GIATEC SCIENTIFIC INC. (“GIATEC”) OWNS AND OPERATES A CLOUD-BASED PLATFORM THAT ENABLES CONCRETE PROVIDERS TO INPUT SPECIFICATIONS AND CALIBRATION DATA AND OTHER INFORMATION ABOUT THEIR PRODUCTS AND TO RECEIVE CERTAIN DATA ABOUT THEIR END USERS (AS HEREINAFTER DEFEINED) USE OF SMART CONCRETE™ PRODUCTS (AS HEREINAFTER DEFINED) AND WHICH CAN BE USED BY END USERS VIA THE GIATEC APP (AS HEREINAFTER DEFINED) TO MONITOR SMART CONCRETE™ SENSORS (AS HEREINAFTER DEFINED) EMBEDDED IN SMART CONCRETE™ PRODUCTS (SUCH CLOUD-BASED PLATFORM HEREINAFTER REFERRED TO AS THE “GIATEC CLOUD”).
BY SIGNING THE QUOTE, TAKING DELIVERY OF ANY SMART CONCRETE™ SENSORS AND/OR USING THE GIATEC CLOUD YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT SIGN THE QUOTE, TAKE DELIVERY OF ANY SMART CONCRETE™ SENSORS AND/OR USE THE GIATEC CLOUD.
IF YOU ARE AGREEING TO THESE 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 TERMS AND TO BIND SUCH ENTITY OR ORGANIZATION TO THESE TERMS.
1. DEFINITIONS. For the purposes of these Terms, the following terms shall have the following meanings:
“Affiliate” of a Party means any corporation or other legal entity that such Party directly or indirectly controls, is controlled by, or is under common control with. In this context, a Party “controls” a corporation or other entity if it or any combination of it and/or its Affiliates owns fifty percent (50%) or more of the voting rights for the board of directors or other mechanism of control for such corporation or other entity;
“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;
“Confidential Information” has the meaning set forth in Section 6(a) (Confidential Information);
“Data” means any information, data and material that is uploaded or transmitted to the Giatec Cloud, including information provided by End Users via the Giatec App, and information and materials provided by You and Your Affiliates;
“Documentation” means any and all written or electronic user material for the Giatec Solution that Giatec generally makes available to its customers, including user manuals, reference materials, training manuals and/or installation manuals that Giatec generally makes available to its customers;
“Effective Date” means the date You sign the Quote;
“End User” means any of Your customers who acquire Your Products and the Giatec Solution from You, and who use the Giatec Smart Concrete™ Sensors in combination with Your Products to create Smart Concrete™ Products;
“Giatec App” means the iOS and Android mobile Giatec application developed by Giatec and used in connection with the Giatec Smart Concrete™ Sensors and the Giatec Cloud to facilitate the monitoring of Smart Concrete™ Products created by End Users using Your Products;
“Giatec Solution” means the Giatec Smart Concrete™ Sensors, the Giatec Cloud and Giatec App for monitoring of ready-mix concrete products, and the Documentation for all of the foregoing;
“Giatec Marks” means the trademarks or other proprietary marks that Giatec uses in connection with the Giatec Solution;
“Intellectual Property” means all intellectual property rights in any country including, without limitation, all of the following: (i) all patents and utility models and applications therefor, and all reissues, divisions, re-examinations, renewals, extensions, provisionals, continuations and continuations-in-part thereof, and equivalent or similar rights anywhere in the world in inventions and discoveries, including without limitation, invention disclosures; (ii) all trade secrets and other rights in technology, data, know-how and confidential or proprietary information; (iii) mask works, mask work and integrated circuit topographies and registrations and applications therefor, and all other rights corresponding thereto throughout the world; (iv) all copyrights, copyrights registrations and applications therefor and all other rights corresponding thereto throughout the world, including, where applicable, moral rights and droit d’auteur; (v) all industrial designs and any registrations and applications therefor throughout the world; (vi) all rights in all trade names, logos, common law trademarks and service marks, trademark and service mark registrations and applications therefor; and (vii) any similar, corresponding or equivalent rights to any of the foregoing anywhere in the world;
“Initial Term” means the initial period of time that these Terms will be in effect between You and Giatec as specified in the Quote;
“Minimum Sensor Order” has the meaning ascribed to that term in Section 4(d);
“Renewal Term” has the meaning ascribed to that term in Section 10(a);
“Order” means any purchase order or other ordering document issued by You to Giatec for the Giatec Solution or any component thereof;
“Quote” means a quotation document provided to You by Giatec for the purpose of making You an OEM reseller of the Giatec Solution in accordance with these Terms;
“Smart Concrete™ Sensor” means the wireless sensor developed by Giatec that can be used to monitor the temperature of fresh and hardened concrete;
“Smart Concrete™ Product” means a concrete product that combines Your Products with Smart Concrete™ Sensors that have been embedded in Your Products and which can allow End Users who use the Giatec App in combination with the Smart Concrete™ Sensors that have been embedded in Your Products to obtain real-time data about concrete strength. For greater certainty, a Smart Concrete™ Product is created by an End User when the End User embeds Smart Concrete™ Sensors in Your Products when Your Products are poured;
“Support” means the services described in Section 5(a) (Support) and Schedule A (Support Responsibilities);
“Update” means a subsequent release of the Giatec Solution, or any component thereof, that contains bug fixes and/or maintenance changes and that generally does not contain major, new functionality;
“Upgrade” means a subsequent release of the Giatec Solution or any component thereof, that contains new functionality and enhancements in addition to bug fixes;
“You” means the person or entity identified by Giatec in the Quote and “Your” shall have a correlated meaning. “You” includes any of Your Affiliates; and
“Your Products” means the ready-mix concrete products mixed or produced by You that You make available for sale to Your customers.
