This NEO Software Support and Upgrade Service Agreement is between Intelligent Energy Systems Proprietary Limited, who is the developer and owner of NEO software, hereinafter called the ‘Licensor’, and the holder of a licence for NEO software, hereinafter called the ‘Licensee’. The Licensor warrants that all services to be provided under this Agreement will be performed in accordance with good industry practice so as to exercise that degree of skill, diligence, prudence, foresight and operating practice which would reasonably and ordinarily be expected from a skilled and experienced operator/service provider seeking in good faith to comply with its contractual obligations engaged in the same type of undertaking and under the same or similar conditions to those set out in this Agreement.

It is agreed that:

1. Subject to the terms of this Agreement, the Licensor will provide to the Licensee the following NEO Support and Upgrade Services:
   a. Support as necessary to identify the cause of any problem with the NEO software and/or to provide advice on the NEO software where reasonable commercial efforts will be made to respond to a request for support when the request is made, or in any case within one working day:
   i. for bugs in the NEO software or problems due to fault of the Licensor:
   A. telephone, email or on-site support as necessary to identify the cause of the problem;
   B. supply of a solution within five working days or, where this is not possible, a work-around, if feasible, until a solution is available;
   ii. for issues other than bugs in the NEO software and for problems not due to fault of the Licensor:
   A. telephone and email support, depending on the number of licensed users, to a maximum per annum of:
   (1) Eight hours for 1-5 users; or
   (2) Twelve hours for 6-10 users; or
   (3) Sixteen hours for 11-20 users; or
   (4) Twenty-four hours for site license customers.
   B. on-site support to a maximum of one day (one visit) per annum per Licensee;
   Additional hours under this clause will be charged at the Licensor’s standard consulting rates less 20%.
   b. General enhancements, upgrades and documentation relating to the current NEO version, including requested enhancements which the Licensor considers are of general interest and has implemented.
   c. 20% discount, at the Licensor’s standard consulting rates, of any other requested enhancement agreed to by the Licensor.
2. The following procedures will apply to software upgrade requests made by the Licensee under Sub-clause 1.c.
   a. The Licensee will make the request setting out:
   i. the nature of the enhancement, together with sufficient details to allow its specification and implementation;
   ii. the timing requested for its implementation; and
   iii. whether a fixed quote or a time and materials quote is required;
   b. The Licensor will respond as soon as practicable with an offer which contains:
   i. a written specification of the enhancement;
   ii. an offer of timing and terms of payment;
   c. The Licensor will implement the request when the Licensee has agreed in writing with the terms of the offer made under Sub-clause 2.b.
3. The Licensor warrants to support both the current released version and the immediate previously released version of the NEO software, e.g. if version 4.11 is the most current version then versions 4.11 and 4.10.x are supported.
4. Excluded from the Terms of this Agreement is the cost of:
   a. Any third-party hardware or software, which may be required to implement upgrades or optional or special facilities within NEO; should any such third party cost arise, the Licensor will notify the Licensee well in advance of it being required for implementation and the Licensor will use all reasonable endeavours to minimise such cost to the Licensee;
   b. Except in the case of clause 1.a.ii.B, the time and cost of travel to sites more than 25km outside of the CBD of Melbourne or Sydney.
   c. Making good any software, data or other problem which, in the opinion of the Licensor, has resulted from:
   i. changes in the Licensee’s software environment not within the control of the Licensor; or
   ii. accessing the NEO database other than through the NEO user interface.
5. Assistance provided to the Licensee that is not covered by the Terms and Conditions of this Agreement will be charged at the Licensor’s standard consulting rates less 20%.
6. All provisions applying to the original version of NEO supplied under the NEO Licence Agreement will also apply to the upgrades of NEO supplied under this Agreement.
7. The fee for the NEO Software Support and Upgrade Service defined in this Agreement is:
   a. Payable for the first year 3 months after the delivery of the software and thereafter annually in advance and is subject to yearly increases.
   IES accepts half yearly and quarterly payments for annual subscriptions (this will incur a 10% administration fee).
   b. IES Prefers to receive payment by electronic bank transfer. However, Mastercard/Visa is also accepted (this will incur a 1.5% surcharge).
   c. Payment must be received in full, with all bank charges to be incurred by the remitter.
8. The Licensor reserves the right to vary the basis for calculating the NEO Software Support and Upgrade Service fee set out in Clause 7, provided that:
   a. The Licensee is given one month’s notice in writing; and
   b. The basis is changed a maximum of once only each year, effective from the start date of the next annual payment or the end of a pre-paid contract period, whichever is the later.
9. The Licensor has the right to change this Agreement at any time. The Licensor will notify the Licensee at least 30 days in advance of any changes that will apply to the Licensee. If the Licensee does not wish to accept the changes, the Licensee must notify the Licensor with written notice, and or email, to terminate their current Agreement at least seven days before the new Agreement takes effect.
10. In circumstances not covered by Clause 9, this Agreement may be terminated by:
    a. The Licensee with written notice, and or email, of at least one month prior to the due date of the next annual payment;
    b. The Licensor with one month’s written notice, and or email. This agreement will be terminated immediately at any time if the Licensee breaches any term on this Agreement.
11. If this Agreement is terminated, please note that any fees or other amounts paid by the Licensee in advance will not be refunded by the Licensor.
12. The Licensee may resume this agreement once it has been terminated. The fee to resume this agreement is identical to the one in Clause 7.
13. The Licensor may assign, novate, transfer or otherwise deal with any or all of its rights, obligations or interests under this Agreement, or in respect of the NEO Software Support and Upgrade Service, to another person or entity (Transfer), provided that:
    a. the Licensor gives the Licensee written notice of the proposed Transfer at least 30 days before the Transfer takes effect;
    b. the notice identifies the person or entity to whom the Agreement, or the relevant rights, obligations or interests, are to be transferred, and the proposed effective date of the Transfer;
    c. if the Licensee does not agree to the Transfer, the Licensee may terminate this Agreement by giving written notice to accounts@iesys.com at least seven days before the Transfer takes effect;
    d. if the Licensee terminates this Agreement under clause 14.c, the termination will take effect on the day before the Transfer takes effect and no early termination fee or other penalty will be payable by the Licensee; and
    e. if the Licensee does not terminate this Agreement under clause 14.c, the Licensee will be taken to have accepted and agreed to the Transfer, including any novation, substitution or release reasonably required to give effect to the Transfer.
14. The Licensee must not assign, novate, transfer or otherwise deal with any or all of its rights, obligations or interests under this Agreement without the Licensor’s prior written consent. The Licensor may give or withhold its consent in its discretion.
15. This Agreement shall be governed by the laws of New South Wales, Australia.