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Fresche Professional Services Terms

Last Updated: September 28, 2023


  1. Definitions.  Capitalized terms used but not defined in this Professional Services Addendum have the meanings set forth elsewhere in the Agreement, including the Services Agreement Terms and Conditions, found at (the “Terms and Conditions”).
  2. Statements of Work.  Fresche and Customer may, from time to time, agree to perform services and provide deliverables that are not included in the then-current scope of services provided under the Agreement (“Projects”). The parties will identify each Project and the terms and conditions relating to such Project in the SOW. In the event of a conflict or inconsistency between any SOW and this Professional Services Addendum or the Terms and Conditions, the Professional Services Addendum or the Terms and Conditions will govern, as applicable, except where a provision of the SOW expressly refers to the provision(s) of the Professional Services Addendum or the Terms and Conditions over which it is intended to prevail.
  3. Services and Deliverables.
    1. Services and Deliverables. 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”). All such services will be performed remotely unless otherwise indicated in the SOW as being an on-site provided service. Unless otherwise agreed to by the parties in the SOW or in a separate written agreement or addendum to the Agreement, Fresche will have no obligation to provide support and maintenance services for Deliverables.
    2. No Assignment or Transfer of Intellectual Property Except for Custom Deliverables.  Without limiting Section 2.1 of the Terms and Conditions and unless otherwise set out in the applicable SOW, Fresche retains all ownership and intellectual property rights in and to: (a) the Solution; and, except for Deliverables, anything developed or delivered by or on behalf of Fresche under the SOW; and (b) any Modifications to (a). All rights not expressly granted by Fresche to Customer under the SOW are reserved.
  4. Project Delays
    1. If Fresche is delayed in its performance of the Professional Services as they are described in the SOW, at any time by: (a) any changes in the scope of work therein ordered by Customer; or (b) Customer’s breach of its obligations under the Agreement, including failure to perform any dependencies set out under Section 9, or by any other act or omission by Customer or any of Customer’s other third party contractors, Fresche will promptly notify Customer in writing thereof, and will indicate any resultant additional time and cost reasonably required for Fresche to perform any of its obligations under the applicable SOW. While Fresche will use good faith efforts to reallocate its resources, Customer will be responsible for costs for any unused resources that have been allocated to the performance of such Professional Services that have been delayed as a result of the circumstances described in the foregoing clause (a) and (b) (such costs, “Customer Reserved Resources Fees”).
    2. If Customer wishes to delay the performance of the Professional Services pursuant to the SOW, Customer will submit a Change Request in accordance with the process set out in Section 9, which will provide for an equitable and reasonable adjustment to the Project schedule and, if applicable, to the applicable fees, that Customer and Fresche will agree in good faith is necessary to complete the Professional Services and Deliverables.
  5. Ownership and License to Customer Property.
    1. In order to facilitate the performance by Fresche of the Professional Services, Customer may provide to Fresche certain of its or its licensors’ software, content, materials, technology, software programs, application programming interfaces, business rules, business processes, models, tools, customer information, and proprietary materials of Customer that are or have been procured, created or developed by or for or licensed to Customer (collectively, the “Customer Materials”).
    2. Customer owns all right, title, and interest, including intellectual property rights, in and to: (a) the Customer Materials; (b) any and all written materials, documents, flow charts, logic diagrams, source code, test materials, or other information provided by Customer to Fresche under this Agreement; and (c) subject to Customer’s payment of all applicable fees, the Deliverables (collectively, “Customer Property”). For clarity, Deliverables will not comprise of any elements of the Fresche Property.
    3. Customer represents and warrants that: (a) Customer has all licenses, consents, or approvals required to make available the Customer Materials and Personal Information provided by Customer to Fresche for the purposes of performing the Professional Services; and (b) the Customer Materials do not infringe the patent, copyright, trademark or other intellectual property rights of any party, or constitute libel, slander, defamation, invasion of privacy, or violation of any right of publicity or any other third-party rights. Customer hereby agrees to indemnify, defend and hold Fresche, its Affiliates and their respective members, managers, directors, officers, employees and agents (collectively, “Fresche Indemnified Parties”) harmless against any liability incurred by or attributed to any Fresche Indemnified Party in connection with a breach of such representation and warranty.
