Refresh Software Licensed Software Terms of Use and Support

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.

PART III - TERMS APPLICABLE TO ALL LICENSES

7. Restrictions/Ownership

The Customer shall not sell, license, sublicense, assign (by operation of law or otherwise) or transfer this Agreement or any license or any right, duty or obligation under this Agreement without Refresh's prior written consent, and any attempt to do so shall be null and void. Subject to the foregoing limitations, this Agreement will mutually benefit and be binding upon the parties, their successors and assigns.

The Customer agrees not to challenge Refresh 's rights in, or otherwise attempt to assert any rights in, the Materials. Except as expressly permitted in this Agreement, the Customer shall not, and shall not permit others to, (i) use, modify, copy (except for one copy for security back-up purposes containing Refresh 's copyright notices and other proprietary marks), or otherwise reproduce the Materials in whole or in part, (ii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Software, (iii) distribute, sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau, time share or ASP purposes, or otherwise transfer the Materials or the Customer's right to use the Materials, (iv) remove any proprietary notices or labels on the Materials, or (v) install the Software other than as expressly permitted by the applicable license set forth on the Contract.

Third party products and programs supplied under this Agreement are licensed for use solely with the Materials licensed to Customer under this Agreement and may not be used on a stand-alone basis or with any other third party products. Certain portions of the Materials include open source program(s) that are subject to the license terms and notifications found in the "About" documentation included within the Software. Such program(s) are not subject to the warranty and indemnity provisions of this Agreement.

Refresh shall retain all title, copyright and other proprietary and intellectual property rights in the Materials and all copies, modifications, enhancements and derivatives thereof, and the Customer does not acquire any rights, express or implied, therein except for the express license granted hereunder. There are no implied rights.

Customer hereby covenants and agrees to (i) limit access to and use of the Materials to its employees and consultants who require access in connection with Customer's use of the Materials and who are bound by a written duty of confidentiality no less protective than this Agreement, (ii) take all reasonable precautions to prevent unauthorized or improper use or disclosure of the Materials, and (iii) ensure that its use of the Materials is in compliance with all foreign, federal, state, and local laws and regulations, including without limitation all laws and regulations relating to export and import control, privacy rights, and data protection. Customer agrees to defend, indemnify and hold Refresh harmless for all claims or alleged claims for a breach of any of the foregoing covenants.

Refresh is not responsible for resolving problems relating to such things as network issues, operating systems, application servers, back-end databases, hardware or the like. Any professional services delivered in these areas will incur additional charges. It is the Customer's responsibility to keep adequate back-ups. Refresh is not responsible for the Customer's lost data or information, even if the Customer notifies Refresh of the possibility of such losses in advance.

8. Indemnification/Limitation of Liability

Refresh will defend the Customer from any third party claim that the Software infringes any United States copyright or trade secret owned or controlled by the third-party; provided, however, that (i) Refresh shall be notified promptly in writing by the Customer of any such claim; (ii) Refresh shall have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; and (iii) the Customer provides Refresh with all commercially reasonable assistance, information and authority to perform the above. In the event that the Customer's use of the Software is enjoined by a court of competent authority, Refresh shall, at its sole option and at its expense, either (I) procure for the Customer the right to use the Software in question, or (II) modify the Software to avoid infringement without material impairment of its functionality. If neither of the foregoing remedies can be obtained upon commercially reasonable terms, the Customer shall remove and return to Refresh the Materials and Refresh shall refund to Customer the unamortized portion, if any, of the license fees paid by Customer to Refresh (if any) for the Software (based on a three (3) year amortization of such software license fees commencing on the Effective Date). The foregoing indemnity shall not apply if the alleged infringement is attributable to the combination of the Software with products not provided by Refresh, or if the Software is modified or altered by any person or entity other than Refresh, or if the Software is used outside the scope of this Agreement (any such combination, modification, alteration, or use collectively referred to herein as a "Customer Modification"). THIS SECTION STATES REFRESH 'S SOLE LIABILITY HEREUNDER WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS.

