Dingo Trakka® License Agreement
This document is a License Agreement (“License Agreement”) that sets out the terms on which Dingo Software Pty Ltd (ACN 053 730 331), an Australian corporation (“Dingo”), provides access to its Software to any of its customers (“Customer”) and the terms on which the Software may be used.
This License Agreement covers the Dingo Trakka® Software programs and modules (“Software”), mentioned in the Dingo Asset Health Program Agreement.
1.Software. Dingo will provide the Customer access to and use of the Software in accordance with the terms of this License Agreement. Dingo will provide the following to the Customer in accordance with this clause:
(a)hosting of the Software, including all associated server-side hardware and infrastructure;
(b)all maintenance of and support for the Software as set out below;
(c)updates of and enhancements to the Software as they are made available by Dingo in its sole discretion (“Upgrades”); and
(d)electronic storage of the Customer’s data used with the Software.
Dingo will use reasonable endeavours to notify the Customer of an Upgrade to the Software before the Upgrade is released. Dingo is not liable for any damages, losses, or expenses incurred by the Customer as a result of an Upgrade or its deployment.
2.Enterprise Use. Subject to the Customer paying the Fees (as defined below), Dingo grants the Customer unlimited use of the Software at the site and for the assets nominated in the Dingo Asset Health Program Agreement, or as otherwise agreed between the parties. The Software may be used by the Customer and its employees whom the Customer nominates as users, provided such use is for the benefit of the Customer. The Customer may only use the programs and modules for which it has paid the Fees (as defined below).
3.Subject to the Customer paying the Fees (as defined below), and to the extent necessary to allow the Customer full use of the Software, Dingo grants to the Customer a nonexclusive, nontransferable licence to use the Software for the Customer’s internal business purposes. The Customer acknowledges that the Service is provided to the Customer on a hosted or ASP (application service provider) model, and that the Software will run on hardware owned or operated by Dingo. The Customer will not be provided with computer code (source or object) for the Software.
4.This License Agreement, including the rights and licences set out above, continues for the term of the services agreement between Dingo Mining Pty Ltd and the Customer as set out in the Asset Health Program Agreement (“Services Contract”). This License Agreement will automatically terminate on expiry of the Services Contract. If the Services Contract is terminated by either party prior to its expiry in accordance with the terms of the Services Contract, this License Agreement is terminated with effect from the effective date of termination of the Services Contract.
5.Fees. Customer must pay the Fees for the use of the Software in accordance with the payment terms set out in the Dingo Asset Health Program Agreement. The Fees are not refundable once paid to Dingo. If the Fees are not paid to Dingo as per the agreed payment terms, Dingo may suspend access to part or all of the Software until the Fees are paid.
6.Warranties. Dingo warrants to the Customer that:
•the Software will achieve the functionality described in the help guides and in other Dingo documentation provided by Dingo to the Customer relating to the Software, and that such functionality will be substantially maintained in subsequent upgrades to the Software; and
•use of the Software by the Customer, as described in the help guides and in other Dingo documentation provided by Dingo to the Customer relating to the Software, will not infringe any third-party intellectual property rights.
7.No warranty. Dingo does not warrant that access to the Software will be uninterrupted or that the Software will be error-free. EXCEPT AS PROVIDED IN CLAUSE 6, DINGO MAKES NO WARRANTY OF ANY KIND WITH REGARD TO THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE.
8.Limitations of Liability. Dingo’s sole liability for any breach of clause 6 will be to use commercially reasonable efforts to modify the Software to substantially achieve the functionality described in the help guides or other Dingo documentation provided by Dingo to the Customer. Subject to the foregoing, Dingo’s total liability to the Customer relating to the Software, use of the Software or arising under this License Agreement, whether in contract, strict liability or tort (including negligence), is limited to $500,000 in the aggregate. 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.
9.Intellectual Property Indemnity. Dingo agrees to indemnify the Customer from and against any and all damages, liabilities, losses and expenses (including reasonable legal fees and expenses) which the Customer may suffer or incur in favour of a third party, arising out of any claim, suit, action or proceeding (“Claim”) by such third party:
(a)for failure of Dingo to comply with any governmental law, statute, ordinance, administrative order, rule or regulation applicable to its business; and
(b)for infringement by Dingo of a patent, trademark or copyright of such third party.
In the event of a claim of infringement, Dingo may:
(c)procure for the Customer a right to continue to use the Software;
(d)replace or modify the Software with software that has substantially similar functional and performance capabilities as the Software but does not infringe such third-party rights; or
(e)if Dingo, using commercially reasonable efforts, is unable to do either of what is set out in Clause 9(c) or (d) within a commercially reasonable time, then Dingo may terminate access to part or all of the Software.
10.Claim defence. The Customer will have the right to participate, with legal counsel of its choice and at its own expense, in the defence of any such Claim, provided Dingo retains control of such defence (including full authority in respect of any settlement or compromise negotiations). The Customer must give Dingo all necessary assistance relating to the Claim. Dingo shall report regularly to the Customer with respect to the conduct and status of such Claim. Dingo is not obligated to indemnify the Customer for Claims of infringement to the extent that such Claims result from any combination, operation, or use of the Software with any data, programs or equipment not supplied by Dingo for such purpose, if such infringement would have been avoided by not having such combination or operation or by avoiding such use.