    4. Customer hereby grants to Fresche a non-exclusive, sublicensable, transferable, royalty free, fully paid-up license to access, use, copy, support, modify, assign, distribute or otherwise exploit Customer Property to provide the Professional Services and the Deliverables.
    5. Notwithstanding anything to the contrary in this Agreement, Fresche and Fresche Personnel (as defined in Section 6.1) will be free to use and employ its and their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course of performing Professional Services, so long as it or they acquire and apply such information without disclosure of any confidential or proprietary information of Customer and without any unauthorized use or disclosure of work product resulting from the Professional Services.
  6. Resource Management; Personnel on Site.
    1. Unless otherwise set out in the Statement of Work, Fresche will, in its sole discretion, determine the number of personnel and the appropriate skill sets of such personnel necessary to perform the services set out in the SOW. Fresche’s resources may include employees of Fresche or Fresche’s Affiliates or other subcontractors (collectively, “Fresche Personnel”). The delegating or subcontracting of Fresche’s obligations set out in this Professional Services Addendum will not relieve Fresche from any obligation or liability under this Professional Services Addendum. Fresche will have control of the Fresche Personnel it assigns to perform the Professional Services.
    2. If any portion of the Professional Services will be performed at any Customer site, Fresche Personnel who perform such Professional Services will use commercially reasonable efforts to comply with all of Customer’s site rules and regulations as may be posted at such site or provided to Fresche in advance. Customer will provide any software and access required for Fresche and its personnel to perform the Professional Services and Customer will solely be responsible to ensure that: (a) the sign-on process, access and connection are secure in order to protect Customer and its business; and (b) the system software is functioning properly. In the event any Fresche Personnel are requested to perform Professional Services at Customer’s site, then Customer will provide working space and facilities, including office equipment, normal office services and supplies (for example, telephone, word processing, and photocopier) and any other services and materials Fresche or Fresche Personnel may reasonably request in order to perform the Professional Services. Customer recognizes that there may be a need to train the Fresche Personnel in the unique procedures (including the sign-on process) used by Customer. When Customer determines that such training is necessary, Customer will, unless otherwise agreed in writing, pay Fresche for the training time of Fresche Personnel.
  7. Term and Termination; Suspension.
    1. Addendum Term.  This Professional Services Addendum will become effective on the effective date set out in the SOW (the “SOW Effective Date”) and will continue for the SOW Term, unless earlier terminated in accordance with the terms of the Agreement. For clarity, this Professional Services Addendum will terminate upon any termination or expiration of the Agreement.
    2. SOW Term.  Each 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”).
    3. Termination for Material Breach.  Without limiting any other termination right set out in the Agreement, either party may terminate the any SOW if the other party breaches on 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 that is incapable of being cured, such termination will be effective immediately.
    4. Suspension. In addition to Fresche’s termination rights set out in the Agreement, upon any breach by Customer of a SOW, Fresche will be entitled, in its discretion, to suspend the services under such SOW until such time as such breach or default is remedied by Customer.
  8. Customer Dependencies.
    1. Customer will reasonably cooperate with Fresche in the performance of the Professional Services and provision of Deliverables set out under each Statement of Work. If Customer has not provided the necessary cooperation or information or made available key Customer personnel to Fresche, or Fresche is otherwise denied or delayed access or information by Customer, then Fresche will be excused, without liability, from performing any further Professional Services or providing any further Deliverables.
    2. Without limiting Section 8.1, Customer will, as applicable:
      1. provide adequate staff and information to Fresche and its representatives regarding the Professional Services;
      2. provide up-to-date, accurate documentation for all hardware and software relevant to the Professional Services;
      3. provide Fresche representatives with any additional information that could potentially affect the Professional Services being performed by Fresche;
      4. provide Fresche and its representatives the required access to hardware related to the Professional Services;
      5. provide Fresche and its representatives a work area with the necessary access, connectivity, and power necessary for Fresche to perform the Professional Services;
      6. have current backups of any data stored on its hardware before Fresche performs any Professional Services that involve Customer’s hardware; and
      7. provide any other support reasonable required by Fresche to perform the Professional Services.
