SOFTWARE SUPPORT AND

MAINTENANCE AGREEMENT
 Software Support and Maintenance Agreement – 11/2017

TABLE OF CONTENTS

DEFINITIONS AND INTERPRETATION ............................................................................................................. 1

1.1 Definitions ................................................................................................................................................................1
1.2 Interpretation...........................................................................................................................................................5
TERM ............................................................................................................................................................ 6
PROVISION OF SERVICES ............................................................................................................................... 6
3.1 Services.....................................................................................................................................................................6
3.2 Additional Services ...................................................................................................................................................6
3.3 Exclusions .................................................................................................................................................................6
3.4 Additional Software..................................................................................................................................................7
3.5 Standard of Services .................................................................................................................................................7
NEW RELEASES .............................................................................................................................................. 8
4.1 Offer of Releases ......................................................................................................................................................8
4.2 Acceptance of Release..............................................................................................................................................8
4.3 Enterprise Software Releases ...................................................................................................................................8
SERVICE LEVELS ............................................................................................................................................. 8
5.1 Platform and Data Input Requirements ...................................................................................................................8
5.2 Service Levels ...........................................................................................................................................................9
5.3 Substitution of hardware and software....................................................................................................................9
5.4 Completion of services .............................................................................................................................................9
5.5 Mutual Cooperation .................................................................................................................................................9
CUSTOMER'S OBLIGATIONS .........................................................................................................................10
6.1 Information ............................................................................................................................................................10
6.2 General ...................................................................................................................................................................10
6.3 Access .....................................................................................................................................................................11
FEES, EXPENSES AND PAYMENT ...................................................................................................................11
7.1 Fees ........................................................................................................................................................................11
7.2 Fees for additional licenses ....................................................................................................................................11
7.3 Interest ...................................................................................................................................................................11
7.4 Quotations..............................................................................................................................................................12
7.5 Disputes..................................................................................................................................................................12
7.6 VAT .........................................................................................................................................................................12
INTELLECTUAL PROPERTY RIGHTS ................................................................................................................12
CONFIDENTIALITY ........................................................................................................................................13
9.1 Access to Confidential Information ........................................................................................................................13
9.2 Obligations of Confidence ......................................................................................................................................13
9.3 Survival ...................................................................................................................................................................13
FORCE MAJEURE ..........................................................................................................................................13
TERMINATION..............................................................................................................................................13
11.1 Termination of EULA ..............................................................................................................................................13
11.2 Termination by Customer.......................................................................................................................................13
11.3 Termination by Deswik...........................................................................................................................................14
11.4 After termination ...................................................................................................................................................14
11.5 Effect of Termination on Updates ..........................................................................................................................14
DISCLAIMER AND LIMITATION OF REMEDIES ...............................................................................................15
12.1 No Warranty...........................................................................................................................................................15
REPRESENTATIVES........................................................................................................................................15
NON-SOLICITATION ......................................................................................................................................16
RELATIONSHIP..............................................................................................................................................16
ASSIGNMENT OR OTHER TRANSFER .............................................................................................................16
DISPUTE RESOLUTION ..................................................................................................................................17

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17.1 Agreement to Participate in Dispute Resolution ....................................................................................................17

17.2 Dispute notice ........................................................................................................................................................17
17.3 Notice in response..................................................................................................................................................17
17.4 Initial meeting ........................................................................................................................................................17
17.5 Mediation ...............................................................................................................................................................17
17.6 Agreement remains in force...................................................................................................................................17
17.7 Injunctions..............................................................................................................................................................18
17.8 Survival ...................................................................................................................................................................18
NOTICES .......................................................................................................................................................18
MISCELLANEOUS ..........................................................................................................................................19
19.1 Governing Law and Jurisdiction..............................................................................................................................19
19.2 Entire Agreement ...................................................................................................................................................19
19.3 Survival ...................................................................................................................................................................19
19.4 Counterparts ..........................................................................................................................................................19
19.5 Waivers...................................................................................................................................................................19
19.6 Costs and expenses ................................................................................................................................................19
19.7 Further Action ........................................................................................................................................................19
19.8 No Merger ..............................................................................................................................................................20
19.9 Severance ...............................................................................................................................................................20
SCHEDULE A SERVICE DESCRIPTION ....................................................................................................................21
SCHEDULE B SERVICE LEVEL TARGETS .................................................................................................................23

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THIS AGREEMENT IS MADE ON THE COMMENCEMENT DATE

between Deswik Mining Consultants (Pty) Ltd (Registration number 2007/001686/07) of

Building 3, Clearwater Office Park, Cnr Christiaan de Wet & Millenium Roads,
Gauteng 1735 (Deswik)

and The party identified in the Proposal (Customer)

RECITALS

A. Deswik is the owner or authorised reseller of the Software and has procured the necessary
licenses for the Customer to use the Software under the terms of the EULA.

B. Deswik is in the business of supplying various services, including maintenance and technical
support services for the Software.

C. The Customer wishes to engage Deswik to provide technical support and maintenance services
for the Software on the terms of this Agreement.

IT IS AGREED:

DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this Agreement unless the contrary intention is apparent or the context otherwise requires:

Access means any interaction or communication with the System by way of any communications
mechanism using guided or unguided electro-magnetic energy that causes the System to react or
respond, in any manner whatsoever, to such interaction or communication and Accessing has a
corresponding meaning.

Accessible Code means source code that is unprotected and accessible in the Software and includes,
without limitation, scripts, macros, custom reports and workflows.

Additional Services means any additional services requested by the Customer from time to time
including any varied services or the provision of any Excluded Services.

Assisted Upgrade means an upgrade of an Enterprise Software product to a new Major Version which
is supervised by Deswik.

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Business Day means a day that is not a Saturday, Sunday or a public holiday in the location of the
Deswik Support Office.

Commencement Date means the date specified in the Proposal or as otherwise agreed in writing
between the parties.

Confidential Information means information relating to a party's Intellectual Property or to a party's

business operations including, without limitation:

(a) any information that is designated by a party as confidential;

(b) the Software including the source codes;
(c) all information given or obtained in circumstances where it could reasonably be inferred as being
confidential;
(d) the terms of this Agreement; and
(e) all know-how, techniques, processes and commercial and financial information of a party,

but does not include information that:

(f) becomes publicly available other than as a result of a breach of clause 9;

(g) is authorized, permitted or directed to be disclosed by the other party;
(h) is required to be disclosed by law; or
(i) is required to be disclosed to a party's legal or financial advisers.