2. ORDERS, LICENSES, RE-SALE RIGHTS
(a) Orders. Giatec agrees to sell the Giatec Solution to You in accordance with these Terms. Specific quantities of the Giatec Solution may be ordered by You by submitting an Order to Giatec that is accepted by Giatec subject to these Terms. You may place Orders by email to [email protected] An Order will be deemed to have been placed as of the date of receipt of the Order by Giatec. Each Order shall include: (i) unit quantity; (ii) shipping destination; (iii) delivery date; and (iv) any other instructions or requirements pertinent to the Order. You may schedule regular intervals for deliveries through an appropriate Order setting forth those intervals. To the extent of any inconsistency between the terms of an Order and these Terms, these Terms shall control and take precedence. Any additional terms in an Order beyond the terms contained in these Terms shall be of no effect between the Parties. You shall be responsible for reselling Smart Concrete™ Sensors purchased by You pursuant to these Terms. Notwithstanding anything to the contrary in the foregoing, You shall, in Your agreements with Your End User, (i) require such End Users to comply with the ASTM C1074 Standard for testing concrete samples, and (ii) ensure that Giatec is not liable for damages arising in connection with such End Users’ failure to perform testing in accordance with the ASTM C1074 Standard.
(b) Giatec App License. End Users who wish to use the Giatec Solution will be required to license the Giatec App pursuant to the Giatec End User License Agreement when such End Users download the Giatec App from Google Play or the Apple App Store. A copy of the Giatec End User License Agreement is attached hereto as Schedule C. Giatec shall be entitled to update, amend and/or modify the Giatec End User License Agreement at any time in its sole discretion. Giatec shall have no obligation to make the Giatec App available to End Users who have not agreed to the terms of the Giatec End User License Agreement.
(c) Access to the Giatec Cloud Dashboard. Subject the terms and conditions of these Terms, including, without limitation, the timely payment of the fees set forth in the Quote and Your Order(s), Giatec hereby grants You a non-transferrable, non-exclusive right to access and use the Giatec Cloud to input information about Your Products and to monitor Smart Concrete™ Products created by Your End Users. Giatec will use commercially reasonable efforts to make the Giatec Cloud available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime; or (b) any unavailability caused by circumstances beyond Giatec’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Giatec employees), 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. You are responsible for all your actions in the Giatec Cloud and for Your employees’, contractors’, customers’ and agents’ compliance with these Terms, including such employees’, contractors’ and agents’ activities in the Giatec Cloud. You shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Data transmitted to the Giatec Cloud by You or on Your behalf, including ensuring that the calibration methods and calibration Data complies with the ASTM C1074 Standard; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Giatec Cloud, and notify Giatec promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in Your use of the Giatec Cloud. End Users who wish to use the Giatec Cloud will be required to accept the standard terms of service for the Giatec Cloud. Giatec shall have no obligation to make the Giatec Cloud available to End Users who have not agreed to the standard terms of service for the Giatec Cloud.
(d) Data Ownership; Data License. Except for the calibration Data provided by You in respect of Your Products, Giatec will own all Data uploaded or transmitted to the Giatec Cloud or the Giatec App, as well as any data that is derived from such Data. Giatec may use the Data for statistics and internal analytics and will make certain End User-related Data about Your End Users’ Smart Concrete™ Products available to You via the Giatec Cloud for Your internal business purposes, and not for re-sale or distribution to third parties. 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 transmitted to the Giatec Cloud by You and Your Affiliates for the purpose of: (i) providing the capabilities provided by the Giatec Solution, and (ii) creating anonymized, aggregate statistics in respect of use of the Giatec Solution, Smart Concrete™ Sensors and other End User parameters, for internal analytics purposes, product and service improvement and marketing purposes. For greater certainty, any Data used for marketing purposes will not identify You unless Giatec has first obtained Your prior written consent. The license granted by You in this Section 2(d) shall survive termination or expiration of these Terms for any reason.
(e) Trademark License. Subject the terms and conditions of these Terms, including, without limitation, the timely payment of the fees set forth in the Quote and Your Order(s), Giatec hereby grants You during the Term, a non-exclusive, non-sublicensable, non-assignable, non-transferrable, revocable, royalty-free right to use and display the Giatec trademarks “Giatec™” “Smart™” and “Smart Concrete™” in connection with the sale, marketing and distribution of the Giatec Solution to End Users, including the sale of any Smart Concrete™ Sensors in combination with Your Products, provided that any such trademark use conforms to the Giatec trademark guidelines set forth in Schedule B, attached to these Terms. You shall reasonably cooperate with Giatec in facilitating its monitoring and control of the nature and quality of Your use of the Giatec Marks. All uses of the Giatec Marks by You and Your Affiliates will inure to the benefit of Giatec
(f) Documentation License. Subject the terms and conditions of these Terms, including, without limitation, the timely payment of the fees set forth in the Quote and Your Order(s), Giatec hereby grants You a non-exclusive, worldwide, royalty-free, paid-up license to use, reproduce, publicly display, import, disclose, distribute, and prepare compilations of the Documentation and compilations based upon the Documentation for use in conjunction with the support and distribution of the Giatec Solution. The right to prepare compilations is granted solely for the purposes of combining Documentation with Your Product documentation, condensing and/or translating the Documentation, and formatting and preparing Documentation for user accessibility. The foregoing rights are exercisable in any medium to the extent necessary to allow You to distribute Documentation (including as included in Your Product documentation) to End Users. The rights granted to You under this Section 2(f) also include the right to grant End Users perpetual licenses to copy and use Documentation in conjunction with their use of Smart Concrete™ Products that have been sold to them.
