incuvers software terms and conditions

This Incuvers Software Terms & Conditions (this "Agreement"), is a binding agreement between Incuvers Inc. ("Incuvers") and you or any persons which access and use the Incuvers Incubator and its Software (referred to as “you” or as a/the "User" in all forms).

INCUVERS PROVIDES THE SOFTWARE AND THE HARDWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT THE USER ACCEPTS AND COMPLIES WITH THEM.
BY [CLICKING THE "ACCEPT" BUTTON/CHECKING THE "ACCEPT" BOX ON THE ORDER FORM/[OTHER MEANS PROVIDED FOR ACCEPTANCE]] YOU: (A) ACCEPT THIS AGREEMENT AND AGREE THAT THE USER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF THE USER IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE USER AND BIND THE USER TO ITS TERMS. IF YOU OR A USER DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, INCUVERS WILL NOT AND DOES NOT LICENCE THE SOFTWARE TO YOU AND YOU MUST NOT INSTALL OR OTHERWISE USE THE SOFTWARE, HARDWARE, OR DOCUMENTATION, AND CERTAIN FEATURES OR PORTIONS OF THE HARDWARE MAY BE INACCESSABLE OR UNUSABLE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR THE USER'S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENCE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT CONCERNING ANY SOFTWARE THAT THE USER DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF INCUVERS'S SOFTWARE.


1.Definitions. For purposes of this Agreement, the following terms have the following meanings:

1.1.  "Authorized Users" means those individuals authorized by the User, or otherwise given access, to use the Software or Hardware, and who also agree to be bound by the terms under this Agreement.
1.2.  "Access Credentials" means any user name, identification number, password, license or security key, security token, personal identification number (PIN) or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Software.
1.3.  "Documentation" means user manuals, technical manuals and any other materials provided by Incuvers, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Software.
1.4.  “Hardware” means the Incuvers incubator which may be used in conjunction with the Software from time to time.
1.5.  "Harmful Code" means any software, hardware or other technology, device or means, including any virus, trojan horse, worm, backdoor, malware or other malicious computer code, the purpose or effect of which is to: (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any: (i) computer, software, firmware, hardware, system or network; or (ii) any application or function of any of the foregoing or thesecurity, integrity, confidentiality or use of any data processed thereby; or (b) prevent any Useror other authorized party from accessing the Software as intended by this Agreement.
1.6.  “Hosted Services” means the hosting, management, and operation functions of the Software which are hosted, stored, or otherwise manipulated remotely on Incuvers or Third Party servers for the purposes of delivering such services remotely and electronically to Users and AuthorizedUsers through the Software.
1.7.  "Intellectual Property Rights" means any and all registered and unregistered rights granted,applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.8.  "Person" means an individual, corporation, partnership, joint venture, governmental authority, unincorporated organization, trust, association or other entity.
1.9.  "Personal Information" means any information that Incuvers collects, receives or obtains, from or on behalf of User or any of its Authorized Users about an identifiable individual, including where there is a serious possibility that the information may identify a person, either alone or in combination with other information, and any other information relating to an identified or identifiable individual. Personal Information includes such information of or pertaining to any applicable User or Authorized User’s personnel, directors, officers, agents, suppliers, contractors, investors, or customers and all personal information as defined under PIPEDA, AB PIPA, BC PIPA and QB PIPA, all health information and personal health information as defined under the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A, Health Information Act, R.S.A. 2000, c. H-5, The Health Information Protection Act, S.S. 1999, c. H-0.021,The Personal Health Information Act, S.M. 1997, c. 51, An Act Respecting the Sharing of Certain Health Information, CQLR, c. P-9.0001, Personal Health Information Privacy and Access Act, S.N.B. 2009, c. P-7.05, Personal Health Information Act, S.N. 2008, c. P-7.0, Personal Health Information Act, S.N.S. 2010, c. 41 and Health Information Act, S.N.W.T. 2014, c. 2, all "nonpublic personal information" as defined under the Gramm-Leach Bliley Act (15 U.S.C. § 6801 et seq.), "protected health information" as defined under the health and Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d), and "Personal Data" as that term is defined in the GDPR.
1.10.  "ResultantData"meansinformation,data,analytics,usagehistory,anonymizeddataincluding User Data and Personal Information, any data delivered to Incuvers by a User, and other content that is derived by or through the Hosted Services or from processing User Data and is sufficiently different from such User Data that such resulting data cannot be reverse-engineered or otherwise manipulated, inspected, analyzed, or otherwise modified to obtain individual User Data, Personal Information, or to otherwise identify any individual Users, Authorized Users, or connect them to their confidential information, data, or content.
1.11.  "Software"meansthesoftwareprogramswhichisdevelopedandprovidedbyIncuversforuse by the User or their Authorized Users with the Hardware.
1.12.  “Licence” means a valid licence to use the Software for a set period of time purchased from Incuvers upon payment of the Licence Fees, and subject to the terms of an applicable purchase agreements.
1.13.  “LicenceFees”meansthefeespaidtoIncuversinconsiderationforavalidLicence.
1.14.  "Term"has the meaning set forth in Section11.
1.15.  "ThirdParty"means any Person other than the User o Incuvers.
1.16.  "Update"has the meaning set forth in Section..
1.17.  "UserData"means any and all in formation, data, materials, works, expressions or other content, including any that are (a) uploaded, submitted, posted, transferred, transmitted, or otherwiseprovided or made available by or on behalf of User or any Authorized User for hosting or processing through the Software or its Hosted Services, or (b) collected, downloaded, or otherwise received by Incuvers through the Software or its Hosted Services for the User or any Authorized User pursuant to this Agreement. All output, copies, reproductions, improvements, modifications, adaptations, translations, and other derivative works of, based on, derived from, or otherwise using any User Data are themselves also User Data.
1.18. "User Systems" means User’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), networks and internet connectivity, whether operated directly by User or through the use of third-party services.
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”);

