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FRESCHE PROFESSIONAL SERVICES TERMS AND CONDITION

(“Terms and Conditions”)

Last Updated: October 17, 2024

THESE TERMS AND CONDITIONS FORM PART OF THE SAME AGREEMENT AS THE STATEMENT OF WORK (“SOW”) THAT INCORPORATES BY REFERENCE THESE TERMS AND CONDITIONS (collectively, the “Agreement”).

 

  1. Services and Deliverables. Subject to payment of all Fees when due and any assumptions and dependencies set out in a SOW, and conditioned on Customer’s reasonable cooperation with Fresche, Fresche will use commercially reasonable efforts to deliver all items expressly identified as a deliverable in the SOW (the “Deliverables”) and to perform all services expressly set out in the SOW (the “Professional Services”).
  2. Ownership and License. Fresche retains all ownership and intellectual property rights in and to: (a) any Fresche products and services (the “Solution”); and (b) any modifications, adaptations, translations and derivative works thereto (“Modifications”, and collectively, “Fresche Property”). Customer owns all right, title, and interest, including intellectual property rights, in and to: (a) any intellectual property provided by Customer to Fresche in connection with the Agreement (“Customer Materials”); and (b) any Deliverables (collectively, “Customer Property”). For clarity, Deliverables will not comprise of any elements of the Fresche Property. Customer grants to Fresche a worldwide, sublicensable, fully paid-up, and royalty-free right and license to use the Customer Property to perform the Professional Services.
  3. Fees. Customer will pay all fees specified under the SOW (“Fees”) when due. Fresche may increase the Fees for any renewal term upon providing not less than 30 days’ prior notice to Customer. 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. Customer is responsible for taxes applicable to Customer arising out of this Agreement.
  4. Term and Termination; Suspension. The SOW will become effective on the SOW Effective Date and, unless otherwise provided in the SOW, will continue for the term indicated in the SOW, unless earlier terminated in accordance with the terms of the Agreement (the “SOW Term”). In addition to any termination rights set out in the SOW, either party may terminate the SOW if the other party breaches any of the material terms or conditions of such SOW and fails to cure such breach or default within thirty (30) days of receipt of written notice thereof; except that, in the event of any such breach or default that is incapable of being cured, such termination will be effective immediately.
  5. Confidentiality. “Confidential Information” means all confidential or proprietary information of a party, whether oral or written, that has or will come into the possession or knowledge of the other party in connection with or as a result of entering into the Agreement that is designated as confidential by such party 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. 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. Each party may use the other party’s Confidential Information only in connection with the Professional Services as permitted under this Agreement. To the extent that Confidential Information is exchanged and received in connection with the Professional Services, 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 than this Section 5.
  6. DISCLAIMER; LIMITATION OF LIABILITY. 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. 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 APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, 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, WILL NOT EXCEED THE TOTAL COMPENSATION PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT FOR THE PRODUCT OR SERVICE THAT GAVE RISE TO THE CLAIM DURING THE SIX MONTHS PRECEDING THE CLAIM.
  7. General. Neither party may assign or transfer this Agreement, or delegate or sublicense any of its rights under this Agreement, without the prior written consent of the other party. Any putative assignment, transfer, delegation, or sublicense 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 Terms and Conditions, or any rights hereunder without consent and without notice to Customer. 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 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 identified in the SOW is located in Canada, then the laws of the Province of Quebec, without reference to conflict of law rules, will 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. 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. 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. In the event of a conflict or inconsistency between the SOW and these Terms and Conditions, the Terms and Conditions will govern, except where a provision of the SOW expressly refers to the provisions of these Terms and Conditions over which it is intended to prevail. Upon any termination or expiration of the Agreement, provisions contained in these Terms and Conditions that by their nature and context are intended to survive completion of performance, expiration, termination, or cancellation of the Agreement include Sections 2 (Ownership and License), 3 (Fees), 5 (Confidentiality), 6 (Disclaimer; Limitation of Liability) and this Section 7 (General).
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