1. Application. This application (“Application”) is submitted by you for the purposes of applying for selection to participate in the Xplor Program conducted by BHP Metals Exploration Pty Ltd (“BHP” and collectively with its Related Entities, the “BHP Group”).
2. Eligibility; Application Information. At BHP’s request, you will provide proof of eligibility to participate in the Xplor Program, including with respect to identity, corporate organisation, age and other relevant documentation. The information contained in this Application together with any subsequent information you submit in relation to the Application is referred to as “Application Information.”
3. Confidential & Personal Information
(a) You agree that:
(i) BHP will use the Application Information submitted to conduct a review of your Application; and
(ii) You are submitting this Application for the sole purpose of being considered and evaluated as a Participant in the Xplor Program.
(b) To the extent that the Application Information is material non-public, confidential or proprietary information, and you label such Application Information accordingly, BHP agrees that it will not disclose such Application information so labelled outside of the BHP Group (other than to our advisors who are subject to confidentiality obligations) and will use it solely for the purpose of evaluating your potential participation in the Xplor Program (the “Approved Purpose”).
(c) To the extent that any Application Information is personal information (including for the purposes of the Privacy Act 1988 (Cth)):
4. Representations, Warranties and Undertakings
By submitting this Application, you represent, warrant, covenant and agree that:
(a) You have the full legal capacity, power and authority to submit this Application, and if you and your intended participants in the Xplor Program are individuals, that you and all of your intended participants are at least 18 years old at the time of registration (or at least the age of majority in your/their jurisdiction of residence), and that neither you nor any such intended participants are employees of the BHP Group.
(b) Your proposed or existing business complies in all material respects with applicable laws.
(c) Neither you nor your proposed or existing business is or has been in the past 3 years the subject of any actual or threatened litigation, claim, dispute, regulatory investigation, prosecution or conviction, which you have not disclosed in your Application.
(d) The Application Information is true, complete and accurate to the best of your knowledge and you have and will maintain the right to disclose the Application Information to BHP for the Approved Purpose.
(e) You are not submitting the Application on behalf of any third parties whom you have not disclosed in your Application.
5. Application Process; Further Information; Selection Process; Cancellation
(a) You may be requested to submit further Application Information in connection with your Application, including about your proposed business, including (where relevant) the business plan and exploration plan, corporate history and structure, funding and capitalization table, financial details, technologies, data, management team, other relevant services and capabilities (as applicable), to enable BHP to evaluate your Application. All such further Application Information will be subject to these terms and conditions.
(b) You agree that:
(i) BHP has no obligation to respond to your Application and/or progress discussions with you;
(ii) BHP makes no commitment to you or your intended participants for acceptance or participation in the Xplor Program;
(iii) BHP will select applicants to participate in the Xplor Program in its sole discretion and may disqualify an applicant at any time without being obligated to provide reasons; You may request reasons for disqualification but BHP is not obliged to respond;
(iv) BHP may at any time decide to cancel, modify or suspend the Xplor Program in its sole discretion;
(v) Any decision of BHP in respect of your Application and the Xplor Program is final and you shall have no claim against any member of the BHP Group in respect of any such decision; and
(vi) You are responsible for any and all costs and expenses you or your intended participants incur in connection with this Application and your participation in the selection process.
6. Data; Intellectual Property Rights
(a) Rights in G&G Data. If, during the application process, you provide BHP with any G&G Data (as defined below), you hereby grant to the BHP Group a license (or sublicense, as applicable) to use the G&G Data, subject to subsection (c) below, in connection with the evaluation of your Application (including as contemplated in subsection (b) below). To the extent that any such G&G Data was obtained or received by you under license from a third party, you represent and warrant that (i) you have obtained all rights necessary to provide such G&G Data to BHP and to grant the license thereto provided in this Section 6 and (ii) in any event, neither your providing BHP with such G&G Data nor a member of the BHP Group using that data shall result in the infringement or other violation of the rights of any third party license by you and/or a member of the BHP Group. You will, when submitting your Application, notify BHP of any limitations, restrictions, or requirements that arise out of the subject license and to which BHP will be subject in connection with its use thereof, and provide BHP with the relevant documents upon request.
(b) Intellectual Property Rights in Derivatives. In order to evaluate your Application as contemplated in subsection (a) above, BHP may upload the primary G&G Data you provide into its geological databases and/or other analysis software or platforms (or any successor database or software), which will analyse and process such data (the derivatives of any such analysis or processing, “Derivatives”). BHP shall own all right, title, and interest in all intellectual property rights in the Derivatives, including any improvements to its internal database and software resulting from processing the G&G Data, but excluding the G&G Data itself other than historical artefacts retained in the database as a result of processing the G&G Data.
