The Licensor warrants that all support and upgrade 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 PROPHET Software Support and Upgrade Services:

   a. Support as necessary for problems and warranty claims relating to Current Version (N) and Prior Version (N-1) of the PROPHET software.

   b. Reasonable commercial effort made to acknowledge receipt of a request for support on receipt of the request case within one working day:

   c. For bugs in the PROPHET software or problems due to fault of the Licensor a support case will be raised by the Licensee by telephone, email or on-site support as necessary

   d. Licensor will make reasonable efforts to identify the cause of the problem and will supply a solution or, where this is not possible, a work-around, if feasible, until a solution is available;

   e. General enhancements, upgrades and documentation relating to the current PROPHET version, including requested enhancements which the Licensor considers are of general interest and has implemented.

   f. 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.f:

   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 to the terms of the offer made under Sub-clause 2.b.

   d. Note that new feature enhancements will be made to the current release but not N-1 version or earlier.

   e. The Software is warranted to operate substantially in accordance with its published specifications for the duration of the Warranty Period.

   f. The warranty is void if:

   i. The Software has been modified without written approval.

   ii. The issue results from use not in accordance with documentation.

   iii. The version in use is older than N-1.

3. Exclusions

   a. Support for versions older than N-1 is not covered.

   b. Custom code, integrations, or third-party software are excluded from the warranty.

   c. Issues arising from non-supported environments or infrastructure are not covered.

4. End of Support for N-1

   a. When a new version is released (N+1), the previous N-1 version will move into End-of-Life (EOL) status.

   b. EOL versions are no longer eligible for support or warranty, including security patches and updates.

5. All provisions applying to the original version of PROPHET supplied under the PROPHET Licence Agreement will also apply to any upgrades of PROPHET supplied under this Agreement.

6. 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 PROPHET; 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. Making good any software problems which, in the opinion of the Licensor, have resulted from:

   i. changes in the Licensee’s software environment not within the control of the Licensor; or

   ii. accessing the PROPHET database other than through the PROPHET user interface

7. Assistance provided to the Licensee that is not covered by the Terms of this Agreement will be charged at the Licensor’s standard consulting rates less 20%.

8. The Licensor reserves the right to vary the Agreement of the PROPHET Software Support and Upgrade Agreement provided that the Licensee is given at least one month’s notice in writing prior to the due date of the next annual payment.

9. This Agreement may be terminated by:

   a. The Licensee with written notice of at least one month prior to the due date of the next annual payment;

   b. The Licensor with written notice of:

   i. one month, if the fee for the PROPHET Software Support and Upgrade Service is not received by the due date provided that the Licensee has not rectified the nonpayment within one month of receipt of a notice of termination, or

   ii. six months otherwise

10. 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 PROPHET Software Support and Upgrade Services, 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 11.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 11.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.

11. 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.

12. This Agreement shall be governed by the laws of New South Wales, Australia.