End User License Agreement

IMPORTANT NOTICE: THIS END USER LICENSE AGREEMENT (“EULA”) IS A LEGAL CONTRACT BETWEEN YOU (OR THE ENTITY YOU REPRESENT) AND GIATEC SCIENTIFIC INC. (“GIATEC” OR “Giatec”) FOR LICENSED PROGRAM(S) (AS HEREINAFTER DEFINED).  BY DOWNLOADING, INSTALLING OR USING THE LICENSED PROGRAM(S) OR BY ACCEPTING THIS EULA, YOU WILL HAVE IRREVOCABLY AGREED TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS EULA.  IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS EULA, DO NOT ACCEPT IT AND DO NOT DOWNLOAD, INSTALL OR USE THE LICENSED PROGRAM(S).  THE LICENSED PROGRAM(S) PROVIDED PURSUANT TO THIS EULA ARE PROVIDED UNDER LICENSE AND ARE NOT BEING SOLD.

IF YOU ARE AN EMPLOYEE OR CONTRACTOR ACCEPTING THIS EULA ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT TO GIATEC THAT (I) YOU HAVE ALL REQUISITE CAPACITY, RIGHT, POWER AND AUTHORITY TO ACCEPT THIS EULA ON BEHALF OF SUCH ENTITY; AND (II) SUCH ENTITY WILL BE IRREVOCABLY BOUND BY AND WILL COMPLY WITH ALL OF THE TERMS AND CONDITIONS OF THIS EULA.

  1. Definitions. The following terms shall have the meanings ascribed to them as follows:

“ASTM C1074 Standard” means the American Society for Testing and Materials International C1074 standard specification entitled “Standard Practice for Estimating Concrete Strength by Maturity Method” and any updates thereto;

“Calibration Data” means concrete maturity calibration data created for the purposes of specifying a relationship between maturity and strength for a specific mix;

“Giatec App” means the iOS and/or Android mobile Giatec applications developed by Giatec and used in connection with certain Giatec sensors and the Giatec SaaS Service to facilitate the monitoring of certain Giatec sensors and the extraction of data from certain Giatec sensors;

“Giatec SaaS Service” means Giatec’s web-based server and cloud dashboard offering which may be made available on a subscription-basis, which allows purchasers of Giatec sensor products to store the data produced by such sensor products and to conduct various analytics on such data;

“Giatec SmartRock™ Plus App” means a version of the Giatec App that is used as part of the Giatec “SmartRock™ Plus” solution;

“Licensed Program(s)” mean (i) Giatec software and/or firmware (whether embedded in a Giatec product or provided as a separate component that operates with a Giatec product); (ii) a Giatec App; and (iii) any accompanying documentation. The Licensed Program(s) do not include the Giatec SaaS Service;

“Service Data” means all data uploaded or transmitted to the Giatec SaaS Service by You or on Your behalf, including data from any Giatec sensors deployed by You or on Your behalf that is automatically uploaded to the Giatec SaaS Service by a Giatec App, as well as any data that is derived from such data, but excluding any Calibration Data You upload to the Giatec SaaS Service;

“SmartRock™ Plus Product” means concrete that combines a concrete provider’s ready-mix product with SmartRock™ Plus Sensors that have been embedded in such ready-mix product to allow purchasers of such ready-mix product to obtain real-time data using the Giatec SmartRock™ Plus App and the Giatec SaaS Service about the strength of such ready-mix product; and

“SmartRock™ Plus™ Sensor” means a wireless sensor developed by Giatec that can be used to monitor the temperature of fresh and hardened concrete.

  1. Service Terms. The data and reports made available by Giatec sensors to the Licensed Program(s) are intended to report and provide insights on concrete quality for Your internal use and You accept full responsibility for the use of such data and reports. You acknowledge and agree that access to the Licensed Program(s) and Giatec services is provided on the condition that Giatec is not providing any professional advice or recommending any actions based on the data made available by the Giatec sensors.
  2. License Terms.

