Fresche End User License Agreement

Last Updated: March 31st, 2025

THIS IS AN ENFORCEABLE AGREEMENT BETWEEN YOU, THE CUSTOMER, AND FRESCHE. CUSTOMER ACCEPTS ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT BY CLICKING ON THE “I ACCEPT” (OR SIMILAR) BUTTON OR CHECKBOX OR BY ACCEPTING THE IBM PURCHASE DETAILS FORM OR BY OTHERWISE DOWNLOADING, ACCESSING OR USING FRESCHE SOLUTION (AS DEFINED IN THIS AGREEMENT) (THE DATE CUSTOMER ACCEPTS THIS AGREEMENT, THE “EFFECTIVE DATE”). CAPITALIZED TERMS NOT OTHERWISE DEFINED HAS THE MEANING SET OUT IN APPENDIX A (DEFINITIONS).

1. Services. Fresche will provide the some or all of the Solution(s), as selected by Customer in the IBM Purchase Details Form and which may include the following:

a) IBM Cloud Service as set out in Exhibit B;
b) Operations Managed Services as set out in Exhibit C;
c) KTLO Services as set out in Exhibit D; and
d) Professional Services, in addition to those set out in Exhibits B, C, or D

2. Customer Dependencies. Fresche’s provisioning of the Solution will be subject to the following Customer dependencies:

a) Customer will provide Fresche with access to Customer Environments as is necessary for Fresche to provide the Solution; and
b) Customer will provide all cooperation and assistance as Fresche may reasonably request to enable Fresche to exercise its rights and perform its obligations under and in connection with this Agreement.

3. License to SoftwareFresche hereby grants Customer a revocable, non-exclusive, non-sublicensable, non-transferable right to use the Software for the Term, subject to the following:

(a) Customer will not:

i) use the Software other than in accordance with this Agreement and any related documentation;

(ii) reproduce, translate, copy, adapt, alter, transform, prepare adaptations, derivative, or collective works of, modify, reverse engineer, disassemble, decompile or otherwise attempt to derive any of the source materials from the Software;

(iii) transfer, resell, distribute, rent, sub-license, lease, lend, or otherwise make the Software available to any third party;

(iv) use any software from any company to develop any products or service competitive to the Software; and

(v) any other limitations set out in the IBM Purchase Details Form (e.g. CPU limitations, etc.).

4. Intellectual Property; Customer Data.

a) Intellectual Property. Fresche owns all right, title and interest, including intellectual property rights, in and to: (a) the Solution, including any modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations thereto (collectively, “Modifications”); and (b) any data and information that is generated or created by Fresche during the delivery of the Services that does not contain any information about an identifiable individual or Confidential Information (as defined below) of Customer (such data and information, “Aggregated and Statistical Information”, and (a) and (b), collectively, the “Fresche Property”).

d) Customer Data. Customer owns all rights, title and interest, including all intellectual property rights, in and to any data, information, software, and configurations that Customer or any person on its behalf provides to Fresche for the provisioning of the Services (“Customer Data”). Customer grants to Fresche a nonexclusive, worldwide, transferable, sublicensable, royalty-free, irrevocable, fully paid-up license to access, collect, use, modify, process, store, disclose, transfer, and transmit Customer Data to: (a) provide the Services and otherwise provide the Fresche Solution; (b) improve and enhance the Solution and its other offerings; and (c) produce or generate Aggregated and Statistical Information. Customer will indemnify, defend, and hold Fresche, Fresche Affiliates, and its and their respective members, managers, directors, officers, employees, contractors, representatives, agents, successors and assigns (collectively, “Fresche Indemnified Parties”) harmless against any liabilities arising from or related to Customer Data, including Fresche’s use of such Customer Data under this Agreement.