(g) Your Trademark License Grant. Giatec shall include Your name and logo in the Giatec App such that End Users using the Giatec App can select You as End Users’ provider from among Giatec’s list of concrete suppliers in the Giatec App, and the Giatec App will become branded using the Your logo, branding and colours. Accordingly, You hereby grant to Giatec a non-exclusive, non-transferrable (except in connection with the permitted assignment of these Terms), worldwide, royalty free license to copy, reproduce, reformat, display and distribute Your logos and branding to include Your logos and branding in the Giatec App, website and marketing materials. You shall upload to the Giatec Cloud the logos and branding You wish to have included in the Giatec App, website and marketing materials, and such logos and branding will then be displayed in the Giatec App, website and marketing materials.
(h) Restrictions. You shall not, and shall not permit any person to (i) copy, modify, adapt, alter, amend, reverse engineer, decompile, disassemble or decode all or any part of any of the Giatec Solution (including the Documentation, the Giatec App, the Giatec Cloud and the Giatec Smart Concrete™ Sensors); (ii) use the Data, Confidential Information or Giatec Solution to create a product that is similar to and/or competitive with any of the Giatec Solution (including Documentation, the Giatec App and the Giatec Smart Concrete™ Sensors); or (iii) remove, delete or in any manner alter Giatec trademarks or other proprietary notices or intellectual property notices from the Giatec Solution, including the Giatec App.
(i) Reservation of Rights. Except for the rights and licenses granted in these Terms, You acknowledge and agree that Giatec and/or its licensors own and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and all other intellectual property rights) in and to the Giatec Solution and any other materials provided or made available by Giatec. Giatec grants You no further licenses of any kind hereunder, whether by implication, estoppel or otherwise. You acknowledge that only Giatec shall have the right to maintain, enhance or otherwise modify the Giatec App.
(j) Updates and Upgrades. Giatec shall deliver to You all Updates and Upgrades of the Giatec App and the Giatec Cloud in accordance with the procedures set forth in Section 3(b). For greater certainty, the licenses set forth in these Terms in respect of the Giatec App and the Giatec Cloud shall apply equally to all Updates and Upgrades.
(a) Order Acknowledgment; Product Delivery. An Order will be deemed to have been placed on the date it is received by Giatec. Giatec shall promptly confirm the receipt of an Order either electronically or by facsimile transmission within five (5) days of its receipt by Giatec. Upon receiving an Order from You, Giatec will invoice You for one hundred percent (100%) of total purchase price for the Smart Concrete™ Sensors ordered by You in such Order. For an Order for two hundred (200) Smart Concrete™ Sensors or less, such Order will ship within two (2) weeks after Giatec’s acknowledgement of such Order subject to You having paid one hundred percent (100%) of total purchase price for the Smart Concrete™ Sensors ordered by You in such Order. For an Order for more than two hundred (200) Smart Concrete™ Sensors, a Lead Time of one (1) month shall apply and such Order will ship in accordance with such Lead Time subject to You having paid one hundred percent (100%) of total purchase price for the Smart Concrete™ Sensors ordered by You in such Order. For the purposes of these Terms, “Lead Time” means the time between the date an Order is acknowledged as having been received by Giatec and the scheduled delivery date for the Smart Concrete™ Sensors covered by such Order. Orders cannot be cancelled once placed, and Smart Concrete™ Sensors covered by an Order may only be returned if such return is permitted pursuant to the Giatec warranty set forth in Section 7.
(b) Giatec App Delivery; Giatec Cloud Access. In addition to the deliveries anticipated in Section 3(a) Giatec shall make available for download an iOS and Android compatible version of the Giatec App on Apple App Store and Google Play Store. Giatec shall also provide You with login information to enable You to access the Giatec Cloud.
(c) Shipping Costs; Risk and Title. You shall be responsible for all shipping costs, handling costs, service costs, insurance costs, and delivery charges for all deliveries of the Giatec Solution to You. The risk of loss of or damage to the units of the Giatec Solution ordered by You shall transfer to You upon delivery of such units the carrier designated by You. Title to the units of the Giatec Solution ordered by You shall pass to You upon delivery of such units to the carrier designated by You.
4. PRICE AND PAYMENT
(a) Fees and Payment. You shall pay Giatec the fees set forth in the Quote and in each Order for the Giatec Solution submitted by You to Giatec and delivered by Giatec to You or an End User facility. The annual licensing fees for the Giatec Solution shall be due and payable in full at the start of each year of the Initial Term and subsequently at the start of each Renewal Term.
(b) Taxes. All fees in the Quote and each Order exclude taxes (including any applicable federal, state, provincial, use, value-added, goods and services, harmonized and local taxes) and customs duties. You shall pay to Giatec the amount of all such taxes (excluding taxes based on Giatec’s net income) and customs duties and Giatec shall itemize all taxes and duties as separate line items on each invoice.
(c) No Refunds. The annual licensing fee specified in the Quote are non-refundable and the fees for any purchased units of the Giatec Smart Concrete™ Sensors are also non-refundable and the Giatec Smart Concrete™ Sensors are non-returnable, except to the extent permitted under the Giatec warranty set forth in Section 7.