3.1 License Grant. Subject to the terms and conditions of this EULA, Giatec grants to You a license as follows: (a) if You are the lawful possessor of Giatec hardware product(s), Giatec grants You a non-exclusive, non-transferable license to run the Licensed Program(s) embedded in such Giatec hardware product(s) together with and any updated versions of such Licensed Program(s) downloaded by You (subject to You being entitled to receive such updated versions pursuant to Your support arrangement in respect to the Licensed Program(s)) only on and as incorporated in such hardware product(s); (b) for Licensed Program(s) provided as a standalone component (including the Giatec App(s)), Giatec grants You a non-exclusive, non-transferable license to use such Licensed Program(s) on a single computer, device or system for Your internal use; and (c) You may also make one (1) copy of the Licensed Program(s) solely for backup or archival purposes No rights are granted to You pursuant to this EULA for the Giatec SaaS Service.

3.2 New Releases.  This EULA does not grant You the right to any updates or enhancements of the Licensed Program(s) or the right to receive any technical support in respect to the Licensed Program(s). Such updates, enhancements and other technical support services, if available, may be purchased separately from Giatec in accordance with Giatec’s technical support program.

3.3 Restrictions. YOU MAY NOT (i) translate, reverse engineer, decompile, or disassemble the Licensed Program(s) except to the extent applicable law expressly prohibits the foregoing restriction; (ii) rent, lease, assign, or transfer the Licensed Program(s) or make the Licensed Program(s) available as a service bureau or any other service offering provided that you are entitled to transfer Licensed Program(s) embedded in a Giatec product in connection with any permitted transfer of such Giatec product; (iii) modify any Licensed Program(s) or create derivative works of any Licensed Program(s); or (iv) separate the component parts of any Licensed Program(s).

  1. App Providers. If You obtain the Licensed Program(s) through the Apple AppStore, GooglePlay or any other approved site operated by a third party (an “App Provider”), You acknowledge and agree that the App Provider has no obligation to furnish any maintenance or support services with respect to the Licensed Program(s). Any claims, losses, liabilities, damages, costs or expenses attributable to any failure by the Licensed Program(s) to conform to any warranty will be the sole responsibility of Giatec and any complaints or claims You may have in relation to the Licensed Program(s) must be directed to Giatec. The App Provider is not responsible for addressing any claims You have or any claims of any third party relating to the Licensed Program(s) or Your possession and use of the Licensed Program(s)The App Provider, and its subsidiaries, are third-party beneficiaries of this EULA, and upon Your acceptance of this EULA, the App Provider will have the right to enforce this EULA as related to Your exploitation of the Licensed Program(s) against You as a third-party beneficiary of this EULA.
  2. Fees.In consideration of the grant of the rights granted in this EULA, You agree to pay the applicable Licensed Program(s) license fees.
  3. Term and Termination.

6.1 Term.  This EULA shall remain in effect for as long as You comply with its terms and conditions. Giatec may, under certain circumstances and without prior notice, immediately terminate this EULA and Your right to access and/or use the Licensed Program(s). Cause for such termination shall include, but not be limited to, (a) breaches or violations of this EULA, (b) requests by law enforcement or other government agencies, (c) a request by You, (d) discontinuance or material modification to any services related to the Licensed Program(s), including the Giatec SaaS Service, and/or (e) unexpected technical, security or legal issues or problems. Termination of this EULA terminates Your license for the Licensed Program(s). You acknowledge and agree that Giatec shall not be liable to You or any third-party for any termination of Your license(s) for the Licensed Program(s). Any termination of this EULA by Giatec shall be in addition to any and all other rights and remedies that Giatec may have.

6.2 Effects of Termination. The following Sections shall survive any expiration or termination of this EULA: 1, 3.3, 4, 5, 6.2, 7, 8, 9 and 10. All of Your payment obligations shall survive any expiration or termination of this EULA.

