This Evaluation Agreement (the “Agreement”) is entered into as of the later of the dates below the parties' signatures or on the last date of electronic submission (the “Effective Date”) by and between Squadle, Inc., a Delaware corporation having a principal address at One Broadway, Floor 14, Cambridge, MA 02142 (“Squadle”) and the party identified on the signature page to this Agreement (“Company”).
WHEREAS, Squadle provides a tablet computer-based digital logbook (“Checklists”), wireless temperature collection devices (the “Zone Thermometer”), tablet and cloud-based data collection and storage, and software that automates the process (the “Squadle System”);
WHEREAS, Company is interested in evaluating the Squadle System to potentially establish an account relationship with Squadle. For this purpose, Company is interested in a single-unit evaluation program (the “Evaluation”),
WHEREAS, to enable Company to conduct the Evaluation, Squadle has agreed to provide hardware (the “Equipment”) as specified in the Pricing Addendum to one location on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:
Squadle will provide the Equipment to Company, on a loan basis, for the sole purpose of enabling Company to evaluate them. Company may not use, nor permit any other party to use, the Equipment for any purpose other than the internal evaluation. Without limiting the foregoing, Company may not resell or lend the Equipment nor make any representations or claims concerning its rights to offer, sell or distribute the Equipment for any project or opportunity without the prior written consent of Squadle.
As between Squadle and Company, Squadle will retain all right, title and interest in and to the Equipment and all data collected or processed by the Equipment, except to the extent such data qualifies as Company Confidential Information, as set forth in Section 4 below. Without limiting the foregoing, Company's possession, installation or use of the Equipment does not transfer to Company any rights, title or interest to the intellectual property therein or provided therewith, and Company will not acquire any such rights except the limited right to use the Equipment as expressly set forth in this Agreement. In Squadle’s discretion, the Equipment may bear a label or other markings indicating that they are the property of Squadle. Company will not remove, destroy or obscure any such label or other markings. Company will not make, grant or permit any lien, encumbrance or claim on any of the Equipment delivered to Company under this Agreement. Squadle may use Company’s names and logos solely as necessary in connection with this Evaluation, provided it may identify Company as a prospect conducting an evaluation of the Squadle Equipment.
Company will pay Squadle the amounts set forth in the Pricing Addendum, including without limitation the fees stated for the Evaluation and reimbursement of the identified expenses (plus administrative fees).
Except in the performance of this Agreement, neither party will use or disclose to third persons Confidential Information of the other party without such other party’s prior written consent; and each shall use at least the same degree of care and precautions to protect Confidential Information from disclosure or improper use that it employs with respect to its own confidential information. “Confidential Information” means confidential or proprietary information (including without limitation information relating to technology, pricing, customer lists, salaries, business affairs, or other trade secrets) which is disclosed to either party (as such, the “receiving party”) by the other party (as such, the “disclosing party”) (a) in writing, if clearly marked to indicate that it is proprietary or confidential, or (b) verbally, if clearly stated at the time of disclosure to be proprietary or confidential and summarized in a writing so marked within fifteen (15) business days. This Section shall not apply to information which (i) is or becomes publicly available through no fault of the receiving party; (ii) is already in the receiving party's possession when disclosed by the disclosing party; (iii) is independently developed by the receiving party without use of Confidential Information; or (iv) is rightfully obtained from third parties without restriction on disclosure. Company acknowledges that the code of the software used in the Squadle System constitutes Squadle’s Confidential Information. Company will not, and will not permit any party to, alter, reverse engineer, disassemble, decompile or copy any software included in or with the Squadle System. Without limiting the foregoing, Company will not disclose or permit access to the Equipment or other components of the Squadle System to any persons other than Company employees and advisors who have a need to use or access these materials in connection with Company’s Evaluation (including that Company shall not permit any other party to inspect, observe or operate the Equipment) without the specific prior written authorization of Squadle. Company will notify each employee to whom disclosure is made that such disclosure is made in confidence and will procure such employee's agreement to protect the confidentiality of the Squadle System.
The Equipment will be handled, used and stored by Company and its personnel in a safe and proper fashion and in a manner intended to minimize damage, loss or theft; and will be used only at the Company stores agreed to in writing hereafter so as to prevent unauthorized access or use of the Equipment; and Company will not relocate the Equipment from such stores for any reason without the prior written authorization of Squadle.
The Equipment will be operated and maintained in good repair by Company in accordance with the documentation provided by Squadle or as otherwise instructed by Squadle in writing, provided that if loss or damage is reported promptly to Squadle and arose other than by Company’s negligence, breach or misconduct, Squadle will promptly repair or replace the Equipment, as determined by it in its reasonable discretion. No Equipment should be used for any purpose except the Evaluation contemplated hereunder, provided that in connection with this Evaluation Company may make productive use of the Equipment and the data collected from that use.
Squadle will have the right, at any time or times during Company’s usual business hours and upon reasonable prior notice, to inspect the Equipment (and the premises upon which they are located) and to verify the condition of the Equipment and any and all other matters relating to the Equipment and their use. Company agrees to cause its employees and agents to cooperate with Squadle in all inspections.
