Legal

This Fresche Professional Services Terms and Conditions (together with any document incorporating these terms, the “Agreement”) forms an agreement between the person named in the document identified as a Statement of Work that incorporates this Agreement (such person, the “Customer”, and such document the “Statement of Work”) and Trinity Guard, LLC (“Fresche”). This Agreement is entered into on the effective date of the Statement of Work that incorporates this Agreement (the “Effective Date”). Each of Fresche and Customer will individually be referred to as a “Party” and jointly as the “Parties”.

1. Performance of Services

• Subject to Customer’s compliance with this Agreement and any assumptions set out in the Statement of Work, including Section 2 (Customer Responsibilities), Fresche will perform, on the terms and conditions set out in this Agreement, the activities set out in the Statement of Work (the “Services”).
• To the extent acceptance of any Work Products is expressly contemplated in the Statement of Work, if Customer has not provided Fresche with written notice of its acceptance or rejection of such Work Product within 10 days of delivery, such Work Products will be deemed to be accepted by Customer. Customer may not reject any Work Products that substantially comply with the requirements set out in the Statement of Work.
• For greater clarity, any items identified as out of scope in the Statement of Work is outside the scope of the Services.

2. Customer Responsibilities

Customer will perform all Customer’s responsibilities, activities, tasks and obligations set out in a Statement of Work, as well as all other pre-requisites, activities, tasks, and obligations upon which the performance of the Services depends, including those set out in the Statement of Work.

3. Changes

• Each Party will follow the procedure set out in this Section 3 for any change, addition, reduction, deletion, modification, relocation, improvement, amendment, delay, rescheduling or adjustment (a “Change”) to the Services, excluding any day-to-day service requests within the scope of the Services.
• Either Party may send a notice to the other Party requesting a Change.
• Customer may request a Change by sending Fresche a notice, which notice will specify the Change in reasonable detail to enable Fresche to evaluate it.
• Upon receipt of a change request, Customer will prepare an estimate (“Change Order Proposal”) describing the Change, the cost or savings resulting from the Change, the expected delivery timeframe, the implementation approach and the expected effect thereof on the Services. Once Customer has prepared a Change Order Proposal, it will provide a copy thereof in writing to Fresche for assessment and approval.
• Fresche may request a Change by sending Customer a Change Order Proposal in respect of the Change.
• Fresche will review each Change Order Proposal and either: (i) notify Customer in writing of its approval of the Change Order Proposal; (ii) seek further clarification as it reasonably deems necessary; or (iii) reject the Change Order Proposal.
• If Customer approves a Change Order Proposal, the Parties will negotiate in good faith and agree in writing on an amendment to this Agreement (each, a “Change Order”) based on the Change Order Proposal and once prepared, authorized representatives of each Party will execute it. If Fresche does not respond to Customer’s Change Order Proposal within 10 business days, the Change Order Proposal will be deemed rejected and any related change request will be deemed to have been withdrawn.

4. Ownership; Reservation of Rights and License Grants

• Customer Property.
  • In order to facilitate the performance by Fresche of the Services, Customer may provide to Fresche certain of its or its licensors’ Customer Property. Unless otherwise set out in a Statement of Work, Customer grants to Fresche, and its subcontractors, a non-exclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to access, collect, use, process, store, disclose, transfer, transmit, copy, Modify and display Customer Property to: (A) provide the Services; and (B) improve and enhance the Services and its other offerings.
  • Customer is and will be the exclusive owner of all Customer Property and all intellectual property rights therein.
• Work Products.
  • Unless otherwise set out in the Statement of Work, Fresche owns and will own all right, title and interest, including all intellectual property rights, in and to Work Products. All right, title and interest, including all intellectual property rights, in Work Products, will vest in Fresche, immediately upon creation and regardless of the state of completion of such Work Products.
  • Customer: (A) hereby irrevocably assigns and transfers to Fresche in perpetuity; (B) agrees to irrevocably assign and transfer to Customer in perpetuity; and (C) agrees to cause all authors and any other personnel of Fresche to irrevocably assign and transfer to Customer in perpetuity, as and when created, all right, title and interest, including all intellectual property rights, throughout the world in and to all: (1) Work Products; and (2) to the extent any right, title, interest or Intellectual Property Right in any other Customer Property does not automatically and immediately vest in Customer, to such Customer Property. Fresche acknowledges and agrees that such assignments will not lapse even in the event of non-use by Customer and regardless of the period of any non-use.
  • Customer will cause all authors and any other personnel of Customer to irrevocably waive, for the benefit of Fresche and its respective successors, assigns, licensees and contractors, their respective moral rights (and any similar rights to the extent that such rights exist and may be waived in each and any jurisdiction throughout the world) in and to all Customer Property.

