Refresh Software Licensed Software Terms of Use and Support

PART I - TERMS APPLICABLE TO FREE TRIAL PROGRAM

1. Grant of License

Refresh hereby grants Customer, free of charge, the non-exclusive, non-transferable right to use the object code form of Refresh's SR2 (formerly known as SiteRefresh) Software (the "Software"), for evaluation purposes only, commencing upon the date that the Customer has downloaded the Software and ending on the date that the Software's license key expires. Such license also includes the right to use the documentation made available by Refresh to the Customer (the "Documentation"). The Software and the Documentation are referred to together herein as the "Materials".

2. DISCLAIMER OF WARRANTY

THE MATERIALS ARE PROVIDED "AS IS" AND ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, ARE HEREBY EXCLUDED AND DISCLAIMED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USE OF TRADE. CUSTOMER ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND THE RESULTS OF PERFORMANCE OF THE MATERIALS.

PART II - TERMS APPLICABLE TO SOFTWARE WITH LICENSE FEE PAID

3. Grant of License

Refresh hereby grants to the Customer, subject to the terms and conditions provided in this Agreement, a nonexclusive and nontransferable license to use the object code form of Refresh Software (the "Software") solely for the Customer's ordinary internal business purposes. Such license also includes the right to use the documentation made available by Refresh to the Customer (the "Documentation") for Customer's ordinary internal business purposes. The Software and the Documentation are referred to together herein as the "Materials".

4. Scope of License

The category of license granted to the Customer hereunder and the limitations on the Customer's right to use the Materials are further described on the written Contract executed by Customer and Refresh (the "Contract") which references these Terms of Use and Support and which is incorporated herein by reference. The license fees for the Materials are based on and Customer's use of the Software is subject to the restrictions on (i) the number of servers that the Software may be installed on ("Servers"); (ii) the number of Applications that the software may be used for; and (iii) the number of Named Users that may access and use the Software as set forth in the Contract. Additional Servers, Applications, and Named Users may be licensed from time to time by Customer at Refresh's then current prices. If Customer exceeds any restrictions on number of Servers, Applications or Named Users, Customer shall be obligated to purchase additional licenses from Refresh at Refresh's then current prices.

For purposes of the foregoing, "Applications" means those specific functions and projects listed and described on the Contract. "Named Users" are those specific individual users who have access to the Software from Customer network facilities or who for any reason need to log into or access the Software for any content creation or management, systems administration, workflow tasks, to make any data or code changes or for any other purpose whatsoever. For the sake of clarity, Named Users shall include full and part-time employees, contractors, agents, or other workers of Customer; provided, however each individual person shall count as only one Named User

The Customer may make one backup copy of the Software, but the backup copy must remain in the Customer's possession until destroyed or delivered to Refresh.

Unless otherwise provided in the Contract, the license commences upon delivery of the Software by Refresh to Customer and continues until this license is terminated as provided pursuant to the Termination Section set forth below. The Software shall be deemed delivered upon (i) transfer of the Software by Refresh to its shipping agent or (ii) the date that an electronic mail that contains the instructions for downloading and licensing the Software has been sent by Refresh to Customer.

Customer shall be responsible for any breach of the terms and conditions of this Agreement by any of its Named Users. In addition to the foregoing, Customer shall ensure that the Software is only installed and operated at a Customer facility and Customer shall not install the Software at any other third-party site without the express prior written consent of Refresh.

The Customer agrees that if it acquires any replacement disk(s), revisions, new releases, updates, additional software products, or additional documentation from Refresh in the future through Refresh or its authorized resellers or distributors, that such software or materials shall be considered "Materials" under this Agreement and shall be subject to the terms and conditions herein, unless a separate license agreement with Refresh covers such software or Materials.

5. License Fee

The Customer shall pay a license fee at the time and in the amount set out in the Contract. The Customer agrees to pay all fees due pursuant to this Agreement in U.S. dollars, and unless the Contract expressly provides otherwise, all fees are due net thirty (30) days from the date of invoice. Any amount not paid when due shall bear a late payment charge, until paid, in an amount equal to 1.5% per month or, if lower, the maximum rate allowed by law. In addition, Customer shall reimburse Refresh for all reasonable costs (including court costs and attorneys' fees and expenses) in collecting amounts owed under this Agreement. The Customer will be responsible for all sales, use and excise taxes and like charges imposed with respect to the Materials, the Customer's use thereof or any services provided by Refresh, except for taxes based on the net income of Refresh.

6. Warranty; Disclaimer

Refresh warrants that for a period of ninety (90) days following delivery to Customer (the "Warranty Period"), the Software, when properly installed and used, shall operate substantially in accordance with the specifications contained in its Documentation (the "Product Warranty"). This Product Warranty does not cover any copy of the Software, which has been altered or changed in any way by a party other than Refresh. Customer's sole and exclusive remedy for any breach of the Product Warranty shall be to have Refresh or its representatives, at their option, modify or repair such Software to correct the defect giving rise to such breach within a reasonable period from Refresh's receipt of written notification of such defect from Customer.

Customer's remedy and Refresh's liability in connection with the Product Warranty are expressly contingent upon: (i) Customer notifying Refresh in writing of the claim within the Warranty Period and furnishing Refresh with adequate supporting documentation and details to substantiate the claim and to assist Refresh with the identification and detection of the cause of the problem, (ii) the problem being capable of reproduction on properly functioning equipment by Refresh; (iii) the Software has not been altered or changed in any way by a party other than Refresh; and (iv) the Software has been properly installed and operated in accordance with the Documentation.

EXCEPT AS EXPRESSLY STATED ABOVE IN THIS SECTION TO THE AGREEMENT, NEITHER REFRESH OR ANY OF ITS SUPPLIERS OR LICENSORS OF THE MATERIALS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, REGARDING OR RELATING TO THE PRODUCTS OR TO ANY OTHER MATERIALS, GOODS OR SERVICES FURNISHED TO THE CUSTOMER HEREUNDER OR IN CONNECTION HEREWITH, AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXPRESSLY DISCLAIMED.