A) Governing Law. The laws of the State of New York, without reference to the conflicts of law rules, govern this Agreement and any dispute that might raise 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 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.
B) Taxes. Taxes and charges, imposed by any government with respect to the Items, for the sale or use of goods and/or services, measured by or related to the gross receipts applicable to this Agreement or related to importation, VAT or otherwise applicable to the distribution of the Items, will be paid by Customer. If paid by Fresche, they will be reimbursed by Customer to Fresche within twenty (20) days after Fresche’s request for reimbursement. All prices shown in an Acceptance Document are exclusive of taxes unless otherwise stated.
C) Limited Data Collection. Customer understands and agrees that, in the course of performing its obligations under this Agreement, including delivering Items and providing Maintenance and Support Services, Fresche may access and collect data and information, such as computer specifications, operating systems and screen resolutions, to support the performance of its obligations, to improve its products or services and to better assess and service Customer.
D) Notices. Any notice, request or demand will be in writing and sent by either registered or certified mail, postage prepaid, by email or by facsimile transmission with answerback to the appropriate address, email or facsimile number specified. Each party may change its address, email address or facsimile number by written notice to the other party.
E) Titles. Captions contained in this Agreement are for reference purposes only and are not part of the Agreement.
F) Severability. If any provisions of this Agreement are held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
G) Survival. The terms contained in Sections 2 (Payment), 5 (Confidentiality and Copyright Infringement), 6 (Disclaimer of Warranty), 7 (Limitation of Liability) and 12 (General) will survive the termination of this Agreement.
H) Force Majeure. If Fresche will be delayed or prevented from performing this Agreement due to any cause beyond its reasonable control, any such delay will be excused during the continuance of the cause of delay, and the period of performance will be extended to such extent as may be necessary to enable Fresche to perform this Agreement after the cause of delay has ended.
I) Waiver. A delay or failure by either party to exercise any right or partial right will not be deemed to constitute a waiver of any such right or any other rights hereunder. A consent by either party to a breach of any express or implied term of this Agreement will not constitute a consent to any subsequent breach.
J) Publicity. Customer permits Fresche to refer to Customer as its customer and to use Customer’s name and/or logo for advertising or publicity purposes.
K) English Language. It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
L) Feedback. Fresche may, in connection with any of its products or services, freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction, including based on intellectual property rights or otherwise. No Feedback will be considered Customer’s confidential information, and nothing in this Agreement limits Fresche’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
M) Non-Transferability. Customer will not assign, sub-license, extend or otherwise transfer, in whole or in part, this Agreement or any license granted hereunder, without the prior written consent of Fresche. If Customer, without Fresche’s prior written consent, assigns, sub-licenses, extends or otherwise transfers, in whole or in part, this Agreement or any license granted hereunder, or if there is change in the effective control of Customer without Fresche’s prior written consent, then the unauthorized assignment, sub-license, transfer or extension, or the unauthorized change in effective control of Customer will be void and this Agreement will be maintained or, at the option of Fresche, the Agreement may be terminated. Fresche may assign its rights and obligations under this Agreement, without Customer’s permission, including in connection with any merger, consolidation, sale of all or substantially all of Fresche’s assets, or any other similar transaction.
N) Binding by Electronic Delivery. The Acceptance Documents may be executed in counterparts. When each party has signed and delivered at least one counterpart by hard copy, electronic signature, fax or PDF/email electronic delivery, each counterpart will be deemed an original, and when taken together with other signed counterparts, will constitute one agreement, which will be binding on all parties.
O) Relationship with Acceptance Documents. In case of conflict between the terms and conditions of the Acceptance Documents and the terms and conditions of this Agreement, the terms and conditions of the Acceptance Documents will prevail.
P) Entire Agreement. The foregoing terms and conditions together with the Acceptance Documents constitute the entire agreement between the parties with respect to the Items and will supersede all previous proposals, both oral and written, negotiations, representations, commitments, writings, agreements and all other communications between the parties. Other than changes to the Maintenance and Support Services terms applicable to renewal terms, no amendment to this Agreement will be valid and binding on either party unless agreed to in writing and signed by the duly authorized representative of each party. Notwithstanding the foregoing, Fresche may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces Customer’s rights, Fresche will use reasonable efforts to notify Customer of such revision. If Fresche modifies the Agreement, Customer’s continued use of Items will constitute Customer’s irrevocable acceptance of the updated terms. This Agreement may not be released, discharged, changed, modified or amended except by an instrument in writing signed by a duly authorized representative of each of the parties. The obligations of Customer will continue with any successors and permitted assigns of Customer.
For inquiries: commercial.support@freschesolutions.com
For written notices required to be sent by this Agreement to Fresche, please send such notice to one of the following Fresche entities described as Licensor in the Acceptance Documents:
Fresche Solutions Inc.
995 Wellington St., Suite 220, Montreal, Quebec, Canada H3C 1V3
Fresche Solutions USA Corporation
124 Grove Street, Suite 309, Franklin, MA 02038, US
Fresche Solutions Limited, a company registered in England and Wales (1795263)
5 Churchill Place, 10th Floor, London, United Kingdom, E14 5H
Look Software PTY LTD
Level 26, 360 Collins Street, Melbourne, VIC 3000, Australia
TRINITY GUARD, LLC
124 Grove Street, Suite #309, Franklin, MA, 02038, USA