The Customer will defend, indemnify and hold Refresh harmless from any third party claim action, suit, or proceeding brought against Refresh that the Software infringes any copyright or trade secret owned or controlled by the third-party and the Customer shall pay damages finally awarded or agreed in settlement which arises from or in any manner is connected with a Customer Modification or any of Customer's actions or omissions in using the Materials (excluding claims for which Refresh is obligated to defend Customer as set forth above); provided, that (i) the Customer shall be notified promptly in writing by Refresh of any such claim; (ii) the Customer shall have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; and (iii) Refresh provides the Customer with all commercially reasonable assistance, information and authority to perform the above. THIS SECTION STATES CUSTOMER'S SOLE LIABILITY HEREUNDER WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS.

IN NO EVENT SHALL REFRESH 'S (OR ITS LICENSORS' OR SUPPLIERS') MAXIMUM LIABILITY FOR ANY DAMAGES UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID HEREUNDER FOR THE SPECIFIC PRODUCT OR SERVICE WHICH CAUSED THE DAMAGE. IN NO EVENT SHALL REFRESH (OR ANY OF ITS LICENSORS OR SUPPLIERS) BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, SPECIAL, COVER OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOST BUSINESS PROFITS AND LOSS, DAMAGE OR DESTRUCTION OF DATA) EVEN IF REFRESH HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME. No limitation as to damages for personal injury is hereby intended. Some states do not allow the exclusion or limitation of incidental or consequential damages under certain circumstances and the above exclusion or limitation may not apply.

9. Audit Rights/Use Verification

Refresh shall have the right, solely to verify Customer's compliance with this Agreement, and Customer shall cooperate with Refresh in connection therewith, to monitor, inspect and audit Customer's use of the Materials, including but not limited to (a) Customer generating a license report upon request of Refresh, (b) Customer authorizing remote access to Customer's system to permit a remote audit of Customer's usage of the Materials, (c) on-site inspections and/or audits by Refresh during regular business hours and with reasonable advance notice to Customer. Customer specifically acknowledges that certain of the Materials may include password protection, anti-copying subroutines or other security measures designed to monitor the usage of the Materials for license management purposes, including but not limited to protective measures to ensure that Customer's use of the Software does not exceed the number of Servers, Applications, and/or Named Users licensed by Customer. Under no circumstances, however, would Refresh employ any such measure to interfere with Customer's normal and permitted operation of the Products, even in the event of a contractual dispute. Customer acknowledges, however, that Refresh may employ protective measures that automatically terminate Customer's use of the Software if Customer violates any of the foregoing license restrictions.

10. U.S. Government Restricted Rights

The Software is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R.12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein.

11. Termination

Refresh shall have the right to terminate the license granted hereunder upon notice to the Customer in the event that Customer has breached any term or condition of the Agreement and such breach has not been cured within thirty (30) days after receipt of notice. Upon any termination of the license, the Customer agrees that it will discontinue the use of the Materials, remove the Software from its computer(s) and server(s), return all Materials to Refresh, destroy all backup copies of any software obtained through Refresh, and further that the Customer will certify in writing to Refresh that it has complied with this Section. Customer shall not be entitled to a refund, in whole or in part, of any amounts paid hereunder (if any), other than in accordance with the Indemnification Section. All provisions which by their nature should survive the termination of this Agreement shall survive termination of this Agreement.

PART IV - TERMS APPLICABLE TO MAINTENANCE AND SUPPORT SERVICES

Refresh will provide all Customers who are current on all Maintenance and Support Fees with the following Maintenance and Support Services as they relate to the specific Software licensed by the Customer from Refresh:

12. Maintenance Releases

Upon written request, Customer shall receive a Maintenance Release for the applicable Software upon. "Maintenance Releases" mean any major, minor, or point release for the Software. Maintenance Releases include any update, upgrade, revision, patch, bug fix or an improved, upgraded or enhanced version of the Software, released by Refresh, that Refresh elects to make available at no additional charge to licensees of the Software that are paid up Maintenance and Support Services customers.

