FRESCHE SERVICES AGREEMENT
TERMS AND CONDITIONS
Last Updated: September 28, 2023
THESE SERVICES AGREEMENT TERMS AND CONDITIONS (“TERMS AND CONDITIONS”) FORM PART OF THE SAME AGREEMENT AS THE STATEMENT OF WORK THAT INCORPORATES BY REFERENCE THESE TERMS AND CONDITIONS.
- General Solution.
- General. These Terms and Conditions do not, absent the execution of a Statement of Work, create any business relationship or impose any obligation on Fresche and its Affiliates (as defined in Section 5.1) to provide any license, access, product, or service.
- Solution. The products and services, if and to the extent, made available by Fresche under this Agreement, including the Professional Services, are collectively, the “Solution”. For greater clarity, the products and services made available under this Agreement will be made available to Customer only. Unless expressly provided for in the Professional Services Addendum, any access or use by Affiliates of Customer will be subject to a separate agreement intended to cover such use by Affiliates.
- Proprietary Rights.
- Intellectual Property. Except for the limited rights or licenses that Fresche grants to Customer under the Professional Services Addendum, 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 Solution that does not contain any information about an identifiable individual (“Personal Information”) or Confidential Information (as defined in Section 7.2) of Customer (such information and data, “Aggregated and Statistical Information”, and (a) and (b), collectively, the “Fresche Property”).
- Fees. Customer agrees that the rights granted under this Agreement, including any license or access provided to the Solution, are conditioned on Customer’s payment of all required fees for such Solution as specified in this Agreement (“Fees”). In consideration for the rights granted to Customer and the performance of Fresche’s obligations under this Agreement, Customer will pay Fresche the Fees.
- Changes to the Fees. Fresche may increase the Fees for any renewal term (if set out in this Agreement) upon providing not less than 30 days’ prior notice to Customer.
- Payment. Unless otherwise specified, all amounts payable under this Agreement will be made in United States dollars. Customer will pay invoiced amounts within 30 days of the invoice date. Customer acknowledges and agrees that Affiliates of Fresche may invoice or collect any Fees payable thereunder on behalf of Fresche.
- Taxes. Customer is responsible for taxes applicable to Customer arising out of this Agreement, except for taxes imposed on Fresche’s income or arising from the employment relationship between Fresche and its personnel.
- Representations and Warranties; Disclaimer.
- Mutual Representations and Warranties. Each party represents, warrants, and covenants that:
it has full power and all necessary rights to enter into this Agreement; and
it will carry out its obligations under this Agreement in compliance with applicable laws.
- 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 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) ARE 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.
- Subcontracting With 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.
- Limitation of Liability.
- EXCEPT WITH RESPECT TO MATTERS FOR WHICH CUSTOMER IS OBLIGATED TO PROVIDE INDEMNIFICATION UNDER THIS AGREEMENT, PAYMENT OF APPLICABLE FEES BY CUSTOMER, OR FOR WHICH THE PROFESSIONAL SERVICES ADDENDUM PROVIDES IS NOT SUBJECT TO THIS LIMITATION OF LIABILITY, TO THE FULLEST EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE TOTAL LIABILITY, IN THE AGGREGATE, OF EACH PARTY AND ITS OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES AND SUBCONTRACTORS TO THE OTHER PARTY AND ANYONE CLAIMING BY OR THROUGH THE OTHER PARTY, FOR ANY AND ALL CLAIMS, LOSSES, COSTS, OR DAMAGES, INCLUDING ATTORNEYS’ FEES, COSTS, EXPERT-WITNESS FEES, AND COSTS OF ANY NATURE WHATSOEVER OR CLAIMS EXPENSES RESULTING FROM OR IN ANY WAY RELATED TO THIS AGREEMENT FROM ANY CAUSE OR CAUSES WILL NOT EXCEED THE TOTAL COMPENSATION RECEIVED BY FRESCHE UNDER THIS AGREEMENT FOR THE PRODUCT OR SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 6 MONTHS PRECEDING THE CLAIM BUT FOR CLAIMS RELATING TO LOSS OR DAMAGE TO TANGIBLE BUSINESS PERSONAL PROPERTY OF CUSTOMER IN FRESCHE’S POSSESSION AND CONTROL, FRESCHE’S LIABILITY WILL NOT EXCEED ITS REPLACEMENT VALUE.