5. Fees and Payment

• Fees. Subject to Sections 3(b) and 3(d), and unless otherwise expressed in the Statement of Work, in consideration of Fresche’s performance of the Services, Customer will pay to Fresche the fees described in the Statement of Work (“Fees”). Unless otherwise noted on the Statement of Work: (i) all Fees are identified in U.S. dollars; and (ii) Fees are non-cancelable and non-refundable. Customer will pay Fresche for any travel or related expenses incurred by Fresche in performing the Services.
• Invoicing. Unless otherwise set out in the Statement of Work, Fresche will invoice Customer for the Fees upon acceptance of the Work Products. Fresche will prepare and send to the Customer, at the then-current contact information on file with Fresche, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, Customer will pay all invoiced amounts within 30 days of the invoice date.
• Disputed Invoices or Charges. If Customer believes Fresche has charged or invoiced Customer incorrectly, Customer must contact Fresche no later than 30 days after having been charged by Fresche or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
• Late Payment. Customer may not withhold or setoff any amounts due under this Agreement. Fresche reserves the right to suspend Customer’s access to the Services and any delivery of the Services until all due and undisputed amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid. Without limiting Fresche’s other rights, Fresche may suspend Customer’s access to or its performance of the Services, if Customer has not paid the applicable Fees within 10 days of the date that such Fees become due.
• Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, excise, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement and the Statement of Work other than taxes based on the net income or profits of Fresche.
• Suspension. Any suspension of the Services by Fresche pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.

6. Confidential Information

• For the purposes of this Agreement, a Party or its Affiliates, customers, employees, licensors or suppliers receiving Confidential Information will be the “Recipient” and the Party disclosing such information will be the “Discloser”.
• The Recipient hereby agrees that during the Term and at all times thereafter it will not:
  • disclose Confidential Information of the Discloser to any person, except to:
    • in the case of the Fresche, to its employees, independent contractors, advisors, contractors, consultants, agents and its Affiliates, for the purposes of providing the Services; or
    • in the case of Customer to Customer Personnel, that have a “need to know” for the purposes of receiving the Services and that have entered into written agreements no less protective of such Confidential Information than this Agreement;
  • use Confidential Information of the Discloser other than to exercise its rights or perform its obligations under this Agreement; or
  • alter or remove from any Confidential Information of the Discloser any proprietary legend. Customer will take industry standard precautions to safeguard Fresche’s Confidential Information, which will in any event be at least as stringent as the precautions that Customer takes to protect its own Confidential Information of a similar type.
• Notwithstanding Section 6(b), the Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, and, in the case of Fresche, Customer promptly notifies Fresche in writing of such required disclosure and cooperates with Fresche to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of Fresche, to potential assignees, acquirers or successors of Fresche if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Fresche.
• The Parties agree: (i) that no adequate remedy exists at law if it breaches any of its obligations in this Section 6; (ii) that it would be difficult to determine the damages resulting from its breach of this Section 6 and that such breach would cause irreparable injury to a Party; and (iii) that a grant of injunctive relieve provides the best remedy for any such breach, without any requirement that an innocent Party prove actual damage or post a bond or other security. Customer waives any opposition to such injunctive relief or any right to such proof, bond, or other security.
• Notwithstanding the foregoing, Fresche may retain any electronically archived Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.

