PLEASE READ THESE SAAS SERVICE TERMS AND CONDITIONS (THESE “SAAS TERMS” or “SaaS Terms”) BEFORE PROCURING THE SAAS SERVICE (AS HEREINAFTER DEFINED). BY USING THE SAAS SERVICE YOU INDICATE YOUR ACCEPTANCE OF THESE SAAS TERMS. IF YOU DO NOT ACCEPT THESE SAAS TERMS, THEN DO NOT USE THE SAAS SERVICE. IF YOU ARE AGREEING TO THESE SAAS TERMS ON BEHALF OF AN ENTITY OR ORGANIZATION, YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE ALL NECESSARY PERMISSIONS AND AUTHORITY TO AGREE TO THESE SAAS TERMS AND TO BIND SUCH ENTITY OR ORGANIZATION TO THESE SAAS TERMS. IN ORDER TO USE THE SAAS SERVICE, YOU WILL BE REQUIRED TO PROVIDE CERTAIN INFORMATION, INCLUDING PERSONAL INFORMATION. ALL PERSONAL INFORMATION YOU PROVIDE TO GIATEC IN RESPECT TO OR USING THE SAAS SERVICE WILL BE TREATED IN ACCORDANCE WITH THE GIATEC PRIVACY POLICY, THE TERMS OF WHICH ARE INCORPORATED BY REFERENCE INTO THESE SAAS TERMS
- DEFINITIONS
1.1 Defined Terms. The following terms shall have the following meanings:
“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 that is uploaded to the SaaS Service for the purposes of specifying a relationship between maturity and strength for a specific concrete mix.
“Confidential Information” means any business, marketing, technical, scientific or other information disclosed by either party which, at the time of disclosure is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by the parties, exercising reasonable business judgment, to be confidential;
“Documentation” means “how to” user guides and reference materials on the Giatec website or within the SaaS Service that describe the capabilities and operational features of the SaaS Service;
“Fees” means the applicable subscription fees payable by You to Giatec for the right to access and use the SaaS Service, as further described in the Documentation, and in accordance with the SaaS Service subscription purchased by You;
“Giatec App” means the iOS and/or Android mobile Giatec applications developed by Giatec and used in connection with certain Giatec sensors and the SaaS Service to facilitate the monitoring of certain Giatec sensors and the extraction of data from certain Giatec sensors;
“Giatec SmartRock® Plus App” means a version of the Giatec App that is used as part of the Giatec “SmartRock® Plus” solution;
“SaaS Service” means Giatec’s web-based server and cloud dashboard offering which may be made available on a subscription-basis, which offering allows purchasers of Giatec sensor products to store the data produced by such sensor products and to conduct various analytics on such data;
“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 the 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 SaaS Service about the strength of such ready-mix product;
“SmartRock® Plus Sensor” means a wireless sensor developed by Giatec that can be used to monitor the temperature of fresh and hardened concrete; and
“Term” has the meaning ascribed to that term in Section 6.1.
- LICENSE TERMS
2.1 Creating an Account. You must create an account for the SaaS Service to use the SaaS Service. To create an account, You will be asked to provide certain personal information in order to purchase a subscription for and to use the SaaS Service. This personal information is described in more detail in the Giatec Privacy Policy and will be treated in accordance with the terms of the Giatec Privacy Policy. You are responsible for all activities that occur in Your SaaS Services accounts and for maintaining the security and confidentiality of any login details for such accounts. When creating a SaaS Services account, You will be required to select and subscribe to a subscription plan which may include different options for different features and capabilities of the SaaS Service. You shall notify Giatec as soon as reasonably practicable if You become aware of, or suspect that there has been, any unauthorized access to any of Your SaaS Service accounts.
