Agreement

This agreement, including any appendices, schedules, and/or attachments, documents the understanding between Dingo Mining Pty Ltd ABN 76 154 370 706 (“Dingo”) and the Customer defined on the first page of the Dingo Asset Health Program Agreement (“Customer”) with respect to certain services to be performed by Dingo, and software and intellectual property provided by Dingo Software Pty Ltd ABN 20 053 730 331 (“Dingo Software”) and procured by Dingo, related to an Asset Health Program (“Services”). Dingo will provide the Services pursuant to the provisions of this agreement. This agreement, together with the attached Trakka ® License Agreement, describes the agreement between Dingo (and Dingo Software, as applicable) and the Customer with respect to the Services (“Agreement”).

Asset Health Program

Dingo will provide an Asset Health Program for the Customer with the Products and Services table of the Dingo Asset Health Program Agreement. Dingo will procure Dingo Software to license some selected Dingo Trakka Software items above to the Customer on the terms set out in the Dingo Trakka® License Agreement. Dingo will provide the selected service items above to the Customer on the terms set out in this Agreement.

Site and Assets

The Site for which this Asset Health Program applies is the mine site configured in the Dingo Trakka® software.

Agreement Term

This Agreement is valid until the expiration date mentioned in the Dingo Asset Health Program Agreement. If the Customer has not signed and returned this Agreement by that date, the Customer may request an updated Agreement from Dingo.

Contract Term

The contract term (“Contract Term”) for this Agreement is defined as the "Agreement Duration Terms" of the Dingo Asset Health Program Agreement:


Commencement Date

The commencement date of this Agreement will be 30 days after the signing of Agreement by both parties or when Trakka access is provided, whichever occurs earlier (“Commencement Date”).

Payment and Invoicing Terms

  • The Customer acknowledges and agrees that charges under this Agreement will apply from the Commencement Date. All charges will be billed and payable from the Commencement Date onwards.
  • The first invoice for the Contract Term will be issued on the Commencement Date and subsequent invoices as per the "Payment and Invoicing" section of the Dingo Asset Health Program Agreement. All payments are due net 30 days from the date of invoice.
  • If this Agreement is terminated prior to the end of the Contract Term for any reason other than a material breach of this Agreement by Dingo, the Customer will be responsible for paying Dingo the amount equal to the remaining fees owed under the contract until the end of the term within 30 days of the date of termination.
  • Unless stated differently in the Dingo Asset Health Program Agreement, all amounts are in USD.
  • The charges set out in this Agreement do not include:
  • travel, accommodation, transportation and meals for site visits;
  • sales tax, state or use taxes, GST or VAT which are to be added and invoiced in addition if applicable.
  • Bank fees;
  • Withholding tax is not included and the invoice value will be grossed up to reflect the applicable withholding tax rate;
  • Insurances beyond those already held by Dingo; and
  • Mobile data collection Apps customized to site specific needs are available on request. Dingo will provide pricing after some scoping has been completed.

Any such charges will be added to each invoice and paid by the Customer;

If the Customer requests:

  • travel to site and Dingo agrees to this travel, Dingo will invoice travel, accommodation, transportation and meals in addition to the charges; if additional insurances are required and Dingo agrees to procure additional insurances, the Customer must reimburse Dingo for the cost of these additional insurances;
  • Mobile data collection Apps or any other services not within the scope of this Agreement, if Dingo agrees to provide those services it will provide the Customer with pricing and may invoice for that pricing in accordance with the payment and invoice terms above.

Terms and Conditions

Commencement and purchase orders

  1. This Agreement, when signed by Dingo and the Customer, becomes a binding Agreement.
  2. The Customer agrees to issue a purchase order within 7 working days of signing this Agreement. Failure to do so will not impact the Commencement Date or the obligations of either party under this Agreement.
  3. The Customer agrees that this Agreement is to be incorporated in any purchase order or contract by specific reference and will apply instead of, and to the exclusion of, any purchase order terms provided or referenced by the purchase order or otherwise by the Customer.

Term

  1. This Agreement commences on the Commencement Date and continues for the Contract Terms. This Agreement will automatically renew unless either party provides written notice to the other party at least sixty (60) days prior to the expiry of the Contract Term or then-current Renewal Term that it does not wish to renew the Agreement. Subject to paragraph 5 below, the terms and conditions of this Agreement will apply to any Renewal Term unless otherwise agreed upon in writing by both parties.
  2. For each year at the anniversary of the commencement date, Dingo may increase the Fees by the amount specified in the "Inflation Increase" of the Dingo Asset Health Program Agreement.
  3. The Customer is responsible for ensuring its site and equipment comply with any specifications provided by Dingo.
  4. Customer will provide Dingo with information and resources reasonably requested by Dingo to allow Dingo to provide the Services in accordance with this Agreement.
  5. Customer will nominate a representative who is responsible for the outcomes of this Agreement at each participating site. The nominated representative will be a Customer employee with the authority to implement the necessary changes to integrate the programs at the participating sites within the scope of the Services.
  6. The customer agrees to provide Dingo access to systems, technical documentation, specifications, licenses, and any other materials as necessary to develop software interfaces and integrations to other systems.
  7. Dingo resources will observe standard public holidays in their usual place of work during the Contract Term and will not be available to work on these days.
  8. Dingo will ensure its personnel adhere to all industry-standard local, state, federal and site-specific safety requirements. If, in Dingo’s reasonable opinion, a Customer’s safety requirements and training for a site exceed reasonable industry standards, the Customer must pay additional fees in relation to:
  • Dingo’s attendance at relevant safety training (at hourly rates notified by Dingo); and
  • any additional equipment required by the site.
  1. The Customer acknowledges that Software performance and Services may be impacted if the Customer does not provide its inputs in accordance with this Agreement and Dingo is not liable for any failure caused or contributed to by the Customer’s act or omission.

