MODULAR MINING SYSTEMS END USER LICENSE AGREEMENT

NOTICE TO USER:
This End User License Agreement (“EULA”) is a legal agreement between you,
either an individual or a single entity (“End User”), and Modular Mining Systems, Inc. (“Modular”) for the
Modular Mining Systems software Program identified above, which includes computer software and may
include associated media, printed materials, online or electronic documentation, and Internet-based
services. An amendment or addendum to this EULA may accompany the Program. BY INSTALLING,
COPYING, OR OTHERWISE USING THE PROGRAM, END USER AGREES TO BE BOUND BY THE
TERMS AND CONDITIONS OF THIS EULA. If End User does not agree with such terms and conditions,
End User: (a) shall not install or use the Program; (b) shall delete the Program or any portion thereof,
where installed; and (c) if in conjunction with this Agreement, End User received a disk, CD-ROM, or
other media containing the Program or documentation related to the Program, End User shall return
these materials to Modular.

SECTION 1. DEFINITIONS
“Application Specific” refers to the Program which is limited to use in conjunction with Modular’s
software products and shall not be modified for use with any third party application.
“Intellectual Property” means all patents, patent rights, copyrights, rights of publicity, trademark, trade
dress and service mark rights, goodwill, trade secret rights and any other proprietary or intellectual
property right, as may now exist or hereafter come into existence worldwide, and all applications therefore
and registrations, renewals and extensions thereof, recognized under any state, country, or territory’s
laws, or international treaty.
“Open-source Materials” means Third Party Materials supplied under open-source software license
agreements, including any modifications to such software made by Modular.
“Program” means the object-code, Application Specific version of the software program, including
Program documentation and any Program Updates acquired from Modular.
“Source-code” means human-readable program statements written in a high-level or assembly
language, as opposed to object-code, which is derived from source-code and is designed to be machinereadable.
“Third Party Materials” means software licensed by Modular to End User which is specifically labelled
as being provided by and/or owned other than by Modular, including Open-source Materials.
“Update” means a broadly available improvement or fix to a specific problem in a Modular software
Program and includes without limitation, subsequent versions, modifications, revisions, enhancements,
adaptations, translations, updates, supplements and add-on components.
SECTION 2. GRANT OF LICENSE
Provided that End User complies with all the terms and conditions of this EULA, Modular grants to End
User a non-exclusive, non-transferable (without right of sublicense or assignment), limited, and revocable
license to use the Program: (a) solely in machine-readable, object-code form; (b) for End User’s internal
business purposes; and (c) at the specific End User site location where the Program is first installed.
License shall only be valid where End User has fully paid all applicable fees. THE PROGRAM UNDER
THIS EULA IS LICENSED, NOT SOLD. ALL RIGHTS RESERVED.
SECTION 3. RESTRICTIONS ON USE
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(1)

End User shall not duplicate the Program except for a single copy in machine-readable form as
part of a normal system backup, and one archival copy of Program, solely for archival and
disaster recovery purposes. All copies shall remain the exclusive property of Modular and shall
be subject to the terms of this EULA. End User shall have no other right to copy the Program, in
whole or in part. All copies shall include all Modular’s copyright and other Intellectual Property
and proprietary notices, and include notices and legends embedded in the Program and affixed to
its medium and container, as received from Modular. End User shall maintain a record of the
location of Program copies, including where merged with other software.

(2)

End User shall not make Program available in any form to any third party without Modular’s prior
express written consent.

(3)

End User shall not provide processing services, commercial time-sharing, subscription services,
rental or sharing arrangements, or otherwise use or provide the Program to a third party on a
service-bureau basis

(4)

End User shall not reverse-engineer, unless required by law for interoperability, disassemble or
decompile, or in any way derive any Source-code from the Program.

(5)

End User shall be licensed to use the Program solely in conjunction with Modular’s software
products.

(6)

End User shall take appropriate action to protect the confidentiality of the Program and ensure
that any person or entity permitted access to the Program does not disclose or use the Program
except as licensed by this EULA.

(7)

End User shall not modify the Program, write or develop any derivative work, software, or any
other software program based on the Program.

