Fresche End User License Agreement

Last Updated: February 28th, 2025

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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”).

1. Services. Fresche will provide the Fresche Solution subject to the Customer dependencies below:Customer will set up, maintain and operate in good repair all Customer systems on or through which Fresche will provide the Fresche Solution;

(b)Customer will provide Fresche with access to Customer’s premises and Customer systems as is necessary for Fresche to provide the Fresche Solution; and

(c)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.

2. License to Fresche Software. Fresche hereby grants Customer a revocable, non-exclusive, non-sublicensable, non-transferable right to use the Fresche 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 Fresche Software;
(iii) transfer, resell, distribute, rent, sub-license, lease, lend, or otherwise make the Fresche Software available to any third party;
(iv) use the Software to develop any products or service competitive to the Fresche Software; and
(v) any other limitations set out in the IBM Purchase Details Form (e.g. CPU limitations, etc.).

3. Support. Fresche will provide support services as set out in Exhibit D.

4. Intellectual Property; Customer Data.

(a) Intellectual Property. Fresche owns all right, title and interest, including intellectual property rights, in and to: (a) the Fresche 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”).

(b) 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 provision 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 Fresche 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. Fees. Customer will be responsible for paying fees to IBM, though Fresche reserves the right to directly invoice Customer for such fees. If Fresche does not receive the applicable fees from IBM, Fresche may suspend or terminate any portion of the Fresche Solution provided to Customer, or terminate or suspend this Agreement.

6. 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.

7. DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, FRESCHE AND ITS AFFILIATES DO NOT REPRESENT OR WARRANT THAT THE FRESCHE 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 FRESCHE SOLUTION. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE FRESCHE 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.

8. 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 FRESCHE 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.

9. 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.

10. Term; Termination.

(a) 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.

(b) 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.

(c) Effect of Termination. Upon any expiration or termination of this Agreement: (a) Customer must immediately cease any and all use of the Fresche 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 Fresche 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.

(d) 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), 7 (Disclaimer), 8 (Limitation of Liability), 9 (Confidentiality), 10(c) (Effect of Termination), 11 (General), and this Section 10(d) (Survival) will survive and remain in effect after termination or expiration of this Agreement.

11. 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) “Customer” means the person or entity that has accepted this.
(c) “Fresche”, or “Licensor” means Fresche Solutions USA Corporation.
(d) “Fresche Services” means the KTLO Services, the Remote Managed Services, or Professional Services in each case as identified on the IBM Purchase Details Form.
(e) “Fresche Solution” means Fresche Services and Fresche Software.
(f) “Fresche Software” means the software identified in the IBM Purchase Details Form.
(g) “IBM” means International Business Machines Corporation.
(h) “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 Fresche Solution, in each case, as received and agreed to by Fresche.
(i) “Incidents” has the meaning set out in Exhibit D.
(j) “KTLO Services” means the services described in Exhibit B.
(k) “Professional Services” means any the professional services set out in any statements of work entered into between Customer and Fresche from time to time under and governed by this Agreement.
(l) “Remote Managed Services” means the services described in Exhibit C.

EXHIBIT B – FRESCHE KTLO SERVICES DETAILS

1. Customer Environments.

(a) Supported Environments. Fresche will provide the KTLO Services for the Customer environments, if any, specified in the table below (the “Environments”) set out in the IBM Purchase Details Form.
(b) Environment Monitoring. Fresche will monitor and manage the Environment to ensure Environment availability for Customer using industry standard practices, technologies, and resources.

2. KTLO Services. The KTLO Services will be comprised of the following activities on each Environment:

(a) Remote Managed Services.

(b) KTLO Support Services.

(c) Out of Scope Services. The following services are out of scope:

EXHIBIT C – REMOTE MANAGED SERVICES

1. Definitions

(a) “Business Continuity Management Services” has the meaning set out in Section 4(c) of this Exhibit C.
(b) “Cloud Services” means the Services set out in Section 3 of this Exhibit C.
(c) “Cloud and Hosting Services DR Plan” has the meaning set out in Section 3(d)(i) of this Exhibit C.
(d) “Disaster” means any unplanned interruption of the operation of Customer’s computer equipment and software, or related facilities used in connection with Customer’s computer operations.
(e) “End Users” means those individuals that have been authorized by Customer to use the Cloud Services or Managed Services.
(f) “Fresche Portal” means the online communication system provided by Fresche to facilitate exchange of information between the parties.
(g) “Managed Services” means the Services set out in Section 4 of this Exhibit C.
(h) “Managed Services DR Plan” has the meaning set out in Section 3(d)(i) of this Exhibit C.
(i) “Normal Business Hours” means Monday through Friday during the hours of 9:00am to 5:00pm Eastern Time, excluding holidays.
(j) “SRO” has the meaning set out in Section 3(d)(vii) of this Exhibit C.

