Privacy

TERMS AND CONDITIONS OF SERVICE

Revised by Austin Powder Company on 24-Jan-2023

Definitions

All defined terms set forth herein have the meaning assigned to them by the Definitions set forth below:

Agreement means the terms and conditions contained herein, together with any quotation, order, invoice or other agreement document or amendments expressly agreed by the parties to be supplemental to this Agreement, which include but are not limited to, the APC Privacy Policy and the APC Terms and Conditions of Service.

Subscription Manager means a person, whether legal or natural, who or which from time to time has purchased a License for the Services, has used a trial version of the Services, or has otherwise accessed the Services for any purpose and through any means.

Customer means a person acting in their own capacity or on behalf of and with the express or apparent authority of an entity, to which APC has given access to the Services. If any individual is requesting access to or a License for the Services on behalf of a business, employer, or other organization, then such individual is affirmatively representing that he or she has been duly authorized to act on behalf of their employer or that entity, and this Agreement will be binding on that person or entity as well.

Confidential Information means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Agreement, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, User information (including Personal Information), and pricing details.

APC means Austin Powder Company, an Ohio, USA corporation, together with any of its parents, subsidiaries or affiliated entities from time to time designated by Austin Powder Company in its discretion.

License means a revocable, non-exclusive, non-transferrable license provided by APC in its the sole and absolute discretion from time to time to Subscription Managers and Users for the purposes of accessing the Software, Services, Website, Online Servers, or any combination thereof.

Online Servers means computer terminals which by way of a remote internet connection can transmit information to and from a personal computer or mobile devices for the purposes of providing the Services.

Personal Information means information that could be used to identify a person, including but not limited to name, address, date of birth, occupation, financial account information, electronic contact details (such as email), and other contact information.

Services means all products and services provided by APC including, but not limited to, desktop software, mobile app software, web software, support, the Online Servers, training, and the Software.

Software means any computer code, process, information or other material which can be run on a desktop, mobile or other device, and which APC provides for use in accessing the Services, including but not limited to Paradigm, or any of its affiliated programs or services.

Territory means only the specific geographic location or jurisdiction expressly permitted by agreement with APC.

User means any user of APC’s Website, Online Servers, Software, or Services, whether or not they are a Subscription Manager.

Website means any location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical user interface.