(8)

End User shall not remove or modify any Program markings or any notice of Modular proprietary
rights.

(9)

End User shall not perform benchmark tests on the Program without Modular’s prior express
written consent.

SECTION 4. OWNERSHIP RIGHTS
End User acknowledges that the license granted under this EULA shall only provide the End User with a
right of limited use. End User further acknowledges that Modular owns all right, title, and interest in the
Program and End User will not contest those rights or engage in any conduct contrary to those rights.
Modular shall retain full ownership of all Intellectual Property rights in the Program. Any copy,
modification, revision, enhancement, adaptation, translation, or derivative work of or created from the
Program, or documentation relating thereto, shall belong exclusively to Modular as shall all Intellectual
Property rights therein.
SECTION 5. SOURCE CODE AND UPDATES
(1)

End User understands that the Program may include Source-code provided by Modular, said
Source-code shall be governed by the terms of this EULA. ALL SOURCE CODE IS LICENSED,
NOT SOLD. ALL RIGHTS RESERVED.

(2)

Modular may, in its sole discretion, provide further Program Updates to End User hereunder. The
terms and conditions of this EULA (except the limited warranty in section 7) shall apply to any

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subsequent Program Update unless other terms of use are provided by Modular with such
Update.
SECTION 6. OPEN SOURCE MATERIALS
End User understands that the Program may contain Open Source or third party Materials, and as such
said Materials may be governed by open source and third party software license agreements. Modular
makes no claim of ownership of Open Source or third party Materials, and said Materials are supplied
solely in accordance with the applicable license agreement. Accordingly, End User is bound by all terms,
conditions and restrictions contained in any and all applicable open source software license agreements.
Notwithstanding, the provisions under section 9 (Limitation of Liability) apply to all Third Party Materials
including Open Source Materials.
SECTION 7. LIMITED WARRANTY
(1)

Modular warrants to End User, that for a period of ninety (90) days from receipt of Program, the
Program will substantially comply with the functional specifications set forth in Modular’s
documentation. Modular does not warrant that the Program will: (a) meet End User’s
requirements; (b) operate in combination with other software (including without limitation,
unsupported platforms, operating systems, or databases); (c) that operation of Program will be
uninterrupted or error-free; or (d) that Modular will correct all Program errors. Modular’s entire
liability and End User’s sole and exclusive remedy for breach of this limited warranty shall be, in
Modular’s sole discretion: (i) correction of the defect, or replacement of non-conforming Program
with conforming Program; or (ii) a refund of the price paid to Modular for the non-conforming
Program or portion thereof. End User must notify Modular in writing of any nonconformity within
the limited warranty period. The limited warranty shall be void if Program has been: (1) altered or
modified by any party other than Modular; (2) subjected to accident, abuse, misuse, abnormal or
negligent use; or (3) used, adjusted or installed other than in accordance with Modular’s
instructions.

(2)

THIS LIMITED WARRANTY IS THE ONLY WARRANTY MADE BY MODULAR. EXCEPT FOR
THE LIMITED WARRANTY STATED HEREIN, AND TO THE MAXIMUM EXTENT PERMITTED
BY LAW, MODULAR DISCLAIMS ANY OTHER WARRANTIES AND CONDITIONS, WHETHER
EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE PROGRAM AND RELATED
INFORMATION. MODULAR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

SECTION 8. INDEMNIFICATION
End User shall indemnify, defend and hold Modular and its directors, officers, agents, employees,
members, subsidiaries, and affiliates harmless from and against any claim, action, proceeding, liability,
loss, damage, cost, or expense (including without limitation, attorneys’ fees), for any claims of Intellectual
Property infringement made by any third party where: (a) End User alters the Program or uses said
Program outside the scope of use identified in Modular documentation; (b) the claim is based upon the
combination or operation of the Program with any other program, products or services not provided by
Modular; (c) the claim is based upon specifications provided by End User for the development of custom
programming; (d) the claim is based upon services performed on the Program, or modifications or
derivative works of the Program by a party other than Modular; or (e) the claim is otherwise based on a
violation by End User of this EULA.
SECTION 9. LIMITATION OF LIABILITY
(1)