2.2 Trial License. You may use certain features and capabilities in the SaaS Service on a trial basis for the trial evaluation period indicated at the time You select a trial subscription plan. Trials are at the discretion of Giatec and Giatec reserves the right to cancel or terminate a trial subscription immediately at any time on provision of notice to You. If You select a trial subscription plan, subject to the terms and conditions of these SaaS Terms, Giatec hereby grants You a non-exclusive, non-transferable, royalty-free, revocable, internal license, during the trial evaluation period, to access and use the SaaS Service for evaluation purposes only. Giatec may in its discretion provide You with email support requested by You for the trial evaluation period in connection with Your access to and use of the SaaS Service.
2.3 Commercial License. If You select a commercial subscription plan, subject to the terms and conditions of these SaaS Terms, including payment of the applicable Fees, Giatec hereby grants to You a non-exclusive, non-transferable, revocable, internal license to access and use the SaaS Service during subscription term(s) for which You have paid the applicable Fees. You shall be entitled to use the features and capabilities of the SaaS Service specified in the subscription plan selected, purchased and paid for by You.
2.4 License Restrictions. Permission to access and use the SaaS Service is licensed, not sold. You shall use the SaaS Service solely as permitted in these SaaS Terms and shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise make the SaaS Service available to any third party. You shall not: (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the SaaS Service except to the extent expressly agreed upon in writing by Giatec; (b) circumvent any user limits or other access or use restrictions that are built into the SaaS Service; (c) access the SaaS Service in order to (i) build a competitive product or service; or (ii) copy any ideas, features, functions or graphics of the SaaS Service; (d) use the SaaS Service to manage any illegal operations or otherwise in violation of any applicable laws; (e) upload any viruses or other malicious code to the SaaS Service; (f) disrupt any part of any system or Internet connection of Giatec or any third party through Your use of the SaaS Service; or (g) modify or remove any proprietary notices, labels, or marks from the SaaS Service.
- SAAS SERVICE TERMS
3.1 Provision of SaaS Service. Subject to the terms and conditions of these SaaS Terms and payment of the Fees, Giatec shall use commercially reasonable efforts to make the SaaS Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime (for which Giatec shall give at least eight (8) hours’ notice via the SaaS Service and which Giatec shall schedule to the extent reasonably practicable outside of business hours (Eastern Time)); or (b) any unavailability caused by circumstances beyond Giatec’s reasonable control, including without limitation, acts of God, acts of government, floods, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Giatec’s possession or reasonable control, and denial of service attacks and any unavailability caused by a force majeure event (as contemplated in Section 11.1).
3.2 General SaaS Service Warranties. Giatec represents and warrants that during Your subscription term(s) the SaaS Service shall perform materially in accordance with the Documentation. For greater certainty, Giatec does not warrant that Your use of the SaaS Service will be error-free or uninterrupted.
3.3 The SaaS Service has built in help features to assist You in troubleshooting and resolving problems encountered while using the SaaS Service. For matters that cannot be resolved by You alone, Giatec may be contacted using the contact information set out on the Giatec website under “Support” and Giatec will provide support in accordance with Your SaaS Service subscription tier.
3.4 SaaS Service Limitations. The SaaS Service is not a back-up service and accordingly Giatec will not be responsible for any lost data due to server crashes or other events outside Giatec’s reasonable control. However, Giatec maintains a thirty (30) day continuous backup of all data on its servers to reduce the impact of any server crashes.
- PROPRIETARY RIGHTS, DATA TERMS AND CONFIDENTIALITY
4.1 Exclusive Ownership. Except for the rights and licenses granted in these SaaS Terms, You acknowledge and agree that all intellectual property rights to or arising from the software and technology used to provide the SaaS Service and the Giatec App are and shall remain the exclusive property of Giatec and/or its licensors. No implied licenses are granted pursuant to these SaaS Terms. Nothing in these SaaS Terms is intended to transfer any such intellectual property rights to, or to vest any such intellectual property rights in You. Any unauthorized use of Giatec’s intellectual property rights is a material breach of these SaaS Terms.
