1.1 “Agreement” shall mean the agreement consisting of these Fresche Software License and Maintenance Terms and Conditions together with the Cover Page attached hereto and executed by Trinity Guard, LLC (“Fresche”) and Customer.
1.2 “Software” shall mean Fresche’s proprietary computer program(s) in object code form (including any accompanying documentation, manuals, upgrades, releases, databases, enhancements and instructions) delivered to Customer and any copies thereof pursuant to this Agreement and/or listed on the cover page. Software shall also include the accompanying open source or third party software and documentation (if any) delivered to Customer by Fresche.
1.3 “Supported Computer(s)” shall mean one or more computers (as designated in the Cover Page) owned or leased by Customer, under Customer’s control, of a manufacturer, model and operating system for which Fresche offers a current version of the Software. Subject to the restrictions set forth herein and in the Cover Page, the Customer may transfer or move the Software from one Supported Computer to another Supported Computer at any time, provided Customer promptly notifies Fresche in writing.
1.4 “Simultaneous User” shall mean one (1) user running one (1) interactive or batch session of the Software (or one (1) of each of the Software Products in a licensed bundle listed in the Cover Page, in any combination) on one (1) computer at one given Regardless of the number of Sites licensed to use the Software, a Simultaneous User license of the Software must be accessed only from within the Site where it is installed.
2.1 General. Subject to the terms and conditions of this Agreement, Fresche grants and Customer accepts a non-exclusive, non-transferable, perpetual license to use the Software during the term of this Agreement for Customer’s own internal business purposes, and only on the Supported Computer(s) by employees of Customer. The Software may not be used on a service bureau or time-sharing basis. Customer’s contractors and consultants having direct access to or use of Fresche’s Software products shall first execute a separate confidentiality agreement with Fresche. The parties agree that such third parties shall not be regarded as licensees of Fresche nor as licensees of the Customer. The Customer shall not permit any other person or entity to access and use the Software. The Customer is not permitted to use the Software for on-line applications unless specified in writing.
2.2 Copies. The Customer may make one archival or back- up copy of the Software, provided that Fresche’s and Fresche’s vendors’ copyright and proprietary notices on the Software are included on such copy.
2.3 Customer Modifications and Enhancements. Customer may not make any modifications or enhancements to the Software, create any derivative works of the Software, or merge or separate the Software or any component thereof without Fresche’s prior written consent.
2.4 Proper Use of Software. The Customer acknowledges that the continued integrity of the Software and Fresche’s performance of its obligations described in this Agreement are dependent upon the proper use and maintenance of the Software by Customer. Proper use and maintenance mean that Customer will (i) install all Updates and Releases delivered to Customer hereunder, (ii) use the Software in accordance with the documentation supplied by Fresche and the terms and conditions of this Agreement and (iii) follow Fresche’s instructions for installing new releases and for correcting and circumventing bugs.
2.5 Prohibition Against Reverse Engineering. The Software shall not be reverse compiled, disassembled or otherwise reverse engineered. In the event Customer requires modifications to the Software to make it inter- operable with other software Fresche shall, at its option, (i) make the Software inter-operable with such other software, (ii) provide Customer with the tools and information necessary to make the Software inter- operable, or (iii) grant Customer the right to make such modifications, provided that such activities are limited to the minimum extent required for the Software’s intended use and are only performed to the minimum extent required by law.
3. OWNERSHIP AND PROPRIETARY RIGHTS: Title to, ownership of, and all rights in patents, copyrights and trade secrets in all Software does not transfer to Customer and shall remain in Fresche and/or Fresche’s open source and/or third-party vendors and licensors. In addition, Fresche may furnish Customer with confidential and proprietary information (“Proprietary Information”) in connection with the provision of Software and support. Customer shall protect such Proprietary Information to the same degree it protects its own proprietary information, but with no less than a reasonable degree of care. Software licensed hereunder shall also be considered Proprietary Information and, except as specifically permitted herein, shall not be disclosed to any third party. Nothing in this Agreement shall be construed to convey any title or ownership rights to the Software or Proprietary Information to Customer and title to the Proprietary Information shall remain with Fresche.
4.1 Delivery and Acceptance. Software shall be deemed delivered and accepted upon Customer’s download from the internet. Customer understands and agrees that it shall be primarily responsible for the installation of the Software.
5.1 Term. Each Software product set forth on the Cover Page is licensed on a perpetual basis. If a license is terminated pursuant to this Agreement, Customer’s right to use the Software licensed thereunder shall end and Customer shall: (i) promptly return all Software and Fresche Proprietary Information and all copies thereof to Fresche; (ii) erase all Software from the memory of its computer(s) and storage devices or render it non-readable; and (iii) upon Fresche’s request, certify in writing that Customer has satisfied its obligations hereunder.