MODULAR'S TOTAL LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR
ANY CLAIM OF ANY TYPE WHATSOEVER ARISING UNDER THIS AGREEMENT SHALL BE
LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY MODULAR IN AN AMOUNT NOT TO

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EXCEED THE PRICE PAID BY END USER TO MODULAR FOR THE PROGRAM GIVING RISE
TO THE CLAIM.
(2)

IN NO EVENT SHALL MODULAR BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL,
EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT
LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF DATA USE OR
BUSINESS INTERRUPTION) WHETHER AN ACTION IN CONTRACT, TORT, OR BASED ON
ANY OTHER LEGAL THEORY, EVEN WHERE MODULAR HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
THESE LIMITATIONS SHALL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE RESULTING FROM ANY
LIMITED REMEDY AND TO THE MAXIMUM EXTENT PERMITTED BY LAW.

SECTION 10. TERM & TERMINATION
(1)

This EULA and the license granted hereunder shall remain in effect unless terminated as
provided herein for breach of this EULA. The exercise of Modular’s right to termination shall not
prejudice any other available remedy whether legal, equitable, or otherwise.

(2)

Where End User breaches any covenant, obligation, representation, or warranty under this
Agreement, it being agreed that all breaches shall be deemed material, Modular may in its sole
discretion: (a) immediately terminate this EULA upon giving notice to End User; (b) terminate this
EULA where End User fails to cure said breach within a period of time defined by Modular; and/or
(c) suspend, lock, or otherwise disable operation of the Program.

(3)

Upon termination of this EULA, End User shall immediately discontinue use of the Program and
shall, at Modular’s option, promptly return to Modular, or certify destruction of, any and all copies
of the Program and related information, and deliver to Modular a written certification that End
User has complied with this section.

(4)

The following provisions shall survive termination of this Agreement: section 4 (Ownership
Rights); section 8 (Indemnification); section 9 (Limitation of Liability); and any other obligation
which is intended to survive termination of this EULA.

SECTION 11. VERIFICATION
Modular shall have the right to audit, at End User’s expense, all of End User’s supporting records, detail
and information, and to verify End User’s use of the Program in order to satisfy Modular that End User is
in compliance with the terms and conditions of this EULA. End User shall immediately pay any applicable
adjustments to the license fee revealed by the audit.
SECTION 12. IMPORT/EXPORT LAWS
End User shall comply with the import and export laws and regulations of the United States and all other
applicable customs, import and export laws and regulations to ensure that the Program, or any portion
thereof, is exported, directly or indirectly, in violation of said laws. End User shall not ship, transfer, or
export the Program to any country, or use the Program in any manner prohibited by the United States
Export Administration Act or any export laws, restrictions, or regulations of any other applicable country or
jurisdiction. End User shall arrange for import documentation and any documentation or permits related
to the import of Program as required by applicable law. End User agrees to indemnify, defend and hold
Modular harmless from any breach of End User’s obligations under this section 12.
SECTION 13. MISCELLANEOUS
(1)

NEW AGREEMENT VERSIONS. Modular reserves the right to modify this EULA at any time by
providing a revised EULA to End User, or by publishing the revised EULA on Modular’s website.
The revised EULA shall become effective within thirty (30) days of such publication or provision to
End User. End User’s express acceptance of the revised EULA, or End User’s continued use of

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the Program after expiration of the thirty (30) day notice period, shall constitute acceptance of the
revised EULA.
(2)

ENTIRE AGREEMENT. This Agreement encompasses the entire understanding between the
Parties with respect to the subject matter of this EULA, and supersedes all prior or
contemporaneous agreements or statements regarding the subject matter hereof. There are no
representations, warranties, covenants, agreements, collateral understandings, oral or otherwise,
expressed or implied, affecting this instrument not expressly set forth or provided for herein.

(3)

WAIVER. All waivers under this EULA must be made in writing to be effective. No delay on the
part of either Party in exercising any of their respective rights under or the failure to exercise the
same, nor the acquiescence in or wavier of a breach of any term, covenant or condition of this
EULA shall be deemed or construed to operate as a waiver of such rights or acquiescence
thereto except in the specific instance for which given.