5. Subcontracting and Fresche Affiliates. Fresche may subcontract any and all of its services, obligations and rights under this Agreement to: (a) its affiliates, meaning with respect to either party, any entity directly or indirectly controlling, controlled by, or under common control with that party and with respect to Fresche, shall also include any entity in which Fresche or any of its affiliates holds at least 40% of the issued and outstanding shares or at least 40% of the participation interests (“Affiliate”); and (b) any independent consultant or subcontractor, in each case without notice to, or consent of, Customer. Fresche will be responsible for all acts and omissions of any party to which it subcontracts services, obligations, or rights in connection with this Agreement. Customer acknowledges that any of the aforementioned parties may perform any obligations of Fresche hereunder and any Affiliate of Fresche may exercise any rights hereunder.

6. DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, FRESCHE AND ITS AFFILIATES DO NOT REPRESENT OR WARRANT THAT THE SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT OR ITS AFFILIATES MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOLUTION. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SOLUTION (AND ANY PART THEREOF) IS PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE EXTENT PERMITTED BY APPLICABLE LAW, FRESCHE AND ITS AFFILIATES HEREBY DISCLAIM ALL EXPRESS, IMPLIED, COLLATERAL, OR STATUTORY WARRANTIES, REPRESENTATIONS, AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

7.Limitation of Liability. EXCEPT WITH RESPECT TO MATTERS FOR WHICH CUSTOMER IS OBLIGATED TO PROVIDE INDEMNIFICATION UNDER THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF EITHER PARTY AND ITS AFFILIATES TO THE OTHER PARTY FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY THE CUSTOMER TO IBM FOR THE SOLUTION THAT GAVE RISE TO THE CLAIM DURING THE SIX MONTHS PRECEDING THE CLAIM. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS INTERRUPTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. Confidentiality. To the extent that Confidential Information is exchanged and received in connection with this Agreement, each party will not use the other party’s Confidential Information except in the performance of, or as authorized by, this Agreement, and not to disclose, sell, license, distribute or otherwise make available such information to third parties. Each party will take all reasonable measures to avoid disclosure, dissemination, or unauthorized use of the other party’s Confidential Information, including, at a minimum, those measures the receiving party takes to protect its own confidential information of a similar nature. Each party will disclose Confidential Information only to those employees and contractors who have a need to know and who are bound by a confidentiality obligation no less restrictive than this Section. Under this Agreement, “Confidential Information” means all confidential or proprietary information of a party disclosed to the other party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstance of the disclosure, but does not include: (a) information that was publicly available at the time of disclosure or that subsequently becomes publicly available other than by a breach of this provision; (b) information previously known by or developed by the receiving party independent of the Confidential Information; or (c) information that the receiving party rightfully obtains without restrictions on use and disclosure.

9. Term; Termination.

c) Term. This Agreement is effective as of the Effective Date and will remain in effect until the date set out in the IBM Purchase Details Form, unless earlier terminated in accordance with this Agreement.

d) Termination for Cause. Fresche may terminate this Agreement by giving Customer written notice of termination if Customer breaches its obligations under this Agreement and: (a) such breach is not capable of being cured; or (b) if such breach is capable of being cured, Customer fails to cure such breach or default within thirty (30) days of receipt of written notice thereof.

e) Effect of Termination. Upon any expiration or termination of this Agreement: (a) Customer must immediately cease any and all use of the Solution; (b) within thirty (30) days of expiration or termination, each party will destroy or deliver to the other party all copies of the other party’s Confidential Information, except that each party may retain one copy of Confidential Information to comply with its internal record keeping policies or applicable law; and (c) Fresche will have no further obligation to provide any part of the Solution to Customer. Expiration or termination of this Agreement will not limit either party from pursuing any other remedies available to it, including injunctive relief.

f) Survival. Upon any termination or expiration of this Agreement, provisions contained in this Agreement that by their nature and context are intended to survive completion of performance, expiration, termination, or cancellation of this Agreement, including the terms on the cover pages and Sections 4 (Intellectual Property; Customer Data), 6 (Disclaimer), 7 (Limitation of Liability), 8 (Confidentiality), 9e) (Effect of Termination), 10 (General), and this Section 10f) (Survival) will survive and remain in effect after termination or expiration of this Agreement.

10. General.

(a) Assignment. Customer may not assign or transfer this Agreement without consent of Fresche. Fresche may assign or transfer this Agreement without consent or notice to Customer.