5.2 Termination. Fresche may terminate a license or this Agreement if the Customer materially breaches its obligations under this Agreement, provided that the Customer is given ten (10) days written notice prior to the proposed termination, during which the Customer fails to correct the breach to the reasonable satisfaction of Fresche. Customer acknowledges that if Customer commits a breach which adversely affects Fresche’s intellectual property rights including but not limited to a breach of Section 2 above, such breach will give rise to irreparable injury to Fresche, which would be inadequately compensated for in damages. Accordingly, Fresche may immediately obtain injunctive relief against such breach or threatened breach in addition to any other legal remedies that may be available, and Customer hereby consents to Fresche obtaining such injunctive relief.
6.1 General. If SMS is included or has been elected by Customer, Fresche will provide the services specified in this Section 6 for the applicable Software as indicated on the Cover Page. Customer will submit to Fresche, via agreed methods, any problems it has with the performance of the Software. Fresche will evaluate each problem and determine if it is a Defect or usage issue.
6.2 Term. The initial Maintenance Term shall commence on the Effective Date of the Agreement and remain in effect for one (1) year. Thereafter the Maintenance Term shall renew automatically for one (1) year periods for the length of the applicable License Term, unless terminated by Customer as of the anniversary date of the Maintenance Term (“Renewal Date”) by providing Fresche not less than thirty (30) days prior written notice prior to the Renewal Date, provided that: (a) Customer timely pays the applicable fees; (b) Fresche continues to offer maintenance service to its customers generally for the Software, and Customer remains in compliance with its obligations hereunder. Fresche shall provide Customer with written notice of the fee for the next subsequent Maintenance Term not less than sixty (60) days prior to the Renewal Date. Fresche may increase its annual SMS fee for subsequent Maintenance Terms at Fresche’s sole discretion upon notice to Customer. Failure to make timely payment of any SMS fee shall not constitute a waiver by Fresche of such fee, the obligation to make such payment, or a valid termination of SMS. Fresche reserves the right to refuse to provide SMS while any accrued SMS fees remain unpaid. Without prejudice to the foregoing, SMS shall automatically terminate on the date of termination of this Agreement.
6.3 Non-Continuous Coverage. In the event Customer does not maintain continuous SMS services, Fresche may, in its discretion, refuse to provide any further SMS to Customer or charge Customer an additional fee to reinstate the SMS services.
6.4 Definitions. For the purposes of this Section 6, the following definitions shall apply: “Defect” means a material error in program logic or documentation attributable to Fresche which prevents the performance of a principal computing function as set forth in Fresche’s published specifications for the Software. “Update” means a revision of the Software with minor changes and/or Defect corrections. Updates occur between each Release of the Software. “Release” means a new version of the Software with new features and/or significant enhancements to existing Software products. “Documentation” means the user or system manuals and other published material delivered with the Software to Customer which includes the specifications.
6.5.1 Fresche or its Affiliates, meaning with respect to either party, any entity directly or indirectly controlling, controlled by, or under common control with that party (“Affiliate”), will remedy Defects by using reasonable efforts to (i) provide a bug fix, patch or workaround procedure, and/or (ii) incorporate a permanent Defect correction in the next Update or Release of the If the problem is not a Defect, (a) Customer shall reimburse Fresche for such identification efforts; (b) Fresche may, in its sole discretion, provide a remedy by the same means as specified in Sections (i) and (ii) above; and (c) Consultative Support Services from Fresche may be available to Customer to remedy the problem, for an additional fee.
6.5.2 Customer will receive any available Updates so long as Customer has paid for SMS. Fresche will provide instructions and/or revised user documentation to assist the transition in installing Updates.
6.5.3 Customer will receive any available Releases so long as Customer has paid for SMS. However, new products, or new modules which add significant functionality to the Software other than as part of a new release, are not included without charge and will be available for an additional fee.
6.6 SERVICE LIMITATIONS: Customer must designate a System Manager who is familiar with the Software and has had system administrator training. While Fresche will accept support calls from any employee at Customer’s site, calls should be routed through the System Manager, Trained User, or Help Desk. Fresche will support only the current Release of the Software and the immediately preceding Release. All associated computer hardware and operating system software must be maintained at the latest Release and Update level deemed necessary by Fresche. Customer must provide Fresche remote access to the system via an approved electronic medium. Fresche may provide some reasonable assistance (determined in Fresche’s sole discretion) to help optimize or enhance Customer’s use of the Software. Additional Consultative Support Service from Fresche may also be available to Customer under separate agreement. When Fresche determines that any requested assistance has exceeded a reasonable level, Fresche will supply a quotation for additional Consultative Support Service.