4.2 Data Ownership; Data License. Except for Calibration Data submitted to the 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 also 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 “SmartRock® Plus” features of the SaaS Service, 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 SaaS Service for the purpose of allowing Giatec to make the SaaS Service available 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.
4.3 Content Responsibilities. You are responsible for any and all Calibration Data uploaded by You or on Your behalf to the SaaS Service including obtaining all necessary licenses, permissions and consents to enable all Calibration Data to be made available to Giatec for Giatec to transmit, host, store and otherwise exploit as reasonably required for the provision of the SaaS Service (including the creation of Service Data Analytics).
4.4 Suggestions. If You provide Giatec with any suggestions, comments or other feedback relating to any aspect of the SaaS Service, the Giatec App(s) or any other Giatec products or services (“Feedback”), You hereby grant Giatec a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual, unrestricted license to fully exploit such Feedback, including, within the SaaS Service, the Giatec App(s) or any other Giatec products or services.
- CONFIDENTIALITY
5.1 Confidentiality. Each party shall maintain in confidence all Confidential Information of the other party, shall use such Confidential Information only for the purpose of exercising its rights and fulfilling its obligations under these SaaS Terms, and shall not disclose any Confidential Information of the other party to any third party except as expressly permitted pursuant to these SaaS Terms or make any unauthorized use thereof. Each party shall treat the Confidential Information of the other party with the same degree of care against disclosure and/or unauthorized use as it affords to its own information of a similar nature, or a reasonable degree of care, whichever is greater. Each party further agrees not to remove or destroy any proprietary or confidentiality legends or markings placed upon any documents or other materials containing Confidential Information of the other party. Each receiving party shall be entitled to provide the disclosing party’s Confidential Information to contractors of the receiving party that have agreed in writing to confidentiality obligations at least as protective as those contained in these SaaS Terms.
5.2 Exemptions. No party shall be bound by obligations restricting disclosure and use set forth in these SaaS Terms with respect to Confidential Information of the other party, or any part thereof, that: (i) was lawfully known or received by the receiving party prior to disclosure without any obligation of confidentiality; (ii) was generally publicly available prior to its disclosure, or becomes generally publicly available other than through a breach of these SaaS Terms by the receiving party; (iii) was disclosed to the receiving party by a third party, provided such third party, or any other person from whom such third party receives such information, is not in breach of any confidentiality obligation in respect of such information; or (iv) is independently designed and developed by the receiving party without the use of any Confidential Information of the other party or any infringement or misappropriation of any intellectual property or other rights of the other party.
5.3 Compelled Disclosure. If a receiving party is compelled pursuant to legal, judicial, or administrative proceedings, or otherwise required by law, to disclose Confidential Information of a disclosing party, the receiving party shall provide prior written notice to the disclosing party (to the extent legally permitted) to allow the disclosing party to oppose such disclosure or to seek protective or other court orders.
5.4 Remedies. If a receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of a disclosing party in breach of the confidentiality provisions in these SaaS Terms, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
- TERM AND TERMINATION
6.1 Term of these SaaS Terms and Subscription Terms and Renewals. These SaaS Terms shall commence on the date You submit a request for a SaaS Service account and shall continue until terminated as provided in this Section 6 (the “Term”). Subscriptions for the SaaS Service are for periods of time selected at the time You initially sign-up to receive the SaaS Service from Giatec and thereafter upon any renewal of the SaaS Service (such as monthly, quarterly and annual subscriptions). Subscriptions will auto-renew (for the same length of subscription period) at the end of the then-current subscription term unless (i) Your subscription is terminated pursuant to Sections 6.2 or 6.3 below; (ii) You notify Giatec at least thirty (30) days in advance of the anniversary of a renewal period that You do not wish to renew Your SaaS Service subscription; or (iii) Giatec notifies You at least thirty (30) days in advance of the anniversary of a renewal period that Giatec will not be renewing Your SaaS Service subscription.
