FRESCHE GENERAL TERMS AND CONDITIONS FOR SOFTWARE LICENSE & MAINTENANCE AND SUPPORT SERVICES
FRESCHE LICENSES FRESCHE SOFTWARE TO CUSTOMER SOLELY UPON THE CONDITION THAT CUSTOMER ACCEPTS ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. BEFORE CUSTOMER CLICKS ON THE “I ACCEPT” BUTTON AT THE END OF THIS DOCUMENT, OR BEFORE CUSTOMER INSTALLS ANY FRESCHE SOFTWARE MEDIA PACKAGE, CUSTOMER IS REQUIRED TO READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT ACCEPT THESE TERMS AND CONDITIONS, FRESCHE IS UNWILLING TO LICENSE FRESCHE SOFTWARE TO CUSTOMER NOR TO PROVIDE CUSTOMER WITH MAINTENANCE AND SUPPORT SERVICES RELATED THERETO, WHERE APPLICABLE, IN WHICH CASE CUSTOMER IS NOT AUTHORIZED TO USE FRESCHE SOFTWARE AND MUST REMOVE FRESCHE SOFTWARE FROM YOUR SYSTEM, IF ALREADY INSTALLED. BY CLICKING ON THE “I ACCEPT” BUTTON, BY AGREEING TO AN ACCEPTANCE DOCUMENT (AS FURTHER SET OUT IN SECTION 2 BELOW), OR BY OTHERWISE DOWNLOADING AND USING FRESCHE SOFTWARE, CUSTOMER CONSENTS TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND UNDERTAKING TO COMPLY THEREWITH.
(a) “Agreement” means this agreement for the licensing, purchase or sale of the Items at the Purchase Price as accepted by both parties as evidenced by their signature of the PAF or any other document signed by Fresche and Customer duly authorized representatives for the Items all of which are incorporated by reference into this Agreement (collectively referred to as “Acceptance Document(s)”).
(b) “Customer” means the purchaser and/or the licensee of the Items excluding without limitation any related company, sub-licensee or any third-party to this Agreement.
(c) “Designated CPU” means the central processing unit(s), computer(s), central processing unit(s) base, processor group on designated central processing unit(s) or other hardware listed or specified in the Acceptance Documents.
(d) “Feedback” means any comments, information, questions, data, ideas, description of processes, or other information identified as feedback that Customer may submit in writing to Fresche in connection with any of its Items, including in the course of receiving Maintenance and Support Services.
(e) “Fresche”, “Vendor” or “Licensor” means the company within the Fresche group of companies that is the vendor and/or the licensor of the Items which may be any of the following companies or such other company as may join the Fresche group of companies from time to time: FRESCHE SOLUTIONS USA CORPORATION (a Delaware company), FRESCHE SOLUTIONS INC. (a federal Canadian company), FRESCHE SOLUTIONS LIMITED (a company registered in England and Wales (1795263)) and LOOK SOFTWARE PTY LTD. (an Australian company).
(f) “Implementation Services” means professional, consulting, application development, modernization, transformation or implementation services provided by Fresche to Customer, but excluding Maintenance and Support Services or installation and training services in relation to Fresche Software which may be included in the Acceptance Documents. Although Implementation Services may be referenced in a PAF or other Acceptance Document, such Implementation Services shall be governed by a master services agreement or Fresche’s professional services terms and conditions included in Fresche’s statement of work. For greater certainty, under no circumstances shall Implementation Services be governed by this Agreement.
(g) “Item” or “Items” means any or all, as the context requires, products and/or services listed in this Agreement including but not limited to Fresche Software, installation, Maintenance and Support Services, training, Fresche documentation in relation to Fresche Software (including any operating instructions, user manuals, help files, Customer handbook and other technical materials) and Implementation Services where applicable.
(h) “Maintenance and Support Services” means Fresche maintenance and support services provided to Customer on Fresche Software as described in this Agreement which may be included in the Acceptance Documents.
(i) “Other Use Limitations” means the number of user base, files, lines of code or other use limitations listed or specified in the Acceptance Documents.
(j) “Purchase Agreement Form” or “PAF” means the purchase agreement form signed by Fresche and Customer duly authorized representatives and incorporated by reference into this Agreement pursuant to which Customer purchases a license to Fresche Software, Maintenance and Support Services or installation or training services in relation to purchased Software.
(k) “Purchase Price” means the total purchase price and/or the total license fee paid by Customer to Fresche for the Items. Unless otherwise specified in the Acceptance Documents, the Purchase Price is deemed to be denominated in USD (United States Dollars).
(l) “Reseller” or “Resellers” means the distributor, reseller or independent software vendor authorized by Fresche to license or sublicense the Items to Customer.
(m) “Software” or “Fresche Software” refers collectively to the computer programs and related documentation licensed by Fresche to Customer and may include updates, upgrades, fixes, patches, revisions and modifications thereto if Customer purchase Maintenance and Support Services as described in this Agreement.
(n) “Software Commencement Date” means, with respect to the Software, the date indicated as the “Software Commencement Date” in the applicable Acceptance Document being the date at which the license to Fresche Software commences and, if no such date is indicated, the date that both parties execute the Acceptance Document.