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5. Software Performance Remedies . SOFTWARE LICENSE PROVISIONS . In any situation in which this Agreement entitles you to Software Performance Remedies in respect of a problem with the Soft- ware. we will take the actions set forth in Plan A below, and jfthat is unsuccessful for any reason, Plan B, subject to your doing your part under each plan. 5.1 PlanA: Error correction efforts 5.2 Plan B: Refund 5.3 Exclusive Remedies (0) WHAT WE WILL DO We will provide you with a correction or work~ around in a reasonable time (not to exceed 30 days without your approval), working with you pursuant to our Tech Support Commitment. Upon your written request, we will refund all or a portion of your money (depending on whether the Warranty Period was still in effect when you re~ ported the problem), as follows: I) Warranty Period still in effect: (i) We will refund all license fees you paid for the License in question, plus all maintenance fees you paid in connection with your purchase of such License; and (ii) both the License in question and your maintenance subscription will be terminated. 2) Warranty Period no longer in effect: (i) We will refund the unused portion of your mainte- nance fee for the then-current maintenance period for such item(s) of Software, if any. The unused portion will be computed by pro-rating such maintenance fee, on a monthly basis, as of the date on which you gave us notice of the problem; and (ii) your maintenance subscription for such item(s) ofSofuvare will be tenninated, but your License(s) to use sueh item(s) of Software will remain in effect. (b) YOUR PART I) You must timely report the problem to us in writing (i.e., no later than the end of the Warranty Period or then-current maintenance period, as applicable); and 2) You must provide us with such infonna- tion about the problem as we may reasonably request. Upon your written request, we will re- imburse you for your reasonable out-of-pocket costs of providing us with such infonnation. You must make any such refund request by notice to us no later than the later of the following:t,5 1) such period of time as the parties may agree in writing; or 2) if the parties have not otherwise agreed in writing, 30 days after your notice to us of the problem that entitled you to Software Perform- ance Remedies. Otherwise, you will be deemed to have waived your right to a refund. Our obligations in this Section 5 are your EXCLUSIVE REMEDIES for any breach by us of our performance-related warranties or maintenance obligations under an applicable Order Form and for any error or malfunction by the Software. J 5 Section 5.2(b): In the interest offinality. the language includes a cut-off date for your right to request a refund as one if your remedies for breach of}1,'an'anty. BINDVIEW CUSTOMER AGREEMENT 95-3172 PAGE 9