- EXCEPT WITH RESPECT TO MATTERS FOR WHICH CUSTOMER IS OBLIGATED TO PROVIDE INDEMNIFICATION UNDER THIS AGREEMENT, PAYMENT OF APPLICABLE FEES BY CUSTOMER, OR FOR WHICH THE PROFESSIONAL SERVICES ADDENDUM PROVIDES IS NOT SUBJECT TO THIS LIMITATION OF LIABILITY, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY AMOUNT OF INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO LOST PROFITS OR BUSINESS INTERRUPTION, EVEN IF THE PARTY IS NOTIFIED IN ADVANCE OF A POSSIBILITY OF SUCH DAMAGES. IT IS INTENDED THAT THESE LIMITATIONS APPLY TO ANY AND ALL LIABILITY OR CAUSE OF ACTION HOWEVER ALLEGED OR ARISING, UNLESS OTHERWISE PROHIBITED BY LAW.
- General. If the parties enter into a confidentiality agreement or other non-disclosure agreement (the “Confidentiality Agreement”), the Confidentiality Agreement will prevail in the event of a conflict between this Agreement and the Confidentiality Agreement. This Section 7 will survive and remain in effect for a period of two years beyond the expiration or termination of this Agreement.
- Confidential Information. “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. Each party may use the other party’s Confidential Information only in connection with the Solution as permitted under this Agreement. For avoidance of doubt, Confidential Information includes this Agreement, pricing, policies, other terms and Fresche documentation, and any information supplied by Customer to Fresche pursuant to this Agreement.
- Non-Disclosure. To the extent that Confidential Information is exchanged and received in connection with the Solution, each party agrees not to 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 have signed a Confidentiality Agreement no less restrictive that this Section 7.
- Term; Termination.
- Term. This Agreement is effective as of the SOW Effective Date and will remain in effect for the SOW Term, unless earlier terminated in accordance with the terms of this Agreement. For clarity, these Terms and Conditions will terminate upon any termination or expiration of the Agreement (the “Term”).
- Termination for Cause. Fresche may terminate this Agreement by giving Customer written notice of termination if Customer breaches its payment obligations under Section 3 and fails to cure such breach or default within thirty (30) days of receipt of written notice thereof.
- Effect of Termination. Unless otherwise specified in this Agreement, 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, nor will any such expiration or termination relieve Customer’s obligation to pay all amounts and Fees that have accrued or are otherwise owed by Customer under this Agreement up to the effective date of termination.
- 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 Sections 2 (Proprietary Rights), 3 (Fees), 4.2 (Disclaimer), 6 (Limitation of Liability), 7 (Confidentiality), 8.3 (Effect of Termination), 9 (General), 9.6 (Governing Law), 9.8 (No Publicity), and this Section 8.4 (Survival) will survive and remain in effect after termination or expiration of this Agreement.
- Assignment. Neither party may assign or transfer this Agreement, or delegate or sublicense any of its rights under this Agreement, and any putative assignment made without such required consent will have no effect. Notwithstanding the foregoing, Fresche may assign or transfer, including to its Affiliates, this Agreement, including the Professional Services Addendum, or any rights hereunder without consent and without notice to Customer. In addition, an assignment by Fresche of this Agreement by operation of law, in the case of a merger, consolidation, amalgamation, or other transaction or series of transactions, as well as a result of the sale of all or substantially all of the assets of Fresche, does not require consent, provided that Fresche must provide notice after such merger, consolidation, amalgamation, or other transaction occurs.
- Compliance with Laws. The parties will comply with all applicable laws, rules and regulations, including export laws, in its performance under this Agreement. Customer must ensure that its use of the Solution complies in all respects and at all times with all applicable laws, statutes, regulations, ordinances or other rules promulgated by governing authorities that the parties or the Solution are subject to, including by means of obtaining any permits, licenses, or approvals required with respect to applicable export regulations.