(b) Force Majeure. Neither party will be liable for failure to fulfill any obligations under this Agreement for delays in delivery to causes beyond its reasonable control, including acts of God, acts of terrorism, acts or omissions of the other party, man-made or natural disasters, material shortages, strikes, delays in transportation or inability to obtain labor or materials through its regular source (“Force Majeure Events”). The time for performance of any such obligation will be extended to account for the time period lost by reason of Force Majeure Events.

(c) Notice. Any notice under this Agreement may be delivered by personal service, prepaid certified or registered mail, prepaid commercial courier, or electronic mail to the addresses on file or any address subsequently provided under these notice requirements. Such notice will be considered delivered upon the earlier of personal delivery, three business days after mailing, or one business day after sending via commercial courier or electronic mail.

(d) Export Control. Customer agrees to comply with all export and re-export laws and regulations imposed by the Canadian government, the U.S. government, the government of the United Kingdom and any other country’s government with respect to the Software and its related documentation and any other technical data received from Fresche.

(e) Governing Law; Venue. The laws of the State of New York and the federal laws of the United States applicable therein, without reference to conflict of law rules, govern this Agreement and any dispute that might arise between Fresche and Customer. Any dispute will be adjudicated in the State of New York, and Customer irrevocably consents to the exclusive jurisdiction and venue in those courts.

(f) Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.

(g) Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.

(h) Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any party, will be binding unless executed in writing by the party or parties to be bound thereby. Notwithstanding the preceding sentence, Fresche may unilaterally amend this agreement by giving Customer 30 days prior notice of such amendment. Unless otherwise indicated by Fresche, any such amendment will become effective 30 days after the date the notice of such amendment is provided to Customer.

(i) Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications, whether oral or written.

EXHIBIT A – DEFINITIONS

1. Definitions.

a) “Agreement” means this end-user license agreement.

b) “Authorized Contact” means a representative authorized by Customer to request Services or Support for the Solution provided in this Agreement.

c) “Backup” means the process of creating and storing copies of Customer Data from an Environment to a Backup Device with the parameters specified in the IBM Purchase Details Form.

d) “Backup Device” means the combination of hardware and Software in the IBM Cloud Service which acts as the repository of the Customer Data that is transmitted via the Backup Software. A Backup Device can be in the same region, a different region, or both, as specified in the IBM Purchase Details Form.

e) “Backup Service” means the management of Backup and Restore operations, including the IBM Cloud Service, Software, and Services specified in the IBM Purchase Details Form.

f) “Backup Software” means the Software installed in the Environment which facilitates the transport of the Customer Data between the Environment and the Backup Device.

g) “Code Word” means a word or phrase known only to an Authorized Contact.

h) “Customer” means the person or entity that has accepted this Agreement.

i) “Declaration of Disaster” means the communication by an Authorized User of the Customer to Fresche using any authorized communication channel, that there has been an interruption of services.

j) “Disaster Event” means any unplanned interruption of the operation of Customer’s applications used in connection with Customer’s computer operations.

k) “Disaster Recovery Service” means the provisioning and management of Environments to provide compute resources in a secondary location and enable Customer’s applications to be restarted in a Disaster Event, along with Services to assist Customer during and after a Disaster Event.

l) “DR Plan” means a document that describes the technical configuration of the Environments where Customer’s primary information processing occurs, the Environments where the Customer’s secondary information processing occurs, the network connectivity between the primary and secondary Environments, and the technical steps required to recovery the Customer Data in the secondary Environment.

m) “End Users” means those individuals that have been authorized by Customer to use the Cloud Services or Managed Services.

n) “Environment” means the combination of hardware and operating system software in which Customer performs information processing.

o) “Fresche”, or “Licensor” means Fresche Solutions USA Corporation.

p) “Fresche Portal” means the online communication system provided by Fresche to facilitate exchange of information between the parties.

q) “IBM” means International Business Machines Corporation.

r) “IBM Purchase Details Form” means the purchase agreement form or ordering document presented by or on behalf of IBM, including through its digital platform facilitating the resale of the Solution, in each case, as received and agreed to by Fresche.