13. Add - on Orders

Add-on orders during the support term will be invoiced in one year increments, in advance, and will be reconciled on the anniversary date of the original Maintenance and Support order. Third-party products (those not owned by Refresh) may be subject to a vendor-initiated upgrade fee. In this case Refresh will pass this fee on to its customers.

14. Error Correction

Customer may call or email to report an "Error" in the Software (i.e., a failure of the Software to function in material conformity with the then current end user documentation applicable to the Software) and shall provide Refresh all information necessary for diagnosis of the Error. Refresh shall verify receipt of such requests. Refresh will use commercially reasonable efforts to do one of the following: provide a software solution or workaround; provide an avoidance procedure; address the request in the next revision/iteration; or discuss with Customer possible custom professional services to resolve Customer's request.

Please Note: Refresh Software highly recommends the utilization of additional SR2 server(s) for the purposes of testing, staging and/or QA.  Refresh Software does not recommend code updates to a live production server before any/all changes have been properly tested.

15. Telephone and Email Support

Refresh technical support offers the Customer a single point of contact for all product support questions. The Customer may either call the technical support hotline or email Refresh technical support and a Refresh engineer will work to address Customer issues. Customer’s are urged to participate in Refresh’s Developer, Administrator, and End User training programs. Refresh will provide support for paid up support and maintenance customers but if Customer’s designated non-SR2 trained representative requires support over and above traditional standards, then Refresh will notify Customer via email that the support request falls outside of the scope of this agreement and will work with Customer to provide a solution at then current professional services rates.

1. Refresh Software's standard support provides email and phone support between the hours of 9:00 AM EST - 5:00 PM EST, Monday through Friday.
2. Any email and phone support between the hours of 5:00 PM EST - 12:00 AM EST will incur hourly charges plus a 25% premium charge.
3. Any email and phone support between the hours of 12:00 AM EST - 9:00 AM EST will incur hourly charges plus a 35% premium charge.

16. Release Levels Supported

Refresh is not responsible for correcting Errors in any version of the Software other than the most recent two releases of the Software. Telephone support shall apply to (a) the then current release, and (b) one prior release number back for a period of one year following the date of that prior release.  Support for any older or end of life releases will require a 50% support premium over and above the annual support and maintenance costs.

a. Exclusions. Maintenance and Support Services apply to the standard licensed version of the Software marketed by Refresh. Customer shall inform Refresh in writing of any modifications to the Software made by or on behalf of Customer. Refresh shall not be responsible for supporting or maintaining such Customer-modified portions of the Software or portions of the Software affected by Customer-modified portions of the Software. Refresh shall not be responsible for maintaining modifications or other software delivered by Refresh, or other third party vendor, as part of a services engagement (e.g., interface software, customizations, web application development, etc.). Corrections for difficulties or defects traceable to the Customer's errors or systems changes shall be billed at Refresh Software's standard time and material charges. Refresh is not responsible for hardware or communications facilities. Refresh shall not be obligated to provide Maintenance and Support Services if such services are required as a result of (i) Customer's neglect or misuse of the Software, (ii) Customer's failure to implement and use the Software in accordance with the then current end user documentation for the Software, or (iii) any other cause beyond the reasonable control of Refresh. If reported issue is determined NOT to be a specific SR2 object-code related issue(s),

Customer agrees to pay Refresh Software for all time spent diagnosing/troubleshooting the issue/case (rate of $250 per hour, not to exceed $1,000 without prior consent of Customer (minimum charge of $500 per issue/case). Refresh Software will invoice for services rendered and payment shall be due net 30 days.