General Agreement

General Terms. Any person purchases or otherwise obtains a License or accesses the Services, or uses the APC Website, then that person is a User who agrees and warrants that:
1. the User is at least 18 years of age;
2. the User has the power to enter into this Agreement on behalf of themselves or any natural person or other entity they represent;
3. the Services and all associated Confidential Information is developed and owned by APC, who also holds all intellectual property rights to the same; and
4. this Agreement, the APC Privacy Policy, and any other document provided by APC for the purposes of issuing a license or providing the Services:
  1. constitutes the whole of the agreement between the parties, and extinguishes all previous agreements, prior versions, and understandings between APC and the User whether written or oral; and
  2. creates binding and valid legal obligations upon the User, including any of its parents, subsidiaries, affiliated parties, employees, contractors, agents or any other party permitted or authorized by User to use the Website or Services.
Changes to Services. APC reserves the right to change any of the terms and conditions displayed on its Website (including this Agreement) at any time by making them available on the APC (or affiliates) Website or by way of a notification through the Software or inclusion of a link to this Agreement in any invoice or other communication to Customer. By continuing to use this Website or Services, it is deemed that any User hereby agrees to be bound by the amended Agreement from the date the amended conditions are published on this Website or on the Software.
Permitted Uses & Restrictions. Customer shall not, and shall not permit any third party to: (i) modify or create any derivative works based on the Software; (ii) sublicense, distribute, sell, lend, rent, lease, transfer, or grant any rights in or to all or any portion of the Software or provide access to the Software to third parties on a service basis or otherwise; (iii) decompile, disassemble, reverse engineer, reverse assemble, analyze or otherwise examine, prepare derivative works of, modify, or attempt to derive source code from the Software; (iv) remove, modify, alter, destroy, or obscure any of the logos, trademarks, patent or copyright notices, confidentiality or proprietary legends or other notices or markings on Software; (v) add any logos, proprietary marks or other notices or markings on the Software without prior written consent of APC; (vi) use the Software other than as permitted under this Agreement; or (vii) use the Software’s or APC’s Confidential Information to develop, have developed, or assist in the development of any product or service competitive with the Software or the Services.
Governing Law. This Agreement is governed by the laws of the State of Ohio, USA without giving effect to provisions related to choice of laws or conflict of laws that would otherwise direct the application of the laws of an alternative jurisdiction. The application of the United Nations Convention on the Sale of Goods is not applicable and expressly disclaimed by the Parties. Venue and jurisdiction of any lawsuit involving this Agreement exists exclusively in the state and federal courts in Cuyahoga County, Ohio. The prevailing Party in any lawsuit arising from or relating to this Agreement is entitled to recover its costs, including reasonable attorneys’ fees.
General Indemnity. Customer agrees that it shall indemnify and hold APC and its parents, subsidiaries, affiliated entities, officers, directors, employees, and agents, harmless from any loss, damages, liabilities, suits, actions, fines, penalties and costs (including, but not limited to, attorneys’ fees) (“Claims”) related to arising out of Customer’s use of the Services or the Software. Customer acknowledges and agrees that the Services and Software performs calculations using approximations and modelling using data input from the Customer. The Software is not intended to, and cannot account for, all field conditions, on-site variables, geological changes and conditions, user interfaces and capabilities, training differentials, blasting products and services, personnel, and other factors that may influence, impede, change, alter or otherwise impact final outcomes of blasting. Professional judgment, together with considerations on site, must be exercised by all Users in connection with the use of the Software. Accordingly, by using the Services and Software, each Customer and User hereby voluntarily accepts all risks associated with the use of the same, including but not limited to differences in actual outcomes as against modelled outcomes. Each Customer and User hereby agrees to hold harmless, fully release and indemnify APC for and against any and all Claims related to or arising out of the use of the Software, including but not limited to any instance where the output of the Software or Services does not accurately reflect the outcome based on any actual scenario.
Liability Limitation. IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS OR USE BY THE OTHER PARTY OR ANY THIRD PARTY, ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN AN ACTION IN CONTRACT, TORT, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL APC’s AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF WHETHER ANY ACTION IS BASED ON CONTRACT, TORT OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE BY THE CUSTOMER TO APC UNDER THIS AGREEMENT. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.

