THIS AGREEMENT is entered into among Incuvers Inc., a federal corporation have its principal place of business at 7 Bayview Station Road, Ottawa, Ontario (“Incuvers”) and the undersigned party (the “Purchaser”).
WHEREAS Incuvers wishes to sell, and the Purchaser wishes to buy for its use, the Incuvers Incubator and such other materials and hardware (the “Designated Hardware”), as well as a Licence for the Designated Hardware’s Software (the “Licence”), and a warranty package which shall govern the ongoing performance and support for the Designated Hardware (the “Warranty”), as specified in the Order Summary attached hereto under Schedule “A” (collectively the “Incubator Package”);
NOW THEREFORE In consideration of the premises and mutual covenants and agreements herein contained, as well as additional consideration, the sufficiency of which is hereby acknowledged, the Vendor and the Purchaser (individually a “Party”, and collectively the “Parties”) agree as follows:
1. Agreement to Purchase. Incuvers agrees to sell, and the Purchaser agrees to buy, the Designated Hardware, the Licence, and the Warranty as set out under Schedule “A” hereto for the Consideration and subject to the terms and conditions set out in this Agreement.
2. Software and Terms.
2.1. The Purchaser acknowledges and accepts that the Designated Hardware can connect with and be used through the Incuvers cloud software, which can enable and govern the functions of key features and operations of the Designated Hardware (the “Software”).
2.2. The Purchaser accepts that their use of the Software is conditional upon purchase and continued maintenance of a valid Licence, and that upon the expiration of their Licence they will not be able to access or use the Software in any form.
2.3. The Purchaser acknowledges that upon payment of the Consideration hereunder they have purchased an initial Licence for the term set out under Schedule “A” hereto (the “Licence Term”), and that during such period Incuvers grants to the Purchaser, subject to and conditional on the Purchaser’s strict compliance with all terms and conditions set forth in this Agreement, a non- exclusive, non-transferable, non-sublicensable, limited licence to use the Software, subject to the terms of this Agreement and the terms of the Incuvers Software Terms and Conditions.
2.4. Upon expiration of such Licence Term the Purchaser shall be required to purchase an additional Licence, subject to the terms a new licence purchase agreement in the form provided by Incuvers at such time.
2.7. The Purchaser acknowledges and accepts that any breach of the terms of this Agreement, or of the Software Terms and Conditions shall be grounds for Incuvers to immediately terminate the Licence with written notice, at its sole and absolute discretion.
2.8. The Purchaser acknowledges that the Licence shall not be transferrable or assignable, and any subsequent owner of the Designated Hardware shall be required to obtain a new Licence from Incuvers subject to a separate agreement and terms.
3. Warranty and Support Services.
3.1. The Purchaser acknowledges and agrees that by entering into this Agreement and providing the Consideration Incuvers shall provide Purchaser with Warranty Coverage for the Designated Hardware starting from when the Purchaser receives the Hardware and continuing for the period set out under Schedule “A” hereto (the “Warranty Period”).
3.2. During the Warranty Period Incuvers shall provide Warranty coverage and support services subject to the terms of the Incuvers Warranty and Support Policy, attached hereto as Schedule “B”.
3.3. Purchaser acknowledges and accepts that upon expiration of the Warranty Period, Incuvers shall have no further obligation to provide Warranty coverage, services, or other obligations for the Purchaser in relation to the Designated Hardware purchased under this Agreement. The Purchaser may obtain additional warranty coverage subject to the terms of a separate agreement entered into with Incuvers.
3.4. EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION 3 INCUVERS MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO THE DESIGNATED HARDWARE, INCLUDING ANY (a) CONDITION OR WARRANTY OF MERCHANTABILITY; OR (b) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
4. Payment. The Purchaser shall pay to the Incuvers the following amounts for the Incubator Package (collectively the “Consideration”) immediately upon acceptance of this Agreement and prior to the delivery of the Designated Hardware pursuant to the terms herein:
4.1. the price of the Designated Hardware as set out on the Order Summary attached hereto under Schedule “A”, and labelled as “order sub-total”;
4.2. all taxes (including Goods and Services Tax and Provincial Sales Tax), customs duties and tariffs and other government charges payable for this sale; and 4.3. any reasonable shipping and delivery charges.