2. Licence to Use. Subject to and conditional on the User's strict compliance with all terms and conditions set forth in this Agreement, and the User having an active Licence in good standing, Incuvers hereby grants to the User to the right to use, solely by and through its Authorized Users, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 4 or elsewhere in this Agreement. This licence grants the User the right, exercisable solely by and through the User's Authorized Users, to:

2.1. Download, install, and use in accordance with the terms of this Agreement Documentation the Software on the computers and electronic devices owned or leased, and controlled by, the User, where the Software:

2.1.1.  will be the exclusive property of the Incuvers;

2.1.2.  will be subject to the terms and conditions of this Agreement; and

2.1.3.  must include all trademark, copyright, patent, and other Intellectual Property Rights noticescontained in the original.

2.2.  Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation.

2.3.  Download the Documentation and use such Documentation solely in support of its licensed use of the Software in accordance herewith. All copies of the Documentation made by the User:2.3.1.  will be the exclusive property of Incuvers;

2.3.2.  will be subject to the terms and conditions of this Agreement; and

2.3.3.  must include all trademark, copyright, patent and other Intellectual Property Rights noticescontained in the original.

2.4. To upload or store User Data through the Software on Incuvers’ servers, up to the capacity provided by Incuvers and which it may adjust or reduce from time to time at its sole and absolute discretion.

3. Third-Party Materials. The Software may include software, content, data or other materials, including related documentation, that are owned by Persons other than Incuvers and that are provided to the User on the User terms that are in addition to and/or different from those contained in this Agreement ("Third-Party Licences"). A list of all materials, if any, included in the Software and provided under Third-party Licences can be found here and the applicable Third-party Licences are accessible via links therefrom. The User is bound by and shall comply with all Third-party

4.Licences. Any breach by the User or any of its Authorized Users of any Third-party Licence is also a breach of this Agreement.Software Use Restrictions. The User shall not, and shall require its Authorized Users not to, directly or indirectly:

4.1.  use (including make any copies of) the Software or Documentation beyond the scope of the licence granted under Section 2;

4.2.  modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;

4.3.  combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;

4.4.  reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;

4.5.  bypass or breach any security device or protection used by the Hardware of Software or access or use the Hardware or Software other than by a User who has entered into this Agreement through the use of their then-valid Access Credentials;

4.6.  input, upload, transmit or otherwise provide to or through the Services or Provider Systems any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;

4.7.  damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Provider Systems or Provider's provision of services to any third party, in whole or in part;

4.8.  remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;

4.9.  rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time- sharing, service bureau, software as a service (SaaS), cloud or other technology or service;

4.10.  use the Software or Documentation in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including:

4.10.1. power generation systems;

4.10.2. aircraft navigation or communication systems, air traffic control systems or any othertransport management systems;  

4.10.3. safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire or other safety response systems; and

4.10.4. military or aerospace applications, weapons systems or environments;

4.11.use the Software or Documentation inviolation of any law, regulation or rule;or