11.Customer Obligations. The Customer must not resell the Software or resell access to or use of the Software, including as part of a service bureau for processing or storing third-party data, unless expressly authorized by Dingo. The Customer must provide its own Customer-side hardware and software that meets Dingo’s minimum necessary configuration. The Customer acknowledges that Dingo hosts the Software at a site and in one or more countries selected by Dingo and not at the Customer’s site. The Customer is responsible for all network and Internet connections and associated network and Internet fees for connection to and use of the Software.
12.IP and Data. No intellectual property rights are transferred or assigned by the Customer to Dingo or by Dingo to the Customer pursuant to this License Agreement. The Customer grants to Dingo and its affiliates a perpetual, irrevocable, non-exclusive, transferable, sub-licensable, worldwide and royalty free licence to copy, modify, reproduce and otherwise use all data, images and other materials or information input by or on behalf of the Customer and any of its affiliates into the Software (“Customer Input”) (including any materials, images, data or other information to the extent incorporated into or otherwise necessary for use of the Customer Input) (together the “Licensed IP”) for the purposes of:
(a)maintaining and improving the Software;
(b)creating, developing and improving any other products, services or businesses of Dingo and any of its affiliates;
(c)statistical analysis, aggregated reporting and business reporting (including for aggregated and anonymised reports provided to Dingo customers);
(d)developing, training, testing, improving and otherwise enhancing any artificial intelligence, machine learning or similar tools, systems or technologies (“AI Tools”);
(e)incorporating the Licensed IP into any database or other repository used in connection with AI Tools; and
(f)fine-tuning, transfer learning or any other process to adapt or customise AI Tools.
Dingo may disclose any of the Licensed IP to any affiliate or third-party service provider for the purposes set out in clauses 12(a) to (f), without prior consent from the Customer. The Customer warrants to Dingo and its affiliates that it has the necessary rights to input the Licensed IP into the Software. This clause survives expiry or termination of this License Agreement.
13.Suspension. Dingo may suspend access to the Software in an emergency situation or due to causes beyond its reasonable control.
14.No assignment. The Customer may not assign its rights under this License Agreement, except where Dingo consents or if the assignment is to an entity that acquires all or substantially all of the Customer’s business or assets. Dingo may assign, subcontract or otherwise deal with its rights under this License Agreement on notice to the Customer.
15.Miscellaneous. This License Agreement does not create any joint venture, partnership, agency or employment relationship between the parties. This License Agreement represents the entire agreement of the parties in respect of the Software and may not be modified unless expressly agreed to in writing by both parties. The law in force in Queensland, Australia, governs this License Agreement. The parties submit to the non-exclusive jurisdiction of the courts of that place. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be limited to the minimum extent necessary so that this License Agreement shall otherwise remain in full force and effect. Each party shall be responsible for compliance with all applicable laws, rules and regulations, if any, related to the performance of its obligations under this License Agreement. Neither party will be liable for any failure to perform any obligation (other than payment obligations) hereunder, or from delay in the performance thereof, due to causes beyond its reasonable control.
16.Software Availability and Service Credits.
(a)Definitions. For the purposes of this clause:
–“Availability” means that authenticated users of the Customer can access the Core Services and perform the functions described in clause 16(b).
–“Core Services” means the hosted web application and associated API services (httpservice3 and equivalent successor services) that enable users to authenticate, view asset health records, and submit and retrieve condition data within the Trakka platform.
–“Scheduled Maintenance” means planned downtime notified by Dingo to the Customer at least 48 hours in advance, not exceeding 4 hours in aggregate per calendar month.
–“Monthly Uptime Percentage” means the total minutes in a calendar month, less downtime minutes, divided by total minutes in that calendar month, expressed as a percentage. Downtime minutes are measured by Dingo’s monitoring infrastructure using synthetic transaction testing against the Core Services API endpoint.
(b)Availability Commitment. Dingo warrants that the Core Services will achieve a Monthly Uptime Percentage of at least 99.0%, excluding:
–Scheduled Maintenance;
–unavailability caused by events outside Dingo’s reasonable control, including force majeure, third-party infrastructure failures (including internet service providers and cloud hosting providers), or acts or omissions of the Customer;
–unavailability caused by the Customer’s failure to comply with its obligations under this Agreement; and
–unavailability of the Customer’s own network, hardware, or end-user software, including the Trakka® Windows desktop client.
(c)Ancillary Services. The following components are not included in the Availability commitment and are provided on a best-efforts basis:
–intelligence and reporting services;
–third-party data interfaces, including oil analysis laboratory integrations and OEM telemetry connectors;
–the Trakka® Windows desktop client application; and
–any integrations with Customer systems, including ERP and data lake connections.
Degradation or unavailability of any Ancillary Service, where Core Services remain available, does not constitute a breach of clause 16(b).
(d)Service Credits. Where the Monthly Uptime Percentage falls below 99.0% in any calendar month (a “Service Level Failure”), the Customer’s sole and exclusive remedy shall be a service credit calculated as the pro-rata portion of the affected monthly Core Services licence fee corresponding to the period of downtime, capped at a maximum of 25% of the monthly Core Services licence fee in any calendar month.
Credits are applied against the following month’s invoice. Credits are not redeemable for cash, do not accrue across months, and are forfeited upon termination of this Agreement. Credit claims must be submitted in writing within 30 days of the alleged Service Level Failure. Claims not raised within that period are waived.
(e)Exclusive Remedy. Service credits as set out in clause 16(d) constitute the Customer’s sole and exclusive remedy for any Service Level Failure. Nothing in this clause limits either party’s rights in respect of termination for material breach under the Agreement, provided that an isolated Service Level Failure that is remedied within the applicable credit tier shall not, of itself, constitute a material breach.