and provided further that such required disclosure does not relieve Receiving Party of its confidentiality obligations with respect to any other Party. Except as to the confidentiality of trade secrets, these confidentiality restrictions and obligations will terminate five (5) years after the expiration or termination of these Terms.
12. Indemnification. Dealer, at its own expense, will defend and hold harmless Client from any and all costs, expenses, damages, liabilities, fees and fines (including without limitation reasonable attorneys’ fees and costs) incurred as a result of any third party claim, allegation, lawsuit or demand and defend Client from any such claim, allegation, lawsuit or demand to the extent arising from or related to a claim arising from property damage, bodily harm, or death as a result of Dealer’s negligence or willful misconduct in the performance of the Services. Client, at its own expense, will defend and hold harmless Dealer from any and all costs, expenses, damages, liabilities, fees and fines (including without limitation reasonable attorneys’ fees and costs) incurred as a result of any third party claim, allegation, lawsuit or demand and defend Dealer from any such claim, allegation, lawsuit or demand to the extent arising from or related to a claim arising from Client’s use of Services once provided by Dealer. Upon receipt of prompt notice of a claim, the indemnifying Party will have the right to assume control of such defense but will not settle any claim without the prior written approval of the indemnified Party, which approval will not be unreasonably withheld. The indemnified Party also will have the right to participate in such defense, and to be kept adequately informed of all developments and strategies related to such defense.
13. Privacy Statement. Client consents to the collection, use, retention and disclosure of information by Dealer and its parent, subsidiary and affiliated entities (collectively, “Dealer Entities”) in accordance with Dealer’s Privacy Statement, which is posted at https://www.empire-cat.com/legal/privacy-statement (as such statement may be revised from time to time), and grants to Empire the right to collect, use, and share data and information in accordance with the Privacy Statement, including, but not limited to the transmission of Client information to Caterpillar Inc. and its affiliated entities.
14. Personnel. Dealer may use or subcontract with third parties to provide the Services. Dealer will provide, at its sole expense, the Dealer personnel necessary to provide Services to Client under these Terms (“Personnel”). Dealer will be responsible for: (i) selecting and hiring Personnel in compliance with all applicable laws; (ii) paying the Personnel’s wages and other benefits in accordance with applicable laws; (iii) paying or withholding all required payroll taxes and mandated insurance premiums; and (iv) fulfilling Dealer’s obligations with respect to unemployment compensation.
15. Independent Contractor. The relationship with Client is that of an independent contractor and nothing in these Terms, the SPA, or related to Dealer’s performance of any obligation hereunder will be construed to create an employee relationship between Client and Dealer or any of Dealer’s employees. Nothing in these Terms will be construed to create a partnership, joint venture, or agency relationship between the Parties.
16. Governing Law and Forum. These Terms will be governed by, and construed in accordance with, the laws of the State of Arizona without regard to conflict of law principles. Client agrees that any claim it files against Dealer will be adjudicated in the applicable state or federal court of competent jurisdiction in Maricopa County, Arizona, and that such court will have exclusive jurisdiction in relation to any such claim.
17. Assignment. These Terms may not be assigned, in whole or in part, by Client without the advance written consent of Dealer, which will not be unreasonably withheld.
18. Force Majeure. Excluding payment obligations, no delay in or failure of performance by either Party under these Terms will be considered to be a breach hereof if and to the extent that such delay or failure of performance is caused by an occurrence or occurrences beyond the reasonable control of the Party affected. Neither Client nor Dealer will be liable in any way for failure to perform their respective obligations in respect of any matter (save for Client’s liability for Dealer’s fees, costs, and disbursements) if the failure is due to causes outside the reasonable control of the Party which has failed to perform.
19. General Provisions. The descriptive headings of the articles, sections and subsections of these Terms are for convenience only and do not constitute a part of these Terms. A Party’s waiver of any breach will not constitute a waiver of any different or subsequent breach. If any provision of these Terms is determined to be illegal, invalid, or unenforceable by a competent court or tribunal, the remaining provisions in these Terms shall remain in full force and effect. All terms and conditions of these Terms will be binding upon and will inure to the benefit of the Parties to these Terms and their respective successors and permitted assigns. The Parties’ rights and obligations, which by their nature would continue beyond the expiration or termination of these Terms, including but not limited to those regarding indemnification, compliance with laws, and confidentiality, will survive any termination or expiration of these Terms.