6.2 Termination for Cause. A party may terminate these SaaS Terms for cause: (i) upon thirty (30) days written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by You, Giatec shall refund You any prepaid fees for any time periods after the termination of these SaaS Terms.
6.3 SaaS Service Suspension or Termination by Giatec. Without limiting any other remedies Giatec may have, Giatec may limit, suspend, or terminate Your right to access and use the SaaS Service and/or delete Your SaaS Service account and Calibration Data, with immediate effect, if any outstanding invoices are more than thirty (30) days past due, if Giatec reasonably believes You are in breach of these SaaS Terms, creating problems, legal liabilities (actual or potential), acting inconsistently with respect to Giatec’s policies, infringing someone else’s intellectual property rights, engaging in fraudulent or illegal activities, or for other similar reasons.
6.4 Effect of Termination. Upon termination of these SaaS Terms, Your SaaS Service subscriptions shall also terminate and Giatec will remove Your SaaS Service account and Calibration Data thirty (30) days after a failure to renew Your subscription or if these SaaS Terms are terminated for any other reason. Giatec will not be liable in respect of any damage caused by the termination of these SaaS Terms or removal of Your SaaS Service account and/or Calibration Data.
6.5 Survival. The following provisions of these SaaS Terms shall survive any expiration or termination of these SaaS Terms: Sections 1, 4, 5, 6.4, 6.5, 7, 8.1, 10 and 11. Termination or expiration of these SaaS Terms shall not relieve You of the obligation to pay any Fees accrued or payable to Giatec prior to the effective date of termination or expiration of these SaaS Terms.
- PAYMENT TERMS
7.1 Fees. The right to access and use the SaaS Service is purchased for subscription terms with payment for the specific period being due and payable in advance. There are no charges for basic support. Professional services are available on a time and materials or fixed quote basis as agreed with Giatec in an order form or quotation provided by Giatec to You. The Fees are non-refundable except if these SaaS Terms have been terminated by You for Giatec’s material breach.
7.2 Payment and Charges. Unless otherwise stated in Giatec’s invoice, all invoiced amounts are due upon receipt and will be processed immediately using the credit card on file for You. You shall: (i) keep the billing, credit card and payment information You provide to Giatec or its payment processors, including name, credit card number and expiry date, mailing address, email address and telephone number, accurate and up to date; otherwise, Giatec may suspend Your access to and use of the SaaS Service; (ii) promptly advise Giatec if Your credit card information changes due to loss, theft, cancellation, card renewal or otherwise; (iii) be liable for Your failure to pay any Fees billed to You by Giatec caused by Your failure to provide Giatec with up to date billing information. To offset its additional processing costs, Giatec may charge You for administrative charges as set from time to time for administrative or account activities including: collection efforts due to non-payment or having a balance over Your credit limit; returned or rejected payments; or changes in personal identifier information. All administrative charges charged to You will be indicated on Your invoice or receipt and You shall pay all such charges.
7.3 Taxes. You are responsible for paying any applicable governmental sales, use, value-added, commodity, harmonized and other taxes imposed on Your purchase of SaaS Service subscriptions and professional services. For Canadian sales, Giatec will invoice You for the applicable sales-related taxes and subject to Your payment of such taxes will submit such amounts to the applicable Canadian taxation authority. For non-Canadian sales, You shall be responsible for paying and submitting all sales taxes, value-added taxes, import taxes/customs/duties, and any other similar taxes or fees imposed by any applicable taxation authority.
7.4 Pre-authorized Payment. By providing credit card information to Giatec as part of Your account set-up for pre-authorized payments, You authorize Giatec to charge Your credit card for all outstanding Fees, taxes and charges and outstanding account balances due under these SaaS Terms, and this constitutes Giatec’s good and sufficient authority for so doing. If Your pre-authorized payment method fails, Giatec will provide notification to You of payment failure. If You fail to rectify the payment failure within ten (10) days of written notice, Giatec may immediately deactivate Your account without notice to You and collect Fees owing using other collection mechanisms. If You have not paid applicable fees within thirty (30) days of the due date, Giatec will automatically terminate Your account and all Calibration Data from our servers. You are solely responsible for all charges incurred under Your account by You or third-parties.