Confidentiality and intellectual property

  1. Subject to clause 14, the Customer and Dingo each agree not to use each other’s trade secrets and confidential information, or to disclose each other’s trade secrets and confidential information to any other party unless otherwise agreed to by authorized representatives in writing.
  2. Subject to clause 15 and without limiting any other rights granted to Dingo or Dingo Software under this Agreement or the Trakka® License Agreement, the Customer grants to Dingo and its affiliates a non-exclusive, irrevocable, worldwide, transferable, sub-licensable and royalty free licence to use any information, data and materials (including confidential information) provided by or on behalf of the Customer (or otherwise approved by or on behalf of the Customer) in connection with the Agreement for the purposes of performing the Services. For clarity, Dingo may disclose the Customer’s confidential information to its affiliates and any employees or contractors, who have a “need to know” for the purposes of performing the Services, provided Dingo ensures such affiliates, employees and contractors keep the Customer’s confidential information confidential and only use the confidential information for the purposes of performing the Services.
  3. All intellectual property rights, including copyright, in any online tools, documents, plans, forms, processes, software, standard operating procedures, standard jobs, troubleshooting guides, methodologies and the like used, provided or developed by Dingo during the course of the Services, and any intellectual property rights in materials (including forms) developed by the Customer which are an improvement of such items used, provided or developed by Dingo during the course of the Services (excluding Customer confidential information) (together, “Dingo Materials”) are owned by Dingo. Dingo grants to the Customer a non-exclusive licence to use the Dingo Materials (excluding Software licensed under the Trakka® License Agreement) for the purpose of receiving the Services during the Term of this Agreement. All Dingo Materials are Dingo’s confidential information. The Customer must not:
  • disclose the Dingo Materials to any third parties;
  • allow any other members of the Customer group to use any Dingo Materials; or
  • allow the Dingo Materials to be used on or in relation to any location except for the Site.

To the extent the Customer owns or acquires any right, title or interest in the Dingo Materials (other than the licence granted under this clause 15), the Customer hereby assigns such right, title and interest in the Dingo Materials to Dingo (including by way of present assignment of future intellectual property rights).

  1. Access to Dingo Trakka® Software and use of Dingo Asset Wellness™ Library and Expert Services is limited to the Contract Term.
  2. During the term of this Agreement, and for a period of six (6) months following the expiration or termination thereof, neither party will actively solicit the employment of the personnel of the other party involved directly with providing the Services.

Liability and risk

  1. Dingo provides information to the Customer. This information may be provided by a Dingo consultant who is not located at the relevant site and who does not have access to the Customer’s equipment or machinery. The Customer must carefully consider the information that Dingo provides to the Customer and make its own decision on how to act upon such information. The Customer acknowledges that the information provided by Dingo is only one source of information available to the Customer when making decisions. Accordingly, Dingo is not responsible for actions taken or not taken by the Customer in reliance on information provided by Dingo.
  2. Customer will perform any recommendations arising from the Services or the Software at their own risk.
  3. Customer acknowledges that:
  • the completeness and accuracy of information provided by Dingo to the Customer is dependent on the quality of the information provided to Dingo;
  • Dingo is not responsible for the accuracy or completeness of any input or other information provided to Dingo by the Customer or by third parties;
  • the recommendations made by Dingo may not be the only maintenance actions which the Customer may need to carry out in relation to the relevant asset.
  1. Dingo:
  • is not liable for maintenance actions it recommends, or fails to recommend, as part of the Services;
  • does not warrant that any maintenance action recommended by Dingo is the only maintenance action that may be necessary to maintain the Customer’s equipment.
  1. Dingo’s total liability to the Customer relating to this Agreement whether in contract, strict liability or tort (including negligence) is limited to the amount of fees paid or payable by the Customer under this Agreement in the one-year period prior to the cause of action arising. Neither party will be liable to the other for loss or inaccuracy of data, loss of profits or revenue or for any indirect, special, exemplary, punitive, incidental or consequential loss or damage, whether or not foreseeable.

Publicity

  1. At the request of Dingo, the Customer agrees to assist with publicity and promotion for Dingo which may include:
  • providing references;
  • participating in a video case study to showcase the successful implementation and outcomes of the project;
  • participating in an article, including photographs and end-user quotes, suitable for the use and release by Dingo;
  • participating in a press release, including photographs and end-user quotes, suitable for the use and release by Dingo; and
  • jointly presenting with Dingo to an appropriate industry conference, the nature of which will be agreed between the parties.

The Customer agrees to allowing Dingo the use of the Customer’s logos, quotes, and other relevant information for promotional purposes. The Customer acknowledges and agrees that Dingo may use this content on its company website, social media, and other marketing channels. The parties agree to work together to schedule and produce these mandatory requirements within a reasonable timeframe during the Contract Term.

General terms

  1. This document constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter. This document overrides the terms of any purchase order to the extent of any inconsistency.
  2. The law in force in Queensland, Australia governs this document. The parties submit to the non-exclusive jurisdiction of the courts of that place.