s) “IBM Cloud Service” means the hardware, operating system(s), networking, and other services provided by IBM to host the Environment.

t) “Immutable” means that once a Backup is created, the Customer Data within it cannot be altered, deleted, or changed, by Authorized Users, End Users, or Fresche personnel, or by any application including the Backup Software. The Backup, however, can be deleted by a system administrator with sufficient access.

u) “Incident” has the meaning set out in Exhibit E.

v) “KTLO Services” means the services described in Exhibit D.

w) “Logical Replication” means the real-time and continuous replication of Customer Data using a third-party tool that performs the replication from one operating system to another operating system, often in a different region, and does not depend on a storage device.

x) “Normal Business Hours” means Monday through Friday during the hours of 9:00am to 5:00pm Eastern Time, excluding holidays.

y) “Operations Managed Services” means the services described in Exhibit C.

z) “Professional Services” means the professional services, in addition to those set out in Exhibit B, C, or D, that are set out in any statements of work entered into between Customer and Fresche from time to time under and governed by this Agreement.

aa) “Recovery Declaration Charge” means the amount of money Customer will pay in the event of a Disaster Event which includes any additional Environments or Services required of Fresche and IBM to assist Customer to restore operations in accordance with the RTO standards specified by Customer.

bb) “Recovery Point Objective (RPO)” means the amount of time prior to a Disaster Event that Customer Data will be available – and that all Customer Data after that time will be lost.

cc) “Recovery Time Objective (RTO)” means the amount of time it takes to Restore the Customer Data after a Disaster Event. For clarity, this does not include the additional time that Customer will spend in restarting applications and validating data.

dd) “Restore” means the process of recovering Customer Data to a previous state from a Backup.

ee) “Retention Period” means the length of time a Backup will be stored on the Backup Device before it is permanently deleted.

ff) “Services” means the Operations Managed Services, KTLO Services, or Professional Services in each case as identified on the IBM Purchase Details Form

gg) “Solution” means any combination of the IBM Cloud Service, Software, or Services that have been selected by Customer on the IBM Purchase Details Form.

hh) “Software” means the software identified in the IBM Purchase Details Form or included by Fresche as part of the Services to deliver the Solution.

ii) “Storage Replication” means the real-time and continuous replication of Customer Data performed by a storage device to different storage device, often in a different region.

jj) “Subscription Term” means the length of time that Customer specified on the IBM Purchase Details Form, or in a subsequent agreement between Fresche and Customer.

EXHIBIT B – IBM CLOUD SERVICES

1. IBM Cloud Services
a) Fresche will provision Environments in the IBM Cloud Service to provide information processing to Customer as set out in the IBM Purchase Details Form. Customer may install, run, and manage Environment-compatible applications, software, and programs and may store, access, and modify computer files and data objects within the Environment.

b) Fresche will provision network connectivity based upon the details as set out in the IBM Purchase Details Form up to the demarcation point with the open internet and the IBM Cloud Service. Fresche and IBM will monitor the Environments for accessibility by Customer and End Users using industry standard practices, technology, schedules and resources.

c) Customer will be responsible for providing high-speed internet connection to the Environment to access and use the Cloud Services, including all network and computing devices within Customer’s network used to access the Environment. Fresche does not guarantee uninterrupted uptime from communications systems or services past its demarcation point.

d) On Customer’s request, Fresche will use reasonable efforts to work with Customer’s communications service provider(s) to minimize any disruption due to communications systems downtime.

e) Fresche is not liable for connectivity performance issues occurring past the demarcation point or caused in whole or in part by Customer, by third parties, or by Customer’s equipment, whether installed or maintained by Customer or by a third party.

f) Fresche will provide the facilities, services, operating system software, hardware and other technology needed to make the Environment available for use by Customer and End Users.

EXHIBIT C – OPERATIONS MANAGED SERVICES

If identified in the IBM Purchase Details Form, Fresche will provide Operations Managed Services including the below activities, using industry standard practices, technology, schedules, and resources for each Environment designated by Customer or as set out in the IBM Purchase Details Form:

1. System Administration Tasks:

a) Monitoring and Ticketing

(i) Fresche will install and configure monitoring Software in the client Environments and provide 24x7x365 monitoring of the Environments from the Fresche Network Operations Center.