7. Representations, Covenants, Warranties and Disclaimer

• Customer Warranty. Customer represents and warrants to and covenants with Fresche that the Customer Property will only contain Personal Information in respect of which Customer has provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by and in compliance with applicable laws, including applicable privacy laws, to enable Fresche to provide the Services, including without limitation with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Fresche and to or from all applicable third parties; and
• GENERAL DISCLAIMER. FRESCHE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SERVICES (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY FRESCHE TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FRESCHE HEREBY DISCLAIMS 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. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, Fresche EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES OR ANY SERVICES (OR ANY PART THEREOF), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.

8. Indemnities

• Each Party will defend, indemnify and hold the other Party, its Affiliates and their respective employees, officers, directors, shareholders, contractors, agents, representatives, successors and assigns harmless from and against any and all losses, suffered or incurred by an Indemnitee arising out of or as a result of or relating in any manner whatsoever to any claim, arising out of or as a result of or relating in any manner whatsoever to claims in respect of:
  • any breach or violation of any applicable laws by a Party;
  • any gross negligence or wilful misconduct or fraud on the part of a Party, whether as a result of an act or an omission of a Party, acting alone or in collusion with others; and
  • and in the case of Customer: (A) Customer Property; (B) Customer’s breach of any of Customer’s representations or warranties under this Agreement; or (C) if applicable, claims by, or losses suffered by, Client End-Customers, including Customer Customer’s failure to obtain all necessary consents and permissions from, and making all requisite disclosures to, Client End-Customer in order for Fresche to perform the Services. Customer will fully cooperate with Fresche in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Fresche.
• Indemnification Procedure. Each Party will promptly notify the other Party in writing of any claim for which such Party believes it is entitled to be indemnified pursuant to this Section 8. The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such claim (although the Indemnitor shall not settle any claim without the Indemnitee’s prior written consent) and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. In the case of Fresche, Fresche’s failure to perform any obligations under this Section 8(b) will not relieve Customer of its indemnity obligations under this Section 8 except to the extent that Customer can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

9. Limitation of Liabilities

• AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF FRESCHE IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL FRESCHE’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
• TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL FRESCHE BE LIABLE TO CUSTOMER OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (i) SAVINGS, (ii) PROFIT, (iii) DATA, (iv) USE, OR (v) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.

10. Terms and Termination

• Term. This Agreement will commence on the Effective Date and continue to be in effect until the earlier of: (i) the end date; (ii) the completion of the Services under the applicable Statement of Work; or (iii) 12 months from the Effective Date (the “Term”).
• Termination. Notwithstanding any other Section of this Agreement, Fresche may, in its discretion, terminate the Agreement at any time by providing at least 30 days advance written notice to Customer and return all fees payable under the Statement of Work to Customer. Fresche may, in addition to other relief, terminate this Agreement if Customer commits a material breach of this Agreement and fails to correct such breach within 30 calendar days after receipt of notice of such breach. Fresche may in its discretion terminate this Agreement effective immediately upon delivery of notice of termination to Customer if Customer becomes insolvent, ceases to conduct business in the ordinary course, takes any step or proceeding available to Customer for the benefit of insolvent debtors, or is subject to a proceeding for liquidation, dissolution or winding up, or a receiver, receiver-manager, liquidator or trustee in bankruptcy.
• Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 4 (Ownership; Reservation of Rights and License Grants), Section 5(a) (Fees and Payment), Section 6 (Confidential Information), Section 7 (Representations, Covenants, Warranties and Disclaimer), Section 8 (Indemnities), Section 9 (Limitation of Liabilities), Section 10(c) (Survival), and Section 13 (General Provisions).

11. Services Intended for Customers and Client End-Customer (e.g. Where Customer is a Reseller)

If the Services involve the provision of Services directly to a client, customer or third-party partner of Customer (such person, “Client End-Customer”), Customer acknowledges and agrees that it is Customer’s responsibility to ensure that it has obtained all necessary consents and permissions from, and has made all requisite disclosures to, such Client End-Customer for Fresche to perform the Services.

12. Subcontracting

Fresche will delegate or subcontract all or any part of the Services to any person, including any of Fresche’s Affiliates or Fresche subcontractors, without notice and without written consent of Customer. Customer acknowledges that Fresche Affiliates may perform any obligations or exercise any rights of Fresche hereunder.

