GIATEC SCIENTIFIC INC. END USER LICENSE AGREEMENT IMPORTANT NOTICE:
THIS END USER LICENSE AGREEMENT (“AGREEMENT
”) IS A LEGAL CONTRACT BETWEEN YOU (OR YOUR ORGANIZATION) AND GIATEC SCIENTIFIC INC. ("GIATEC
") FOR: (I) GIATEC SOFTWARE (WHETHER EMBEDDED IN A GIATEC PRODUCT OR PROVIDED AS A SEPARATE COMPONENT SUCH AS A DOWNLOADABLE MOBILE APPLICATION IF YOU HAVE AN IOS OR ANDROID SUPPORTED-DEVICE), (II) FIRMWARE THAT OPERATES WITH GIATEC PRODUCTS/DEVICES; AND (III) ANY ACCOMPANYING DOCUMENTATION, HARDWARE OR MEDIA (COLLECTIVELY THE ‘LICENSED PROGRAM
’). BY CLICKING ON ‘I ACCEPT’ BELOW, YOU ARE DEEMED BY GIATEC TO HAVE IRREVOCABLY AGREED TO BE BOUND BY AND COMPLY WITH ALL OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, CLICK ‘I DO NOT ACCEPT’, AND DO NOT INSTALL OR USE THE LICENSED PROGRAM. YOUR DOWNLOAD, INSTALLATION, POWER UP OR USE OF THE LICENSED PROGRAM WILL BE DEEMED BY GIATEC TO BE YOUR IRREVOCABLE CONSENT TO BE BOUND BY AND COMPLY WITH ALL OF THE TERMS OF THIS AGREEMENT. THE LICENSED PROGRAM PROVIDED PURSUANT TO THIS AGREEMENT IS PROVIDED UNDER LICENSE; NOT SOLD.
IF YOU ARE AN EMPLOYEE, CONTRACTOR OR OTHERWISE INSTALLING OR USING THIS LICENSED PROGRAM BY OR ON BEHALF OF AN ORGANIZATION, YOU REPRESENT AND WARRANT TO GIATEC THAT (I) YOU ARE OF THE AGE OF MAJORITY IN YOUR JURISDICTION; AND (II) YOU HAVE ALL REQUISITE CAPACITY, RIGHT, POWER AND AUTHORITY TO ACCEPT THIS LICENSE ON BEHALF OF SUCH ENTITY; AND (III) SUCH ENTITY WILL BE IRREVOCABLY BOUND BY AND WILL COMPLY WITH ALL OF THE TERMS OF THIS AGREEMENT.
THESE TERMS MAY BE AMENDED OR UPDATED BY US FROM TIME TO TIME AND MAY HAVE CHANGED SINCE YOUR LAST VISIT TO OR USE OF THE LICENSED PROGRAM. IT IS YOUR RESPONSIBILITY TO REVIEW THESE TERMS FOR ANY CHANGES. YOUR USE AFTER ANY AMENDMENTS OR UPDATES OF THESE TERMS SHALL SIGNIFY YOUR ASSENT TO AND ACCEPTANCE OF SUCH REVISED TERMS. ANY NEW FEATURES THAT MAY BE ADDED FROM TIME TO TIME WILL BE SUBJECT TO THESE TERMS, UNLESS STATED OTHERWISE. YOU SHOULD VISIT THIS PAGE PERIODICALLY TO REVIEW THESE TERMS.
1. Service Terms.
The Licensed Program enables users to connect through wireless networks to access, obtain, download and transmit data from GIATEC sensors in real-time or off-line. The data generated from GIATEC sensors to the Licensed Program is intended to report and provide insights on concrete quality for the internal use of the recipient organization, who accepts full responsibility for its use. You acknowledge that access to the Licensed Program and GIATEC services is provided on the understanding that GIATEC is not providing any professional advice or recommending any actions based on the results generated. GIATEC does not guarantee or warrant the accuracy, reliability, completeness or currency of data or its usefulness in achieving any purpose. Accordingly all information in this document is provided “as is”, without warranty of any kind, express or implied, including, but not limited to any warranties of performance, merchantability, merchantable quality or fitness for a particular purpose. In no event will Giatec, or its partners, suppliers, employees or agents, be liable to the recipient organization or anyone else for any loss, damage, cost or expense of any kind, including any consequential, special or similar damages, arising in connection with results obtained from the use of this information, any decision made or action taken in reliance on the service or data or any information provided as part of the services. 2. License Terms.