Desktop Software or Desktop Application means Software designated by Deswik as a “desktop”

product, commonly part of the “Deswik.Suite”, and which, in general terms, is only comprised of an
application that resides on the user’s PC or laptop. Desktop Software does not have an application or
database server as part of the standard solution. These products are licensed on a “Concurrent User”
basis.

Deswik Support Office means the location of Deswik's office or agency identified in Schedule A.

Embedded Software means any third party software which may contain Accessible Code or Protected
Code licensed by Deswik from a third party and embedded in the Software.

Enterprise Software or Enterprise Application means Software designated by Deswik as an

“Enterprise” product and which, in general terms, has a dedicated application or database server as
part of the overall solution. These products are licensed on a “Named User per Site” basis.

Error means a verifiable and reproducible failure of the Software to conform in any material respect to
the published specifications under conditions of normal use. Error does not include any failure caused
by the matters referred to in clause 3.3.

Error Correction means a modification or addition that, when made or added to the Software, brings
the Software into material conformity with the published specifications.

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EULA means the End User License Agreement between Deswik and the Customer in respect of the
Software.

Excluded Services means those excluded services and support identified in clause 3.3 and Schedule B.

Expiry Date means 12 months from the Commencement Date, or as otherwise agreed in writing
between the parties.

Fees means the fees set out or calculated in the manner specified in the Proposal.

Financially Distressed means, in relation to a person:

(a) the person appears to be reasonably unlikely to be able to pay all of its debts as they become
due and payable within the immediately ensuing six months, or
(b) the person appears to be reasonably likely to become insolvent within the immediately ensuing
six months.

Force Majeure Event means any occurrence or omission outside a party's control including, without
limitation:

(a) a physical natural disaster including fire, flood, lightning or earthquake or the after-effects of a
physical natural disaster (including without limitation, electricity or telecommunication disruption
or travel disruptions or restrictions);
(b) war or other state of armed hostilities (whether war is declared or not), insurrection, riot, civil
commotion, act of public enemies, national emergency (whether in fact or in law) or declaration
of martial law;
(c) epidemic or quarantine restriction;
(d) failure of a third party service provider’s business;
(e) confiscation, nationalization, requisition, expropriation, prohibition, embargo, restraint or
damage to property by or under the order of any government agency;
(f) any law taking effect after the date of this agreement which has an adverse impact on Deswik's
ability to provide the Services; and
(g) strike, lock-out, stoppage, labor dispute or shortage including industrial disputes that are specific
to a party or the party's subcontractors.

Insolvency Event means:

(a) a receiver, liquidator, curator, business rescue practitioner, trustee or similar official being
appointed over any of the assets or undertaking of the person;
(b) the person suspending payment of its debts generally;
(c) the person is or becomes Financially Distressed;
(d) the person enters into or resolves to enter into any arrangement, scheme or compromise with,
or assignment for the benefit of, its creditors generally or any class of them;
(e) an application or order is made for the winding-up, sequestration or dissolution of, or the
appointment of a provisional liquidator to, the person, or a resolution is passed or steps are taken

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to pass a resolution for the winding-up, sequestration or dissolution of the person otherwise than
for the purpose of an amalgamation or reconstruction, or steps are taken to commence business
rescue proceedings under the Companies Act, 2008. or
(f) the person commits any act of insolvency as provided for in section 8 of the Insolvency Act, 1936.

Intellectual Property includes patents, designs, registered designs, copyright, literary and artistic
works, circuit layouts, registered and unregistered trademarks, trade and business names, trade
secrets, applications of any of the above, as well as rights in and to inventions, discoveries,
improvements, look and feel, works and names, including Software.

Intellectual Property Rights means the rights comprised in any Intellectual Property or other
proprietary rights whether at common law or by statute, rights to apply for registration under a statute
in respect of those or like rights and rights to protect goodwill or confidential information.

Interest means payment of interest calculated on a daily basis and capitalized monthly at the rate
which is 2% in excess of the publicly quoted basic rate of interest from time to time published by a
major South African Bank (or its successor-in-title) as being its prime overdraft rate as certified by any
manager of such bank, whose appointment and designation need not be proved.

Major Version means a new release where the first or second numbers in the version number of the
Enterprise Software product changes. For example, a change from 2016.1 to 2016.2, or 2016.2 to
2017.1, would be considered a major version release; but a change from 2016.2.1515 to 2016.2.1959
would not be considered a major version release.

Monthly Licenses means the licenses of that name granted to the Customer by Deswik from time to
time. This type of license is purchased in monthly increments with expiration dates based on Fees paid.

Moral Rights means the rights of integrity of authorship, rights of attribution of authorship, rights not
to have authorship falsely attributed, and rights of a similar nature conferred by statute, that exist, or
that may come to exist, anywhere in the world, in the Services.

Permanent Licenses means the licenses of that name granted to the Customer by Deswik from time
to time. This type of license is perpetual and never expires.

Proposal means the proposal provided by Deswik to the Customer in respect to the Services and the
Software.

Protected Code means any source code which Deswik or a third party has taken steps to protect from
access.

Release means any new version of the Software, including Error Corrections and Updates.

Service Levels means the service level targets set out in Schedule B.

Services means the services identified in Schedule A.

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Software means the software that accompanies the EULA, including computer software, Accessible
Code, Protected Code and associated media, printed materials, 'online' or electronic documentation,
internet based services and Embedded Software.

Subscription Licenses means the licenses of that name granted to the Customer by Deswik from time
to time. This type of license is purchased in 6 month or 12 month increments with expiration dates
based on Fees paid.

Supply means a supply or taxable supply, as the case may be, as defined in the VAT Act.

Supported Software means the supported software identified in the Proposal.

System means the designated information technology environment in which the Software is to be
used.

Tax Invoice has the meaning given to that term in the VAT Act.

Term means the term of this Agreement specified in clause 2.

Update means a new version of all or part of the Software which Deswik makes available including
minor modifications or improvements to the Software.

VAT Act means the Value-added Tax Act, 1991.