5. Late payment. Late Payment of invoices shall be subject to interest calculated on a daily basis and compounded monthly at a rate that is the lesser of: (a) 5% per annum, calculated daily; or (b) the highest rate permissible under applicable law. The Purchaser shall reimburse Incuvers for all costs incurred in collecting any late payments and related interest, including, without limitation, legal fees, legal costs, court costs and collection agency fees.
6. Refund and Return. The Designated Hardware may be returned, and the Consideration shall be refundable, subject to the terms of the Incuvers Return and Repair Policy, attached hereto as Schedule “C”.
7. Delivery. Incuvers shall package and ship the Designated Hardware to the location of the Purchaser’s choosing which has been set out in the Order Summary attached hereto under Schedule “A”.
8. Title and Risk of Loss. Title and risk of loss passes to Purchaser upon delivery of the Designated Hardware at the Purchaser’s designated location subject to Section 7. As collateral security for the payment of the purchase price of the Designated Hardware, Purchaser hereby grants to Incuvers a security interest in and to all of the right, title and interest of Purchaser in, to and under the Designated Hardware, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase-money security interest under the Personal Property Security Act (Ontario). The Purchaser shall be responsible for insuring the Designated Hardware after the Purchaser assumes ownership of the Designated Hardware.
9. Non-Delivery. The quantity of any instalment of Designated Hardware as recorded by Incuvers on dispatch from Incuvers's place of business is conclusive evidence of the quantity received by Purchaser on delivery unless Purchaser can provide conclusive evidence proving the contrary. Incuvers shall not be liable for any non-delivery of Goods (even if caused by Incuvers's negligence) unless Purchaser gives written notice to Incuvers of the non-delivery within 7 days of the date when the Goods would in the ordinary course of events have been received. Any liability of Incuvers for non-delivery of the Designated Hardware shall be limited to delivering the Designated Hardware within a reasonable time or adjusting the invoice respecting such Designated Hardware to reflect the actual quantity delivered.
10. No Set-Off. Purchaser shall not, and acknowledges that it will have no right, under this Agreement, any other agreement, document or Law, to withhold, set-off, recoup or debit any amounts owed (or to become due and owing ) to Incuvers or any of its affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by Incuvers or its affiliates, whether relating to Incuvers's or its affiliates' breach or non-performance of this Agreement or any other agreement between Purchaser and Incuvers or any of its affiliates, or otherwise.
11. Incuvers Obligations. Incuvers shall deliver or provide to the Purchaser on the delivery date specified herein: 11.1. the Designated Hardware and related accesories as described in the Order Summary attached hereto under Schedule “A”; and 11.2. A Licence to the full set of Software and features for the period set out in the Order Summary attached hereto under Schedule “A”.
12. Intellectual Property. The Purchaser acknowledges and agrees that: 12.1. all rights, title and interest in any copyright works, trade-marks, industrial designs, design rights, inventions (whether patentable or not), unpublished patent applications, inventive ideas, discoveries, innovations, developments, or improvements thereto, or any other intellectual property rights relating to any of the foregoing, whether registered or non-registered, whether or not reduced to written form or practice, contained in or represented by the Designated Hardware and the Software (the “Intellectual Property”) is the sole and absolute property of Incuvers; 12.2. the Purchaser 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, confidential Information and any other form of intellectual property, in the Designated Hardware.
13. No Commercial Modification or Reverse Engineering. 13.1. Except as and to the extent expressly permitted in this Agreement, the Purchaser shall not, directly or indirectly: 13.1.1. Open, disassemble, or otherwise expose or access the internal components of the Designated Hardware, by any method or action; 13.1.2. modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the Designated Hardware for the use of any third party, or the sale, transfer, or lending of the Designated Hardware to any third party; 13.1.3. reverse engineer, disassemble, decompile, decode or adapt the Designated Hardware or otherwise attempt to derive or gain access to the composition and designs contained therein, in whole or in part; or 13.1.4. make any modifications or alterations that would materially compromise the safety or function of the Designated Hardware. 13.2. In the event that the Purchaser breaches any part of Section 13.1. the Warranty Period set out under Schedule “A” may be deemed immediately voided by Incuvers at its sole and absolute discretion.