2. Customer Environments.

(a) Supported Environments. Fresche will provide the KTLO Services for the Customer environments, if any, specified in the table below (the “Environments”) set out in the IBM Purchase Details Form.

(b) Environment Monitoring. Fresche will monitor and manage the Environment to ensure Environment availability for Customer using industry standard practices, technologies, and resources.

3. Cloud and Hosting Services (the “Cloud Services”)

(a) Cloud Services. For any Environment which includes Cloud Services, Fresche will provision the Environment to provide file and data object storage and information processing to Customer remotely from the Fresche cloud. 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 on the Fresche cloud. Fresche will provide access to Customer and to End Users for the installation, operation, management and use of the Customer Data in the Environment. Fresche will provide the facilities, services, operating system software, hardware and other equipment needed to make the Environment available for use by Customer and the End Users. Fresche will monitor the Environment to ensure Environment performance by Customer and End Users using industry standard practices, technology, schedule, and resources.

(b) Hosting Services. For any Environment which includes hosting services, Fresche will host the Environment to a Fresche data center to provide file and data object storage and information processing to Customer remotely from the Fresche cloud. 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. Fresche will provide access to Customer and to End Users for the installation, operation, management and use of the Customer Data in the Environment. Fresche will provide the facilities, services, and other equipment needed to make the Environment available for use by Customer and the End Users. Fresche will monitor the Environment to ensure Environment performance by Customer and End Users using industry standard practices, technology, schedule, and resources.

(c) Backup Services (“Hosting Backup Services”). For any Environment which includes Fresche Cloud or Hosting Backup Services, Fresche will provide backup services using industry standard practices, technology, schedule, and resources. Fresche will provide day-to-day backup operations services of the Environment and will monitor backups for Incidents and will report and respond to Incidents. Fresche will install a software program and schedule to manage and view the Customer backups. If Customer chooses a backup schedule other than Fresche’s standard, Fresche will not be responsible for limitations caused by that selection. Fresche will restore Customer Data within the Environment up to three (3) times per month at no extra cost.

(d) Business Continuity Services. For any Environment which includes Cloud Services or Hosting Business Continuity Services, Fresche will provide business continuity services using industry standard practices, technology, schedule, and resources as described below. Fresche will provide a business continuity recovery environment which will serve as a temporary location for a recovered Environment in the event of a Disaster.