(ii) Monitoring includes, at a minimum, CPU and memory utilization, storage capacity, along with other operating system specific parameters and metrics.

(iii) Fresche will configure alert thresholds based on Fresche standards and Customer’s business requirements if provided. When the monitored elements exceed an established threshold, the monitoring Software will create a ticket in Fresche’s ticket system and Fresche will investigate the ticket to determine if action is needed. If the alert condition creates an impairment to the Environment, Fresche will work with Customer to remediate the impairment.

(iv) Customer can manually create tickets using the Fresche Support Portal, by sending an e-mail to the Fresche approved e-mail, or by calling the Fresche support telephone number.

(v) The integration of Fresche’s ticketing system and Customer’s ticketing system is not included in these services but are available for an additional fee and conditioned upon Fresche’s support for the integration of the Customer’s ticketing system.

(vi) Customer acknowledges that the IBM Cloud Services are provided by IBM and Fresche is not responsible for outages that are caused by IBM in the IBM Cloud Services.

b) Manufacturer Liaison

(i) Fresche will act as the liaison with IBM on behalf of Customer to coordinate planned and emergency maintenance activities including hardware changes and failures, firmware updates, and critical security patches.

(ii) Fresche will call the manufacturer’s support on behalf of the client to assist in troubleshooting and resolution of impairments of Customer’s Environments. Where applicable, Customer will provide authorization to the manufacturer to act

(iii) Customer acknowledges that unplanned outages arising from a defect or outage in the IBM Cloud Services are excluded from the SLA calculations described in Exhibit E.

c) Operating System Activities

(i) Fresche will patch and upgrade the operating system in the Environment on a periodic basis as defined by Customer or on a schedule as may be required or recommended by Fresche or a manufacturer in order to provide for stability and security of the operating system.

(ii) Fresche will create, manage, and delete privileged user profiles, including password resets, and authority level management and as authorized and requested by Customer.

(iii) Fresche will execute scheduled or ad-hoc restarts of an Environment as requested by Customer, or as part of regularly scheduled maintenance activities. Fresche will verify that the system and operating system are stable after a restart of the Environment.

(iv) Fresche will maintain network configurations and other communications settings in the Environment, including DNS and hostnames, as required to ensure connectivity to the point of demarcation of the open Internet. Fresche will not be responsible for the maintenance of any networking equipment in the Customer’s network.

(v) Customer may choose not to install recommended patches and maintenance at their discretion but acknowledges that an outage or degradation of the performance, stability, or security of the operating system may occur as a result of that choice.

d) Performance

(i) Fresche will monitor and optimize the performance of the Environment within the limits of the resources associated with the Environment. Fresche will investigate the root cause of service impairments related to performance using tools that are included in the operating system.

(ii) Customer acknowledges that Customer’s applications are often the root cause of a performance impairment and that downtime that is incurred as a result of an application change is excluded from the SLA calculations in Exhibit E.

On Customer’s request, Fresche will use reasonable efforts to work with a manufacturer or other third party to resolve performance challenges.

e) Security Software

(i) For selected IBM operating systems, Fresche will install and configure Fresche’s Security Audit Software to detect and send security events to Fresche for evaluation and investigation. Fresche will provide a single one-hour consultation with Customer and based exclusively upon the information reported by the Security Software.

(ii) For selected Microsoft operating systems, Fresche will install third party tools to provide end-point protection and intrusion protection. Fresche will review security logs and provide alerting if a service impairment anomaly is detected.

(iii) Fresche does not include any incident response or management services as part of this Agreement.

f) Reporting and Documentation

(i) Fresche will create and review capacity reports on a periodic basis and provide Customer trend information and recommendations for resource optimizations or expansions as the Customer workload requires.

(ii) In coordination with the Customer, Fresche will create and maintain runbooks for operating system events, changes, and other system maintenance activities.

(iii) Fresche will create and deliver root cause analysis (RCAs) reports on Critical Incidents as defined in the SLA details in Exhibit E.