  1. No Warranty; Limitations of Liability; Indemnification.

7.1 THE LICENSED PROGRAM(S) (INCLUDING ANY DATA OR REPORTS MADE AVAILABLE VIA THE LICENSED PROGRAM(S) OR ANY OTHER GIATEC PRODUCTS AND/OR SERVICES) ARE PROVIDED TO YOU “AS IS”. GIATEC MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR TITLE, OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE AND GIATEC DISCLAIMS ANY AND ALL SUCH REPRESENTATIONS, WARRANTIES OR CONDITIONS. GIATEC DOES NOT WARRANT THAT THE OPERATION OF THE LICENSED PROGRAM(S) WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE LICENSED PROGRAM(S) AND YOU ARE SOLELY RESPONSIBLE FOR THE ADEQUATE PROTECTION AND BACKUP OF THE DATA AND EQUIPMENT USED IN CONNECTION WITH THE LICENSED PROGRAM(S). YOU AGREE THAT ANY INFORMATION SENT TO OR FROM THE LICENSED PROGRAM(S) OVER THE INTERNET MAY NOT BE SECURE.

7.2 NEITHER GIATEC NOR ITS LICENSORS, DEALERS OR SUPPLIERS SHALL HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR ANY OTHER SIMILAR DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF GIATEC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. GIATEC IS ALSO NOT RESPONSIBLE FOR CLAIMS BY A THIRD PARTY. THE LICENSED PROGRAM(S) ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS SOFTWARE FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE IN WHICH THE FAILURE OF THE LICENSED PROGRAM(S) COULD LEAD DIRECTLY OR INDIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

7.3 GIATEC’S MAXIMUM AGGREGATE LIABILITY TO YOU, AND THAT OF GIATEC’S LICENSORS, DEALERS AND SUPPLIERS SHALL NOT EXCEED THE PRICE PAID FOR THE LICENSED PROGRAM(S) GIVING RISE TO THE CLAIM. THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR A FUNDAMENTAL BREACH.

7.4 Indemnification. You shall, at Your own expense, defend, indemnify and hold harmless Giatec including its affiliated companies and its and their officers, employees and subcontractors (collectively, the “Giatec Indemnitees”) against all liabilities, losses, costs, damages, penalties and expenses (including all legal fees and expenses and court costs) which the Giatec Indemnitees may incur or suffer as a result of (i) any bodily injury, death or damage to real or personal property arising in connection with Your products and/or any Calibration Data provided by or on Your behalf to the Giatec SaaS Service, including Your failure to provide accurate, up-to-date Calibration Data on an on-going basis, or to adhere to the ASTM C1074 Standard; (ii) Your negligence or willful misconduct; (iii) any errors, omissions, inaccuracies or other claims arising in connection with Calibration Data provided by You or on Your behalf to the Giatec SaaS Service; and (iv) any defects, malfunctions or product liability claims arising in connection with Your products; and/or (v) any breach by You of this EULA.

7.5 The limitations on warranties, exclusive remedies, limitation of liability and indemnification provisions set out in this EULA are fundamental elements of the bargain between You and Giatec. You acknowledge and agree that Giatec would not be able to provide the Licensed Program(s) for the fees charged without such limitations and indemnification. In jurisdictions that do not allow the exclusion or limitation of consequential, incidental or special damages, Giatec’s liability for such damages shall be limited to the maximum extent permitted by applicable law.