Services & Use

Payment. Each User, or Subscription Manager as the case may be, agrees to pay without delay the License fees and charges set forth in the applicable invoice approving the License and in accordance with the provisions set forth therein. For any late payments, APC shall be entitled to impose and collect from the User interest at the rate of 1.5% per month, compounded monthly, or the highest rate permitted by applicable law, whichever is less.
Ownership & Compliance. APC hereby represents and warrants to Customer that (a) it has all necessary rights to provide the Services in accordance with this Agreement, (b) it will comply with all applicable international, federal, state, and local laws, rules, regulations, orders, and ordinances in the performance of its obligations hereunder, (c) the Services will conform in all material respects with the specifications set forth in this Agreement. Customer hereby represents and warrants to APC that (a) it will comply with all applicable international, federal, state, and local laws, rules, regulations, orders, and ordinances in its utilization of the Services and the performance of its obligations hereunder.
Warranties. APC makes no representation that Services offered are appropriate or suitable for any User in any aspect of its business. APC provides the Website or the Services on an "As Is" basis, with all faults, and does so without any warranty or condition, express or implied. To the extent permitted by law, APC specifically DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS, ON ITS OWN BEHALF ON AND BEHALF OF ITS SUPPLIERS AND LICENSORS, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. APC DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE USE THEREOF WILL BE UNINTERRUPTED OR ERROR FREE.
Permitted Uses. Users acknowledge and agree that where this Agreement or their subscription, invoice, or contractual agreement permits the assigning or distribution of Licenses:
1. Users will only do so for installation and use of the Services on machines owned by the Subscription Manager’s direct employer and are expressly limited to use within the Territory set forth in the applicable subscription, invoice, or other contractual agreement.
2. No Subscription Manager or User will issue a License to any person who is not a direct employee, director or agent of their company, or to any third-party company; and
3. Any person who uses the Services pursuant to the distribution of a Subscription Manager or User is expressly made aware of, accepts, and agrees to the terms and conditions hereof.
Usage Limitations. A License provided to Users by APC is provided for use only within the period of time outlined in the relevant subscription, contractual agreement, or applicable invoice. Nothing in this Agreement or any other communication thereafter shall be construed to constitute a sale or transfer of ownership of the Software or any part thereof, or the Services provided by APC, included but not limited to the Confidential Information, or tangible asset in any way associated with the Services.
Users. Use of the Services is restricted to Subscription Managers and their approved list of Users. Such usage is regulated by the limits outlined in that Subscription Managers’ subscription, invoice or other contractual agreement, and this Agreement.
Transfer. A User may not transfer, share, distribute, copy, or give access to the Services using their License to anyone without the written consent of APC.
User Indemnity. Each Subscription Manager and User agrees that they or it will fully indemnify APC for any loss or damage which arises out of, or results from, or is caused by a person or entity unlawfully using or misusing a License which was distributed by a User pursuant to this Agreement.
No Set Off. Users may not charge or recover any monetary or non-monetary consideration for the distribution of a license for Services and agree to pay APC without set off or counterclaim the value of any consideration received for the distribution of licenses for the Services, except with the prior written agreement of APC.
Connectivity. Access to the Services requires internet connectivity and communication with various online services provided by APC to validate Licenses and operate the Software. Due to the nature of online services and circumstances out of our control, APC does not guarantee that the Online Servers will remain operational at all times or at any specific time.
Connection Indemnity. Users agree to release and indemnify APC from any liability associated with a failure to access APC’s Online Servers. If the Online Servers will be inoperable for more than a 14-day period, APC agrees to notify all Users in writing of the issue and APC’s current plans to fix the error. APC may also offer, in its sole discretion, an ex gratia payment or extension of time for access to a License to reflect the downtime period.
Term. If no contractual period is explicitly specified in a subscription or contractual agreement, then the term for which a User may use a License for Services is:
1. if access is provided on a trial basis: thirty (30) days from the date a User first accesses any of the Services; and
2. if access is provided by paid subscription: one (1) year from the date the license for Services is first issued, or upon request by the relevant payee for the Subscription Manager, User or any of their employees, agents, or related entities.
Termination. A License may be revoked at any time by APC, acting reasonably, if a Customer or User is in material breach of any provision of this Agreement. When a License expires or is revoked, all Customers and Users of that License agree:
1. To immediately cease using the Services;
2. That they will remove all Software from its or their computers or personal records, and that they shall remain bound by the terms of this Agreement until such time as all information and materials related to the Services have been deleted.
Damages. Users agree that, upon demand by APC, they will pay APC for any unauthorized usage of the Services after the date the License was terminated at 150% of the rate of their prior yearly subscription for every use of the Services at any time within a twelve-month period in which the Services were accessed following termination of the initial License.
Modification. The grant of a License for Services does not include for any Customer or User the right to alter, edit, modify or adapt the Services, Software or their distribution methods from the original form in any fashion, unless required by applicable law and expressly agreed to by APC in writing in advance.
IP Protection. Customers, Users and their parents, subsidiaries, affiliated entities, employees, contractors, and agents agree that they will not, and shall not induce any third party to, or attempt to, decompile, de-obfuscate, or reverse engineer the Software, hardware, or other material provided by APC to operate the Services, except as expressly set out in this Agreement.
Training. APC may provide training regarding the functionality and limitations of the Services at their sole discretion. Training is required to use the Services at their full capacity and Users acknowledge that if they do not undergo training with the Services, then they release and indemnify APC for any loss or damage that might arise from user error, mistake, or misapprehension as to the services offered.
Updates. The Software will automatically search for, and advise Users of, any updates to a newer edition as released by APC from time to time in its discretion. No Customer is entitled to any particular update beyond that included in the scope agreed with APC at the time the License is issued. Notwithstanding, Customers and Users agree that they will allow the Software to be updated from time to time in APC’s discretion.
Controls. APC does not:
1. Provide, manage, direct, control, or guarantee the suitability of any output produced using the Services;
2. Guarantee the accuracy of any aspect of any information provided by any third party used in conjunction with the Services, including but not limited to data, representations or identifying details of the User of the Services;
3. Present the Software as being free of error, malfunction or bug, and Users agree that in accessing the Services they will (a) ensure that the output is reviewed by a qualified engineer for inconsistencies and errors; and (b) release and indemnify APC for any loss or damage and any claim brought by the User or a third party who relied upon any output of the Software if that output was not reviewed by a professional engineer.
Assignment. Neither this Agreement nor any rights hereunder may be assigned by Customer to a third party, except with APC’s prior written consent, which may be granted in its sole and absolute discretion.
Force Majeure. In no event shall APC be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss, malfunction of or lack of access to utilities or communications networks not directly under its control (collectively, “Force Majeure”); it being understood that APC shall use reasonable efforts to resume performance as soon as both Parties agree that it is safe and practical to do so.
Support. APC will use its best endeavors to provide ongoing support to all of its Customers in connection with the Services and Software under. License issued from time to time but does not guarantee any particular level of service or support.