(4)

AMENDMENT. Except as provided in section 13(1), none of the terms, conditions or provisions
of this EULA shall be deemed modified or altered by any act, course of conduct, or knowledge of
either Party, their respective agents, servants or employees. The terms of this EULA may not be
amended, changed, waived, varied or modified except by a statement in writing signed by duly
authorized representatives of the Parties expressly assenting to the amendment.

(5)

SEVERANCE. The invalidity or unenforceability of any provision of this EULA pursuant to any
applicable statute, law or regulation shall not affect the validity or enforceability of the remaining
provisions hereof. However, this EULA shall be construed as if not containing the provision held
invalid or unenforceable in the jurisdiction in which so held, and remaining provisions shall remain
in full force and effect.

(6)

COMMUNICATIONS. All notices, requests and other communications provided for in writing in
this EULA shall be deemed to have been duly given: (i) on the date of delivery when delivered in
person, including by courier service; (ii) upon receipt if delivered by mail, including by certified
mail, return receipt, or postage prepaid; or (iii) upon receipt where sent by electronic or facsimile
transmission. Any notice received at the addressee’s location on any business day after 5:00
p.m. (addressee’s local time) shall be deemed to have been received at 9:00 a.m. (addressee’s
local time) on the next business day. Either Party to this EULA may notify the other Party of any
changes to its address or any of the other details specified in this paragraph, provided that such
notification shall only be effective on the date specified in such notice or five (5) business days
after the notice is given, whichever is later. Rejection, refusal to accept, or the inability to deliver
due to a changed address for which no notice was given shall result in deemed receipt of said
notice as of the date of rejection, refusal or inability to deliver.

(7)

HEADINGS. Paragraph headings used herein are for the convenience of the Parties only. They
do not form a part of this EULA and shall not be deemed or construed in any way to define or limit
the meaning of such paragraphs.

(8)

SINGULAR INCLUDES PLURAL. In this EULA, unless there is something in a subject matter or
context inconsistent therewith, the singular shall include the plural and the plural shall include the
singular.

(9)

ASSIGNMENT. Neither this EULA nor any interest in this EULA may be assigned by End User
without the prior express written consent of Modular. End User may not assign, pledge,
mortgage, sell to a third party, or otherwise dispose of all or a portion of this EULA or the license
granted hereunder.

(10)

LIMITATION OF ACTIONS. End User may not bring any action, suit, claim or other legal
proceeding against Modular arising out of, or related to this EULA or the subject matter hereof
more than one (1) year after the occurrence of the event which gave rise to said action.

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(11)

LEGAL COSTS. The Parties endeavor to resolve disputes under this EULA by mutual
consultation. Where legal action is pursued to enforce any provision of this EULA, the prevailing
Party shall be entitled to recover all associated fees, including reasonable attorney fees, and
costs.

(12)

GOVERNING LAW. This Agreement shall be governed by the laws of the state of Arizona and
the United States, without regard to conflict of laws principles, as set forth in section 13(13)
below. The rights and obligations of the Parties to this Agreement shall not be governed by the
provisions of the United Nations Convention on Contracts for the International Sale of Goods
(1980), but instead shall be governing by the laws of the State of Arizona and the United States,
as set forth in section 13(13) below.

(13)

JURISDICTION. The Parties irrevocably and unconditionally agree that the exclusive place of
jurisdiction for any action relating to this EULA shall be in the courts of the United States of
America sitting in the district of Arizona. If such courts do not have jurisdiction over the subject
matter thereof, exclusive jurisdiction shall be in the courts of the State of Arizona sitting in the
County of Pima or Maricopa. Each Party irrevocably and unconditionally waives any objection it
may have to the venue of any action brought in such courts or to the convenience of such forum.
Final judgment in any action shall be conclusive and may be enforced in other jurisdictions by suit
on the judgment, a certified or true copy of which shall be conclusive evidence of the fact and the
amount of any indebtedness or liability of any Party therein described.

(14)

LANGUAGE. To the extent that this document or any subsequent agreements arising out of this
EULA are translated into another language, the English version of said documents shall be the
sole authoritative version.

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