- Import and Export Compliance. Customer is solely responsible for compliance with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. Customer’s compliance responsibility encompasses the manner in which Customer chooses to use the Solution.
- Force Majeure. Neither party will be liable for failure to fulfil any obligations under this Agreement for delays in delivery or payment due to causes beyond its reasonable control, including, but not limited to, 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 the delay.
- Notice. Any notice provided for or permitted in this Agreement may be delivered by personal service, certified return receipt requested or registered mail, postage prepaid, or by Federal Express or other nationally recognized commercial courier, charges prepaid, or by electronic mail to the addresses listed in this Agreement, or any notice address subsequently provided to the other party by means of these notice requirements. Any such notice, demand, request or other communication will be deemed to have been delivered upon the earlier of personal delivery thereof, or three business days after having been mailed as provided above, or one business day after deliver through a commercial courier or by electronic mail, as the case may be.
- Governing Law; Venue. The laws of the State of New York, without reference to conflict of law rules, govern this Agreement and any dispute that might arise between Fresche and Customer, and any dispute will be adjudicated in any state or federal court located in New York. Notwithstanding the foregoing, if Customer’s address listed in this Agreement is located in Canada, then the laws of the Province of Quebec, without reference to conflict of law rules, govern this Agreement and any dispute that might arise between Fresche and Customer, and any dispute will be adjudicated in any provincial or federal court located in Quebec. Customer irrevocably consents to the exclusive jurisdiction and venue in those courts. Fresche may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of intellectual property or other proprietary rights belonging to Fresche, its Affiliates, or any third party. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
- Trademarks. Customer is not authorized to use Fresche trademarks, service marks, and trade names in which Fresche holds right, title, or interest (“Marks”) for any purpose. Customer will have no claim or right in Fresche’s Marks and will not make any claim or contest the use of any of Fresche’s Mark authorized by Fresche. Except as expressly authorized in writing by Fresche, Customer will not file or attempt to register any of Fresche’s Marks or any mark confusingly similar thereto.
- No Publicity. Neither party will issue any press release or make any other public communication with respect to this Agreement except as expressly permitted by this Agreement or with the other party’s prior written consent.
- No Restriction on Hiring and Solicitation. Each party agrees that there is no non-solicitation covenant during the Term of this Agreement. Either party may solicit for employment any employee of the other party without penalty.
- Severability. If any term of this Agreement is to any extent illegal, otherwise invalid, or incapable of being enforced, such term will be excluded to the extent of such invalidity or unenforceability; all other terms hereof will remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term will be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term. If application of this provision should materially and adversely affect the economic substance of the transactions contemplated hereby, the party adversely impacted will be entitled to compensation for such adverse impact, provided the reason for the invalidity or unenforceability of a term is not due to serious misconduct by the party seeking such compensation.
- Waiver. Failure by either party to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit either party’s right to enforce such provision at a later time. All waivers by either party must be in writing to be effective.
- Construction. Except as otherwise provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
- Independent Contractors. Fresche, its Affiliates, and Customer are independent contractors. Neither party, nor any of their respective Affiliates, is an agent of the other for any purpose or has the authority to bind the other. Nothing herein should be deemed or construed to create a joint venture, partnership, agency, or employer/employee relationship between the parties.
- No Third-Party Beneficiaries. Nothing in this Agreement will confer or be construed as conferring on any other third party any benefit or the right to enforce any express or implied term of this Agreement, except in the case of Fresche or its Affiliates.
- Paragraph Headings. The paragraph headings throughout this instrument are for convenience and reference only, and the words contained therein will in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement.
- 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. If there is a conflict or inconsistency between the Terms and Conditions and any Addendum, then the provisions of these Terms and Conditions will govern to the extent of such conflict or inconsistency; provided, however, that the provisions of the applicable Addendum will prevail over these Terms and Conditions to the extent the Addendum expressly refers to the provisions of these Terms and Conditions over which it prevails.
- 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 parties.
- Counterparts. This Agreement may be signed in counterparts. An electronic signature using a qualified electronic certificate or facsimile signature will be treated in all respects as having the same effect as an original signature.