(d) Minimum Sales Targets. You hereby agree to purchase the minimum number of Giatec Smart Concrete™ Sensor units specified in the Quote (the “Minimum Sensor Order”). Giatec will invoice You for the Minimum Sensor Order at the start of each year of the Initial Term and automatically at the start of each subsequent Renewal Term. The Minimum Sensor Order(s) will be delivered by Giatec to You in accordance with Section 3(a). Additional Giatec Smart Concrete™ Sensor units may be procured by You from Giatec by submitting an Order to Giatec. Giatec will deliver these Orders in accordance with Subsection 3(a), above.
5. MAINTENANCE AND SUPPORT; TRAINING
(a) Support. The Support responsibilities of the Parties for sales of the Giatec Solution to Your and Your Affiliates’ End Users shall be as set forth in Schedule A. Giatec shall continue to provide warranty support for Giatec Smart Concrete™ Sensor units resold by You or Your Affiliates for the entire warranty period for such units.
(b) Training. Giatec shall provide You with one (1) day of on-site training for Your staff, to be conducted at Your premises in as specified in the Quote. Such initial training shall be provided by Giatec to You at no charge. Additional training can be purchased by the You at the rates set forth in the Quote.
(a) Confidential Information. During the Term, each Party may provide the other with Confidential Information. For the purposes of these Terms, “Confidential Information” is any information disclosed in written, graphic, verbal, or machine-recognizable form, that is marked, designated, labeled or identified at the time of disclosure as being confidential or its equivalent; or if in verbal form, that a reasonable business person would consider to be confidential in the circumstances, including without limitation, trade secrets, customer lists, marketing plans, product plans and roadmaps, Data, technical information, financial information, pricing, and all other information and materials of a non-public nature. Notwithstanding any other provisions of these Terms, Confidential Information shall not include any information that: (i) is or becomes publicly known through no wrongful act of the receiving Party; (ii) is already known to the receiving Party without restriction when it is disclosed; (iii) is received by the receiving Party from a third party without any obligations of confidentiality, provided that such third party is not in breach of any obligations of confidentiality to the disclosing Party; (iv) is independently developed by the receiving Party without breach of these Terms; or (v) is expressly approved for release by written authorization of the disclosing Party. The obligations of confidence set forth in these Terms shall extend to any Affiliates that have received Confidential Information of the other Party and shall also cover Confidential Information disclosed by any Affiliates.
(b) Obligations. 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 Terms, and shall not disclose any such Confidential Information to any third party except as expressly permitted hereunder or make any unauthorized use thereof. Each Party shall treat such Confidential Information with the same degree of care against disclosure or unauthorized use that 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 confidential legends or markings placed upon any documents or other materials provided by the other Party. Each Party shall be entitled to provide Confidential Information to contractors of that Party that have agreed to confidentiality obligations at least as protective as those contained in these Terms. Confidential Information is and shall at all times remain the property of the disclosing Party, and no grant of any proprietary rights in the Confidential Information is hereby given or intended, including any express or implied license, other than the limited right of the recipient to use the Confidential Information in the manner and to the extent contemplated by these Terms.
(c) Compelled Disclosure. If the receiving Party is compelled pursuant to legal, judicial, or administrative proceedings, or otherwise required by law, to disclose Confidential Information of the disclosing Party, the receiving Party shall use reasonable efforts to (i) seek confidential treatment for such Confidential Information, or (ii) provide prior written notice to the disclosing Party to allow the disclosing Party to seek protective or other court orders.
(a) General Warranty. Giatec warrants that each Smart Concrete™ Sensor shall materially conform to its Documentation and shall be free from defects in materials and workmanship for a period of twelve (12) months from the date of delivery to You or one of Your Affiliates or an applicable End User as requested by You or one of Your Affiliates. Claims for Smart Concrete™ Sensors not complying with this warranty shall be submitted by You to Giatec, and non-compliant Smart Concrete™ Sensors for which a warranty claim is being made must be returned to Giatec (unless they have been embedded in a Smart Concrete™ Product), no later than thirty (30) days from the date when the non-compliance is discovered. For greater certainty, and as further described in the Documentation, End Users are required to “tag” the Smart Concrete™ Sensors prior to combining such Smart Concrete™ Sensors with Your Products and will be notified at that time if the Smart Concrete™ Sensors are non-compliant. If any Smart Concrete™ Sensors are non-compliant, as Your exclusive remedy Giatec shall replace, at its expense, non-complying Smart Concrete™ Sensors. If any Smart Concrete™ Sensors become non-compliant with their applicable warranty after being installed by an End User, Giatec will send such End User new Smart Concrete™ Sensors equal to the number of non-compliant Smart Concrete™ Sensors free of charge; however, You understand and agree that any Smart Concrete™ Sensors cannot be removed, repaired or replaced once embedded in a Smart Concrete™ Product. The shipment of non-compliant Smart Concrete ™ Sensors by You to Giatec, and the return shipment of repaired or replaced Smart Concrete ™ Sensors by Giatec to You under this Section 7(a) shall be at Giatec’s expense, unless it is determined that You returned a Smart Concrete ™ Sensor that was in compliance with its applicable warranty or was used by You or the applicable End User in a manner and/or in an environment that did not conform to the Documentation, in which case such shipment costs shall be borne by You and, if paid by Giatec, these costs shall be reimbursed by You to Giatec within thirty (30) days of notice from Giatec. Giatec also warrants that all Smart Concrete ™ Sensors purchased by You and delivered by Giatec pursuant to these Terms shall be new and shall be free and clear of all liens and encumbrances.