- CHANGES TO THE SAAS SERVICE AND THESE SAAS TERMS
8.1 Updates to these SaaS Terms. Giatec reserves the right to modify these SaaS Terms at any time by publishing revised SaaS Terms on the Giatec website and/or providing a copy of these SaaS Terms to Your account by email. The revised SaaS Terms shall become effective within five (5) business days of such publication or provision to You, unless You expressly accept the revised SaaS Terms earlier by clicking on the accept button. Your express acceptance or Your continued use of the SaaS Service after expiry of the notice period of five (5) business days (being weekdays excluding any statutory holidays in Ontario), shall constitute Your acceptance to be bound by the terms and conditions of any revised SaaS Terms.
8.2 Fees Changes and Changes to the SaaS Service. Giatec may change the SaaS Service and/or any Fees at any time upon reasonable notice to You by posting the change on the Giatec website, sending notice via: an email to the email address You provide on registration, a message on Your invoice, in writing, or any other notice method likely to come to Your attention. If You do not accept the change, Your sole recourse is to terminate Your subscription(s) for the SaaS Service. Your continued access to and use of the SaaS Service after the change has come into effect constitutes Your acceptance of the change and You acknowledge and agree that (i) You will be deemed to have accepted the change, with no additional written agreement or express acknowledgement required; and (ii) You will continue to be responsible to pay for the SaaS Service for the remainder of Your SaaS Service subscriptions.
- SUPPORT AND MAINTENANCE
9.1 Technical Support. Depending on the SaaS Service subscription tier ordered and paid for by You, Giatec will provide basic support for the SaaS Service.
9.2 Maintenance. Giatec will provide updates and upgrades to the technology underlying the SaaS Service from time to time to provide new features and improvements, bug fixes and error corrections which will be available across the SaaS Service, provided, however, that for some new features or capabilities, Giatec may charge incremental Fees.
9.3 Professional Services. One-off consulting and professional services may be requested and agreed with Giatec, including customized data analytics. All professional services should be requested by contacting Giatec by telephone found on the contact page on the Giaetc website. If any work product or deliverables are generated through the provision of professional services under these SaaS Terms (“Deliverables”), the parties will determine ownership of such Deliverables in the purchase order executed for the professional services. Notwithstanding the generality of the foregoing, any enhancements, modifications or other customizations to any Giatec technology (including the SaaS Service) will be owned by and vest in Giatec exclusively including all title and interest in and to all Deliverables embodying any Giatec technology including all intellectual property rights therein.
- LIABILITY AND INDEMNIFICATION PROVISIONS
10.1 NO WARRANTIES. GIATEC CANNOT GUARANTEE THAT THE SAAS SERVICE WILL ALWAYS BE AVAILABLE, THAT THE SAAS SERVICE WILL OPERATE WITHOUT FLAW OR THAT THE SAAS SERVICE WILL NOT CAUSE ANY DATA LOSS. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 3, THE SAAS SERVICE, PROFESSIONAL SERVICES AND ALL GIATEC SOFTWARE AND TECHNOLOGY ARE PROVIDED “AS IS” WITH NO REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS WHATSOEVER. GIATEC DISCLAIMS ANY AND ALL IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF QUALITY, PERFORMANCE, INTEGRITY OF DATA, NON-INFRINGEMENT, MERCHANTABILITY, MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. GIATEC FURTHER DOES NOT REPRESENT OR PROVIDE ANY WARRANTIES OR CONDITIONS THAT THE SAAS SERVICE OR GIATEC TECHNOLOGY WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES GIATEC PROVIDE ANY WARRANTIES OR CONDITIONS THAT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET WILL BE UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND/OR ERROR-FREE.