2.1 License Grant. Subject to the terms of this Agreement, GIATEC grants to you a, license as follows:
a. Firmware and Embedded Software – if you are the lawful possessor of a Giatec product, Giatec grants you a non-exclusive, non-transferable license to run the Licensed Program provided with that product together with and any updated versions downloaded by you only on and as incorporated in the product.
b. For software provided as a standalone component (including mobile software applications) – Giatec grants you a non-exclusive, non-transferable license to use the software on a single computer, device or system for your internal use and you may not distribute the same to any third party.
c. Backup/Archival Copies. You may also: (i) make one (1) copy of the Licensed Program for backup or archival purposes, as long as you reproduce in full all copyright and other proprietary notices pertaining to the Licensed Program that appear in the Licensed Program and it is only used for the foregoing purposes; and (iii) store or install a copy of the Licensed Program on a storage device, such as a network server, used only to install or run the Licensed Program on your other devices, computers over an internal network, provided that you must acquire and dedicate a license for each separate computer on which the Licensed Program is installed or run from a storage device. All other rights are specifically reserved to GIATEC and its licensors.
2.2 New Releases. This Agreement does not automatically grant You the right to any updates or enhancements of the Licensed Program or the right to receive any technical support in respect to the Licensed Program. Such updates and other technical support services, if available, may be purchased separately from GIATEC. GIATEC reserves the right at any time to not release or to discontinue release of any Licensed Program and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Licensed Program. Should GIATEC release any updates, upgrades or new versions of the Licensed Program or supplemental code or supporting materials for the Licensed Program (“Additional Licensed Program Releases”), and such Additional Licensed Program Releases are provided to you pursuant to a maintenance and support agreement with GIATEC, all such Additional Licensed Program Releases shall be considered part of the Licensed Program and subject to the terms and conditions of this Agreement and any additional terms and conditions that accompany the Additional Licensed Program Releases.
2.3 Restrictions. YOU MAY NOT (i) use the Licensed Program or make copies of it except as permitted in this License; (ii) translate, reverse engineer, decompile, or disassemble the Licensed Program except to the extent applicable law expressly prohibits the foregoing restriction. If you are authorized by law to engage in any of the foregoing, you may only do so to the extent required to achieve interoperability with other Licensed Programs and you agree to provide us with written notice of this activity; (iii) rent, lease, assign, or transfer the Licensed Program (and in respect of firmware/embedded software, you shall not rent, lease, assign or transfer the firmware or embedded software to any third party except with and incorporated in the product it is provided with, and then not for value; (iv) modify the Licensed Program, create derivative works of the Licensed Program or merge all or any part of the Licensed Program with another Licensed Program; or (iv) separate the component parts of the Licensed Program for use on more than one computer.
2.4 Security. Information sent or received over the Internet is generally unsecure and Giatec cannot and does not make any representation or warranty concerning security of any communication to or from the Website or any representation or warranty regarding the interception by third parties of personal or other information. You are responsible for safeguarding the password that you use to access the Licensed Program and you are responsible for any activities or actions under your password. You agree to keep your password secure. GIATEC will not be liable for any loss or damage arising from your failure to comply with these requirements. 3 App Providers.
If you obtain the Licensed Program through the AppStore , GooglePlay or another approved site operated by a third party (the “App Provider”), You acknowledge that the App Provider has no obligation to furnish any maintenance and support services with respect to the Licensed Program. In the event of any failure of the Licensed Program to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the Licensed Program to you (if applicable) and to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the Licensed Program. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of GIATEC and any complaints or claims you may have in relation to GIATEC should be directed to GIATEC (see section 10 below).
The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the Licensed Program or your possession and use of the Licensed Program, including, but not limited to: (i) product liability claims; (ii) any claim that the Licensed Program fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. In the event of any third party claim that the Licensed Program or your possession and use of that Licensed Program infringes that third party’s intellectual property rights, GIATEC will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You should promptly inform us of any claim that comes to your attention.
The App Provider, and its subsidiaries, are third party beneficiaries of these Terms as related to your license of the Licensed Program, and that, upon your acceptance of the terms and conditions of these Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the Licensed Program against you as a third party beneficiary thereof. You must also comply with all applicable third party terms of service when using the Licensed Program. 4 Fees.
In consideration of the grant of the foregoing license, you agree to pay the applicable Licensed Program license fees for the Licensed Program. 5 Term and Termination.
5.1 These Terms shall remain in effect for as long as you are in compliance with its terms and conditions. GIATEC may, under certain circumstances and without prior notice, immediately terminate Your ability to access the Licensed Program and services or portions thereof. Cause for such termination shall include, but not be limited to, (a) breaches or violations of these Terms or, (b) requests by law enforcement or other government agencies, (c) a request by You, (d) discontinuance or material modification to the services (or any part thereof), and/or (e) unexpected technical, security or legal issues or problems. Termination of Your access may also include removal of some or all of the materials uploaded by You through the Licensed Program. You acknowledge and agree that all terminations may be made by us in its sole discretion and that we shall not be liable to You or any third-party for any termination of Your access to the Licensed Program or for the removal of any of the materials uploaded by You through our services. Any termination of these Terms by us shall be in addition to any and all other rights and remedies that we may have.