VAT means value-added tax imposed in terms of the VAT Act and including any similar tax which may
be imposed in its place from time to time.

1.2 Interpretation

In this Agreement, unless otherwise stated:

(a) a reference to this Agreement is a reference to this Agreement as amended, varied, novated,
supplemented or replaced from time to time;
(b) a reference to any legislation includes any amendment or replacement and all subordinate
legislation;
(c) an expression which denotes any gender includes both the others; reference to a natural person
includes a juristic person; the singular includes the plural, and the plural includes the singular;
(d) a reference to a party to this Agreement or any other instrument includes that party's executors,
administrators, successors and permitted assigns;
(e) where a word or phrase is defined or given meaning, any other part of speech or grammatical
form has a corresponding meaning;
(f) a reference to a clause, schedule or annexure is a reference to a clause, Schedule or Annexure of
this Agreement;
(g) where an act would be required to be done, or a time limit or period would expire, on a day which
is not a Business Day, the act may be done, or the limit or period will expire, on the following
Business Day;

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(h) a provision of this Agreement must not be construed to the disadvantage of a party merely
because that party was responsible for the preparation of the document or the inclusion of the
provision in the Agreement;
(i) a reference to two or more persons means those persons jointly and severally.

TERM

(a) Subject to clause 2(b), this Agreement has effect from the Commencement Date and, unless
terminated earlier in accordance with the provisions of this Agreement, remains in force until the
Expiry Date.
(b) If, prior to the Expiry Date the parties agree in writing that this Agreement is to have effect for a
mutually agreed period after the Expiry Date, then this Agreement, unless terminated earlier in
accordance with the provisions of this Agreement, remains in force until the expiration of that
period.

PROVISION OF SERVICES

3.1 Services

Subject to the Customer paying the Fees, during the Term Deswik will provide the Customer with the
Services in accordance with the terms of this Agreement.

3.2 Additional Services

(a) Upon the agreement of both parties, Deswik may provide Additional Services to the Customer
from time to time at the rates applicable at the time. These services may include (without
limitation):
(i) additional training of the Customer's personnel;
(ii) detailed assistance applying the software to a specific project; or
(iii) development of enhancements to the Software for the Customer's specific use.
(b) If the Customer requests Deswik to provide Additional Services or services which are significantly
different from the Services, Deswik will advise the Customer as soon as reasonably possible of
the likely additional Fees and associated terms and conditions in providing the additional or
varied services.
(c) Until the price and terms for the Additional Services is agreed in writing by the parties, Deswik
will not be obligated to provide the Additional Services or varied Services. These services will be
provided under a separate agreement.

3.3 Exclusions

The Customer acknowledges that the Services do not include any services for the support of the
Software or the correction of faults, errors or defects arising as a result of:

(a) misuse, improper use, alteration or damage to the Software;

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(b) a combination of the Software with other programs or equipment that has not been approved
by Deswik;
(c) the use by the Customer of a superseded or unsupported Release;
(d) the operation of the Software in a manner that contravenes the Customer's obligations under
the EULA;
(e) failure by the Customer to operate or use the Software in accordance with the EULA or any user
documentation or such other direction of Deswik;
(f) use by the Customer of the Software in an information technology environment or platform
different from that specified by Deswik on its website from time to time;
(g) equipment or System maintenance or programming on the System performed by a person other
than Deswik or its authorized personnel; or
(h) modifications to the Software or the System made by the Customer or by a third party not
specifically authorized by Deswik to undertake those modifications.

3.4 Additional Software

Should any additional Software licenses be purchased during the Term:

(a) In the case of Permanent Licenses, the maintenance Fees will be pro-rated till the Expiry Date and
these licenses will be added to the Supported Software.
(b) In the case of Subscription Licenses, the license Fees will be pro-rated till the Expiry Date and
these licenses will be added to the Supported Software.
(c) In the case of Monthly Licenses, the licenses will be subject to their own support and maintenance
agreement.
(d) The Customer may request that support of certain bundles of licenses be subject to their separate
support and maintenance agreements, in which case the expiry dates of these agreements may
not coincide.

3.5 Standard of Services

Deswik will:

(a) provide the Services honestly and diligently at a professional standard of skill, care and diligence
appropriate for an expert in its field and in accordance with all relevant industry professional
standards;
(b) comply with all applicable South African laws and regulations and all permits, licenses,
authorizations and accreditations applying to Deswik or the Services;
(c) take steps to ensure that only Deswik personnel who need to Access the Customer's System to
undertake the Services have Access to the System;
(d) maintain the confidentiality of the Customer's Confidential Information in accordance with clause
9; and
(e) comply with all lawful directions given by the Customer in respect to Access.

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NEW RELEASES

4.1 Offer of Releases

From time to time Deswik may provide the Customer with new Releases applicable to the Software, the
cost of which is included in the Fees.

4.2 Acceptance of Release

(a) Subject to clause 4.3, the Customer is not obliged to accept or install a Release.
(b) If the Customer elects not to accept or install a new Release:
(i) Deswik will not be liable for any loss or damage that the Customer suffers as a result of
any Defects in the Software which are remedied by the Release;
(ii) the Customer acknowledges that Deswik may not be able to adequately support or
remedy the Customer’s issues; and
(iii) the Customer acknowledges that support is only provided on the Releases specified in
Schedule A.
(c) If the Customer accepts a Release (by downloading and installing it):
(i) this Agreement will continue to apply in all respects to the Release; and
(ii) the Customer will delete all copies of the Software or part of the Software which have
been superseded by the Release or otherwise deal with all copies in accordance with
Deswik's reasonable directions.

4.3 Enterprise Software Releases

(a) If the Customer is using Enterprise Software, the Customer must accept and install at least one
Major Version at least once per calendar year.
(b) Installation of any Major Version must be by way of an Assisted Upgrade.

SERVICE LEVELS

5.1 Platform and Data Input Requirements

(a) Deswik will undertake the Services on the basis of minimum hardware and software criteria,
specified by Deswik on its website from time to time, which are required as part of the Customer's
System.
(b) The Customer acknowledges and agrees that if the Customer's System:
(i) does not meet these criteria;
(ii) does not meet any other minimum hardware or software requirements specified by
Deswik; or
(iii) the Customer's data is not of sufficient quality or is compatible with Deswik's supported
formats (as specified by the software documentation),

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Deswik may be unable to provide the Services to the required standard or the Customer may
be unable to receive the benefit of the Services.