10.2 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER GIATEC NOR ANY OF ITS AFFILIATED COMPANIES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS SHALL HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES (WHETHER ARISING FROM THESE SAAS TERMS, RELATED TO THE SAAS SERVICE OR TO ANY PROFESSIONAL SERVICES PROVIDED TO YOU BY GIATEC (INCLUDING ITS AFFILIATED COMPANIES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS)) FOR ANY INDIRECT, RELIANCE, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOSS OF OR DAMAGE TO DATA, BUSINESS INTERUPTION, LOSS OF DATA, REPLACEMENT OR RECOVERY COSTS, OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER ARISING FROM CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF GIATEC (INCLUDING ITS AFFILIATED COMPANIES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. IN NO EVENT SHALL GIATEC’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE SAAS TERMS, THE SAAS SERVICE OR TO ANY PROFESSIONAL SERVICES PROVIDED TO YOU BY GIATEC (INCLUDING ITS AFFILIATED COMPANIES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS), WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU TO GIATEC PURSUANT TO THESE SAAS TERMS FOR THE SAAS SERVICE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE CLAIM.
10.3 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 FUNDAMENTAL BREACH. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU.
10.4 Your 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 the Calibration Data provided by or on Your behalf to the 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 the Calibration Data provided by You or on Your behalf to the SaaS Service; (iv) any claims that the trademarks, logos, or branding provided by You to Giatec infringe third party rights; (v) any defects, malfunctions or product liability claims arising in connection with Your products; or and/or (vi) any breach by You of these SaaS Terms.
10.5 THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY AND INDEMNIFICATION PROVISIONS CONSTITUTE AN ESSENTIAL PART OF THESE SAAS TERMS. YOU ACKNOWLEDGE THAT BUT FOR THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS, LIMITATION OF LIABILITY AND INDEMNIFICATION PROVISIONS, NEITHER GIATEC NOR ANY OF ITS LICENSORS OR SUPPLIERS WOULD GRANT THE RIGHTS GRANTED IN THESE SAAS TERMS. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SAAS SERVICE IS TO IMMEDIATELY CEASE USE OF SUCH SAAS SERVICE.
- MISCELLANEOUS TERMS
11.1 General. These SaaS Terms are the entire agreement between You and Giatec in respect to the purchase by You of any professional services or subscriptions for the SaaS Service. These SaaS Terms may not be changed except by a written agreement with Giatec. You may not assign Your rights and/or obligations under these SaaS Terms without Giatec’s prior written consent. Giatec may assign Giatec’s rights and/or obligations under these SaaS Terms at any time without notice. If any provision of these SaaS Terms is held to be unenforceable for any reason, the legality or enforceability of the remaining terms shall not be affected or impaired. The failure of Giatec to act with respect to a breach of these SaaS Terms by You does not constitute a waiver and shall not limit Giatec’s rights with respect to such breach or any subsequent breaches. The SaaS Service 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. Giatec shall not be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control. These SaaS Terms shall be governed by the laws of the Province of Ontario, Canada and the laws of Canada applicable therein, excluding any choice of law principles. The United Nations Convention on Contracts for the International Sale of Goods, and any legislation implementing such Convention, shall not apply to these SaaS Terms. You consent and attorn to the exclusive jurisdiction of the Ontario courts and waive trial by jury. If any provision of these SaaS Terms is found to be illegal, invalid or unenforceable, such provision shall be deemed severed and the remainder of these SaaS Terms shall continue in full force and effect. Giatec may refer to You in Giatec’s customer list and may use Your corporate name and logo for this purpose. For the avoidance of doubt, Giatec will not use Your name, logo or any other trademark or trade-name of Yours for any other purposes without Your prior consent.
Last Updated: August 7, 2019.