5.2 Effects of Termination. Your obligations of payment (if any) and your representations, the limitations of liabilities and warranties, ownership and general clauses will survive any termination of this Agreement and will remain in full force and effect even after termination. 6 No Warranty; Limitations of Liability.
6.1 THE LICENSED PROGRAM IS PROVIDED TO YOU "AS IS". GIATEC MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, WARRANTIES 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. GIATEC DOES NOT WARRANT THAT THE OPERATION OF THE LICENSED PROGRAM WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE LICENSED PROGRAM AND YOU ARE SOLELY RESPONSIBLE FOR THE ADEQUATE PROTECTION AND BACKUP OF THE DATA AND EQUIPMENT USED IN CONNECTION WITH THE LICENSED PROGRAM.
6.2 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 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 IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS LICENSED PROGRAM FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE IN WHICH THE FAILURE OF THE LICENSED PROGRAM COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
6.3 GIATEC’S MAXIMUM AGGREGATE LIABILITY TO YOU, AND THAT OF GIATEC’ LICENSORS, DEALERS AND SUPPLIERS SHALL NOT EXCEED THE PRICE PAID FOR THE LICENSED PROGRAM 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.
The limited warranty, exclusive remedies and limited liability set out herein are fundamental elements of the basis of the bargain between you and GIATEC. You acknowledge and agree that GIATEC would not be able to provide the Licensed Program for the fees charged without such limitations. In jurisdictions which 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. 7 Ownership, Title and Feedback.
7.1 License to User Content. As between You and GIATEC, You and Your company own the data generated from Your sites where GIATEC’s wireless sensors and devices are installed (“Site Data”). You hereby grant GIATEC a non-exclusive, royalty-free license to access and process Site Data: (i) for the purpose of providing service to You, including backing-up the Site Data on GIATEC’s cloud-based servers; and (ii) to improve the algorithms, functionality and data analytics of the GIATEC sensors, devices and services. For greater certainty, Site Data will not be shared with third parties and only aggregated data derived from Site Data will be owned by GIATEC.
7.2 GIATEC IP. The Licensed Program, including all copies, and all copyrights and all other rights, title and interest subsisting in or related to the Licensed Program, shall at all times remain the property of GIATEC or its licensors. You must reproduce any copyright or other proprietary notices on the Licensed Program in their entirety in all copies of the Licensed Program. GIATEC and its licensors reserve all rights not expressly granted to you. If You provide us with any suggestions, comments or other feedback relating to any aspect of the Licensed Program or GIATEC products or services ("Feedback"), we may use such Feedback in the Website, GIATEC or in any other products or services without remuneration to you. 8 U.S. Government End-Users.
The Licensed Program is a "commercial item" as that term is defined at FAR 2.101, consisting of "commercial computer Licensed Program" and "commercial computer Licensed Program 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 Agreement for the Licensed Program consistent with: (i) for acquisition by or on behalf of civilian agencies, the terms set forth in FAR12.212; 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 is further restricted by the terms and conditions of this Agreement. For the purposes of any applicable government use, the Licensed Program was developed exclusively at private expense, and is a trade secret of Giatec Scientific Inc. for the purpose of any Freedom of Information legislation or any other disclosure statute, regulation or provision. 9 Export Restrictions.
The Licensed Program and related information are subject to export and import restrictions. By downloading, installing, or using the Licensed Program, You are representing and warranting that You are not located in, under the control of, nor are a national or resident of, any country to which the export of the Licensed Program and/or related information would be prohibited by the laws and/or regulations of Canada and/or the United States. You are also representing and warranting that You are not an individual to whom the export of the Licensed Program or related information would be prohibited by the laws and/or regulations of Canada or the United States. You shall comply with the export laws and regulations of Canada and the United States that are applicable to the Licensed Program and related information and You shall comply with any local laws and/or regulations in Your jurisdiction that may impact Your right to export, import, or use the Licensed Program or related information, and You represent and warrant that You have complied with any such applicable laws and/or regulations. The Licensed Program and related information shall not be used for any purposes prohibited by export laws and/or regulations, including, without limitation, nuclear, chemical, or biological weapons proliferation. You shall be responsible for procuring all required permissions for any subsequent export, import, or use of the Licensed Program or related information. 10 General.
This Agreement 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 Agreement cannot be modified or amended except by a written agreement signed by an authorized officer of GIATEC. This Agreement shall be governed by the laws of the Province of Ontario, Canada, 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 Ontario courts and waive trial by jury, except to the extent a waiver of a jury trial is not permitted by applicable law. If any provision of this Agreement is found to be illegal, invalid or unenforceable, such provision shall be deemed severed and the remainder of the Agreement shall continue in full force and effect. You agree to comply with all applicable laws including export restrictions as they relate to this Agreement and your use of the Licensed Program. 11 Contact.
If you have any questions about these Terms please contact us at: www.giatec.ca
. Last Updated: March 3rd, 2016