The warranty for Smart Concrete ™ Sensors does not apply to: (a) cosmetic damage, including, but not limited to minor scratches, peeling labels, minor dents that do not affect the functionality of the Smart Concrete™ Sensors; (b) damage caused by accident, abuse, misuse, neglect or failure to properly maintain (including, but not limited to, water damage and/or condensation or improper temperatures during storage), improper installation, or not following the instructions in the Giatec App or Documentation; (c) to damage caused by electrical disturbances or acts of God, to include but not limited to civil disturbance, earthquakes, natural disasters, war, flood, fire, rodents or insects; (d) where Giatec’s serial numbers and security labels have been removed from the Smart Concrete ™ Sensor; and (e) to damage caused during shipment (due to You, Your Affiliates’ or an End User’s improper packaging) from You, Your Affiliates or an End User to Giatec.
(d) NO OTHER WARRANTIES. GIATEC DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST HIDDEN OR LATENT DEFECTS. GIATEC’S RESPONSIBILITY FOR WARRANTY CLAIMS IS LIMITED TO REPAIR OR REPLACEMENT.
GIATEC DOES NOT WARRANT THAT THE OPERATION OF THE GIATEC SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE. GIATEC IS NOT RESPONSIBLE FOR DAMAGE ARISING FROM FAILURE TO FOLLOW INSTRUCTIONS RELATING TO THE GIATEC SOLUTIONS’ USE. THE WARRANTY PROVIDED IN THIS SECTION 7 IS VOIDED IMMEDIATELY IF REPAIR, MODIFICATION (TO INCLUDE UPGRADES, EXPANSIONS OR USAGE OR ADDITION OF NON-MANUFACTURER PARTS OR ACCESSORIES), ALTERATION OR OTHER SERVICE IS ATTEMPTED OTHER THAN BY GIATEC. IN THIS REGARD, THE INTEGRITY OF THE SMART CONCRETE™ SENSOR CASING SHOULD NOT BE VIOLATED FOR ANY REASON, UNLESS EXPRESSLY AUTHORIZED BY GIATEC IN WRITING.
THE GIATEC APP 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 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. GIATEC DOES NOT WARRANT THAT THE OPERATION OF THE GIATEC APP WILL BE UNINTERRUPTED OR ERROR FREE. YOU ARE SOLELY RESPONSIBLE FOR PROVIDING ACCURATE AND UP TO DATE CALIBRATION DATA.
GIATEC EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY INJURY, HARM, LOSS, DAMAGE OR ANY OTHER CLAIM ARISING IN CONNECTION WITH ANY INACCURACIES, ERRORS, OMISSIONS OR OTHER COMPROMISE OF ANY CALIBRATION DATA SUPPLIED TO THE GIATEC CLOUD BY YOU OR YOUR AFFILIATES, FOR ANY DEFECT OR MALFUNCTION OR OTHER ISSUE ARISING IN CONNECTION WITH YOUR PRODUCTS, FOR ANY INJURY, LOSS, DAMAGE OR OTHER CLAIM ARISING AS A RESULT OF AN END USER’S USE OF THE GIATEC SOLUTION OTHER THAN IN ACCORDANCE WITH THE DOCUMENTATION, AS WELL AS ANY INJURY, HARM, LOSS, DAMAGE, OR ANY OTHER CLAIM ARISING AS A RESULT OF YOUR OR YOUR AFFILAITES’ FAILURE TO KEEP CALIBRATION DATA UP-TO-DATE.
YOU UNDERSTAND AND AGREE THAT THE GIATEC SOLUTION IS PARTIALLY A CLOUD-BASED SOLUTION, AND THAT GIATEC’S STORAGE OF YOUR AND END USERS’ INFORMATION WILL INVOLVE TRANSMISSION OF SUCH DATA OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT WHILE GIATEC USES COMMERCIALLY REASONABLE SECURITY MEASURES TO PROTECT YOUR INFORMATION, SUCH INFORMATION MAY BE ACCESSED BY UNAUTHORIZED PERSONS WHEN COMMUNICATED ACROSS THE INTERNET, NETWORK COMMUNICATIONS FACILITIES, TELEPHONE OR OTHER ELECTRONIC MEANS. GIATEC IS NOT RESPONSIBLE FOR ANY OF YOUR OR ANY END USERS’ INFORMATION WHICH IS DELAYED, LOST, ALTERED, INTERCEPTED OR STORED DURING THE TRANSMISSION OF ANY DATA WHATSOEVER ACROSS PUBLIC NETWORKS NOT OWNED OR OPERATED BY GIATEC. YOU ACKNOWLEDGE AND AGREE THAT GIATEC IS NOT IN ANY WAY RESPONSIBLE FOR ANY INTERFERENCE WITH YOUR USE OF OR ACCESS TO THE GIATEC CLOUD OR SECURITY BREACHES ARISING FROM OR ATTRIBUTABLE TO THE INTERNET AND YOU WAIVE ANY AND ALL CLAIMS AGAINST GIATEC IN CONNECTION THEREWITH.
(a) Giatec Indemnification. Giatec shall defend You including Your Affiliates, officers, employees and subcontractors (collectively, the “OEM Indemnitees”) from and against any action, suit or proceeding by a third party alleging that the Giatec Solution or any use, distribution, sale, resale thereof or any exercise of any other right(s) granted in these Terms in respect to the Giatec Solution infringes upon or misappropriates any Intellectual Property right(s) of such third party except to the extent that such action, suit or proceeding is based on any logos or branding provided by You to Giatec (an “IP Claim”) and Giatec shall indemnify and hold the OEM Indemnitees harmless from and against any settlement amounts agreed in writing by Giatec in respect to any IP Claim and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against any of the OEM Indemnitees by a court of competent jurisdiction in any such IP Claim. As conditions for such defense and indemnification by Giatec, (i) You shall notify Giatec promptly in writing upon becoming aware of all pending IP Claims; (ii) the OEM Indemnitees shall give Giatec sole control of the defense and settlement of such IP Claims; (iii) the OEM Indemnitees shall cooperate fully with Giatec in the defense or settlement of such IP Claims; and (iv) the OEM Indemnitees shall not settle any IP Claims without Giatec’s written consent, or compromise the defense of any such IP Claims or make any admissions in respect to any IP Claims.