5.2 Service Levels

(a) Service Levels are based on Deswik's reasonable assessment of the standards which are able to
be achieved but are indicative and non-binding targets only.
(b) Deswik shall use its reasonable endeavors to complete the Services within the timeframe
estimated and will notify the Customer as soon as reasonably possible upon becoming aware of
any matter that may delay the indicated time for completion.

5.3 Substitution of hardware and software

Where Deswik provides the Customer with any hardware or Software (including Releases):

(a) risk in the hardware, Software or Releases passes to the Customer on delivery to the Customer;
but
(b) title to that hardware or Software does not pass to the Customer until payment in full to Deswik
of the Fees attributable to that hardware or Software; and
(c) Deswik may substitute or modify the hardware or Software prior to delivery if, in the reasonable
opinion of Deswik, that substitution or modification will have no adverse effect on the capacity
or performance of the hardware or Software.

5.4 Completion of services

(a) The Customer must:

(i) notify Deswik in writing as soon as the Customer becomes aware of any defects in the
Services; or
(ii) provide Deswik with an email confirming successful completion of any Services Deswik
advises the Customer have been completed.
(b) If the Customer does not notify Deswik of any defects under clause 5.4(a)(i) or provide Deswik
with an email confirming successful completion of the Services within 14 days of Deswik notifying
the Customer that the relevant Services are complete, the Customer is deemed to have accepted
the Services.
(c) If the Customer notifies Deswik of any defects under clause 5.4(a)(i), Deswik will, as soon as
possible investigate and (where applicable) undertake rectification of the defects. Upon
completion of any defect rectification the Customer must promptly provide an email notification
of the successful completion of the services, unless further defects exist. In this case, the
Customer is further required to notify Deswik of such defects.

5.5 Mutual Cooperation

Both parties will:

(a) inform the other party as soon as practicable of any unforeseen changes, new developments, or
other issues that impact and influence the Services; and

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(b) wherever reasonably possible, accommodate each other’s scheduling requirements.

CUSTOMER'S OBLIGATIONS

6.1 Information

(a) The Customer acknowledges and agrees that, in providing the Services, Deswik is reliant upon
the accuracy and completeness of the information provided to Deswik by the Customer.
(b) The Customer agrees and accepts that the description, scope, extent, quantity and timeframes
and all other attributes of the Services set out in this Agreement are in accordance and are an
accurate interpretation of the Customer's requirements and the Customer's System.

6.2 General

To enable Deswik to provide the Services the Customer must:

(a) in order to enable Deswik to provide the Services within any indicative timeframes, provide:
(i) timely access to the Customer's key personnel;
(ii) timely Access to all required Systems and data (including, where necessary or desirable,
administrative access);
(iii) timely access to premises, including any necessary security clearances, where required;
(iv) all items identified as prerequisites in the Proposal;
(v) internal stakeholder communication and engagement; and
(vi) internal project management;
(b) use reasonable endeavors to respond promptly and accurately to all reasonable requests by
Deswik to provide information required for the performance of the Services;
(c) ensure that all information provided to Deswik is accurate and complete and is not incomplete
or misleading;
(d) permit Deswik's personnel involved with providing the Services to access the Customer's System
and relevant documentation, as required, to enable Deswik to properly perform the Services;
(e) where access to a Customer's premises is required, ensure the Customer's premises are safe and
comply with all relevant occupational health and safety legislation, regulations and industry
standards;
(f) where relevant, make available to Deswik suitable personnel of the Customer to:
(i) provide information about the Customer's System and information technology
environment;
(ii) resolve queries; and
(iii) provide such other information and assistance as is reasonably requested by Deswik and
its personnel in relation to the provision of the Services.

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6.3 Access

(a) During the Term, the Customer must provide Deswik with:
(i) non-exclusive access to the Customer's premises or any other location where the System
is located to the extent necessary to enable Deswik to perform the Services; and
(ii) Access to the System, whether by attendance at the Customer's premises or other
location where the System is located and utilizing the Customer's computers and
hardware or by way of remote access.
(b) Deswik will ensure its personnel, when using the Customer's premises or facilities:
(i) comply with all rules, directions and procedures, including those relating to security or
occupational health and safety, which are in effect at the premises or facilities;
(ii) avoid unnecessary interference with the passage of people and vehicles; and
(iii) not create a nuisance or unreasonable noise or disturbance.

FEES, EXPENSES AND PAYMENT

7.1 Fees

(a) The Customer must pay Deswik the Fees for the Services.
(b) Deswik will issue an invoice to the Customer for the Fees and the Customer must pay Deswik the
Fee within 30 days of receipt a tax invoice from Deswik.
(c) In addition to the Fee, Deswik must, upon presentation to the Customer of receipts or other
formal evidence, be reimbursed for:
(i) all reasonable out-of-pocket expenses; and
(ii) all reasonable travel costs,

incurred by Deswik in performing the Services.

(d) Deswik may change its Fees from time to time by notification to the Customer.

7.2 Fees for additional licenses

(a) If the Customer purchases any additional software licenses during the Term:
(i) the terms of the EULA will apply to that Software;
(ii) additional Fees will apply based on Deswik’s pricing model at the time of purchase; and
(iii) the Customer may request that support for these additional software licenses be added
to this agreement. In this case, the maintenance fees for Perpetual Licenses, or the
Subscription fees, as appropriate, will be calculated on a pro rata basis.

7.3 Interest

Deswik may charge the Customer Interest on any monies owing under this Agreement which are not
paid within the period specified in this Agreement.

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7.4 Quotations

Where at any time Deswik provides a quotation to the Customer (including but not limited to as part of
any Proposal) the Customer acknowledges and agrees that the quotation is:

(a) based on Deswik's reasonable assessment of the time and materials required to undertake the
work based on the information available to Deswik at the time of preparing the quotation; and
(b) indicative only and is not binding on Deswik.

7.5 Disputes

If at any time the Customer disputes an amount included in a Tax Invoice, the Customer must
immediately pay the amount not in dispute.

