These Go Evo Terms and Conditions form part of the Agreement between Go Evo and the Customer entering into an Order Form with Go Evo Inc. (“Go Evo”) for the Personal Protective App (the “Tool”).

1. Definitions

1. “Agreement” means these Terms and Conditions together with the applicable Order Form.

2. “Customer Data” means any data or information (including Personal Information) that Customer (or any of its Permitted Users) loads, transmits to or enters into the Tool.

3. “Fees” has the meaning set out in Section 7.

4. “Order Form” means each order form that references these Terms and Conditions once executed by both Parties.

5. “Permitted User” means those employees authorized by Customer to access and use the Tool in accordance with this Agreement.

6. “Personal Information” means information about an identifiable individual.

7. “Tool” has the meaning set out in the introductory paragraph of these Terms and Conditions.

8. “Term” has the meaning set out in Section 11(a).

2. The Tool

1. Provisioning of the Tool. Subject to Customer’s compliance with the terms and conditions of this Agreement, Go Evo will make the Tool available to Customer and its Permitted Users for the sole purpose of allowing Customer to assess and track information inputted into the Tool by its Permitted Users to assist Customer with preventing and containing the spread of COVID-19.

2. Restrictions on Use. Customer must not itself, and will not permit others to:

   1. sub-license, sell, rent, lend, lease or distribute the Tool or any intellectual property rights therein or otherwise make the Tool available to others;use the Tool to facilitate or provide timesharing, service bureau use or commercially exploit the Tool;

   2. use or access the Tool in violation of any applicable law or intellectual property right;

   3. use the Tool in a manner that threatens the security or functionality of the Tool;

   4. use the Tool to create, collect, transmit, store, use or process any Customer Data:

      1. that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;

      2. that Customer does not have the lawful right to create, collect, transmit, store, use, or process; or

      3. that violates any applicable laws, or infringes, violates, or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right, or right of publicity);

   5. modify the Tool;

   6. reverse engineer, de-compile or disassemble the Tool;

   7. remove or obscure any proprietary notices or labels on the Tool, including brand, copyright, trademark, and patent or patent pending notices;

   8. use the Tool for the purpose of building a similar or competitive product or service;

   9. perform any vulnerability, penetration, or similar testing of the Tool; or

   10. use the Go Evo for any purpose or in any manner not expressly permitted in the Agreement.

3. Suspension of Access; Scheduled Downtime; Modifications. Go Evo may, at its discretion:

1. suspend Customer’s access to or use of the Tool or any component thereof:

2. for scheduled maintenance;

3. if Customer or any Permitted User violates, or Go Evo reasonably suspects Customer or any Permitted User has violated, any provision of this Agreement; or

4. to address any emergency security concerns; and

5. modify the Tool

3. Ownership; Reservation of Rights

1. Customer retains all ownership and intellectual property rights in and to Customer Data. Customer grants to Go Evo a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right to use, process, and transmit Customer Data to provide the Tool and any associated services. Go Evo may collect and analyze data and other information relating to the provision, use, and performance of the Tool and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and during and after the Term of this Agreement, Go Evo may: (i) use such data and information to improve and enhance the Tool and for other development, diagnostic and corrective purposes in connection with the Tool and other Go Evo offerings; and (ii) disclose such data solely in aggregated or other de-identified form in connection with its business. Customer acknowledges that Customer Data will be hosted by and stored on Microsoft Azure and/or such other hosting providers chosen by Go Evo in its reasonable discretion.
2. Go Evo or its licensors retain all ownership and intellectual property rights in and to the Tool and any modifications thereto. Customer shall use commercially reasonable efforts to safeguard the Tool from infringement, misappropriation, theft, misuse or unauthorized access.
3. All rights not expressly granted by Go Evo to Customer under this Agreement are reserved.

5. Privacy

Customer acknowledges and agrees that: (a) any Personal Information collected by Go Evo in connection with the Tool is collected by Go Evo on Customer’s behalf at the request of Customer, and in accordance with Customer’s instructions, in Go Evo’s capacity of Customer’s service provider; and (b) as between the Parties, Customer, not Go Evo, is solely accountable under applicable privacy laws for all collection, use and disclosure of such Personal Information. Go Evo agrees to only collect, use and disclose such Personal Information in accordance with all privacy laws and for such purposes as are necessary to discharge, complete or fulfill its obligations under this Agreement and shall promptly destroy any Personal Information at Customer’s request. Customer represents and warrants to, and covenants with Go Evo that: (a) Customer has  obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable Go Evo to provide the Tool and the associated services, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Information in accordance with Go Evo’s privacy policy located at www.go-evo.com/privacy (the “Privacy Policy”), and (b) Customer will collect and process only the minimum amount of Personal Information necessary to achieve the purpose of implementing measures to prevent or contain the spread of COVID-19.

6. Security

Go Evo has implemented and maintains industry-standard practices and procedures to prevent unauthorized access to Customer Data. Further information is available upon Customer’s request.

7. Fees and Payment

1. Fees. Customer will pay to Go Evo the fees described in any Order Form (the “Fees”). Unless otherwise noted on an Order Form, all Fees are identified in Canadian dollars and are payable in advance.

2. Changes to the Fees. Go Evo reserves the right to change the Fees and institute new charges on each anniversary of the Term upon providing not less than 60 days prior notice to Customer.

3. Invoicing. Go Evo will prepare and send to the Customer, at the then-current contact information on file with Go Evo, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, Customer will pay all invoiced amounts within 30 calendar days of the invoice date.

4. Disputed Invoices or Charges. If Customer believes Go Evo has charged or invoiced Customer incorrectly, Customer must contact Go Evo no later than 30 days after having been charged by Go Evo or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.

