Contact Us
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 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.