This Privacy Policy describes how APC handles a user’s personal data and sets forth the rights and obligations that Users and APC have in relation to their personal information.
By accessing APC’s website, Services, Software or Online Servers, Users accept and agree to the terms and conditions of this Agreement as it relates to the collection of Personal Information or Confidential Information.
Continued use of APC’s Website, Software, Services, or Online Servers after withdrawal of consent to this Agreement (and in particular, APC’s right to collect and store information) permits APC to treat the use as an ongoing acceptance of the Privacy Policy, and Users agree to release and indemnify APC for any information collected by APC because of their continued access.
Customers and Users represent and warrant that their use of APC’s Services will comply with all applicable laws and regulations including, but not limited to, EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”) and the Australian Privacy Policy Act 1988 (“the Privacy Act") (including the Privacy Amendment (Notifiable Data Breaches) Act 2017) or any other applicable laws.
APC acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to all applicable laws and regulations, including but not limited to the EU Data Privacy Laws and the Privacy Act.
APC collects and processes information when a user accesses APC’s Website, Services, Software, or Online Servers. Users agree that APC may collect and retains information for the following purposes:
1. Where required by law;
2. Where consented to by the User (including by continuing to use the Services or Software, or by accessing APC’s website or online Servers);
3. Where it is necessary to ensure compliance with this Agreement;
4. To fix technical problems with the Software; and
5. To deliver enhanced features to our customers.
The information that APC will collect includes, but is not limited to:
1. Personal Information;
2. Confidential Information; and
3. specific information, which can be found in Annexure A to this Privacy Policy.
For the purposes of preparing for a reorganization, sale or merger, APC may:
1. Transfer all data or information held by APC to the relevant third party subject to applicable laws; and
2. Aggregate Basic License Data and Feature Usage Data anonymously by demographic categories to share with relevant third parties subject to applicable laws and subject to confidentiality under a Non-Disclosure Agreement (NDA).
If a User’s access to the system was provided by a Subscription Manager, APC may release that User’s information to the Subscription Manager for the purposes of allowing them to manage that license subscription and to better understand the usage of their users.
APC will only store information about Users as long as necessary to fulfil the purposes for which the information is collected and processed or where applicable for the storage and retention period required by law.
Except as detailed above, APC does not share, give, sell, rent, or lease information to third parties, and User’s Personal Information and Confidential Information will only be disclosed to those employees within APC’s organization who have a need to know in order in order to comply with this Agreement and provide Services to the Customer.
Users may request any information APC may hold about them, and also have the right to have any inaccuracies regarding the same be corrected by APC. APC will comply with any such requests to the extent required by law within fourteen (14) days of the receipt of User’s request. APC may ask a User to verify their identity before disclosing or altering any information.
Users may also have the following data protection rights:
1. To access, correct, update or request deletion of Personal Information. APC will take all reasonable steps to ensure that the data APC collects is reliable for its intended use, accurate, complete and up to date.
2. If Personal Information or Confidential Information is collected or processed on the basis of consent, the User can withdraw their consent at any time. A User withdrawing their consent will not affect the lawfulness of any processing APC conducted prior to the User’s withdrawal, nor will it affect processing of the User’s Personal Information or Confidential Information conducted in reliance on lawful processing grounds other than consent.
3. To complain to a data protection authority about the collection and use of Personal Information and Confidential Information. For more information, please contact your local data protection authority.
In the event of a security breach affecting a User’s Personal Information or Confidential Information, APC will:
1. Where required, inform the relevant authorities in APC’s jurisdiction as soon as possible after APC becomes aware of the breach;
2. Inform the User of the breach within a reasonable time after becoming aware of the breach, subject to any direction of any relevant governmental authority or any restriction required by law; and
3. Conduct an internal investigation as to the causes and impacts of such a breach and use its best efforts to prevent a similar breach from recurring in the future.