7.6 VAT

(a) The amounts payable by the Customer to Deswik for, or in connection with, any Supply under
this Agreement do not include VAT.
(b) The Customer must pay Deswik an additional amount for VAT equal to the amounts payable by
the Customer for the Supply multiplied by the prevailing VAT rate.
(c) VAT is payable at the same time and in the same manner as the amounts payable by the
Customer are required to be paid to Deswik.
(d) The Customer is not required to pay VAT until Deswik has provided the Customer with a Tax
Invoice.
(e) To the extent that the amounts for the Supply consist of the reimbursement or indemnity for any
liabilities, costs or expenses incurred by Deswik, in this Agreement the amount of those liabilities,
costs or expenses are deemed to be net of any refund or input tax credit of VAT to which Deswik
is entitled as a result of incurring the liability, cost or expense.

INTELLECTUAL PROPERTY RIGHTS

The Customer acknowledges that:

(a) the rights granted to the Customer in the Software and all Updates are a license only on the terms
of the EULA;
(b) the Intellectual Property Rights in the Software and all Updates are owned by Deswik or relevant
third parties under the terms of the EULA; and
(c) all Intellectual Property Rights created as a result of or in the course of Deswik providing the
Services to the Customer and all Intellectual Property Rights in and to all documents and any
other subject matter created for the purposes of, or in the course of, Deswik providing the
Services to the Customer will, upon their creation, be assigned to and vest entirely in Deswik.

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CONFIDENTIALITY

9.1 Access to Confidential Information

Each party acknowledges that the other party, its employees or agents, may be given access to
Confidential Information relating to the other parties' business or the operation of this Agreement or
any negotiations relating to this Agreement.

9.2 Obligations of Confidence

Each party undertakes to:

(a) hold in strict confidence all Confidential Information which comes into its possession; and
(b) as far as commercially feasible, to take the same degree of care as the recipient uses to protect
its own Confidential Information.

9.3 Survival

The obligations of confidence in this clause 9 survive expiry or termination of this Agreement.

FORCE MAJEURE

Neither party will be:

(a) in breach of this agreement as a result of; or

(b) liable for,

any failure or delay in the performance of that party's obligations under this Agreement to the extent
that the failure is caused by a Force Majeure Event.

TERMINATION

11.1 Termination of EULA

(a) This agreement will terminate if for any reason whatsoever the EULA is terminated.
(b) If this Agreement is terminated under clause 11.1(a), Deswik will not be under any obligation to
refund any Fees already paid by the Customer under this Agreement or the EULA.

11.2 Termination by Customer

Without prejudice to any rights or remedies of the Customer, the Customer may, by at least seven (7)
days’ notice in writing to Deswik, terminate this Agreement if:

(a) Deswik breaches its obligations under this Agreement and:

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(i) the breach is not capable of remedy;

(ii) if capable of remedy, the breach is not remedied within 30 days of receipt of written
notice by Deswik requiring the breach to be remedied,

unless the breach, having regard to its nature, importance or the actions being taken by Deswik
during the period to correct any Error, does not justify termination; or

(b) an Insolvency Event occurs in respect to Deswik.

11.3 Termination by Deswik

Without prejudice to any rights or remedies of Deswik, Deswik may, by at least seven (7) days’ notice in
writing to the Customer, terminate this Agreement if:

(a) the Customer fails to pay an undisputed invoice within thirty days of receipt of that invoice and
persists in that failure for a period of fourteen days after receipt of notice given by Deswik to the
Customer
(b) the Customer breaches its obligations under this Agreement and:
(i) the breach is not capable of remedy;
(ii) if capable of remedy, the breach is not remedied within 30 days of receipt of written
notice by the Customer requiring the breach to be remedied,

unless the breach, having regard to its nature and importance does not justify termination; or

(c) an Insolvency Event occurs in respect to the Customer.

11.4 After termination

(a) Termination of this Agreement does not affect any accrued right or liability of either party nor will
it affect the coming into force or the continuation in force of any provision of this Agreement that
is expressly or by implication intended to come into or continue in force on or after the
termination.
(b) The Customer must promptly pay to Deswik all money due and owing as at the date of
termination of this Agreement.
(c) Deswik must promptly deliver up or return to the Customer the Confidential Information
including documents, reports and records of the Customer's in Deswik's possession, custody or
control.
(d) The Customer must promptly deliver up or return to Deswik the Confidential Information
including documents, reports and records of Deswik in the Customer's possession, custody or
control.
(e) Deswik must upon receiving a notice of termination arrange for an orderly cessation of work in
accordance with any written advice from the Customer.

11.5 Effect of Termination on Updates

If a new agreement is not entered into at the expiry or termination of this Agreement, the Customer
will not be eligible to Updates to the Software.

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DISCLAIMER AND LIMITATION OF REMEDIES

12.1 No Warranty

(a) Deswik takes commercial steps to provide the Services so as to meet the Customer's
requirements and ensure the Software and any Releases are error free. However, Deswik makes
no representation and gives no warranty that:
(i) the Services, Software and any Releases will be error free, meet the Customer's
requirements or be fit for any particular purpose; or
(ii) the Services will be performed within any particular time.
(b) Under no circumstances will Deswik be liable for any incidental, special, indirect, direct or
consequential damages or loss of profits, interruption of business, loss of business opportunity
or goodwill, any claims for indirect, special or punitive damages, third party claims or any indirect
or consequential losses or related expenses which may arise from installation or use of the
Software, including but not limited to those resulting from defects in the Software, or loss or
inaccuracy of data of any kind and whether or not Deswik has any notice of the possibility of such
damages.
(c) If Deswik breaches any provision of this agreement, Deswik’s sole and exclusive maximum
liability, whether based in contract, tort, or otherwise, will not in any event exceed the lesser in
value of:
(i) the total price paid for the Services during the twelve month period immediately prior to
the event of causation;
(ii) re-performing the Services; or
(iii) re-performance of the Services by a third party reasonably acceptable to Deswik.
(d) The Customer agrees that the Customer must commence any action arising out of or related to
this Agreement and the Services or the Customer's use of the Software or other Services within
one (1) year of the loss or damage arising. After that time the Customer agrees that any cause of
action will be permanently barred.
(e) Nothing in this Agreement is intended or will be construed as excluding or modifying any
statutory rights, warranties or conditions which are applicable to this Agreement or the Software
and which by virtue of any legislation may not be modified or excluded.