  9. Change Requests.
    1. Changes.  Any service or deliverable not specifically set out in a SOW will be considered out-of-scope. The parties may request any change to the nature or scope of any SOW (each, a “Change”) pursuant to this Section 9.
    2. Change Order Process.
      1. If, after Fresche’s commencement of Professional Services set out in a SOW, either party requires a Change, such party will set out the new requirements in writing and deliver such request to the other party. The parties will then negotiate in good faith a change request amending such SOW, which change request will be in the form attached to such SOW and will set out the detailed terms and conditions pursuant to which the Change will be implemented (“Change Request”).
      2. Upon Customer’s request for a Change, Fresche will assess whether the Change will impact the applicable Project schedule, effort, or investment. The assessment effort may also be at an additional cost if this effort exceeds two hours of consecutive work or the total additional effort for multiple requests for Changes exceeds eight hours. Fresche will notify Customer if the request for Change meets one of these parameters and will obtain approval from Customer for the additional cost prior to proceeding with the assessment effort.
      3. If the parties are unable to reach agreement on the impact of such proposed Change, then no such Changes to the SOW will be effective, and Fresche will perform the Professional Services in accordance with the original SOW.
  10. Disclaimers.
    1. Customer acknowledges that the Professional Services may involve integration to, or modification of, complex business software that can be comprised of a million or more lines of code that Fresche did not create. Therefore, Customer accepts responsibility to test and run its quality assurance reviews as it believes appropriate and as the risk of its business dictates. Customer is responsible for backing up its data before the commencement and during the delivery, of any Professional Services by Fresche and for fully testing the software which results from any Professional Services before such software is put into a production mode.
    2. Fresche will have no liability for loss or recovery of data or programs or for Customer’s failure to properly back-up any data or programs. Customer will be responsible for, and assumes the risk of, any problems resulting from the content, accuracy, completeness and consistency of Customer Materials. Fresche will not be liable for any defect or delay resulting from the failure of Customer to fulfill any of its obligations under this Agreement. Fresche is not responsible for the results of any recommendations made by Fresche, or for the loss of any data, computer time, or the like.
  11. Fees and Expenses.
    1. In consideration for the Professional Services performed or provided to Customer under each applicable SOW, Customer will pay to Fresche the amounts set forth in such SOW. Any suspension of the services by Fresche pursuant to the terms of the Agreement will not excuse Customer from its obligation to make payments under the Agreement.
    2. Estimates of total fees for Professional Services may be provided in a Statement of Work, but Fresche does not guarantee such estimates.
    3. Unless otherwise provided in an applicable SOW, the hourly rates contained in any applicable SOW will be increased on the anniversary date of that SOW by a percentage equal to the most recently published 12-month increase in the Consumer Price Index (“CPI”) for all Urban Consumers All Cities Average, for All Items published by the Bureau of Labor Statistics, United States Department of Labor. All price estimates in any applicable SOW do not take into account any increases in the applicable hourly rate based on such increases in CPI.
    4. Customer will reimburse Fresche for actual, necessary and reasonable expenses for: (a) travel by non-local Fresche Personnel to a site specified by Customer to perform Professional Services, including taxi or car rental expenses; and (b) meals and lodging for non-local Fresche Personnel while performing such Professional Services. Such expenses will not under any circumstances include airfare other than coach and will, to the extent available, be reserved at Fresche’s or Customer’s corporate rates. Lodging will not include charges for long distance phone calls billed to the room or other incidental charges other than meals and will be reserved at either Fresche’s or Customer’s corporate rates, if available. Customer hereby pre-approves travel and related expenses for Fresche Personnel’s return frequency back to their home base every weekend unless otherwise agreed in writing between the parties. Customer will be billed for the travel time of Fresche Personnel. Fresche will submit reimbursement requests to Customer monthly as part of Fresche’s regular monthly invoice for Professional Services, which will be reimbursed Net 30 days.

Survival. Upon any termination or expiration of this Professional Services Addendum, provisions contained in this Professional Services Addendum that by their nature and context are intended to survive completion of performance, expiration, termination, or cancellation of this Professional Services Addendum, including Sections 5.3 (Customer Representation, Warranty and Indemnity), 7.3 (Termination), 10 (Disclaimers), 11 (Fees and Expenses), and this Section 12 (Survival) will survive.

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