(b) Exclusion. Giatec shall have no liability under this Section 8 if the alleged infringement or misappropriation arises because of (i) any modification of the Giatec App or any Smart Concrete™ Sensor by anyone other than Giatec; (ii) the use of the Smart Concrete™ Sensor, the Giatec Cloud or the Giatec App in combination with other goods, products or services, where the claim of infringement or misappropriation would not have been made but for such combination; or (iii) any use, sale or other exercise of any rights in respect to the Giatec Solution other than as explicitly permitted by these Terms.
(c) Mitigation. If (a) Giatec becomes aware of an actual or potential IP Claim, or (b) You provide Giatec with notice of an actual or potential IP Claim, Giatec may (or in the case of an injunction against You, shall), at Giatec’s sole option and determination: (I) procure for You the right to continue to use the Giatec Solution and resell the Smart Concrete™ Sensors; or (II) replace or modify the Giatec Solution with equivalent or better functionality so that Your use and resale is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate these Terms and refund to You any pre-paid fees for any periods after the termination of these Terms and any fees paid by You for any the Smart Concrete™ Sensors still in your inventory, in each case less any outstanding moneys owed by You to Giatec.
(d) Your Indemnification. You shall defend Giatec including its Affiliates, its officers, employees and subcontractors (collectively, the “Giatec Indemnitees”) against any action, suit or proceeding by a third party (including End Users) arising in connection with (i) any bodily injury, damage to real or personal property arising in connection with Your Products and/or the calibration Data provided to the Giatec Solution, including Your or Your Affiliates’ failure to provide accurate, up-to-date calibration Data on an on-going basis, or to adhere to the ASTM C1074 Standards (except to the extent that such damage is caused by the Giatec Solution or the negligence or willful misconduct of End Users or End Users’ failure to properly install the Smart Concrete™ Sensors in Your Products, including failure to follow ASTM C1074 Standards); (ii) Your negligence or willful misconduct; (iii) any errors, omissions, inaccuracies or other claims arising in connection with the calibration Data provided by You to the Giatec Cloud; (iii) any claims that the trademarks, logos, or branding provided by You infringe third party rights; (iv) any defects, malfunctions or product liability claims arising in connection with Your Products; (v) any breach of contract in any agreement between You and any End User; (vi) any representation or warranties made by You or Your Affiliates that extends, expands or modifies the representations and warranties made by Giatec in these Terms in respect to the Giatec Solution (collectively, the matters contemplated in items (i) to (vi) hereinafter referred to as “OEM Claims”) and You shall indemnify and hold the Giatec Indemnitees harmless from and against any settlement amounts agreed by You in writing in respect to any OEM Claim and/or any losses, damages, expenses, or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against any of the Giatec Indemnitees by a court of competent jurisdiction in any such OEM Claim. As conditions for such defense and indemnification by You, (i) Giatec shall notify You promptly in writing upon becoming aware of all pending OEM Claims; (ii) the Giatec Indemnitees shall give You sole control of the defense and settlement of such OEM Claims; (iii) the Giatec Indemnitees shall cooperate fully with You in the defense or settlement of such OEM Claims; and (iv) the Giatec Indemnitees shall not settle any OEM Claims without Your written consent, or compromise the defense of any such OEM Claims or make any admissions in respect to any OEM Claims.
9. LIMITATION OF LIABILITY
(a) GIATEC SHALL HAVE NO LIABILITY WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH OR RELATED TO THESE TERMS OR THE RIGHTS PROVIDED PURSUANT TO THESE TERMS FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, RELIANCE, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST REVENUES, PROFITS, OR SAVINGS, LOSS OF BUSINESS, USE, OR LOST DATA, LOST OPPORTUNITY COSTS, LOST TIME OR GOODWILL), OR ANY DEFECT, MALFUNCTION OR PRODUCT LIABILITY ISSUES ARISING IN CONNECTION WITH YOUR PRODUCTS, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY.
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING OR ANYTHING ELSE IN THIS AGREEMENT, GIATEC’S ENTIRE AGREGGATE LIABILITY TO YOU (INCLUDING ALL CLAIMS BY END USERS, DISTRIBUTORS, RESELLERS, CUSTOMERS, END USERS, AFFILIATES AND OTHER THIRD PARTIES) SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED THE AMOUNTS RECEIVED FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.
(c) THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY IS A REASONABLE ALLOCATION OF RISK AND REFLECTS THE PRICING OFFERED TO YOU, AND IS ACCORDINGLY AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES. IF ANY LIMITATION OF LIABILITY UNDER THESE TERMS IS FOUND TO BE UNENFORCEABLE, IT SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
(d) Every right, exemption from liability, release, indemnity, defence, immunity and/or waiver of whatsoever nature applicable to Giatec under this Agreement shall also be available and shall extend to benefit and to protect Giatec’s officers, directors and employees and for such purposes Giatec is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such persons to the extent such exemptions, releases, indemnities, defences, immunities and waivers apply to such persons.