REPRESENTATIVES

Each party will on the Commencement Date and from time to time if a nominated representative is
replaced, advise the other party of the name and contact details of their nominated representative to:

(a) facilitate communication between the parties and facilitate the provision of the Services;
(b) provide any information required by a party in respect to the Services;
(c) deal with any issues which arise in respect to the Services or this Agreement; and
(d) receive any notices given under this Agreement.

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NON-SOLICITATION

(a) Each party will not:

(i) during the Term; or
(ii) for a period of six months after the Term or any extension of the Term,

employ or solicit the services of, or offer employment to, any employee of the other party.

(b) A general solicitation for employment such as a newspaper advertisement will not constitute a
breach of clause 14(a).

RELATIONSHIP

(a) The Customer and Deswik acknowledge and agree that:

(i) the relationship between the parties is that of independent contractors and not of
employer and employee, partners, joint venturers, fiduciaries or principal and agent;
(ii) Deswik has no voting rights nor management control in respect of the Customer or any
part of the Customer or its business;
(iii) Deswik has no power to bind the Customer and must not represent himself as having any
position of authority nor ability to bind the Customer in any way.
(b) Deswik must disclose to the Customer, all actual and potential material conflicts of interest that
exist, arise or may arise in the course of performing the Services as soon as practical after he
becomes aware of that conflict.

ASSIGNMENT OR OTHER TRANSFER

(a) The Customer can only assign this Agreement to succeeding parties in the case of a merger,
acquisition or change of control if:
(i) the Customer notifies Deswik within sixty (60) days of the assignment;
(ii) the assignee agrees in writing to be bound by the terms and conditions of this Agreement;
and
(iii) upon assignment or transfer, the assigning Customer makes no further use of the
Software and deletes or destroys all copies of the Software in its possession, custody or
control and provides evidence of deletion or destruction to Deswik's satisfaction.
(b) Any purported assignment or transfer of the Software by the Customer other than in accordance
with the requirements of this clause 16 will be void and will entitle Deswik to terminate this
Agreement in accordance with clause 11.
(c) Deswik may assign its rights and obligations under this Agreement without the consent of the
Customer. Any permitted assignee shall be bound by the terms and conditions of this Agreement.

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DISPUTE RESOLUTION

17.1 Agreement to Participate in Dispute R esolution

The parties agree to comply with the dispute resolution provisions of this clause 17 in respect to any
dispute which arises between the parties in respect to this Agreement or the EULA prior to
commencing any litigation or arbitration.

17.2 Dispute notice

If there is a dispute between the parties, then either party may give a notice to the other succinctly
setting out the details of the dispute and stating that it is a dispute notice given under this clause 17.1.

17.3 Notice in response

Within 5 Business Days after the delivery of the dispute notice, the recipient must deliver to the other
party a notice in response:

(a) acknowledging the party's receipt of the dispute notice;

(b) stating that it is a notice given under this clause 17.3; and
(c) succinctly setting out any information it believes is directly relevant to the dispute.

17.4 Initial meeting

(a) The parties must meet within 10 Business Days after the date of delivery of the dispute notice
and attempt to resolve the dispute.
(b) Each party must use its best endeavors to resolve the dispute and act in good faith.

17.5 Mediation

(a) If the dispute is not resolved within 10 Business Days of the meeting held pursuant to clause 17.4
or such further period as the parties may agree, any party may refer the dispute to the Arbitration
Foundation of Southern Africa or its successor-in-title (Arbitration Foundation of Southern Africa
or its successor-in-title (AFSA) for mediation.
(b) The mediation will be conducted in accordance with the then current AFSA mediation rules which
set out the procedures to be adopted, the process of selection of a mediator and the costs
involved.

17.6 Agreement remains in force

The parties must each continue to perform their respective obligations under this agreement pending
resolution of the dispute.

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17.7 Injunctions

Nothing in this clause 17 shall preclude any of the parties from access to an appropriate court of law
for interim relief in respect of urgent matters by way of an interdict, or mandamus pending finalisation
of this dispute resolution process.

17.8 Survival

This clause 17 survives rescission, termination or expiry of this Agreement.

NOTICES

(a) Each party chooses the physical address, fax number and/or email address corresponding to its
name below as the address to which any notice must be sent.
Deswik:
Physical address: Building 3, Clearwater Office Park
Cnr Christiaan de Wet & Millenium Roads
Gauteng 1735
Email address: [email protected]
Marked for the attention of: Managing Director
Customer:
As per the Proposal.

(b) Any party may by notice to the other party change its address at which legal process and other
documents in legal proceedings in connection with this Agreement may be served to another
physical address in South Africa.
(c) A notice given under this agreement must be:
(i) in writing and signed by or for the sender;
(ii) directed to the recipient's address specified in this agreement or as varied by written
notice; and
(iii) left at, or sent by prepaid registered post, hand delivery or facsimile to, that address.
(d) A notice is deemed to have been given:
(i) if left at the recipient's address or hand delivered, on the day of delivery;
(ii) if sent by prepaid registered post, 5 Business Days after the date of posting; or
(iii) if sent by facsimile, when the sender's facsimile machine records that it has been
transmitted without error.
(e) The provisions of this clause 18 are in addition to any other mode of service permitted by law.
(f) Despite anything to the contrary in this agreement, a notice actually received by a party is
effective even though it was not sent, or delivered, or sent and delivered to its address in clause
18.1.

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MISCELLANEOUS

19.1 Governing Law and Jurisdiction

(a) This agreement is governed by the laws applicable in the Republic of South Africa.
(b) The Parties unconditionally consent and submit to the non-exclusive jurisdiction of the High Court
of South Africa in regard to all matters arising from this Agreement.

19.2 Entire Agreement

This Agreement and the EULA:

(a) constitutes the entire agreement between the parties about its subject matter and supersedes
all prior contracts, arrangements and understandings in relation to that subject matter; and
(b) may only be altered in writing signed by all parties.

19.3 Survival

The provisions of the clauses of this Agreement in relation to documents, intellectual property rights,
insurance, moral rights, indemnity and confidentiality survive the expiry or termination of this
Agreement.

19.4 Counterparts

This Agreement may be executed in any number of counterparts each of which is taken to be an
original. All of those counterparts taken together constitute one instrument. An executed counterpart
may be delivered by facsimile.

