This Evaluation Agreement (the "Agreement"), effective as of the date defined hereunder (the "Effective Date"), is entered into between Incuvers Inc., a federal corporation based in Ottawa, Ontario ("Incuvers") and the undersigned party (the “Evaluator”) which seeks to trial and evaluate Incuvers’ incubator hardware (the “Hardware”) and its connected cloud software (the “Software”) for their uses pursuant to the terms and conditions herein. Therefore, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Incuvers and the Evaluation (each a “Party” and collectively the “Parties”) agree as follows: 1. Evaluation. Subject to, and conditional on the Evaluator’s compliance with, the terms and conditions of this Agreement, Incuvers hereby agrees to lend to the Evaluator one (1) Hardware unit set out, and provide one (1) login access to the Incuvers Software during the Term of this Agreement. There is no fee to the Evaluator for entering into this Agreement, except for those fees or expenses which may incurred for damages or delivery as set out herein. Upon the execution of this Agreement Incuvers shall make arrangements to have the Hardware delivered to the Evaluator’s site listed on the signature page hereto. 2. Ownership. Subject solely to the express licence granted by Incuvers under this Agreement, as between the Parties, Incuvers reserves and retains all right, title, and interest in and to the Hardware, the Software, and its Confidential Information, including the sole and exclusive ownership of all intellectual property rights relating thereto. The Evaluator shall and hereby does, and shall cause each of its personnel and users of the Hardware or Software to, unconditionally and irrevocably assign to Incuvers the entire right, title and interest that such parties may have or acquire in any Hardware, Software, or Confidential Information including the sole and exclusive ownership of all intellectual property rights therein. 3. Software Terms. The Evaluator acknowledges and accepts that use of the Software shall be subject to, and require, the acceptance of the Incuvers Software Terms & Conditions by all users of the Software. 4. Term and Termination. This Agreement shall commence as of the Effective Date, and shall continue for 30 days, unless earlier terminated by either Party at any time and at their sole and absolute discretion, immediately upon delivery of written notice to the other Party (the “Term”). Upon the termination of this Agreement for any reason the Evaluator shall immediately discontinue all use of the Hardware and Software, and shall promptly remove all of their data and personal items as applicable. 5. Post-Evaluation Purchase. Upon the termination of this Agreement for any reason, Incuvers may offer the Evaluator the opportunity to purchase the Hardware and an ongoing licence to the Software subject to the terms, pricing (which shall include the costs incurred by Incuvers to deliver the Hardware under this Agreement), and purchase agreement provided by Incuvers. The Evaluator shall have no obligation to purchase the Hardware upon the termination of this Agreement, but shall not be permitted to continue to possess or make use of the Hardware or Software without a subsequent purchase or agreement with Incuvers.6. Post-Evaluation Return. If, upon the termination of this Agreement the Evaluator does not elect to purchase the Hardware, then the Evaluator shall return the Hardware to Incuvers by the delivery method that is selected by Incuvers, and at Incuvers sole cost and expense. If the Hardware is found to be damaged upon final return to Incuvers, Evaluator shall not be liable for damages that are caused by the delivery carrier, but shall be liable for damages which are reasonably determined to have been caused by the Evaluator before shipping, or which occurred in shipping as a result of the Evaluator’s negligence or error in preparing the Hardware for delivery.7. Permitted Uses. During the Term of this Agreement Incuvers grants the Evaluator a non-exclusive, non-transferable, non-sublicensable licence to use the Hardware and Software as it is designed to function and for the Evaluator’s own usage and purposes, including evaluating the function and suitability of the Hardware and Software for the Evaluator’s needs, subject to the requirement that the Evaluator shall not, and shall not permit others to: 7.1. Permit others to access the Hardware or Software without Incuvers’ prior written permission; 7.2. Duplicate, clone, or copy, the Hardware and Software, or modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of the Hardware or Software; 7.3. Tamper, reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the internal components of the Hardware or the underlying source code of the Software, in whole or in part; 7.4. Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Hardware, Software, or the component parts thereof, to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; or 7.5. Remove from any Hardware or Software any copyright or other intellectual property right notices accompanying or contained in these materials as received from Incuvers. 8. Liability for Damage. Upon receipt of the Hardware the Evaluator assumes soles responsibility and liability for the Hardware, and shall handle and protect the Hardware in such a way as to prevent any damage, theft, loss, destruction, or other harm to the Hardware. In the event that the Hardware is damaged, lost, or stolen, the Evaluator shall be liable for the full commercial cost of the Hardware. 