(i) Disaster Recovery Plan. Fresche will develop and will maintain throughout the Subscription Term a disaster recovery plan (the “Cloud and Hosting Services DR Plan”). The Cloud and Hosting Services DR Plan will be created, tested for viability via a validation test, and delivered to the Customer. Until the Cloud and Hosting Services DR Plan is completed, validated, and delivered to the Customer, Fresche will provide only commercially reasonable efforts to timely recover the most recent available version of the Environment. After the Cloud and Hosting Services DR Plan is validated and delivered to the Customer, the applicable service levels (if any), will apply.
(ii) Business Continuity Facility. The business continuity facility is provided by Fresche for use by Customer for restoring Customer’s software and data backups, performing interim computer operations in the event of a Disaster, or for testing facility readiness as provided in this Exhibit. Fresche will maintain the facility, including its equipment and software used to provide the Cloud Services or Managed Services, in standard operating condition.
(iii) Recovery and Continuity. The Cloud and Hosting Services DR Plan will provide for appropriate backup facilities and technology to permit transition of the Environment and protection of the Customer Data using the most recent backup available. The Cloud and Hosting Services DR Plan will provide recovery time objectives and recovery point objectives from the declaration of a Disaster for the Environment to be operational and for Customer Data to be accessible to Customer. It is Customer’s responsibility to maintain a current backup copy of the operating system and other applicable software programs and data from which Fresche will perform the recovery, including if applicable, subscribing to the Cloud Services or Hosting Backup Services.
(iv) Declaration of Disaster. When Customer experiences a Disaster, Customer must declare to Fresche that a Disaster has taken place and will pay to any applicable Recovery Declaration Charges identified by. If the Environment is in the Fresche cloud, Fresche will declare a Disaster as soon as reasonably possible in response to events impacting Fresche operations and obligations, as determined by Fresche. Declaration of a Disaster must be made by using the Fresche Portal or the Fresche approved email or phone contacts.
(v) Duration. In the event of a Disaster, and upon receipt of Customer’s notice or Fresche’s declaration, Fresche will begin recovery promptly and then allow Customer unlimited and dedicated access to and usage of the applicable Cloud Services and Managed Services for a period of 30 days after the recovery. Customer will use reasonable efforts to promptly reestablish Customer’s systems at Customer’s own location, or if the recovered Environment is located in the Fresche cloud, will provide reasonable assistance to Fresche to reestablish the primary location, and will discontinue usage of the applicable Cloud Services and Managed Services as quickly as practicable under the circumstances.
(vi) During the 30-day period of access, Fresche Cloud or Hosting Business Continuity Services will be performed during Normal Business Hours. Fresche will respond promptly to requests for emergency service during Normal Business Hours and at such other times as may be necessary and authorized by Customer, provided that Customer agrees to pay Fresche for work performed outside Normal Business Hours at the rates set out in the Service Details Table, if applicable, or otherwise at Fresche’s standard rates. Fresche Cloud or Hosting Business Continuity Services begun before 5:00pm and completed before 6:00pm will be deemed to have been performed during Normal Business Hours.
(vii) Standards. Fresche will provide the relevant service recovery objective (“SRO”), recovery time objective, recovery point objective, recovery method and disaster service outlined in the final approved Cloud and Hosting Services DR Plan.
(viii) Testing. Upon Customer’s request, Fresche will use commercially reasonable efforts to schedule a test of the Cloud and Hosting Services DR Plan not more than annually.

(e) Connection Services. For Environments which include Cloud Services and Fresche Hosting Services, Fresche will provide connectivity within the cloud up to the demarcation point with the open Internet or Customer’s network and monitor the Environments for accessibility by Customer and End Users using industry standard practices, technology, schedule, and resources. 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. 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.

(i) Performance. Fresche is not liable for performance issues regarding connectivity 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. Fresche is not liable for performance issues regarding connectivity arising during Modifications, relocation, or repairs to connection equipment, provided that Fresche promptly gives Customer notice of such activities.
(ii) Overage/burstable Billing. For Environments which receive connection to the Internet from Fresche, overage amounts will be invoiced by IBM and Customer is encouraged to consult regularly with IBM and any documentation provided by IBM.

4. Managed Services (“Managed Services”).
(a) Managed Services. For any Environment which includes Fresche Managed Services, Fresche will provide management of the day-to-day operations of the Customer’s Environment remotely via the Internet. The Fresche Managed Services will enable Fresche via the Internet to install, run and manage Customer premise Environments as described in general terms in the Service Details Table. Fresche will provision services described in the Service Details Table on the Environment. Fresche will monitor the Environment to ensure Environment performance by Customer and End Users using industry standard practices, technology, schedule, and resources. Customer will provide access to Fresche for the installation, operation, management and use of the Customer’s Environment. Customer will provide the facilities, services, software, hardware and other equipment needed to make the Environment available for use by Fresche. Fresche will not be responsible for providing other software, hardware or equipment except as determined by Fresche to be necessary to provide the Cloud Services and Managed Services described in the Service Details Table.

(b) Backup Management. For any Environment which includes Fresche Backup Management Services, Fresche will provide backup management by installing Customer premise appliance(s) adjacent to the Environment receiving backup using industry standard practices, technology, schedule, and resources. Fresche will provide day-to-day backup operations management of the Environment and will monitor backups for Incidents and will report and respond to Incidents. Fresche will install a software program and schedule to manage and view the Customer backups. If Customer chooses a backup schedule other than Fresche’s standard, Fresche will not be responsible for limitations caused by that selection.

Fresche will restore Customer Data within the Environment up to three (3) times per month.

(c) Business Continuity Management (“Business Continuity Management Services”). For any Environment which includes Business Continuity Management Services, Fresche will provide business continuity services using industry standard practices, technology, schedule, and resources as described below.