7.1 Payment and Taxes. Except as otherwise stated on the Cover Page, payment must be made in U.S. Dollars within thirty (30) days of date of invoice, and for SMS, within thirty (30) days from the SMS starting date and within thirty (30) days of each Renewal Date thereafter. All license fees and SMS fees shall be exclusive of any sales, use, value-added or similar taxes, duties, imposts, customs, levies or other withholding (“Tax”). Any such Tax shall be paid by the Customer in addition to the license fees or SMS fees. In the event of local tax withholding on Customer payments to Fresche or its Affiliates, such payments shall be grossed-up to provide Fresche the same amount after such withholding as it would have received without the imposition of such withholding, together with tax receipts or similar evidence of any withholding made by Customer. Customer agrees that, notwithstanding any other provisions of this Agreement, the license fees specified hereunder have been fully earned by Fresche upon shipment of the Software, and such license fees are due and payable to Fresche (without any further performance on the part of Fresche) in accordance with the provisions of this Agreement. All such payments will be made without setoff, counterclaim, recourse or other defense. Maintenance fees are due and payable annually in advance. Late payments shall accrue interest at the rate of one and one- half percent (1.5%) per month until paid in full.
7.2 Remedies. In the event Customer fails to make any payment to Fresche or its assignee when due, which failure continues for forty five (45) days after the due date for such payment, in addition to any other rights and remedies available to Fresche or its assignee, all amounts owed by Customer hereunder shall become immediately due and payable and, in addition, Fresche or its assignee may recover reasonable fees and expenses (including without limitation, reasonable attorneys’ fees and expenses) in exercising any of its rights and remedies upon default. Fresche or such assignee will notify Customer of any failure to receive a payment when due, but Customer’s failure to receive notice will not excuse a default or limit the remedies available to Fresche or Assignee as described herein or otherwise at law or in equity.
8.1 Customer acknowledges that the Software is being provided without warranty in its current condition on an “AS IS” basis. FRESCHE MAKES NO WARRANTY OF ANY KIND WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON- INFRINGEMENT, QUIET ENJOYMENT AND FITNESS FOR A PARTICULAR PURPOSE. FRESCHE DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE IS INTERRUPTION OR DEFECT FREE.
9. AUDIT RIGHTS. Fresche, at its expense, may inspect and audit, and/or may engage an independent third party (“Auditor”) to inspect and audit, at any time, if Fresche reasonably believes Customer may have breached any of its obligations under this Agreement, Customer’s books and records, Supported Computers, hardware components and software environment relating to, or otherwise connected with, Customer’s performance of its obligations under this Agreement or that are reasonably required to determine Customer’s compliance with Customer’s obligations under this agreement. Customer will cooperate fully with all such inspection and audit requests.
10.1 LIMITATION OF LIABILITY. IN NO EVENT SHALL FRESCHE BE LIABLE TO THE CUSTOMER FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES ARISING FROM THE LOSS OF USE, DATA OR FRESCHE SHALL NOT BE LIABLE FOR DAMAGES FROM ANY DEFECT IN SOFTWARE, CLAIMS BY THIRD PARTIES OR ANY OTHER CLAIM, WHETHER IN TORT, CONTRACT, NEGLIGENCE, OR OTHERWISE ARISING MORE THAN SIX (6) MONTHS PRIOR TO INSTITUTION OF A LEGAL PROCEEDING THEREON. IN NO EVENT SHALL FRESCHE’S LIABILITY WITH RESPECT TO A SPECIFIC SOFTWARE LICENSE EXCEED THE AMOUNT OF LICENSE FEES PAID BY CUSTOMER AND RECEIVED BY FRESCHE UNDER SUCH LICENSE.
10.2 THIRD PARTY SUPPLIERS. CERTAIN SOFTWARE LICENSED HEREUNDER CONTAINS FUNCTIONALITY SUPPLIED BY THIRD PARTIES. IN NO EVENT SHALL SUCH THIRD PARTIES, INCLUDING FRESCHE’S THIRD PARTY DEVELOPERS, VENDORS, SUPPLIERS, CONTRACTORS, OR CONSULTANTS, BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES ARISING FROM THIS AGREEMENT. SUCH THIRD PARTIES ARE BENEFICIARIES OF THE LICENSE OF SUCH SOFTWARE GRANTED TO CUSTOMER HEREUNDER. THIRD PARTY SOFTWARE COMPONENTS IN THE FRESCHE SOFTWARE OR OTHERWISE SUPPLIED BY FRESCHE MAY NOT BE USED INDEPENDENTLY OF THE FRESCHE SOFTWARE.
