Newmont and You agree as follows:
1. USE OF THE WEBSITE
You may access and use the Website and Website Content (as such term is defined in Section 3 below) solely for lawful purposes and in accordance with the terms of this Agreement. Newmont reserves the right, at any time and in its sole discretion, to modify, suspend, or discontinue the Website (or any portion thereof) with or without notice to You.
2. TERM AND TERMINATION
This Agreement will be effective commencing on the date You first access the Website and will continue in effect thereafter unless terminated as provided in this Section. Newmont may terminate this Agreement immediately, for any reason or no reason, with or without notice to You. You may terminate this Agreement upon notice to Newmont, such termination to be effective 10 business days after the effective date of the notice (determined as set forth in Section 11 below). Upon any termination of this Agreement, all rights granted to You under this Agreement will cease, and You must promptly discontinue all access to any part of the Website and the use of any Website Content. Any provision in this Agreement which, by its general terms, may be reasonably interpreted as being intended to survive, shall survive the expiration or termination of this Agreement for any reason.
3. CONTENT AND MARKS
The text, files, images, graphics, illustrations, information, data, audio, video, photographs and all other content available on the Website or provided from or through the Website, including services (collectively, “Website Content”) are protected by the intellectual property rights of the owners thereof. You acknowledge that the Website Content constitutes valuable property and that, unless otherwise provided in this Agreement or on the Website, as between You and Newmont, all title to and ownership rights in the Website Content remain exclusively with Newmont. Your access to and use of any Website Content is also subject to any other license or other agreement separate from this Agreement that You may enter into (or may have entered into) with any of Us or Our respective licensors (“Our Licensors”) relating to that Website Content (each such license or other agreement, a “Content Agreement”). Except as expressly set forth in this Agreement or any Content Agreement, You are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to the Website or Website Content, or any intellectual property rights therein or related thereto, and You may not modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit any portion of the Website or Website Content without the prior written permission of Newmont. You acknowledge that all trademarks, trade names, service marks, logos, banners, and page headers displayed on the Website (collectively, the “Marks”) constitute valuable property and that, unless otherwise noted on the Website, as between You and Newmont, all title to and ownership rights in the Marks remain exclusively with Newmont. Except as expressly set forth in this Agreement, You may not display, link to, or otherwise use the Marks without the prior written permission of Newmont or, if otherwise so labeled, the owner of such Mark.
4. POSTINGS AND UPLOADS
The Website may include forums, bulletin boards, chat rooms, or other opportunities through which You may provide or upload Website Content to the Website (“Provided Content”). You may not upload or provide any Provided Content that is: (a) libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (b) an infringement or misappropriation of another’s intellectual property rights; (c) illegal in any way or that advocates illegal activity; or (d) an advertisement or solicitation of funds, goods, or services. You represent and warrant to Newmont that You own all right, title, and interest in and to any Provided Content that You provide or upload to the Website, or that You have sufficient rights to grant Newmont the rights discussed in this Agreement. By providing or uploading any Provided Content to the Website, unless otherwise stated in a separate agreement entered into by You and Newmont in connection with Your provision or upload of such Provided Content, You grant Us a nonexclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable right to use, copy, store, reproduce, modify, display, adapt, publish, translate, create derivative works from, distribute, and display such Provided Content throughout the world in any form (“Use”). In addition, You waive all moral rights in the Provided Content or warrant that all moral rights applicable to such content have been waived. You also grant Us the right to Use Your name in connection with our Use of such Provided Content.
You will not, and will not permit any third party to, (a) use the Website to harvest or collect e-mail addresses or other contact information of other users from the Website by electronic or other means; (b) use the Website in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Website; (c) use automated scripts to collect information from or otherwise interact with the Website; (d) use the Website to intimidate or harass any individuals or entities; (e) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or method of operation of the Website; (f) remove, bypass or circumvent any electronic protection measures on the Website; (g) remove, alter, or obscure any copyright or other proprietary rights notices included on the Website; or (h) upload to the Website or provide to Newmont any code, instruction, or device capable of or intended to access, modify, delete, disable, interrupt, or damage the Website or the operation of the Website, including, without limitation, any viruses, Trojan horses, worms, spyware, traps, back doors, disabling devices or like destructive code or code that self-replicates.
6. CLAIMS OF INFRINGEMENT
Newmont respects the copyrights and other intellectual property rights of users of the Website and other third parties. If You believe in good faith that Your copyrighted work has been reproduced on the Website without authorization in a way that constitutes copyright infringement, You may give notice thereof to Us at:
Newmont Mining Company
Attn: Communications Department
6363 South Fiddlers Green Circle, Suite 800
Greenwood Village, Colorado USA 80111
Please include the following information in such notice: (a) the identity of the infringed work, and of the allegedly infringing work; (b) Your name, address, daytime phone number, and e mail address, if available; (c) a statement that You have a good-faith belief that the use of the copyrighted work is not authorized by the owner, the owner’s agent, or the law; (d) a statement of the accuracy of the notice and, under penalty of perjury, that You are authorized to act on behalf of the owner; and (e) Your physical signature.
7. REPRESENTATIONS AND WARRANTIES
You hereby represent, warrant, and covenant for the benefit of Us and Our Licensors that: (a) You have the legal right and authority to enter into this Agreement and, if You are entering into this Agreement on behalf of a company or other entity, to bind the company or other entity to the terms of this Agreement; (b) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement You enter into in connection with the Website or any of the Website Content; and (c) all information You provide in connection with this Agreement and Your access to and use of the Website and Website Content is correct and current.