19.5 Waivers

A waiver by a party of any of its rights under this agreement:

(a) must be in writing; and

(b) does not operate as a waiver of any other right or as a future waiver of that or any other right.

19.6 Costs and expenses

Each party must pay its own costs and expenses in respect of the negotiation, preparation and
execution of this Agreement and any other document executed pursuant to this Agreement.

19.7 Further Action

Each Party must do all things and sign all documents reasonably necessary to give effect to this
agreement and the transactions contemplated by it.

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19.8 No Merger

None of the provisions of this Agreement merge on termination, settlement or completion of this
Agreement, nor are affected by the signing and/or delivery of any other document.

19.9 Severance

If any provision or part of a provision of this Agreement is invalid or unenforceable in any jurisdiction:

(a) the provision must be read down for the purposes of the operation of that provision in that
jurisdiction, if possible, so as to be valid and enforceable; or
(b) if the provision cannot be read down it must be severed if it is capable of being severed, without
affecting the remaining provisions of this Agreement or affecting the validity or enforceability of
that provision in any other jurisdiction and the parties must consult in good faith to determine
whether any amendment or substituted provision is required.

***

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SCHEDULE A SERVICE DESCRIPTION

Item Details
Asia Pacific – Brisbane, Perth
South America - Santiago
Deswik Support Office North America – Calgary
Southern Africa – Johannesburg
Europe, North Africa, Russia and CIS – London
On Business Days – defined as day that is not a Saturday, Sunday or a public holiday
Service Days
in the location of Deswik’s Support Office (above).
Support is provided between 8am and 5pm on Business Days in the location of
Service Hours
Deswik’s Support Office (above).
Australia: Ph: +61 7 3292 2708 Email: [email protected]
South Africa: Ph: +27 11 958 0273 Email: [email protected]
Support Call Logging South America: Ph: +56 2 3223 3064 Email: [email protected]
Methods North America: Ph: +1 403 269 2922 Email: [email protected]
United Kingdom: Ph: +44 1494 618 586 Email: [email protected]
Web: https://clientportal.deswik.com
 Users logging support calls must have attended Deswik Basic Training at a
Support Call minimum.
Requirements  User logging call must provide sufficient information for Deswik to reproduce
the error.
 The current release and versions no more than 18 months from their initial
Supported Software release date.
Versions (Releases)  No more than two (2) versions installed side-by-side and these versions must be
consecutive releases.
Desktop Software (Deswik.Suite) – Support Inclusions and Exclusions
 User issues;
 Bug fixes;
 Supply of patches;
 Supply of new versions;
Included Service /
 Support desk advice on patch and version compatibility;
Support
 Providing required information for the Customer’s internal incident
management, problem management, change management, and request
fulfillment processes and systems; and
 Customer service reports as reasonably requested.
 3rd party issues attributable to the IT platform/environment or non-supported
3rd party applications;
 Customer IT environment / platform issues;
 Providing custom / new functionality on request;
 Alteration of any customer specific Scripts, Process Maps or Plugins;
 Issues with customer data/inputs that do not conform to design specifications or
user documentation;
 Directly undertaking configuration of new or existing implementations;
Excluded Service /  Performing any customer specific User Acceptance Testing;
Support  Using support systems other than Deswik’s own system;
 Being responsible or accountable for the Customer’s internal incident
management, problem management, change management, and request
fulfillment processes and systems;
 Performance testing of the IT environment;
 Training; and
 Any customized documentation.

Excluded Services can be provided under a separate technical services agreement.

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Enterprise Software – Support Inclusions and Exclusions

Everything included in the Desktop Software section plus:
 One Assisted Upgrade per calendar year:
o Includes upgrade tasks and guidance / expertise only;
o Does not include costs associated with Travel & Accommodation or directly
Included Service /
undertaking customer specific User Acceptance Testing, Project Management,
Support
Change Management, or performing configuration tasks that are not strictly
required for the upgrade process to complete successfully;
o Upgrade version may be either the latest major release or the one prior.
Note, this is a mandatory requirement for using Deswik Enterprise Software.
Everything excluded in the Desktop Software section plus:
 Rectification of major issues directly related to poor configuration undertaken by
the Customer;
 Changes to Deswik software associated with an interface change due to upgrade
or reconfiguration of a 3rd party application; and
Excluded Service /
 Additional Assisted Upgrades in a calendar year.
Support

Excluded Services can be provided under a separate technical services agreement.

Note: The Customer must install at least one Major Version upgrade per year. Any
Major Version upgrade must be by way of an Assisted Upgrade.

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SCHEDULE B SERVICE LEVEL TARGETS

Response
Severity Support Type Description Resolution Time & Description
Time
An essential function of the
Software has ceased to work, Provide a solution within 3 Business
Software which prevents performance of 4 Business Days. The solution may include a
Defect critical day-to-day business Hours workaround or a private fix of the
activities. A workaround is not product.
immediately available.
Critical
User requires assistance with
the Software functionality to Provide a solution within 3 Business
produce a result that is critical to 4 Business Days. The solution will contain
User Assistance
day-to-day business activities. A Hours instructions or workarounds to achieve
workaround is not immediately the desired result (if at all possible).
available.
Provide a solution within 7 Business
A core function of the Software
Software 8 Business Days. The solution may include a
has ceased to work. A
Defect Hours workaround or a public fix of the
workaround is available.
product.
High User requires assistance with
Provide a solution within 7 Business
the Software functionality to
8 Business Days. The solution will contain
User Assistance produce a result which is a core
Hours instructions or workarounds to achieve
feature of the Software. A
the desired result (if at all possible).
workaround is available.
Provide a solution within 20 Business
The Software has an issue that is
Days. The solution may include a
Software having only a minor impact on 2 Business
workaround or a commitment to
Defect normal operating activities. A Days
implement a fix into a future release of
workaround is available.
the product.
User requires assistance with
Medium
the Software functionality to
Provide a solution within 10 Business
improve their productivity, user
2 Business Days. The solution will contain
User Assistance issues having a minor impact on
Days instructions or workarounds to achieve
software usability or questions
the desired result (if at all possible).
of a general nature. A
workaround is available.
Provide a response within 20 Business
Days. The solution may consist of
Minor issues with the software
Software 4 Business submitting feature requests to product
that are not causing the end-
Defect Days management, and/or scheduling
user an inconvenience.
changes to future releases of the
product.
Low
Provide a response within 20 Business
Days. The solution may consist of
Enhancement 4 Business submitting feature requests to product
Suggested Enhancements
Request Days management, and/or scheduling
changes to future releases of the
product.