4.12. use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to the Incuvers's commercial disadvantage.Hardware Use Restrictions. The User shall not, and shall require its Authorized Users not to, directly or indirectly:

5.Hardware Use Restrictions. The User shall not, and shall require its Authorized Users not to, directly or indirectly:

5.1.modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the Hardware for the use of any third party, or the sale, transfer, or lending ofthe Hardware to any third party;

5.2. reverse engineer, disassemble, decompile, decode or adapt the Hardware or otherwise attemptto derive or gain access to the composition and designs contained therein, in whole or in part

6. User Responsibilities.

6.1.  Use of Software and Hardware. The User is responsible and liable for all uses of the Software, Hardware, and Documentation, and any third-party access thereof that is provided by the User, directly or indirectly. Specifically, and without limiting the generality of the foregoing, the User is responsible and liable for all actions and failures to take required actions with respect to the Software, Hardware, and Documentation by its Authorized Users or by any other Person to whom the User or an Authorized User may provide access to or use of the Software, Hardware or Documentation, whether such access or use is permitted by or in violation of this Agreement.

6.2.  User Systems. The User shall be responsible for the setup and maintenance of all User Systems on or through which the Hardware or Software is accessed or used, and shall retain sole control over the operation, management and maintenance of, and all access to and use of, the User Systems, and sole responsibility for all access to, and use of, the Hardware or Software by any third party by or through the User Systems or any other means controlled by the User.

6.3.  Access and Security. The User shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to, or use of, the Hardware or Software; and (b) control the content and use of the User Data, including the uploading or other provision of User Data with the Software.

6.4.  Online/Offline Storage. The User shall be responsible for acquiring and maintaining internet connectivity services and hardware, and shall additionally be responsible for monitoring the data storage capacity of the Hardware, and acting accordingly. Incuvers shall not be liable for any of loss of data or information by the User, including for reason of the Hardware’s local 6.modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the Hardware for the use of any third party, or the sale, transfer, or lending ofthe Hardware to any third party;reverse engineer, disassemble, decompile, decode or adapt the Hardware or otherwise attemptto derive or gain access to the composition and designs contained therein, in whole or in part.    

7.Maintenance and Support.

7.1.  Subject to Section 7.3, the licence granted hereunder entitles the User to basic software maintenance and support services for as long as the User maintains a valid and active Licence, and Incuvers elects to maintain and support the Software, at its sole and absolute discretion, and where such maintenance and support services shall be governed by the terms of this Agreement.

7.2.  Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches and other error corrections (collectively, "Updates") as Incuvers makes generally available free of charge to all the Users of the Software then entitled to maintenance and support services. Incuvers may develop and provide Updates in its sole discretion, and the User agrees that Incuvers has no obligation to develop any Updates at all or for particular issues. The User further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. The User acknowledges that Incuvers may provide some or all Updates via download from a website designated by Incuvers and that the User's receipt thereof will require an internet connection, which connection is the User's sole responsibility. Incuvers has no obligation to provide Updates via any other media. Maintenance and support services do not include any new version or new release of the Software that Incuvers may issue as a separate or new product, and Incuvers may determine whether any issuance qualifies as a new version, new release or Update in its sole discretion.

7.3.  Incuvers has no obligation to provide maintenance and support services, including Updates:

7.3.1.  for any but the most current version or release of the Software;

7.3.2.  for any copy of Software for which all previously issued Updates have not been installed;

7.3.3.  for the Hardware;

7.3.4.  if the User is in breach under this Agreement; or

7.3.5.  for any Software that has been modified other than by Incuvers, or that is being used withany hardware, software, configuration or operating system not specified in the Documentation.

8. User Data and Resultant Data Ownership.

8.1.  The User acknowledges and accepts that Incuvers may collect, and User may provide, User Data to Incuvers from time to time in connection with this Agreement and the use of the Software and associated Hosted Services, and the User shall remain the sole and exclusive owner of all right, title, and interest in and to all User Data, including all Intellectual Property Rights relating thereto, subject only to the limited licence granted under the following Section 8.2.