10. TERM AND TERMINATION
(a) Term. These Terms shall commence as of the Effective Date and shall continue in effect for the Initial Term and thereafter, subject to the continuing payment of all applicable fees, these Terms shall be automatically renewed annually on the anniversary of the Effective Date for additional one (1) year renewal terms (any such subsequent renewal terms referred to in these Terms as a “Renewal Term”), unless either Party gives written notice of non-renewal to the other Party at least sixty (60) days prior to the end of the Initial Term or any Renewal Term hereof. Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term”.
(b) Termination. A Party may terminate these Terms by giving a written notice to the other Party: (i) if the other Party commits a material breach of these Terms and fails to remedy same within thirty (30) days after delivery of written notice by the non-breaching Party of the occurrence or existence of such breach or such longer period as may be agreed to in writing by the non-breaching Party; (ii) if the other Party applies for or consents to the appointment of a receiver, trustee, or liquidator for substantially all of its assets or such a receiver, trustee, or liquidator is appointed; or such Party has filed against it an involuntary petition of bankruptcy that has not been dismissed within thirty (30) days thereof, or files a voluntary petition of bankruptcy, or a petition or answer seeking reorganization, or an arrangement with creditors, or seeks to take advantage of any other law relating to relief of debtors.
(c) Survival. The rights and obligations of the Parties under Sections 1 (Definitions), Section 2(d) (Data Ownership; Data License), Section 2(i) (Reservation of Rights), 6 (Confidentiality), 7 (Warranties), 8 (Indemnification), 9 (Limitation of Liability), 10(c) (Survival), 10(d) (Confidential Information) and 12 (Miscellaneous) of these Terms shall survive the termination or expiration of these Terms. All rights and licenses properly granted to End Users prior to the termination or expiration of these Terms shall continue in full force and effect after such termination or expiration in accordance with their applicable terms. If You have any inventory of Smart Concrete™ Sensors remaining after termination or expiration of these Terms, You may resell such existing inventory and all of the licenses and rights in these Terms that are necessary to permit the resale of such inventory shall survive until such inventory has been resold by You. Termination shall not relieve either Party of any obligations incurred prior to the termination or expiration of the Term.
(d) Confidential Information. Upon termination or expiration of these Terms, each Party at its own expense shall, upon request by the other Party, promptly destroy or return to such other Party all tangible material embodying any Confidential Information of such other Party that has been provided hereunder, together with all copies or other tangible embodiments made thereof by or for such Party. You shall not be obliged to return any Confidential Information that is required for the ongoing support by You of End Users the Giatec Solution.
(a) Nature of Obligations Between Parties. The obligations of each Party under these Terms shall be in every case several and shall not be, or be construed to be, either joint or joint and several. Nothing contained in these Terms shall be deemed to constitute either Party or any of its representatives the partner, agent, franchisee or legal representative of the other Party or to create any fiduciary relationship for any purpose whatsoever. Except as otherwise specifically provided in these Terms, nothing in these Terms shall confer on either Party or any of its representatives any authority to act for, bind, or create or assume any obligations or responsibility on behalf of the other Party.
(b) Notices. In any case where any notice or other communication is required or permitted to be given pursuant to these Terms, such notice or communication shall be in writing and (a) personally delivered, (b) sent by international air courier service with confirmation of delivery requested, or (c) transmitted by fax as follows:
If to You: to the address as specified in the Quote.
If to Giatec: Giatec Scientific Inc.
245 Menten Place, Suite 300
Ottawa, Ontario, Canada
Attention: Aali R. Alizadeh
All such notices or other communications shall be deemed to have been given and received (i) upon receipt if personally delivered, (ii) when delivery is confirmed if sent by international air courier service, or (iii) the following business day if by fax.
(c) Choice of Law. These Terms and the rights and obligations of the Parties under these Terms shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein without reference to any provisions on conflict of laws. No choice of laws rules of any jurisdiction shall apply to these Terms.
(d) Currency. All dollar amounts in these Terms are in the currency specified in the Quote. If no currency is specified in the Quote then the currency for these Terms and the Quote shall be United States dollars.
(e) Force Majeure. Neither Party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including, but not limited to, acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents or strikes, provided that such Party gives the other Party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
(f) Severability. Whenever possible, each provision of these Terms shall be interpreted in such manner as to be effective and valid under applicable law. If the application of any provision of these Terms to any particular facts or circumstances is held to be invalid or unenforceable by an arbitrator or court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of these Terms shall not in any way be affected or impaired thereby, and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the Parties and shall be reformed without further action by the Parties to the extent necessary to make such provision valid and enforceable.
(g) Amendments; Waivers. These Terms may be amended, and the taking of any action required under these Terms may be waived, by the written consent of each Party at the time such amendment or waiver is sought. No such waiver shall operate as a waiver of, or estoppel with respect to, any other action. No failure to exercise, and no delay in exercising, any right, remedy, or power hereunder shall operate as a waiver thereof, nor shall single or partial exercise of any right, remedy, or power under these Terms preclude any other or further exercise thereof or the exercise of any other right, remedy, or power provided in these Terms or by law or at equity. The waiver of the time for performance of any act or condition hereunder does not constitute a waiver of the act or condition itself.