Service Level Target Conditions

(a) Severity, Response and Resolution times

(i) Deswik and the Customer will categorise the severity of all issues (acting reasonably) and
Deswik will consult with the Company’s Expert User on any demoted incidents or where
Deswik does not agree with the Customer’s proposed categorisation.

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(ii) Target Resolution times are calculated from the point at which the Customer has provided
Deswik with sufficient information (and the customer’s data files if required) for Deswik
to reproduce the issue and the issue can be successfully reproduced by Deswik.
(iii) Resolution Target times are “paused” when Deswik Support is waiting on the Customer
for additional information or if support has been scheduled for a specific time.
(iv) Any issue deemed by the Customer as a Critical issue, must be raised by the Customer
via phone call to the Deswik Support line.
(b) Access to desktops/laptops for Deswik Desktop Application support
(i) All Desktop Application support will be provided remotely, using remote access or remote
control tools if customer system interaction is required. Use of these remote control tools
is subject to the Customer’s Approval.
(c) Access to Deswik Application Servers and Database Servers (if installed)
(i) In order to provide Support Services for Deswik Enterprise Applications, the Customer
must provide Deswik with the following:
(A) Remote Access: provided via RDP or similar remote control software. Where
remote access is restricted by means of a secure firewall, secure gateway, VPN or
other security mechanism, the Customer must ensure Deswik Support is
provided with all network and security rights, privileges. access tokens,
certificates, and information necessary to enable Remote Access to the Deswik
Application Servers and Database Servers to provide the Support Services.
(B) Access and/or Administrative privileges: the Customer must provide Deswik
with user accounts that have sufficient privileges to the Application Servers and
Databases Servers to provide the Support Services. The exact privileges required
will be specified in Deswik’s installation and upgrade documentation and may
vary between the “installation” and “normal operation” phases of the product’s
lifecycle.
(C) Physical Site and Server Access: will not be required under normal
circumstances; however, where the usual Remote Access mechanisms are not
technically feasible to achieve the Support Services, onsite support may be
provided (at Deswik’s discretion and with Customer’s permission) and require
local access to the relevant Customer Site and associated Deswik Application and
Database Servers. The Customer shall be responsible for any out of pocket
expenses incurred by Deswik in providing such onsite Support Services.
(D) Backups: must be scheduled regularly and are required for recovery purposes.
They are also required in order to properly reproduce and diagnose issues with
Deswik’s Application Servers and Database Servers. Regular SQL file-based
backups must be configured on the production Database Servers to create
backups of the Deswik Application Databases on an accessible file share. Deswik
Support Personnel must have sufficient access and privileges to be able to access
these SQL file-based backups and to restore them into to the Test Environment.
(E) On-site Test Environment: is required in order to properly reproduce and
diagnose issues for Deswik’s Application and Database Servers. The Test
Environment must consist of a virtualized Application Server, virtualized Database
Server and a virtualized client with Deswik debugging tools installed on it. Local
administrative privileges are required on all the virtualised test machines. Remote

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Access to the Test Environment, as detailed above, is required in order to provide

the Support Services.
(ii) The minimum access requirements under this clause enable authorised Deswik
personnel to review the exact Customer environment (including software, data and
configuration) and significantly improve problem analysis and resolution and undertake
software upgrades or configuration changes.
(iii) Only those Deswik personnel who are specifically authorized by the Customer will be
permitted access to the Customer’s network and Deswik Application Servers and
Database Servers. Deswik will, where requested by the Customer, comply with all
reasonable security requirements, forms, undertakings, policies etc in able to obtain such
access.
(d) Expert Users
(i) The Customer must appoint an internal Expert User (or users as required) at each Site to
act as its representative and point of contact in relation to all software defect reporting
and user assistance requests. The Expert User/s must have completed appropriate
formal training provided by Deswik staff.
(ii) The Expert User/s will be an initial point of contact for all other users in relation to
software defect reporting, customer specific issues/procedures and user assistance
requests.
(iii) Prior to reporting a software defect or submitting a user assistance request, an Expert
User must attempt to diagnose the issue or respond internally to a user assistance
request. If the initial attempt to diagnose the issue or answer the User Assistance request
is unsuccessful, the Expert User will then raise the issue with Deswik Support.
(iv) When necessary to raise a software defect issue with Deswik Support, the Expert User/s
will coordinate and forward reproducible steps, and related data files if required, to
Deswik Support for resolution.
(v) The Expert User approach:
(A) has been found to be beneficial for both customers and Deswik;
(B) will enable identification of training requirements, procedural issues and
reduction in identical calls made to Deswik; and
(C) allows Customers, if they choose to, to significantly reduce training costs through
Train-the-Trainer like approaches.
(e) Other conditions
(i) If a user continually logs “User Assistance” support calls that are covered by standard
Deswik training courses, Deswik may recommend a training course in lieu of a solution.
(ii) The Service Level Targets apply to “applicable use” of the product/s only. For clarity, the
product should only be used as per the documentation supplied.
(iii) The Service Level Targets do not apply to supported 3rd party applications, modules or
components, even if they are integrated in Deswik Software. Notwithstanding this,
Deswik will monitor the relationships with those 3rd party application developers and
support providers, and use best endeavours to adhere to the Service Level Targets.

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(f) Dependence on External Suppliers

(i) In order to provide the Services, Deswik is dependent in some cases upon certain external
suppliers for certain products, information and services (“dependencies”).
(ii) Deswik will endeavor to manage all the relationships with any external suppliers so as to
not impact on the Services provided by Deswik under this Agreement.
(iii) If the Customer requires support on an issue which relates to a dependency, as part of
the Services Deswik may have to refer the issue to the external supplier for correction or
response. Deswik will keep the Customer informed of progress and timeframes for
correction as advised by the external supplier.
(iv) Should an external supplier cease production, supply or support of any product or service
on which Deswik is dependent to provide the Services, Deswik will inform the Customer,
and Deswik reserves the right to provide the relevant Services thereafter on a “best
endeavors” basis.

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