9. Software Data. At the end of the Term of this Agreement Incuvers shall revoke access to the Software. The Evaluator is solely responsible for taking appropriate measures to back up data and all other necessary measures to prevent any file or data loss. 10. Intellectual Property. Incuvers represents and warrants that the Software Terms and Conditions, Privacy Policy, and function of the Hardware and the Software shall ensure that any and all research, information, data, materials, works, expressions or other content that is uploaded, submitted, posted, transferred, transmitted, or otherwise provided or made available by or on behalf of the Evaluator or any of its users through the use of the Software or Hardware (“User Data”) shall remain the sole and absolute property of its original owner, uploader, or creator, and Incuvers shall not acquire any ownership interest in such User Data. Incuvers shall not obtain or have any interest or claim in any intellectual property, including without limitation, no interest in copyright, inventions, patents, patent applications, industrial design, industrial design applications, trade-marks, trade secrets, and any other form of intellectual property, in the User Data, except for a limited licence and permission to host, manage, and utilize the data to provide the functions of the Software, and for Incuvers to anonymize and transform the aggregate User Data in order to obtain meta data about the use of the Hardware, Software, and user preferences (“Resultant Data”). Such Resultant Data shall be created and maintained in such a manner that shall prevent it from being used to identify or access any sensitive User Data or other personal information, and the Resultant Data shall become Incuvers’ property and may be used to improve the Hardware, Software, and develop and promote Incuvers’ business. 11. Confidentiality. In this Agreement "Confidential Information" means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as "confidential". Without limiting the foregoing: (a) the designs and function of the Hardware and Software are the Confidential Information of Incuvers; and (b) the User Data is the Confidential Information of the Evaluator. In connection with this Agreement, each Party agrees not disclose, or permit access to, the other Party’s Confidential Information to any third party or person, and each Party shall further only make use of the other Party’s Confidential Information for the purposes of carrying out the trial and evaluation activities contemplated herein. This obligation shall survive the termination of this Agreement for any reason. Upon termination of this Agreement the Parties shall return any Confidential Information in their possession that belongs to the other Party upon request. 12. Disclaimer of Warranty. THE HARDWARE AND SOFTWARE ARE PROVIDED "AS IS" AND INCUVERS HEREBY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND INCUVERS SPECIFICALLY DISCLAIMS ALL CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, INCUVERS MAKES NO CONDITION OR WARRANTY OF ANY KIND THAT THE EVALUATION MATERIALS OR ANY SOURCE CODE, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL: (i) MEET EVALUATOR OR ANY OTHER PERSON'S REQUIREMENTS (ii) OPERATE WITHOUT INTERRUPTION; (iii) ACHIEVE ANY INTENDED RESULT; (iv) BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES; OR (v) BE SECURE, ACCURATE, COMPLETE, FREE OF 3 HARMFUL CODE OR ERROR FREE. ALL THIRD PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION, CONDITION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN EVALUATOR AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD- PARTY MATERIALS. 13. Exclusion of Damages. IN NO EVENT WILL INCUVERS OR ANY OF ITS AFFILIATES BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, CONTRACTS, REVENUE, PROFIT; (b) BUSINESS OR OPERATIONS INTERRUPTION OR IMPAIRMENT; (c) ANY USE OF OR INABILITY TO USE THE HARDWARE OR SOFTWARE; (d) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, AGGRAVATED, PUNITIVE OR EXEMPLARY DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. 14. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to a Party at the email address set forth on the signature page hereto. 15. Amendment. No amendment, assignment, or waiver of this Agreement will be binding unless executed in writing by all of the Parties. No waiver of any provision of this Agreement will be deemed or will constitute a waiver of any other provision, nor will any such waiver constitute a continuing waiver unless expressly provided.16. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. 17. Counterparts. This Agreement may be executed by the Parties in counterparts and may be delivered by facsimile or other means of electronic communication and all such counterparts, taken together, shall constitute one and the same agreement. Documents executed, scanned and transmitted electronically and electronic signatures shall be deemed original signatures for purposes of this Agreement and all matters related thereto, having the same legal effect as original signatures. 18. Binding. This Agreement constitutes the entire Agreement between the Parties hereto pertaining to the subject matter hereof. This Agreement shall enure to the benefit of and be binding upon the Parties hereto and their respective personal representatives, executors, administrators, heirs, successors and assigns. The Parties may not assign or otherwise transfer their obligations under this Agreement without prior and mutual written consent.