(iv) Upon Customer request, Fresche will assist in creating reports and documentation to support periodic audit or reporting requirements for operating system values

(v) On a periodic basis as determined by agreement between Fresche and Customer, but no more frequently than once a quarter, Fresche will provide a summary of the tickets, events, and other activities and Services rendered to Customer for a selected interval.

2. If a Backup Service is specified on the IBM Purchase Details Form, Fresche will perform the functions below, using industry standard practices, technologies, schedules, and resources, subject to the conditions for each, and as described as follows:

a) Backup Devices. Fresche will create and configure the Backup Device with the performance and capacity as set out in the IBM Purchase Details Form. Fresche will add the Backup Device to the Fresche Backup Software and will monitor and manage the Device on a 24x7x365 basis.

b) Backup Software. Fresche will install the Backup Software in each Environment and verify that it is communicating with the Backup Device. Fresche will conduct a test Backup to validate that the Backup was completed.

c) Backup schedules. Fresche will configure the Backup Software to create Backups and select the Retention Periods as set out in the IBM Purchase Details Form, unless otherwise specified by Customer. If Customer chooses a different Backup schedule or Retention Period or as agreed upon by Fresche and Customer, then Fresche will not be responsible for the limitations or loss of data caused by that choice.

d) On-Demand Backups.

(i) In addition to the Scheduled Backups, Fresche will perform full, incremental, or file-based backups of Customer Data upon Customer request.

(ii) On-Demand Backups are subject to resource constraints including storage and may require additional capacity for an additional fee.

(iii) Depending on the different conditions, the restoration will be subject to the limitations of compute or personnel resources, take an undetermined amount of time, or involve downtime of an Environment.

(iv) Additional charges may apply if the restoration of the Backup of the Customer Data requires more capacity or performance than is specified in the IBM Purchase Details Form.

e) Restore Customer Data.

(i) Customer may request the restoration of Customer Data on the Backup Device at any time. Fresche will provide best efforts to fulfill the request in a timely manner.

(ii) Depending on the different conditions, the restoration will be subject to the limitations of compute or personnel resources, take an undetermined amount of time, or involve downtime of an Environment.

(iii) Additional charges may apply if the restoration of the Customer Data consumes more capacity than is specified in the IBM Purchase Details Form.

(iv) Customer acknowledges that certain conditions outside of Fresche’s control may impact the ability to perform a successful Backups or to restore Customer Data. Examples include but are not limited to: (i) a Customer application renders portions, complete files, or complete Environments unavailable to the Backup Software and (ii) a Backup that has exceeded the established Retention Period. Fresche shall have no liability for any Customer Data lost in conditions outside of Fresche’s control.

f) Backup failures. When a Backup fails, Fresche will investigate the root cause of the failure, remediate the error condition, and with Customer’s permission initiate a new Backup, at a mutually agreeable time

g) Encryption. All data on the Backup Storage Device is encrypted while at rest on storage medium.

h) Immutability. Fresche will configure Backups conducted on the Backup Storage Device to be immutable only as specified in the IBM Purchase Details Forms.

3. If a Disaster Recovery Service is specified on the IBM Purchase Details Form, Fresche will perform the functions below, using industry standard practices, technologies, schedules, and resources, subject to the conditions for each, and as described as follows:

a) Configuration

(i) Fresche will configure the Disaster Recovery Environments in the region specified on the IBM Purchase Details form and make it available to Customer in a Disaster Event.

(ii) Customer acknowledges that the Environments must be of equivalent performance and capacity to meet the Customer’s RTO and RPO standards.

(iii) Fresche will configure the Environments using Storage Replication or using Logical Replication as specified on the IBM Purchase Details Form, or as agreed upon after a discussion between Customer and Fresche.

b) Disaster Recovery Plan

(i) Fresche and Customer will jointly create and maintain throughout the Subscription Term the DR Plan. The DR Plan will be tested for viability via a validation test and delivered to the Customer. Until the DR Plan validation test is completed. Fresche will provide only commercially reasonable efforts to timely recover the most recent available version of the Environment(s). After the DR Plan is validated and tested, the applicable service levels will apply.