(h) Successors; Assignment. Each Party agrees that it shall not (and neither Party has any right to) assign, sell, transfer, or otherwise dispose of, whether voluntarily, involuntarily, by operation of law, or otherwise, these Terms or any right or obligation under these Terms without the prior written consent of the other Party. Any purported assignment, sale, transfer, or other disposition in violation of this Section 12(h) (Successors; Assignment) shall be null and void. Notwithstanding the foregoing, Giatec may, without Your consent, assign these Terms (including the Quote and all Orders under these Terms) (i) to one of its Affiliates, or (ii) as part of a sale, merger, or other transfer of all or substantially all the assets, stock or business of Giatec to which these Terms relate. Subject to the foregoing limits on assignment, these Terms shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
(i) Interpretation. In these Terms, the words “including”, “include” and “includes” shall each be deemed to be followed by the term “without limitation”. The word “will” shall be interpreted to express a mandatory obligation on a Party. The word “may” shall be interpreted to express a discretionary obligation on a Party. Any agreement or schedule referred to herein means such agreement or schedule as amended, supplemented and modified from time to time to the extent permitted by the applicable provisions thereof and by these Terms. References to any statute or regulation means such statute or regulation as amended at the time and includes any successor statute or regulation. Unless otherwise stated, references to recitals, articles, sections, paragraphs, schedules and exhibits shall be references to recitals, articles, sections, paragraphs, schedules and exhibits of these Terms. The Parties agree that these Terms shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either Party and that ambiguities shall not be interpreted against the Party that drafted the relevant language.
(j) Export Laws. You agree to comply fully with all relevant current and future export laws and regulations of Canada and the United States and/or any other country ("Export Laws") including, without limitation, to ensure that neither the Giatec Solution, whether alone or as part of Your Products, nor any direct product thereof are (i) exported, directly or indirectly, in violation of Export Laws; or (ii) intended to be used for any purposes prohibited by the Export Laws, including, without limitation, nuclear, chemical or biological weapons proliferation. You are solely responsible for fulfilling any applicable governmental requirements in connection with any use, disclosure and/or transport of the Giatec Solution either alone or in combination with Your Products.
(k) Entire Agreement. These Terms, together with the Quote, the schedules to these Terms and any Orders under these Terms, which are hereby incorporated herein by reference, constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all previous communications, agreements, and understandings between the Parties relating to the subject matter hereof. Neither Party has entered into these Terms in reliance upon any representation, warranty, condition or undertaking of the other Party that is not set out or referred to in these Terms.
During the Term, Giatec shall provide technical support to You for the Giatec Solution pursuant to the additional terms and conditions set forth below.
1.1 Technical support
Giatec will, during its regular business hours (9:00 a.m. – 5:00 p.m. Eastern Time, Monday to Friday, except statutory holidays), provide e-mail support at [email protected] Response will be provided within two (2) business days of receipt by Giatec of a question or fault report.
1.2 Telephone support
Giatec will also, during its regular business hours (9:00 a.m. – 5:00 p.m. Eastern Time, Monday to Friday, except statutory holidays), provide telephone support by contacting 613-240-7451.
1.3 Support fees
Included in the annual licensing fee for the Term.
If You purchase additional training, upon request Giatec will provide additional training via videoconference.
2. Your Responsibilities and Undertakings.
In order to enable Giatec to diagnose faults, You shall, as far as possible, supply documentation and other relevant information on faults You report. You shall appoint a contact who shall be responsible for handling all interactions with You.
3. Limitations on Support
3.1 Support Obligation for the Giatec App and the Giatec Cloud.
Giatec is only obliged to provide support to the latest version of the Giatec App and the Giatec Cloud, and only for the Term. If You terminate these Terms, Giatec will cease all support, maintenance and updates for the Giatec Solution.
Support shall not include the diagnosis and rectification of any fault resulting from or in respect to:
a) The use of the Giatec Solution for a purpose for which it was not licensed;
b) Rectification of lost or corrupted Data arising for any reason other than a Giatec Solution fault;
c) Loss or damage caused directly or indirectly by Your error(s) or omission(s);
d) Network or other hardware infrastructure that may be used in or in connection with the provision of the Giatec Solution;
e) Any software or other applications that were not developed by Giatec.
“Smart Concrete™” is a trademark of Giatec Scientific Inc.
I. Conform to Trademark Usage Requirements. When using the trademarks in logotype, always use the trademarks in the form of the specification sheets provided by Giatec Scientific Inc.
II. Use Proper Trademark Notices. In advertising, brochures and other collateral materials, the first time or the most prominent time the trademark appears, it should have a ™ behind it (or the designation ® if the mark is registered in the applicable jurisdiction), and an asterisk that refers to the bottom of the page or brochure, where the following should appear in clear and easily readable type:
* “Smart Concrete™” and related logos are trademarks of Giatec.”
Use of the ® symbol when the mark is registered in the applicable country is important because it may determine the remedies the mark owner can recover when the mark is infringed. However, the ® symbol should not be used unless the mark is in fact registered in the applicable country. Use of the ® for an unregistered mark is generally forbidden by law and could bar Giatec from obtaining registration of the mark. It could also impair Giatec’s ability to sue infringers of the mark. Accordingly, you must be certain that the mark is registered in the applicable country before using the ® symbol. Giatec will notify You if any Trademark is registered in any country in the Territory.
III. Use as an Adjective. When using the trademarks in text, do not use the trademarks as a noun; always use them as an adjective followed by the generic name of the product. So the correct usage in text would be: Smart Concrete™ Sensors. If the trademark is used in text, it should stand out in the text. The generic designation behind it should be in lower case.
IV. Other Rules.
• Be consistent in the use of the mark and conform to the specifications.
• Always spell the mark correctly if it is a word and reproduce it faithfully and accurately if it is a design or symbol. Avoid any variations. Do not add features or graphic elements.
• Watch for all incidents of improper usage of any Giatec trademarks and report them to Giatec.
GIATEC 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.
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 , Google Play 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: [email protected]