  1. Ownership, Title and Feedback.

8.1 Service Data Ownership and License. Except for Calibration Data submitted by You to the Giatec SaaS Service, Giatec shall own all right, title and interest (including all intellectual property rights) in and to the Service Data. If any rights in any Service Data initially vest in You, You hereby assign, transfer and convey to Giatec all of Your right, title and interest (including all intellectual property rights) in and to such Service Data. Giatec will be entitled to make Service Data available to third parties in Giatec’s discretion if such Service Data does not identify You and cannot be traced back to You. Notwithstanding the foregoing, You acknowledge and agree that when You use the Giatec SmartRock™ Plus App, Service Data that can be traced back to You will be provided to the ready-mix concrete supplier who sold You the corresponding SmartRock™ Plus Product. You hereby grant to Giatec a non-exclusive, non-transferrable, worldwide, royalty-free, fully paid up, perpetual, irrevocable license to access and use the Calibration Data You upload to the Giatec SaaS Service for the purpose of allowing Giatec to provide the Giatec SaaS Service and to create anonymized, aggregate statistics using such Calibration Data (such anonymized, aggregate statistics hereinafter referred to as the “Service Data Analytics”). For greater certainty, Giatec shall own all right, title and interest (including all intellectual property rights) in and to the Service Data Analytics and shall be entitled to use the Service Data Analytics without any requirement for Your permission provided that the Service Data Analytics do not identify You and cannot be traced back to You. If any rights in any Service Data Analytics initially vest in You, You hereby assign, transfer and convey to Giatec all of Your right, title and interest (including all intellectual property rights) in and to such Service Data Analytics.

8.2 Giatec IP. The Licensed Program(s), including all copies, and all copyrights and all other intellectual property and/or proprietary rights, title and interest subsisting in or related to the Licensed Program(s), shall at all times remain the property of Giatec or its licensors, as the case may be. You must reproduce any copyright or other intellectual property and/or proprietary rights notices on the Licensed Program(s) in their entirety in all copies of the Licensed Program(s). Giatec and its licensors reserve all rights not expressly granted to You pursuant to this EULA. No implied licenses are granted pursuant to this EULA. If You provide Giatec with any suggestions, comments or other feedback relating to any aspect of the Licensed Program(s), Giatec products or services (including the Giatec SaaS Services) (“Feedback“), You grant Giatec a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to fully exploit such Feedback, including, within the Licensed Program(s), Giatec products or services (including the Giatec SaaS Services) and/or any other products or services.

  1. U.S. Government End-Users. The Licensed Program(s) are each a “commercial item” as that term is defined at FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are defined in FAR 12.212, and are provided to the U.S. Government only as commercial end items. Government end users acquire the rights set out in this EULA for the Licensed Program(s) consistent with: (i) for acquisition by or on behalf of civilian agencies, the terms set forth in FAR 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, the terms set forth in DFARS 227.7202. Use of the Licensed Program(s) is further restricted by the terms and conditions of this EULA. For the purposes of any applicable government use, the Licensed Program(s) were developed exclusively at private expense and are a trade secret of Giatec Scientific Inc. for the purpose of any Freedom of Information legislation or any other disclosure statute, regulation or provision.
  2. General. This EULA is the entire agreement between Giatec and You concerning the subject matter hereof and supersedes all other agreements, discussions and negotiations, whether oral or written. This EULA cannot be modified or amended except by a written agreement signed by an authorized officer of Giatec. You may not assign Your rights and/or obligations under this EULA without Giatec’s prior written consent. Giatec may assign Giatec’s rights and/or obligations under this EULA at any time without notice. This EULA shall be governed by the laws of the Province of Ontario, Canada and the laws of Canada applicable therein, excluding conflicts of law and choice of law principles and the United Nations Convention on Contracts for the International Sale of Goods, and any legislation implementing such Convention. You consent and attorn to the exclusive jurisdiction of the Ontario courts and waive trial by jury, except to the extent a waiver of a jury trial is not permitted by applicable law. The Licensed Program(s) and related information are subject to the export and import laws and regulations of Canada and the United States and You shall comply with all such laws and regulations as well as any other applicable export laws and regulations. If any provision of this EULA is found to be illegal, invalid or unenforceable, such provision shall be deemed severed and the remainder of this EULA shall continue in full force and effect. You agree to comply with all applicable laws as they relate to this EULA and Your use of the Licensed Program(s).

Last Updated: August 7, 2019

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