If Refresh Software is able to provide a professional services solution for the non-SR2 object-code related issue(s), and at Customer's written request (via email), Refresh will continue to audit, diagnose, determine, and estimate the cost of the NON-SR2 problem resolution, and seek Customer's email approval before proceeding. In the event that the Customer does not wish to proceed forward with the resolution, as provided by Refresh Software, the case will be closed by Refresh Software.

b. On-Site Visits/ Professional Services. Should on-site support be required to resolve an issue, Refresh will provide an engineer (as available) to perform the on-site work for an additional fee, at Refresh 's then current Professional Services rates. Customer shall reimburse Refresh for the cost of such personnel as well as the costs and expenses reasonably incurred by the Refresh personnel in making such visit. Refresh will provide Customer with professional services, which can be customized for Customer's relevant needs, for an additional fee. Professional Services are available on a per-person, per-day basis at Refresh 's then current rates.

c. Non-renewal, expiration, and unpaid Maintenance and Support for supported release levels. For Customers whose Maintenance and Support has expired, ended, or remains unpaid past the renewal date shall be subject to a $1,000 per incident charge with a $500 per hour charge past the first 2 hours. Each new incident will incur the minimum $1,000 charge. Refresh currently charges 66% of the applicable license fee of the then current list price for upgrades and enhanced versions of the Software for Customers with expired or unpaid Maintenance and Support.

d. Non-renewal, expiration, and unpaid Maintenance and Support for End of Life Releases. For Customers whose Maintenance and Support has expired, ended, or remains unpaid past the renewal date and whose release level is not currently supported by Refresh Software, shall be separately quoted for each new incident received. Refresh currently charges 66% of the applicable license fee of the then current list price for upgrades and enhanced versions of the Software for Customers with expired or unpaid Maintenance and Support.

17. Term

The initial term of a Customer's Maintenance and Support shall be one year, commencing on the date that the Customer first downloads the Software or is delivered the Software (the "Initial Term"). The term shall automatically renew for successive one year terms (each a "Renewal Term") unless either party elects not to renew by providing the other party with written notice at least ninety (90) days prior to the expiration month of the then current one year term. Sections 3 (as it relates to the last sentence thereof), 4, and 5 of this Agreement survive the expiration or termination of this Agreement. Refresh may discontinue Maintenance and Support Services hereunder for any Software for which it is discontinuing such services for its customers generally. In such case, Refresh will credit Customer's account for a pro-rata (unused) portion of any prepaid fees under this Agreement.

18. Payment

Fees for the Initial Term of Maintenance and Support Services for the Software are set forth on the Contract and shall be billed upon the Effective Date. Fees for Renewal Terms may be adjusted at Refresh 's election and shall be billed ninety (90) days prior to the expiration of the then-current Term. Invoices are due and payable 30 days following invoice date. The Maintenance and Support fees and other charges hereunder do not include federal, state, and local excise, sales, value added, use and other taxes now or hereafter levied. Customer shall pay such taxes in full, or reimburse Refresh in full for any such taxes paid by Refresh.

19. Services Warranty and Limitation of Liability

REFRESH WARRANTS THAT SERVICES WILL BE PROVIDED IN A PROFESSIONAL AND WORKMANLIKE MANNER. REFRESH MAKES NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY.

IN NO EVENT WILL REFRESH BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES, LOST BUSINESS PROFITS, OR LOSS, DAMAGE OR DESTRUCTION OF DATA, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, EVEN IF REFRESH HAS BEEN ADVISED AS TO THE POSSIBILITY OF SAME. IN NO EVENT WILL REFRESH'S MAXIMUM LIABILITY FOR ALL OTHER DAMAGES HEREUNDER EXCEED THE LOWER OF (A) ONE YEAR'S MAINTENANCE FEES BASED ON THE YEAR IN WHICH THE DAMAGE OCCURRED OR (B) THE FEES PAID HEREUNDER FOR THE SPECIFIC PRODUCT OR SERVICE THAT DIRECTLY CAUSED THE DAMAGE.