(i) Disaster Recovery Plan. Fresche will develop and will maintain throughout the Subscription Term a disaster recovery plan (the “Managed Services DR Plan”). The Managed Services DR Plan will be created, tested for viability via a validation test, and delivered to the Customer. Until the Managed Services DR Plan is completed, validated, and delivered to the Customer, Fresche will provide only commercially reasonable efforts to timely recover the most recent available version of the Environment. After the Managed Services DR Plan is validated and delivered to the Customer, the applicable service levels (if any) will apply.
(ii) Business Continuity and Solution Center. The business continuity facility must be provided by Customer for use by Customer for restoring Customer’s software and data backups, performing interim computer operations in the event of a Disaster, or for testing facility readiness as provided in this Exhibit. Customer will maintain the facility, including its equipment and software used to provide the Business Continuity Management Services, in standard operating condition.
(iii) Recovery and Continuity. The Managed Services DR Plan will provide for appropriate backup facilities and technology to permit transition of the Environment and protection of the Customer Data using the most recent backup available. The Managed Services DR Plan will provide recovery time objectives and recovery point objectives from the declaration of a Disaster for the Environment to be operational and for Customer Data to be accessible to Customer. Unless receiving Business Continuity Management Services, Customer will maintain a current backup copy of the operating system and other applicable software programs and data from which Fresche will perform the recovery.
(iv) Declaration of Disaster. When Customer experiences a Disaster, Customer must declare to Fresche that a Disaster has taken place and may be required to pay IBM a Recovery Declaration Charge. Customer is encouraged to consult regularly with IBM and any documentation made available by IBM.
(v) Standards. Fresche will provide the relevant SRO, recovery time objective, recovery point objective, recovery method, and disaster service outlined in the final approved Managed Services DR Plan.
(vi) Testing. Fresche will use commercially reasonable efforts to schedule a test of the Managed Services DR Plan annually.

EXHIBIT D – SERVICE LEVEL AGREEMENTS

1 Support; Priority Levels.
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 online communication system provided by Fresche to facilitate exchange of information between the parties, email, or phone.
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:

2. 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:

3. Support Request and Incident Tracking. Fresche will use commercially reasonable efforts to provide the Customer with support services during Fresche’s normal hours of operations (Monday through Friday during the hours of 9:00am to 5:00pm Eastern Time, excluding holidays).

4. Service Credits; Service Levels
(a)Definitions.

(i)“Service Credit” means the amount expressed as a percentage of monthly service Fees that may be, subject to IBM’s cooperation and agreement, credited to Customer either by IBM pursuant to Customer’s agreement with IBM or in the form of equivalent Fresche Services.
(ii)“Service Level” refers to a standard for service which Fresche will adhere to and by which Fresche measures the level of service provided.

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

RESPONSE TIME
The Response Time Service Level applies to Fresche Solution, except for those to which time and materials best efforts response maintenance applies. Fresche will use commercially reasonable efforts to maintain an Average Late Response Percentage of at most 5%. If Fresche fails to maintain the Service Level in any calendar.	“Late Response Percentage” is calculated by: (a) dividing the actual Response Time for a given Incident or Support Request by (b) the relevant Target Response Time based on the Priority Level of the Incident or Support Request; (c) subtracting 1 from the quotient; and (d) converting to a percentage by multiplying by 100%. If this calculation returns a value less than 0%, the Late Response Percentage is 0%; if the calculation returns a value more than 100%, the Late Response Percentage is 100%. For Incidents reported to Customer by Fresche, the Late Response Percentage is 0%. “Average Late Response Percentage” means the Service Level calculated by taking the arithmetic mean of the Late Response Percentage of all Incidents and Support Requests occurring within a given calendar month, assuming a minimum of 10 Incidents and Support Requests in the month. For clarity, this mean is calculated by: (a) taking the sum of all Late Response Percentages in a calendar month; and (b) dividing that sum by (i) ten plus (ii) the total number of Incidents and Support Requests over ten in that calendar month. For additional clarity, the formula below gives the Average Late Response Percentage:	AVERAGE LATE RESPONSE PERCENTAGE More than 5% but not more than 10% More than 10% but not more than 25% More than 25%	SERVICE CREDIT 5% 10% 25%

5. Service Level Exclusions.
(a)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; or
(v)downtime due to suspension of the Fresche Solution in accordance with Section 1.

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