This Agreement (and the Evaluation) will commence on the Effective Date and will continue for the period of 60 days, unless earlier terminated. Either party may terminate this Agreement if the other party breaches any term or condition hereof and fails to correct the breach within ten (10) days of notice. Either party may terminate this Agreement with or without cause upon twenty (20) days’ notice. Sections 2, 3 and 9 through 20 of this Agreement will survive its expiration or termination. If Squadle terminates this Agreement without cause, it will refund a prorated amount (based on the number of days of the Evaluation prior to termination divided by 90).
Company will indemnify, defend and hold harmless Squadle from and against any claim, damage or liability arising as a result of Company’s breach of this Agreement or violation of law.
Upon the expiration or termination of this Agreement, and at any other time at Squadle’s request, Company will return the Equipment within 14 days to Squadle at Company’s expense, in the original packaging (which shall not be discarded by Company).] The Equipment will be in the same condition as that in which it was provided to Company by Squadle, reasonable wear and tear excepted. If Company fails to promptly return the Equipment to Squadle, upon written notice by Squadle, Squadle may, in its sole discretion, and Company hereby authorizes Squadle to: (a) require Company, at its own expense, to make the Equipment available to Squadle at a place or places to be designated by Squadle which is reasonably convenient to Squadle, and/or (b) enter, with or without process of law and without breach of the peace, any premises where the Equipment are or may be located, and without charge or liability to Company therefore, peaceably seize and remove the Equipment.
Upon the expiration of this Agreement and with no prior written notice to terminate the agreement provided to Squadle, Company forfeits any and all deposits paid to Squadle and enters into a month-to-month agreement whereby Company agrees to pay Squadle monthly standard fees per Quantity as defined in the Pricing Addendum.
SQUADLE MAKES, AND COMPANY RECEIVES, NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, REGARDING OR RELATING TO THE EQUIPMENT OR ANY OTHER MATERIALS, GOODS OR SERVICES FURNISHED TO COMPANY HEREUNDER. SQUADLE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT. [NOTWITHSTANDING THE ABOVE, IF A THIRD PARTY CLAIMS THAT COMPANY’S USE OF THE SQUADLE SYSTEM, AS FURNISHED AND CONTEMPLATED BY SQUADLE, INFRINGES ANY U.S PATENTS OR TRADEMARKS, OR ANY COPYRIGHTS, TRADE SECRETS, SQUADLE WILL USE DILIGENT EFFORTS TO RESOLVE THE CLAIM, BUT SHALL IN NO CASE HAVE ANY LIABILITY IN EXCESS OF THE FEES RECEIVED BY IT FROM COMPANY.]
UNDER NO CIRCUMSTANCES OR LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, WILL (a) EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR LOST DATA, EXCEPT TO THE EXTENT CAUSED BY THE PARTY’S BREACH OF CONFIDENTIALITY OR VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (b) SQUADLE BE LIABLE TO COMPANY OR ANY OTHER PERSON FOR ANY DAMAGES OR EXPENSES IN EXCESS OF THE FEES RECEIVED BY IT HEREUNDER, IN EACH CASE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
This Agreement is the complete and exclusive agreement of the parties with respect to its subject matter, supersedes all prior and contemporaneous written or oral understandings relating thereto. No provision of this Agreement will be changed, waived or modified, nor will this Agreement be discharged in whole or in part, except in each case by an agreement in writing signed by the party against whom such change, waiver, modification or discharge is claimed or sought to be enforced.
This Agreement will be subject to and be interpreted in accordance with the laws of State of Massachusetts, USA, without regard to its choice of laws provisions. Anything to the contrary herein notwithstanding, the 1980 United Nations Convention on Contracts for the International Sale of Goods will not apply to transactions under this Agreement. The federal and state courts presiding in Boston, Massachusetts, USA will have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement, and both parties consent to the personal jurisdiction of such courts.
All notices and other communications given under this Agreement will be in writing in the English language, addressed to the undersigned representatives of the parties at the addresses above, and will be deemed to have been given on the date delivered when hand delivered, one business day after mailing if sent via overnight courier return receipt, or four business days after mailing if sent by first class registered or certified mail, postage prepaid.
Company will not (by operation of law or otherwise) assign, transfer or subcontract its rights or delegate its performance under this Agreement without the prior written consent of Squadle and any such assignment, transfer or delegation without such consent will be void and of no force or effect.
Nothing herein will obligate either party to proceed with any transaction with the other, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning a mutually agreeable business opportunity. Neither this Agreement nor the provision of the Equipment constitutes or implies any promise or intention by either party to enter into a partnership, agency, distribution, employment, or joint venture relationship with the other party hereto.
This Agreement is in the English language, which languages will be controlling in all respects, and any translation of this Agreement into any other language will be for accommodation only and will not be binding on the parties.
Each of the provisions of this Agreement is distinct. Any term found to be illegal or unenforceable, in whole or in part, by a court of competent jurisdiction is deemed to be severed from this Agreement. The severance of a provision does not affect the validity or enforceability of any other provision.
This Agreement may be executed in a number of counterparts, all of which together will for all purposes constitute one agreement, binding on all the parties notwithstanding that all parties have not signed the same counterpart. This Agreement may be validly executed by facsimile signatures.