5. Late Payment. Customer may not withhold or setoff any amounts due under this Agreement. Go Evo reserves the right to suspend Customer’s access to and use of the Tool and any delivery of Professional Services until all due amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.

6. Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of Go Evo.

7. Suspension. Any suspension of the Tool by Go Evo pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.

8. Confidential Information

1. For the purposes of this Section, a Party receiving Confidential Information will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” means information marked or otherwise identified in writing by a Party as proprietary or confidential, or information that, under the circumstances surrounding the disclosure, the Recipient should recognize as being confidential; provided that the Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.

2. Confidentiality Covenants. The Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take reasonable precautions to safeguard the other Party’s Confidential Information. Those precautions will be at least as great as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.

3. Exceptions to Confidentiality. Notwithstanding Section 8(b), the Recipient may disclose the Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of Go Evo, to potential assignees, acquirers or successors of Go Evo if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Go Evo.

9. Disclaimer; Indemnity

1. GENERAL DISCLAIMER. Go Evo DOES NOT WARRANT THAT THE Tool WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE Tool (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY Go Evo TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE EXTENT PERMITTED BY APPLICABLE LAW, Go Evo HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS, AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, Go Evo EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE Tool IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
2. Customer acknowledges and agrees that the Tool is merely an application to assist Customer with assessing employees who may have or been exposed to COVID-19. The Tool is not intended to suggest a course of action or to guide decisions related to preventing and containing the spread of COVID-19. Any such decisions are Customers and Go Evo hereby disclaims any and liability associated therewith.
3. Go Evo will defend, indemnify and hold harmless Customer, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all liability (including damages, recoveries, deficiencies, interest, penalties and legal fees) from third party (including Permitted Users) claims or allegations that Customer’s or any Permitted User’s use of the Tool in accordance with this Agreement infringes the Intellectual Property Rights of such third party. Customer will defend, indemnify and hold harmless Go Evo, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all liability (including damages, recoveries, deficiencies, interest, penalties, and legal fees) from third party (including Permitted Users) claims or allegations directly or indirectly arising from or in connection with: (i) Customer Data; or (ii) use of the Tool (or any part thereof) by Customer or any Permitted User.
4. Indemnity Procedure. The indemnified Party will promptly notify the indemnifying Party of any claim or allegation that is subject to indemnification pursuant to this Section, provided that any delay in providing such notice will not limit the indemnifying Party’s obligations in this Section except to the extent that such delay materially prejudices the indemnifying Party’s ability to defend such claim or allegation. The indemnified Party will fully cooperate with the indemnifying Party in the defense of any claim defended by the indemnifying Party pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of the indemnified Party.

10. Limitation of Liabilities

1. The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
   
   1. AMOUNT. SUBJECT TO SECTION 10(c), IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE Tool IN THE PRIOR 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL Go Evo’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
   2. TYPE. SUBJECT TO SECTION 10(c), TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
2. Sections 10(a) will not apply to limit either Party’s liability or obligations under Section 9(c) (Indemnities) or either Party’s liability for gross negligence or wilful misconduct.

11. Term and Termination

1.  Term. This Agreement will commence on the Effective Date and continue to be in effect for the initial term set out in the Order Form (the “Term”). Unless otherwise set out in the Order Form, the Term will automatically renew on your current term unless either Party provides the other Party with written notice of its intention not to renew not less than [5] business days prior to the end of the then-current Term.
   
   1. Termination for Convenience. Either Party may terminate this Agreement at any time by providing advance written notice of not less than 5 business days to the other Party.
   2. Termination for Cause. Either Party may, in addition to other relief, suspend or terminate this Agreement if the other Party commits a material breach of any provision of this Agreement and fails within 15 days after receipt of notice of such breach to correct such material breach.
   3. Effect of Termination. Upon termination of this Agreement, Customer will no longer have rights to access or use the Tool. Within 30 days following termination, Go Evo will, at Customer’s option, return to Customer or delete or otherwise render inaccessible any Customer Data that remains in the hardware or systems used by Go Evo to provide the Tool.
   4. Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 7 (Fees and Payment), Section 8 (Confidential Information), Section 9 (Warranty; Disclaimer; Indemnity), Section 10 (Limitation of Liabilities), Section 11(d) (Survival), and Section 12 (General Provisions).

12. General Provisions

a. Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or five days after being sent by first-class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be in writing and sent:

(i) if to Go Evo, to the following address:

P.O. Box 9259, Station A

Toronto, ON  M5W 3M1

Email: legal@go-evo.com

(ii) if to Customer, to the current postal or email address that Go Evo has on file with respect to Customer. Go Evo may change its contact information by posting the new contact information on its website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Go Evo current at all times during the Term.

b. Assignment. Subject to the following sentence, neither Party may assign this Agreement to any third party without the other Party’s prior written consent. Notwithstanding the foregoing, either Party may assign its rights or obligations under this Agreement, in whole or in part, without the other Party’s consent, in connection with the transfer or sale of all or substantially all of the Party’s business or assets to a third party, whether by merger, sale of stock, sale or donation of assets or otherwise. Any assignment in violation of this Section will be void. This Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors, and permitted assignees.

c. Choice of Law. This Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. This choice of jurisdiction does not prevent either Party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.

d. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of Go Evo in this Agreement means the right of Go Evo to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to Customer.

e. Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond the Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, or other labour problems (other than those involving a Party’s employees), Internet service failures or delays, or the unavailability or modification by third parties of telecommunications or hosting infrastructure or third-party websites.

f. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.

g. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.

h. Independent Contractors. Go Evo’s relationship to Customer is that of an independent contractor, and neither Party is an agent, employee, or partner of the other. Neither Party will have, and will not represent to any third party that it has, any authority to act on behalf of the other Party.

i. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations, or other communications, whether written or oral.

j. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby.

k. English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des Parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.