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to some Customers.

20. Service Levels

Refresh shall use commercially reasonable efforts to address the Severity Levels set out below in the time periods described below, provided that classification of any problem among Severity Levels shall be reasonably in accordance with the definitions specified below which shall be determined in Refresh's sole discretion:

a. Error Severity Levels

Severity 1 (Critical): Customer's use of the Software in a production environment is unavailable or materially adversely affected or is severely degraded, impacting significant aspects of the Software's operations.

Severity 2 (Standard): Customer's production environment with respect to the Software is degraded. Functionality is noticeably impaired, but most system operations continue.

b. Response Time Goals

Severity 1 (Critical): Refresh will acknowledge the issue within four (4) hours of notification by Customer and will use a constant effort until relief or a workaround is provided or until problem is reduced to Standard status.

Severity 2 (Standard): Refresh will acknowledge the issue within twenty-four hours of receiving notification of the issue and will use commercially reasonable efforts to initiate and communicate a plan for resolution within two (2) working days.

21. Miscellaneous.

a. In the performance of the Maintenance and Support Services, Refresh reserves the right to determine the assignment of Refresh personnel, to replace or reassign such personnel and to subcontract with qualified third persons for part or all of the services. No person performing services on behalf of Refresh hereunder shall be restricted or prevented from performing services for others that are similar to the services provided under this Agreement.

b. All software supplied under this Agreement is confidential and proprietary to Refresh and/or its licensors, and is subject to the terms and conditions of the license agreement related to the applicable Software.

PART V - TERMS APPLICABLE TO THIS ENTIRE AGREEMENT

22. Consulting and Other Services

Refresh will provide such other services as shall be agreed upon by the parties from time to time in a separate Consulting Agreement. Unless otherwise agreed, such services will be rendered on a time and materials basis.

23. Confidentiality

Each party agrees not to make any disclosure of any confidential information of the other, or to make any use thereof except as permitted by this Agreement. Each party shall handle the other's confidential information with no less than the same degree of care that such party employs to protect its own confidential and proprietary information. For purposes hereof, the confidential information of Refresh shall include the Materials and confidential information of each party shall include all of the party's tangible information that is clearly marked "Confidential" or "Proprietary".

24. Notice

All notices or other communications given by either party to the other under this Agreement shall be in writing and shall be personally delivered, sent by first class mail or sent by a reputable overnight courier service guaranteeing next business day delivery, addressed to the other party at its address set forth on the Contract or such other address as a party may subsequently designate in writing. The date of personal delivery, the second business day after the date of mailing or the next business day after delivery to such courier service, as the case may be, shall be deemed to be the date on which such notice is given.

25. Governing Law, Venue and Injunctive Relief.

This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard for its laws pertaining to conflicts of laws. The exclusive venue for all cases related to or arising out of this Agreement shall be the federal and state courts in the Commonwealth of Massachusetts, and both parties submit to the personal jurisdiction of those courts, except that, at the option of either party, an injunction proceeding may be brought in any venue having jurisdiction. If any of the provisions, or portions thereof, of this Agreement are invalid or unenforceable under any applicable statute or rule of law, the court shall reform the contract to include an enforceable term as close to the intent of the original term as possible; all other terms shall remain unchanged. The parties hereto agree that money damages would be an inadequate remedy for Refresh in the event of a breach or threatened breach by the Customer of this Agreement (including provisions related to Confidentiality and restrictions on the use of the Software), and an inadequate remedy for Customer in the event of a breach or threatened breach by Refresh of the provisions set forth in the Confidentiality Section above; therefore, in the event of a breach or threatened breach by the respective parties of any such provisions, either party may, either with or without pursuing any other remedies afforded it by law, immediately obtain and enforce an injunction from any court of law or equity prohibiting the other party from breaching such provisions.