14. Limitation of Liability. 14.1. IN NO EVENT SHALL INCUVERS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR AGGRAVATED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY PURCHASER OR COULD HAVE BEEN REASONABLY FORESEEN BY INCUVERS, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. 14.2. EXCEPT WHERE SUCH LIMITATION IS PROHIBITED BY LAW, IN NO EVENT SHALL INCUVERS'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO INCUVERS FOR THE DESIGNATED HARDWARE SOLD HEREUNDER.
15. Termination. In addition to any remedies that may be provided in this Agreement, Incuvers may terminate this Agreement with immediate effect upon written notice to Purchaser, if Purchaser: (i) fails to pay any amount when due under this Agreement and such failure continues for 5 business days days after Purchaser's receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these terms of this Agreement, in whole or in part; or (iii) becomes insolvent, makes an assignment into bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
16. Legal Compliance. 16.1. Purchaser agrees that all applicable import, export control and sanctions laws, regulations, orders and requirements, as they may be amended from time to time, including without limitation those of the United States, the European Union and the jurisdictions in which Incuvers and Purchaser is established or from which items may be supplied, and the requirements of any licenses, authorizations, general licenses or license exceptions relating thereto will apply to its receipt and use of goods. 16.2. In no event shall Purchaser use, transfer, release, export or re-export any such goods in violation of such applicable laws, regulations, orders or requirements or the requirements of any licenses, authorizations or license exceptions relating thereto. 16.3. Purchaser agrees furthermore that it shall not engage in any activity that would expose Incuvers to a risk of penalties under laws and regulations of any relevant jurisdiction prohibiting improper payments, including but not limited to bribes, to officials of any government or of any agency, instrumentality or political subdivision thereof, to political parties or political party officials or candidates for public office, or to any employee of any customer or supplier. Purchaser agrees to comply with all appropriate legal, ethical and compliance requirements.
17.1. Any notice or other written communication required or permitted hereunder shall be in writing and:
17.1.1. delivered personally to the Party or, if the Party is a corporation, an officer of the Party to whom it is directed;
17.1.2. sent by registered mail, postage prepaid, return receipt requested (provided that such notice or other written communication shall not be forwarded by mail if on the date of mailing there exists an actual or imminent postal service disruption in the city from which such communication is to be mailed or in which the address of the recipient is found); or 17.1.3. by email. 17.2. All such notices shall be addressed to the Party to whom it is directed at the following addresses: if to: Incuvers by mail or personal delivery: [firstname.lastname@example.org] 7 Bayview Station Road, Ottawa, Ontario if to: Purchaser by mail or personal delivery to the email address or address listed on the signature page hereto. Any such notice or other written communication shall, if mailed as aforesaid be effective 5 Business Days from the date of posting; and if given by email personal delivery shall be effective on the day of delivery. 17.3. If any Party to this Agreement changes one of the above-noted addresses, such Party will provide notice of such change of address to all other Parties in the manner specified in this paragraph.