8.2.  Subject to the terms and conditions of this Agreement, the User hereby grants Incuvers a limited, royalty-free, fully paid-up, non-exclusive, transferable, and non-sublicensable licence to process the User Data for the following purposes:

8.2.1.  As necessary to provide and enable the use of the Software and Hosted Services for the User;

8.2.2.  To store the User Data as part of the Hosted Services and for the User to access from time to time;

8.2.3.  The provision of maintenance and support services; and

8.2.4.  To develop and improve the Software, Hardware, Documentation, and Hosted Services, orany other portion of Incuvers’ business development;

8.2.5.  To verify the User's compliance with the terms of this Agreement and enforcing theIncuvers's rights, including all Intellectual Property Rights in and to the Software;8.2.6.  To examine, process, and manipulate the User Data in order to obtain Resultant Data; and

8.2.7.  To otherwise use the User Data for the purposes clearly established under Incuvers’sPrivacy Policy, as it amended from time at Incuvers’s reasonable discretion, and which may be found in its current form at the following URL: [https://www.incuvers.com/privacy-and-cookie-policy].

8.3.  The User acknowledges and accepts that the Incuvers shall have the right to use the Resultant Data produced under this Agreement for internal research and product improvement purposes, and may further publish research or portions of the data, so long as it does not contain useable or sensitive data to which a User has Intellectual Property Rights, Personal Information, or any other identifying information of individuals, and is in compliance with any applicable privacy laws.

8.4.  In furtherance of the foregoing, the User hereby unconditionally and irrevocably acknowledges and agrees that all right, title and interest in and to the Resultant Data shall remain the sole property of the Incuvers. The User hereby assigns all interests and rights in and to any Resultant Data to the Incuvers, and further waives all rights, title, interest, or moral rights in the Resultant Data, and agrees to execute any documents or instruments as may be reasonably necessary to give effect to such assignment and waiver, and as requested by the Company in order to secure its Intellectual Property Rights to the Resultant Data.

8.5.  Incuvers represents and warrants that these Software Terms and Conditions, the Privacy Policy, and function of the Software, and each of the foregoing as they may be amended from time to time, 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 a User through the Software (“User Research Data”) shall remain the sole and absolute property of its original owner or uploader, and Incuvers shall not acquire any ownership interest in such User Research 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 Research 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 Research Data in order to obtain meta data about the use of the Designated Hardware, Software, and user preferences, where such data shall be deemed included in the “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 Research Data. Incuvers Intellectual Property Rights.

9.1.  The User acknowledges and agrees that the Software and Documentation are provided under licence, and not sold, to the User. The User does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the licence granted and subject to all terms, conditions and restrictions under this Agreement. Incuvers and its service providers reserve and shall retain their entire right, title and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the the User in this Agreement. The User shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access resulting from the User’s actions or failure to act. The User shall promptly notify Incuvers if the User becomes aware of any infringement of the Incuvers's Intellectual Property Rights in the Software and fully cooperate with Incuvers in any legal action taken by Incuvers to enforce its Intellectual Property Rights.

9.2.  The User further acknowledges and agrees that:

9.2.1. All rights, title and interest in any Intellectual Property, whether registered or non- registered, whether or not reduced to written form or practice, contained in or representedby the Hardware is the sole and absolute property of Incuvers;

9.2.2. They 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 otherform of intellectual property, in the Hardware.

10. Confidentiality.

10.1.  InconnectionwiththisAgreement,eachParty(asthe"DisclosingParty")maydiscloseormake available Confidential Information to the other Party (as the "Receiving Party"). Subject to Section 10.2, "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 Intellectual Property Rights, research, technology, trade secrets, know-how, business operations, plans, strategies, , in each case whether or not marked, designated, or otherwise identified as "confidential". Without limiting the foregoing, (a) all User Data (including all Personal Information) is and will remain the Confidential Information of the applicable disclosing User; and (b) the Software’s specifications and design are and will remain the Confidential Information of Incuvers.

10.2.  Subject to Section 10.3, Confidential Information does not include information that [the Receiving Party can demonstrate by written or other documentary records]: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' non-compliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality;All rights, title and interest in any Intellectual Property, whether registered or non- registered, whether or not reduced to written form or practice, contained in or representedby the Hardware is the sole and absolute property of Incuvers;They 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 otherform of intellectual property, in the Hardware.10.or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

10.3.  Notwithstanding the foregoing provisions, the Resultant Data shall not be deemed to be Confidential Information hereunder.