26. Whole Agreement/General.

This Agreement and the Contract constitute the entire agreement between the Customer and Refresh related to the subject matter hereof and all additions, amendments or modifications of this Agreement shall be binding upon the parties, only if the same shall be in writing and duly executed by the Customer and Refresh. THE TERMS AND CONDITIONS OF ANY CORRESPONDING PURCHASE ORDER RELATING TO THE MATERIALS ARE ONLY BINDING ON REFRESH IF THEY ARE SPECIFICALLY INCORPORATED BY REFERENCE INTO THIS DOCUMENT AS AN ATTACHMENT TO THIS DOCUMENT AND ARE EXPRESSLY AGREED TO BY EXECUTION ON BEHALF OF REFRESH AND CUSTOMER. If a document is incorporated herein and there are conflicts between the terms of this Agreement and those appearing on the face of such incorporated document, the terms and conditions of this Agreement shall prevail. The waiver or failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further or future right of this Agreement. This Agreement shall inure to the benefit of the parties' respective successors and permitted assigns. To the extent that any provision of this Agreement is found to be void or unenforceable, such provision shall be without effect and the remainder of the Agreement shall be enforced to the full extent of the law. In no event shall either party be liable for any delay or failure to perform under this Agreement which is due to causes beyond the reasonable control of such party. The parties acknowledge that the evaluation license agreement previously entered into by the parties hereto for the Software is hereby terminated as of the Effective Date.

27. Publicity.

Refresh may, upon obtaining Customer's prior written approval, issue a press release and/or case study relating to this Agreement, and request that Customer embed the "powered by SR2" logo on it's Web sites. Customer grants to Refresh a limited, non-exclusive, non-transferable, royalty-free right to use Customer's trademarks, trade names and logos, solely for use by Refresh on its Web site and on documents and other promotional and marketing materials approved pursuant to this Agreement for the purpose of Refresh 's marketing efforts with respect to the Software. Refresh will comply with Customer's usage guidelines for trademarks, trade names and logo and other proprietary markings as in effect from time to time. Except as expressly authorized by this Agreement, Refresh will not make any other use of Customer's trademarks, trade names or logos.

28. Escrow (optional).

Refresh Software will escrow the source material for all Software with Iron Mountain Inc, (the "Escrow Agent") escrow agent. A one-time setup fee of $2,050.00 and an annual fee of $1,600.00 will be paid by the Customer and designated by the Customer in writing under an escrow agreement between the Customer and the Escrow Agent. Upon at least 5 days prior written notice to Refresh Software, the Escrow Agent will be authorized to release the source material to the Customer on and only upon the occurrence of any of the following so long as such release conditions continues:

(a) Refresh Software ceases business without a successor in interest that assumes all the Customer obligations under this Contract.

(b) Refresh Software files or has filed against it a petition in bankruptcy or similar proceeding that is not dismissed within 90 days.

The release will apply only to the source material for Software affected by the triggering event and the Customer rights to the source code of the Software are only to provide itself support. The source material, including the source code, for the Software will be in the form customarily used by programmers to read and modify such source code. It also will include all supporting documentation and annotations, but only to the extent that such supporting documentation and annotations exists, reasonably required for productive use of the source code by a competent programmer skilled in the programming language in which the source code is written. Refresh Software will deliver to the Escrow Agent the source material for each version or release of the Software that the Customer acquires. The Customer will be solely responsible for paying all escrow fees associated with the escrow agreement, and upon any release of source material from escrow, Customer will treat the material as Confidential Information and use it solely to maintain the Software for its own internal business purposes.

The escrow agreement with the Escrow Agent is a supplementary agreement to this Contract, within the meaning of Title 11, Section 365(n) of the United States Code, and neither the Refresh Software nor its trustee in bankruptcy may interfere with the Customer's license in the Software or right to access any source material by virtue of any bankruptcy proceedings.