11. RESTRICTED RIGHTS: The Software is subject to the following Restricted Rights Legend: “Use, duplication or disclosure by the Government is subject to restrictions as set forth in (i) FAR 227-14, Alt. III, (ii) FAR 52.227-19, (iii) DFARS 252.227-7013(c)(1)(ii), or (iv) the accompanying license agreement as applicable. For purposes of the FAR, this Software shall be deemed to be “unpublished” and licensed with disclosure prohibitions. Contractor/ subcontractor: Fresche. If Customer is acquiring the Software under a United States government contract, Customer agrees that it will include all necessary and applicable restricted rights legends on the Software and the documentation to protect Fresche’s proprietary rights under the FAR or other similar regulations of other federal agencies. The Customer agrees to always include such legends whenever the Software is, or is deemed to be, a deliverable under that contract.
12. EXPORT: Customer acknowledges that the Software is subject to export and import control of the United States of Customer agrees that Software will be exported, re- exported or resold only in compliance with such laws. Customer represents and warrants that the Software shall not be used for any nuclear, chemical/biological warfare, missile end-use or training related thereto. Customer also agrees that it will not, without first procuring a BXA license or License Exception, (a) re-export or release the above software to a national of a country in Country Code D:1 or E:2; nor (b) export to Country Groups D:1 or E:2 the direct product of the software, if such foreign produced product is subject to national security controls as identified on the Commerce Control List (See General Prohibition Three Sec. 736.2(b)(3) of the Export Administration Regulations).
13.1 Force Majeure. Fresche’s failure to perform its obligations hereunder shall not be deemed a breach of this Agreement if such failure is due to fire, strike, war, civil unrest, terrorist action, government regulations, acts of Nature, or other causes beyond the reasonable control of the party claiming force majeure. This provision shall not apply to Customer’s obligation to pay any sums due under this Agreement, which shall continue unabated.
13.2 Assignment. Customer shall not assign, sublicense or otherwise transfer all or part of the Software or Proprietary Information, grant others rights in all or part of the Software or Proprietary Information, or otherwise assign its rights or obligations under this Agreement without the prior written consent of Fresche. For purposes of this section, an assignment or transfer shall include any change in majority ownership or control of Customer, including merger or other transfer of voting securities. Fresche may assign or transfer its rights and obligations under this Agreement to its Affiliates, without consent and without notice to Customer.
13.3 Amendment; Waiver. All modifications to this Agreement must be in writing and signed by both Failure or delay of either party to exercise any right or remedy hereunder shall not constitute a waiver of rights or remedies under this Agreement.
13.4 Subcontracting. Fresche may subcontract any and all of its services, obligations and rights under this Agreement to its Affiliates without notice or consent of Customer. Fresche will be responsible for all acts and omissions of its Affiliates in connection with this Agreement. Customer acknowledges that Fresche Affiliates may perform any obligations or exercise any rights of Fresche hereunder.
13.5 Third-Party Beneficiaries. Notwithstanding Section 2, Nothing in this Agreement shall 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 to Fresche Affiliates.
13.6 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, excluding its conflicts of laws principles, regardless of where any action may be brought. The Customer hereby agrees to submit to the non-exclusive jurisdiction of the state and federal courts of the State of Delaware.
13.7 Entire Agreement. This Agreement is the exclusive statement of the terms and conditions between the parties with respect to the matters set forth herein, and supersedes all other agreements, negotiations, representations, tender documents, and proposals, written and oral. Any additional or conflicting provisions contained in Customer’s purchase order shall not apply.
13.8 Severability. If any provision of this Agreement is held unenforceable or inoperative by any court of competent jurisdiction, either in whole or in part, the remaining provisions shall be given full force and effect to the extent not inconsistent with the original terms of this Agreement.
13.9 Notices. Any notice given hereunder shall be sent in writing to the other party’s business address set forth on the Cover Page or to such other party and address as such party shall most recently have designated in writing. Notices directed to Fresche shall be sent “Attention: Legal Department”.
13.10 Publicity. In consideration of the license(s) granted hereunder, Fresche may (a) identify Customer in published lists of licensees of Fresche software, (b) issue press releases announcing general details of Customer’s purchase of Fresche Software (but not stating license fees or Customer quotes without Customer’s prior approval), and (c) describe Customer’s successful use of the Software in published articles. Customer may, upon request, review such materials in advance of publication.
13.11 Survival. The obligations set forth in Sections 2.5, 3, 5, 7, 10, 11, 12 and 13 shall survive termination or expiration of this Agreement.