10.4.  Each Receiving Party recognizes and agrees that the Confidential Information of the Disclosing Party is critical to the Disclosing Party's business and that neither Party would enter into this Agreement without assurance that such information and its value will be protected as provided in this Section 10 and elsewhere in this Agreement. As a condition to being provided with any disclosure of or access to Confidential Information, during the Term of this Agreement for a period of 2 years thereafter a Receiving Party shall:

10.4.1.  not access or use, or permit the access or use of, Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement

;10.4.2.  not use or permit the use of any of the Disclosing Party's Confidential Information, directly or indirectly, in any manner to the detriment of the Disclosing Party or to obtain any competitive advantage over the Disclosing Party;

10.4.3.  except as may be permitted by and subject to its compliance with Section 10.5, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 10.4; and (iii) are bound by [written] confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 10.4;

10.4.4.  safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its sensitive information and in no event less than a reasonable degree of care;

10.4.5.  ensure its employees, contractors, agents, and other personnel comply with, and be responsible and liable for any of the foregoing party’s non-compliance with, the terms of this Section 10; and

10.4.6.  notify the Disclosing Party in writing within 5 business days of discovery of any unauthorized disclosure or use of the Disclosing Party's Confidential Information and cooperate with the Disclosing Party to protect the confidentiality and ownership of all Intellectual Property Rights, privacy rights and other rights therein.

10.5. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information, then, to the extent permitted by applicable Law, the Receiving Party shall:

10.5.1.  promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy, or waive its rights under Section 10.4; and

10.5.2.  provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 10.5, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that[, on the advice of the Receiving Party's legal counsel, the Receiving Party is legally required to disclose and, upon the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment. No such compelled disclosure by the Receiving Party will otherwise affect the Receiving Party's obligations hereunder with respect to the Confidential Information so disclosed.

11. Payment. All Licence Fees are payable in advance in the manner set forth by Incuvers from time to time, and are non-refundable, except as may be expressly set forth herein. Any renewal of a Licence shall not be effective until the Licence Fees for such renewal have been paid in full.Term and Termination.

12.1. This Agreement and the licence granted hereunder shall remain in effect until terminated as follows (the "Term"):

12.2. This Agreement shall automatically terminate upon the expiry of the term of a User’s Licence, as set out in their Incuvers Incubator Purchase Agreement or other applicable Licence agreement;

12.2.1. The User may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation in their possession;

12.2.2.  Incuvers may terminate this Agreement, effective upon written notice to the User, if the User, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 7 days days after Incuvers provides written notice thereof; or

12.2.3.  Incuvers may terminate this Agreement, effective immediately, if the User files an assignment in bankruptcy or has a bankruptcy order made against it under any bankruptcy or insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, receiver- manager, monitor or custodian for all or a substantial part of its property.

12.3. UponanyexpirationorterminationofthisAgreement,exceptasexpresslyotherwiseprovided in this Agreement:

12.3.1.  the licence granted hereunder shall also terminate, and the User shall be denied any further access to the Software;

12.3.2.  Incuvers shall immediately cease all use of any User Data,promptly provide copies thereof to the User upon their written request, and otherwise only maintain the User Data for backup and record keeping purposes without any further use, provided that, for clarity, the Incuvers’ obligations under this subsection shall not apply to any Resultant Data.

12.4. NoexpirationorterminationofthisAgreementshallaffectaUser’sobligationtopayall Licence Fees that may have become due before such expiration or termination, or entitle the User to any refund

13. Warranty Disclosure

13.1.THE SOFTWARE, HARDWARE, AND DOCUMENTATION ARE PROVIDED TO THE USER "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT CONDITION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, INCUVERS, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE INCUVERSS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, HARDWARE, AND DOCUMENTATION, INCLUDING ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION AND NON- INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, THE INCUVERS PROVIDES NO CONDITION, WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE OR THE RELATED HARDWARE WILL MEET THE THE USER'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, HARDWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

13.2 Incuvers makes no representations or warranties with regards to any Third-Party materials contained in the Software or the Hardware.

14.Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:

14.1.  IN NO EVENT WILL INCUVERS OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE INCUVERSS OR SERVICE PROVIDERS, BE LIABLE TO THE USER OR ANY THIRD PARTY FOR: (a) ANY: (i) USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE; (ii) LOST REVENUES OR PROFITS; (iii) DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL; (iv) LOSS OR CORRUPTION OF DATA; (v) LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN; (vi) FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION; (vii) FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; (viii) SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; (ix) BREACHES IN SYSTEM SECURITY; OR (b) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, IN EACH CASE WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE INCUVERS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.14.2.  IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF INCUVERS AND ITS AFFILIATES, INCLUDING ANY OF ITS OR THEIR RESPECTIVE INCUVERSS AND SERVICE PROVIDERS, 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, EXCEED THE TOTAL AMOUNT PAID TO THE INCUVERS UNDER THIS AGREEMENT FOR THE SOFTWARE THAT IS THE SUBJECT OF THE CLAIM.14.3.  THE LIMITATIONS SET FORTH IN Section 13.1 AND Section 13.2 SHALL APPLY EVEN IF THE THE USER'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