13. General Provisions

• Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or 5 days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to Fresche, to the following Fresche’s address and email contact:
  Address: 995 Rue Wellington Suite #200, Montréal, QC H3C 1V3
  Attention: Legal Team
  Email: legal@freschesolutions.comand (ii) if to Customer, to the current mailing or email address that Fresche has on file with respect to Customer. Fresche may change its contact information by posting the new contact information on its website (https://freschesolutions.com/). Customer is solely responsible for keeping Customer’s contact information on file with Fresche current at all times during the Term.
• Assignment. Customer may not assign this Agreement to any third party without Fresche’s prior written consent. Any purported assignment or delegation by Customer in violation of this Section 13(b) will be null and void. Fresche may assign or transfer its rights and obligations under this Agreement to its Affiliates, without consent and without notice to Customer. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
• Governing Law and Attornment. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of Delaware and the federal laws of the United States applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Delaware, United States, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent Fresche from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
• Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
• Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third-party websites (“Force Majeure”). For clarity, a Force Majeure event shall not excuse the Customer from its failure to pay Fees or Customer’s indemnities under this Agreement. This Section does not apply to any of Customer’s obligations under Sections 5(a), 6, or 8.
• Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
• Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
• Independent Contractors. Fresche’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
• Entire Agreement. 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 between the Parties, whether written or oral.
• Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, FRESCHE MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY FRESCHE, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).

14. Definitions

As used in this Agreement, the following capitalized words have the meaning set out below:

• “Affiliate” of any person means, at the time such determination is being made, any other person controlling, controlled by or under common control with such first person, in each case whether directly or indirectly.
• “Agreement” has the meaning set out in the preamble.
• “Amendment” has the meaning set out in Section 13(j).
• “Change” has the meaning set out in Section 3(a).
• “Change Order” has the meaning set out in Section 3(g).
• “Change Order Proposal” has the meaning set out in Section 3(d).
• “Client End-Customer” has the meaning set out in Section 11.
• “Confidential Information” means any and all information of the Discloser that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business; provided that the Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.
• “Customer” has the meaning set out in the preamble.
• “Customer Personnel” means employees, agents, independent contract personnel of Customer, and includes potential employees and candidates for employment.
• “Customer Property” means: (1) all Customer data; (2) any material that is provided to Fresche by Customer; (3) any other hardware, software, systems, documentation, content, trade-marks, Confidential Information or other information or intellectual property that the Parties identify in the Statement of Work or Change Order as Customer Property; and (4) any Modifications of, or other Changes to, any of the foregoing.
• “Discloser” has the meaning set out in Section 6(a).
• “Effective Date” has the meaning set out in the preamble.
• “Fees” has the meaning set out in Section 5(a).
• “Force Majeure” has the meaning set out in Section 13(e).
• “Fresche Personnel” means the employees, agents, independent contract personnel of Fresche, and Fresche subcontractors who perform any of the Services for or on behalf of Fresche.
• “Fresche Property” means, collectively, hardware, software, systems, documentation, content, trade-marks, Confidential Information or other information or intellectual property (including business rules, business processes and business process flows) that is or has been procured, created or developed by Fresche (whether alone or jointly with one or more persons, other than Customer or a person on behalf of Customer) or created or developed for, or licensed to Fresche by another person and of all intellectual property rights therein, other than Customer Property.
• “Indemnitee” has the meaning set out in Section 8(b).
• “Indemnitor” has the meaning set out in Section 8(b).
• “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
• “Party” and “Parties” have the meaning set out in the preamble.
• “Personal Information” means information about an identifiable individual provided by Customer under this Agreement.
• “Recipient” has the meaning set out in Section 6(a).
• “Services” has the meaning set out in Section 1(a).
• “Statement of Work” has the meaning set out in the preamble.
• “Term” has the meaning set out in Section 10(a).
• “Work Products” means: (1) all hardware, software, systems, content, documentation, Confidential Information, trade-marks, information, facilities and services provided, designed, developed or delivered as part of, or that result in the receipt of, the Services in accordance with this Agreement; and (2) all Modifications of, or other Changes to, a Work Product referred to in clause (1) made in accordance with this Agreement.