(ii) The DR Plan will define the RPO and RTO standards as identified and agreed upon between Fresche and Customer.

c) Testing and Documentation. Fresche will use commercially reasonable efforts to schedule a test of the DR Plan at least annually. Fresche will assist in documenting the results and actions of the test of the DR Plan. The RPO and RTO standards may be adjusted by mutual agreement as may be needed from time to time. Fresche will assist in remediating any deficiencies identified in the testing that are within the scope of the Operations Managed Services and IBM Cloud Services being provided.

d) Declaration of Disaster. When Customer experiences a Disaster, Customer must declare to Fresche that a Disaster has taken place and will to pay Fresche and IBM a Recovery Declaration Charge. Customer is encouraged to consult regularly with Fresche and IBM to continuously evaluate and improve Customer’s Disaster Recovery Plan. The Declaration of a Disaster must be made by using the Fresche Portal, the Fresche approved email address, or Fresche’s support phone number.

e) Duration. Upon receipt of a Declaration of Disaster, Fresche will begin recovery promptly and allow Customer dedicated access to and usage of additional IBM Cloud Services and Operational Managed Services needed to restore Customer operations only, and for only 30 days after the Disaster Event.

EXHIBIT D – FRESCHE KTLO SERVICES DETAILS

If identified in the IBM Purchase Details Form, Fresche will provide KTLO Services including the Operations Managed Services described in Exhibit C, and the additional activities below, using industry standard practices, technology, schedules, and resources for each Environment designated by Customer or as set out in the IBM Purchase Details Form. These services are only available for the IBM i operating system at this time.

KTLO SERVICES FOR APPLICATIONS RUNNING ON ANY OPERATING SYSTEM ARE CONDITIONED UPON A REVIEW OF THE APPLICATIONS TO BE SUPPORTED AND EXCLUSIVELY AFTER FRESCHE’S APPROVAL OF SAME.

1. Enhanced Systems Administration
Fresche will perform the following system administration activities:

a) Create, manage, and delete non-privileged and remote user profile, perform password resets, and configure user access rights,
b) Fresche will monitor, start, stop, and troubleshoot FTP and SFTP file transfers.
c) Printer management for up to five printers including troubleshooting, managing OUTQs, and configuring printer connections and parameters.
d) Maintain application data, objects, journals and receivers, logs, journals, IFS (Integrated File System) objects and directories. This includes managing disk space, performing regular cleanups, and organizing data storage to support application performance and stability.
e) Provide security administration using standard operating system tools, including object security configuration, system value management, network security settings, and audit journal management.
f) Upon customer request, configure and maintain additional BRMS backup jobs if needed for application and user objects.
g) Plan for and support periodic system migration activities, including evaluating migration strategies, testing procedures, and fallback plans.
h) Create and continuously update runbooks for third-party and application based on system message resolutions, including documenting troubleshooting steps and resolution paths.

2. Application Support
Fresche will provide day-to-day support for the agreed-upon IBM and third-party applications by perform the following activities:

a) Monitor, respond to, and escalate application messages generated as part of standard application operations.

b) Create, prioritize, hold, cancel, release, and otherwise manage job schedules, handle additions, deletions, and changes to automated job schedulers, configure job dependencies, monitor execution, and restart abnormally terminated jobs.

c) Review application logs and message queues and provide appropriate responses to interactive messages

d) Follow established protocols for escalating critical issues to appropriate teams or support levels when necessary.

e) Periodically review the agreed-upon IBM and third-party application support requirements and patch and upgrade the applications at a time and schedule as mutually agreed upon by Fresche and Customer.

f) Maintain application startup objects, maintain subsystem entries, job descriptions, and start and stop application services as part of regular application maintenance, during troubleshooting activities, or as part of planned or unplanned maintenance, and at a time and schedule as mutually agreed upon by Fresche and Customer.

g) Assist in investigating and remediating application performance challenges and/or failures in collaboration with the appropriate application software providers. This includes a performance analysis using Performance Explorer for eight hours per year to identify bottlenecks, review job logs for anomalies, and analyze SQL performance. Upon Customer’s request and agreement, Fresche will implement the tuning recommendations.

