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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 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.
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.
- Refresh Software's standard support provides email and phone support between the hours of 8:00 AM EST - 6:00 PM EST, Monday through Friday.
- Any email and phone support between the hours of 6:00 PM EST - 12:00 AM EST will incur hourly charges plus a 25% premium charge.
- Any email and phone support between the hours of 12:00 AM EST - 8:00 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 as part of a services engagement (e.g., interface software, customizations etc.). Corrections for difficulties or defects traceable to the Customer's errors or systems changes shall be billed at Refresh '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.
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.