ANNEXURE A – COLLECTED INFORMATION

The Personal Information and Confidential Information we will collect from you includes, but is not limited to:

Basic License Data. When activating or renewing a License to use APC software, APC will collect the name of your computer, domain and active user; your IP address; the version of your operating system; your system specifications (Cores, memory, .NET version); your culture info and time-zone; the version and agent name of our software that you’re using; and your machine’s unique hardware identifier. You are required to enter your License key, the email address it was issued to, and the name you would like to associate with this license to help us identify whose license it is. This data is collected to help ensure compliance with our Terms and Conditions regarding licensing, and to help us fix technical problems and deliver a better experience to our customers.
Error Log Data. When you encounter an error using APC software, we collect the Basic License Data along with its software’s configuration and log files from your computer. This data is collected to help APC diagnose the cause of the errors.
Feature Usage Data. When you use APC software, it may collect statistical data about which features you use, how often, and how they are used. This data is collected to help APC focus its development and maintenance efforts to improve the experience for customers.
Feedback Data. When you opt to provide feedback, APC collects any feedback text you submit, any log data you opt to submit, along with your Basic License Data to help identify you. This data is collected to help interpret your feedback for the purposes of improving the experience for customers.
Website Analytics Data. We may collect a variety of information through your general interaction with the websites and content offered by APC. Personal Data we collect may include, but is not limited to, browser and device information, and application usage data. This data is used for the purposes of helping to optimize our services.
Business Data. When you email or voice call APC, APC may collect and store that data for the purposes of conducting business, providing sales and support services to you, and to comply with applicable tax and accounting laws.
Collaboration Data. The APC community may include various message boards, forums and/or chat areas, where users can exchange ideas, communicate with each other, and communicate directly with us. When posting a message to a board, forum or chat area, please be aware that the information is being made publicly available online in the group, forum, thread or message board to which you are posting. If your Data is posted to one of these avenues against your will, please notify us via email at paradigm.support@austinpowder.com to seek help from APC to attempt to remove it.

Invoice Attachment Language

APC’s Standard Terms and Conditions (“Terms”) apply exclusively to all transactions for the supply of products, services, and licenses to which this invoice and any applicable purchase order applies. A copy of the applicable Terms is found as https://terra.igneous.tech/terms-and-conditions and is hereby incorporated by reference and made a part of this invoice/order and the contractual relationship of the Parties hereto. Any and all other terms and conditions purporting to govern this transaction, whether written or oral, including those contained on any purchase order, but excluding any written agreement to the contrary executed by both parties, are hereby expressly rejected and shall in no event form a part of the Agreement between APC and a Customer. Buyer agrees that by accepting and using the products and services supplied and/or licensed by APC, which are the subject matter of this invoice, that the Customer has read and agrees to these terms in their entirety, including those found at the website set forth above, and that they apply to the exclusion of all other terms and conditions.