3. Meetings
Fresche personnel will participate in and plan for the following meetings:

a) Project management and governance
b) Periodic status reviews
c) Change control board (CCB)
d) Code reviews
e) Disaster recovery
f) System or application audit

4. RPG and EDI Application Development
Fresche will provide twelve (12) hours of RPG or EDI application development services work per month. If twelve hours are not used in a month, they can be carried over to the next month, a single time. If needed, additional hours are charged at a rate of $185/hour. Services might include:

a) Writing code to automate duplicate system alerts.
b) Stage and promote programs into production with client supplied tooling.
c) Physical and logical database and table administration including data file reorganization.
d) Develop, customize and run application reports.

5. Services
Fresche will provide the following onboarding and project management services at the suggested intervals below, once agreed upon by Customer and Fresche:

a) Project Management (Week 1 – Remote)

i) On-boarding (Connectivity, user provisioning, portal access).
ii) Technical setup and analysis (Tool installation and system evaluation).
iii) Initiate project management (SLA alignment, meeting cadence, and reporting strategy).

b) Setup and alignment (Week 2 On-Site or Remote)

i) Personnel introductions (org chart review, admin, and developers).
ii) Current state evaluation (physical, logical, tools, tickets, and runbooks).
iii) Environmental review and shadowing (Daily operations and tools education).
iv) Process education (workflow and documentation standards).

c) Transition activities (Week 3 remote)

i) Business context (architecture walkthrough and application demonstrations).
ii) Third-party application education and authorizations.
iii) Go Live.

EXHIBIT E – SUPPORT AND SERVICE LEVEL AGREEMENTS

1. Customer Support. Support requests made by the Customer to Fresche for maintenance, repair, support, or upgrade of Fresche Solution (“Support Requests”) may be made via the Fresche Portal, by e-mail to the Fresche authorized e-mail account, or by calling Fresche’s 24x7x365 support phone number. Only Authorized Users will be able to request support. Authorized Users who contact Support will be asked for their Code Word before support is provided.

2. Priority Levels. All outages of any of the Environments, other than outages resulting from scheduled downtime (“Incidents”) and Support Requests are assigned a level of priority (“Priority Level”) as set out below:

3. Incident and Support Request Response Times. Fresche will use commercially reasonable efforts to respond to Incidents and Support Requests within the respective target response time (“Response Time” or “Target Response Time”) set out in the table below:

4. Support Request and Incident Tracking. For Critical and High Incidents, Fresche will use commercially reasonable efforts to provide Customer with support services 24x7x365. For all other Incidents, Fresche will use commercially reasonable efforts to provide the Customer with support services during Fresche’s Normal Business Hours.

5. Service Credit Calculations. Each Service Level in the table below applies to Environments for which the relevant Service covers. The method of calculating the Service Credits listed below is used for all Service Levels and will be calculated and determined by Fresche.

6. Service Level Exclusions. Service Levels do not apply to service deficiencies that resulted from the following items:

(i) Force Majeure Events;

(ii) Customer’s hardware or software, or that of Customer’s third-party contractors or vendors;

(iii) actions or inactions of Customer or third parties, including Customer’s breach of this Agreement and failure to meet Customer dependencies;

(iv) Customer’s use of any modification to any function, process, hardware, or software after Fresche advised Customer not to use that modification;

(v) exceptions associated with specific Solution functions and as described in Exhibits B, C, or D;

(vi) downtime due to suspension of the Solution in accordance with Section 1; or

(vii) downtime, suspensions or any other adverse events caused or contributed to by IBM.

7. Service Credit. Fresche will provide a credit to Customer in the amount of the monthly fees paid to IBM multiplied by the applicable percentage set out under the ‘Service Credit’ column in the table under Section 5 (Service Credit Calculations) above.

8. Exclusive Remedy. The Service Credits listed in this Exhibit E are in lieu of any warranty and are Customer’s sole and exclusive remedies for any failure by Fresche to provide an adequate Solution.