15. Indemnification by User for User Data. User shall indemnify, defend, and hold Incuvers and its officers, directors, employees, agents, contractors, successors and assigns (each, a "Indemnitee")] harmless from and against all losses incurred by the Indemnitee arising out of or resulting from any Action by a Third Party to the extent that such losses are alleged to arise out of or result from:

15.1.  any claim tha tany User Data is unlawful ora ctually does or threatens to in fringe,misappropriate or otherwise violate any Intellectual Property Rights or other rights of any third party, provided, however, that User shall have no liability or obligation with respect to any Action or Losses to the extent that such Action or Losses arise out of or result from any unauthorized access to or use, disclosure or other Processing of User Data, including Personal Information, by or on behalf of Incuvers, or through or enabled by the Software or Hosted Services, whether authorized by Incuvers, due to a security breach or otherwise; or

15.2.  any use of the Hosted Services or Software by User or any Authorized User that is beyond the scope of or otherwise fails to conform to the express requirements or restrictions of this Agreement or any authorization or approval given in writing by Incuvers to User or such Authorized User.

16. Export Regulation. The Software, Hardware, and Documentation may be subject to Canadian export control laws. The User shall not, directly or indirectly, export, re-export or release the Software, Hardware, or Documentation to, or make the Software, Hardware, or Documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. The User shall comply with all applicable federal laws, regulations and rules and complete all required undertakings (including obtaining any necessary export licence or other governmental approval), before exporting, re-exporting, releasing or otherwise making the Software, Hardware, or Documentation available outside Canada.

17. Amendment. This Agreement may be amended or modified from time to time by Incuvers, exercising reasonable discretion, and upon delivery of written notice to the User, OR may be amended, modified, or supplemented by an agreement in writing signed by each party hereto.

18. Miscellaneous.

18.1.  This Agreement is governed by and construed in accordance with the laws of the province of Ontario and the federal laws of Canada applicable therein. Any legal suit, action or proceeding arising out of or related to this Agreement or the licences granted hereunder shall be instituted exclusively in the courts of the province of Ontario, and each party irrevocably submits to the [exclusive/non-exclusive] jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.

18.2.  IncuverswillnotberesponsibleorliabletotheUser,ordeemedindefaultorbreachhereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labour disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, tsunami, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or the User equipment, loss and destruction of property or any other circumstances or causes beyond Incuvers' reasonable control.  

18.3.  Allnotices,requests,consents,claims,demands,waiversandothercommunicationshereunder shall be in writing and shall be deemed to have been given on the date sent by e-mail (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient.

18.4.  This Agreement, the Incuvers Incubator Sales Agreement, and the Privacy Policy of Incuvers as it may exist from time to time, and all other documents that are incorporated by reference therein, constitutes the sole and entire agreement between the User and Incuvers with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

18.5.  TheUsershallnotassignorotherwisetransferanyofitsrights,ordelegateorotherwisetransfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Incuvers's prior written consent, which consent Incuvers may withhold in its sole discretion. No delegation or other transfer will relieve the User of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section is void. Incuvers may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance under this Agreement without the User's consent. This Agreement is binding upon and enures to the benefit of the parties hereto and their respective permitted successors and assigns.

18.6.  ThisAgreementisforthesolebenefitofthepartiesheretoandtheirrespectivesuccessorsand permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

18.7.  No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

18.8.  IfanytermorprovisionofthisAgreementisinvalid,illegal,orunenforceableinanyjurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

18.9.  For purposes of this Agreement, (a) the words "include," "includes," and "including" shall be deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (i) to Sections and Exhibits refer to the Sections of, and Exhibits attached to, this Agreement; (ii) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (iii) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. Unless otherwise stated, all dollar amounts referred to in this Agreement are stated in Canadian dollars.

18.10.The parties confirm that it is their express wish that this Agreement, as well as any other documents related to this Agreement, including notices, schedules and authorizations, have been and shall be drawn up in the English language only. Les parties aux présentes confirment leur volonté expresse que cette convention, de même que tous les documents s'y rattachant, y compris tous avis, annexes et autorisations s'y rattachant, soient rédigés en langue anglaise seulement.

18.11.The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.



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