(c) Deletion of G&G Data. Within one month after the date on which you are no longer an Applicant (due to receipt of notice from BHP that you have been accepted or not accepted into the Xplor Program, your withdrawal of your Application or our disqualification of your Application or cancellation of the Xplor Program), the license granted in subsection (a), above, will automatically terminate and Xplor will delete the primary G&G Data that you provided as part of your Application. If you have been accepted into the Xplor Program, the G&G Data that you have provided will be governed by and subject to the licenses and terms set forth in the Participation Agreement you will sign with BHP upon acceptance into the Xplor Program. The foregoing does not apply to Derivatives, which are covered in subsection (b) above.
7. Announcements and Publicity.
(a) BHP consents to you disclosing that you have applied for selection to participate in the Xplor Program. You agree that you will not and will ensure that your intended participants, Affiliates and Related Entities do not disclose to any other person (other than to advisors or other third parties who are subject to confidentiality obligations and need to know in order for you to perform your obligations and give the representations and warranties in this Application) any other information concerning this Application, including any discussions with BHP in relation to the Application or the Xplor Program, the Application and selection process, or the outcome of the Application without the prior written consent of BHP (“Program Information”).
(b) If you are required by law or by a governmental authority (including a stock exchange on which your securities or those of a Related Entity are listed) to disclose or to make a public announcement in relation to any Program Information you must to the extent reasonably practicable and permitted by applicable law provide BHP with prior notice and details of the proposed disclosure or announcement to allow BHP a reasonable opportunity to seek a protective order or amendments to the proposed announcement, as the case may be.
(c) You consent to the BHP Group disclosing that you have applied for selection to participate in the Xplor Program, and you consent to the BHP Group using and disclosing Program Information (excluding any Application Information which you have labelled confidential, unless the BHP Group is required by law or by a governmental authority to disclose) for or in connection with the BHP Group’s public communications concerning the Xplor Program.
8. Governing Law and Disputes; Waiver. These terms and conditions are governed by the laws of the State of Victoria, Australia and you submit to the exclusive jurisdiction of the courts of that State in respect of any dispute arising out of or in connection with these terms and conditions, this contract or its subject matter or formation (including non-contractual disputes). To the extent that there is any inconsistency between these terms and conditions and the Xplor application form or any Xplor Program-related marketing or similar materials, including but not limited to social media, website content, and television, print, or online advertising, these terms and conditions shall prevail. Failure by BHP to enforce any of these terms and conditions will not constitute a waiver of that or any other provision.
9. Relationship to BHP. You acknowledge that nothing in these terms and conditions will constitute an employment, joint venture, or partnership relationship between you and BHP. In no way are you to be construed as the agent or to be acting as the agent of BHP in any respect, and vice versa.
10. Limits on Liability. The provision by you of the Application Information, including any personal information, the G&G Data and any other information and data as part of the application process is done at your own risk. To the fullest extent permitted by applicable law, under no circumstance will the BHP Group be liable to you for any losses, liabilities, damages, costs or expenses (including fines and penalties) which you may suffer in connection with any loss, corruption or other breach relating to such Application Information, howsoever caused and on any theory of liability, including negligence.
11. Defined Terms
In these terms and conditions (unless the context otherwise requires):
“Affiliate” means, with respect to any specified person, including any individual or entity (“Person”), any other Person who, directly or indirectly, controls, is controlled by, or is under common control with such Person.
“G&G Data” means geological and geophysical (including but not limited to geochemical analysis, outcrop mapping/sampling, core and well data, gravity/magnetic and hyperspectral), or seismic data or records, whether or not proprietary and any related interpretive data, that is disclosed by you in or in connection with the Application or the matters contemplated by these terms and conditions.
“Related Entity” means, in relation to a party or other entity, an entity which is:
(a) a controlling company;
(b) a controlled company; or
(c) a controlled company of a controlling company,
For the purposes of this definition, one body corporate controls another when at the relevant time:
(a) it owns either directly or indirectly, or is otherwise in a position to cast or control the casting of, not less than 50% of the voting rights of that other body corporate; or
(b) it either directly or indirectly controls the composition of, or has the right to appoint or remove, a majority of the members of the board of directors or other governing body of that other body corporate, or otherwise has the right to exercise a dominant influence over or otherwise control that other body corporate (by virtue of its constitution or otherwise), and “controlled” and “controlling” will be construed accordingly.