8. DISCLAIMER AND LIMITATION OF LIABILITY
Disclaimer. THE WEBSITE AND WEBSITE CONTENT ARE PROVIDED BY NEWMONT “AS IS” and “AS AVAILABLE” WITH NO WARRANTIES WHATSOEVER. NEITHER WE NOR OUR LICENSORS REPRESENT OR ENDORSE THE ACCURACY OR RELIABILITY OF ANY ADVICE, OPINION, STATEMENT, SOFTWARE, SERVICE, OR OTHER INFORMATION DISPLAYED ON, DOWNLOADED FROM, OR DISTRIBUTED THROUGH THE WEBSITE OR THROUGH LINKS ON THE WEBSITE, NOR DO WE CONTROL OR ENDORSE ANY THIRD PARTY CONTENT OR SERVICES WHICH MAY BE ACCESSED THROUGH LINKS POSTED ON THE WEBSITE. YOU UNDERSTAND THAT BY USING THE WEBSITE, YOU MAY BE EXPOSED TO CONTENT THAT YOU MAY FIND OFFENSIVE, INDECENT, OR OBJECTIONABLE. YOUR ACCESS TO THE WEBSITE IS AT YOUR OWN RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY LIABILITY OR DAMAGE YOU INCUR IN CONNECTION WITH YOUR ACCESS TO THE WEBSITE AND USE OF THE WEBSITE CONTENT. EXCEPT WHERE THE LAWS AND REGULATIONS OF A PARTICULAR JURISDICTION CONCERNING WARRANTIES CANNOT BE WAIVED OR EXCLUDED BY AGREEMENT, NEWMONT EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING THE WEBSITE AND WEBSITE CONTENT, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. YOU RECOGNIZE THAT THE CURRENT STATE OF TECHNOLOGY DOES NOT ALLOW FOR ERROR-FREE ACCESS TO THE WEBSITE AND INTERRUPTIONS, CRASHES, AND DOWNTIME BEYOND NEWMONT’S CONTROL MAY OCCUR FROM TIME TO TIME.
Limitation. IN NO EVENT WILL WE OR OUR LICENSORS BE LIABLE FOR ANY DAMAGES, INCLUDING DIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE, WHETHER IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, IN CONNECTION WITH YOUR ACCESS TO OR USE OF (OR YOUR FAILURE TO GAIN ACCESS TO OR USE OF) THE WEBSITE OR ANY OF THE WEBSITE CONTENT PROVIDED OR ACCESSED THROUGH THE WEBSITE, EVEN IF WE OR OUR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. EACH OF OUR AND OUR LICENSORS’ TOTAL AGGREGATE LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED THIS AGREEMENT OR YOUR ACCESS TO OR USE OF THE WEBSITE OR ANY WEBSITE CONTENT IS LIMITED TO US$250.
You will indemnify, defend, and hold harmless Us, Our Licensors, and Our and Our Licensors’ respective employees, agents, contractors, assigns, licensees, and successors in interest (collectively, “Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising from Your accessing or using the Website or any Website Content, Your providing or uploading any Provided Content to the Website, or Your breach or alleged breach of any term of this Agreement; provided, however, that the forgoing shall not apply to the extent the same was caused by the Indemnified Party’s own negligence or willful misconduct. Newmont will provide You with notice of any such claim or allegation, and Newmont will have the right to participate in the defense of any such claim at its expense.
Except as expressly stated otherwise in this Agreement, any notices required or allowed under this Agreement will be in writing. Notices will be given to Newmont by postal mail to “Attention Communications” at the Corporate Headquarters address for Newmont listed under the “Contact Us” button on the Website and such notice shall be deemed given five business days after deposit in the postal mail, unless the notice is returned to You as undeliverable. If applicable law requires that Newmont accepts e-mail notices (but not otherwise), then You may send Newmont an e-mail notice by emailing Newmont at email@example.com. With respect to Newmont’s notices to You, Newmont may provide notice by posting them on the Website, which notice shall be deemed given 24 hours after it is posted on the Website, and You will periodically check the Website for such notices. In addition, or in lieu thereof, Newmont may give notice by sending You an e-mail to the e-mail address You provide during registration for the Website. Notices sent by e-mail shall be deemed given 24 hours after the e-mail is sent, unless the sending party is notified that the e-mail address is invalid or the e-mail delivery otherwise failed.
11. GENERAL TERMS
Assignment. You may not assign, delegate or transfer this Agreement or any of Your rights hereunder, by operation of law or otherwise, and any attempt to do so will be null and void.
Integration; Waiver; Construction. This Agreement sets forth the entire understanding of the parties, and supersedes any and all prior oral and written agreements or understandings between the parties, regarding the subject matter of this Agreement. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
Severability. If for any reason any provision of this Agreement shall be held invalid or unenforceable in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability, without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions in any jurisdiction.
Jurisdiction and Venue. This Agreement will be governed by the laws of the State of Colorado, other than such laws, rules, regulations, and case law that would result in the application of laws of a jurisdiction other than the State of Colorado. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. You hereby irrevocably and unconditionally consent to the jurisdiction and venue in the state and federal courts sitting in Denver, Colorado (USA) and agree that such state and federal courts shall be the exclusive forum for the resolution of any disputes related to, arising out of, or arising under this Agreement. In any such dispute, the prevailing party will be entitled to recover its reasonable attorneys’ fees and expenses from the other party.
Modifications. We reserve the right, at any time and without notice, to add to, change, update, or modify the Website, the Website Content, and this Agreement, simply by posting such addition, change, update, or modification on the Website. Any such addition, change, update, or modification will be effective immediately upon posting on the Website. If We decide to change the privacy statement in Section 10, unless We seek and receive Your consent, We will continue to use information previously provided to Newmont in accordance with the terms under which the information was last collected.
Intended Beneficiaries. Newmont’s subsidiaries and Our Licensors are intended beneficiaries of all rights specifically running to them pursuant to the terms of this Agreement, with full right and authority to enforce such obligations.