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Refresh Software Corp.
313 Speen Street
Natick, MA 01760
U.S.A.
Tel: + 1-508-318-4480
Fax: + 1-508-318-4481
Refresh Software Licensed Software Terms of Use and Support
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.