18. Miscellaneous 18.1. The Parties represents that they have the authority and right to enter into this Agreement, and that their performance of the terms and obligations herein will not breach the terms of any other agreement to which the Party is bound (including, without limitation, any non-disclosure, non-competition, or intellectual property agreements). The Parties further represents that they will not disclose to the other Party or induce such Party to use any confidential or proprietary information or material belonging to any previous party which they have contracted with. 18.2. No amendment, waiver or termination of this Agreement will be binding unless executed in writing by the Parties to be bound hereby. 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. 18.3. The Parties hereto shall do all further acts and things and execute all further documents reasonably required in the circumstances to affect the provisions and intent of this Agreement. 18.4. This Agreement may be altered, amended or terminated at any time, with the written agreement of all Parties. 18.5. 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. 18.6. It is the desire of the Parties hereto that this Agreement be accorded a liberal interpretation consistent with its declared intent and purpose. 18.7. The headings appearing throughout this Agreement shall not form part of this Agreement and are provided for convenience of reference only and will not affect the construction or interpretation hereof. 18.8. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision hereof and any such invalid or unenforceable provision will be deemed to be severable. 18.9. This Agreement and the Schedules attached hereto constitute the entire Agreement between the Parties hereto pertaining to the subject matter hereof. There are no oral warranties, representations or other agreements between the Parties in connection with the subject matter hereof except as specifically set forth or referred to herein. 18.10. The Parties may not assign or otherwise transfer their obligations under this Agreement without prior and mutual written consent. Notwithstanding the foregoing, Incuvers may, without the consent of the other Party, assign any of its rights or delegate any of its duties under this Agreement without any prior consent if such assignment or delegation is to: (a) an affiliate or subsidiary of Incuvers; (b) a successor of Incuvers, by amalgamation or operation of law; or (c) a purchaser of all or substantially all of Incuvers assets. 18.11. 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. 18.12. 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, with such scanned and electronic signatures having the same legal effect as original signatures.
Incuvers shall provide a warranty for the Designated Hardware, subject to the following terms:
1. Incuvers warrants to Purchaser that from commencing from the date that the Purchaser is in receipt of the Designated Hardware and for the period set out under Schedule “A” (the "Warranty Period"), the Designated Hardware will materially conform to Incuvers's published specifications in effect as of the Effective Date and will be free from material defects in material and workmanship.
2. Subject to Section 13. of the Incuvers Incubator Sales Agreement, and Section 3 of this Incuvers Warranty and Support Policy with respect to any such Designated Hardware during the Warranty Period, Incuvers shall, in its sole discretion, either: (i) repair or replace such Designated Hardware (or the defective part) or (ii) credit or refund the price of such Designated Hardware at the pro rata contract rate; provided that, if Incuvers so requests, Purchaser shall, at Incuvers's expense, return such Designated Hardware to Incuvers.
3. Incuvers shall not be liable for a breach of the warranty set forth in Section 1. unless: (i) Purchaser gives written notice of the defect, reasonably described, to Incuvers within 10 business days of the time when Purchaser discovers or ought to have discovered the defect; (ii) Incuvers is given a reasonable opportunity after receiving the notice to examine such Designated Hardware and Purchaser (if requested to do so by Incuvers) returns such Designated Hardware to Incuvers's place of business at Incuvers's cost for the examination to take place there; and (iii) Incuvers reasonably verifies Purchaser's claim that the Designated Hardware is defective.
4. Notwithstanding the foregoing, Incuvers shall not be liable for a breach of the warranty set forth in Section 1. if: (i) Purchaser makes any further use of such Designated Hardware after giving such notice; (ii) the defect arises because Purchaser failed to follow Incuvers's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Designated Hardware; or (iii) Purchaser alters or repairs such Designated Hardware without the prior written consent of Incuvers;
5. Notwithstanding the foregoing Incuvers shall not be liable for any defects caused by: fair wear and tear; materials or workmanship made, furnished, or specified by Purchaser; non-compliance with Incuvers storage, installation, operation, or environmental requirements; lack of proper maintenance; any modification or repair not previously authorized by Incuvers in writing; and Incuvers costs incurred in investigating and rectifying such defects shall be paid by Purchaser upon demand.
6. THE REMEDIES SET FORTH IN THIS INCUVERS WARRANTY AND SUPPORT SHALL BE THE PURCHASER'S SOLE AND EXCLUSIVE REMEDY AND INCUVERS'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS INCUVERS WARRANTY AND SUPPORT POLICY. Incuvers shall, at its sole and absolute discretion, provide certain troubleshooting and technical support services from time to time in accordance with its technical support policy and procedures, as set out on FAQ page.