Please read these Giatec Hardware Product Terms and Conditions of Sale (“Sale Terms”) before using any Giatec Scientific Inc. (“Giatec”) hardware product (a “Product”) and related licensed software. By submitting an order, You, the purchaser of the Product, and, if applicable, any end user (“End User”) on whose behalf You are making a purchase (You and the End User are hereinafter collectively referred to as “Customer”; and Customer and Giatec are hereafter together referred to individually as a “Party” and collectively as the “Parties”) agree to be bound by and accept the terms and conditions of these Sale Terms. If You and/or the End User, as the case may be, disagree with these Sale Terms, do not submit an order. You represent and warrant that You have the necessary authority to bind all of Your End Users to these Sale Terms.
1. Definitions. The following terms shall have the following meanings:
1.1 “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;
1.2 “Calibration Data” means concrete maturity calibration data created for the purposes of specifying a relationship between maturity and strength for a specific mix;
1.3 “Giatec App” means the iOS and/or Android mobile Giatec applications developed by Giatec and used in connection with certain Giatec sensor products and the Giatec SaaS Service to facilitate the monitoring of certain Giatec sensor products and the extraction of data from certain Giatec sensor products;
1.4 “Giatec SaaS Service” means Giatec’s web-based server and cloud dashboard offering which may be made available on a subscription-basis, which allows purchasers of Giatec sensor products to store the data produced by such sensor products and to conduct various analytics on such data;
1.5 “Giatec SmartRock™ Plus App” means a version of the Giatec App that is used as part of the Giatec “SmartRock™ Plus” solution;
1.6 “Service Data” means all data uploaded or transmitted to the Giatec SaaS Service by Customer or on Customer’s behalf, including data from any Giatec sensors deployed by Customer or on Customer’s 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 Customer uploads to the Giatec SaaS Service;
1.7 “SmartRock™ Plus Product” means concrete that combines a concrete provider’s ready-mix product with SmartRock™ Plus Sensors that have been embedded in such ready-mix product to allow purchasers of such ready-mix product to obtain real-time data using the Giatec SmartRock™ Plus App and the Giatec SaaS Service about the strength of such ready-mix product; and
1.8 “SmartRock™ Plus Sensor” means a wireless sensor developed by Giatec that can be used to monitor the temperature of fresh and hardened concrete.
2. Ordering and Quotes. Specific quantities of Product(s) may be ordered by Customer by submitting orders to 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.
3. Acceptance of Orders. An order shall be deemed to have been placed by Customer as of the date of receipt of such order by Giatec. If Customer submits an order, such order shall not be binding on Giatec and no obligation to supply Product(s) shall be imposed on Giatec until it is accepted by Giatec in writing. Giatec will use commercially reasonable efforts to respond to each order submitted by Customer within five (5) business days following receipt thereof; if Giatec does not respond in writing within such time, then such order shall be deemed to have been rejected in writing by Giatec. Giatec shall not be obliged to fulfill accepted purchase orders for Product(s) if Customer is in default of any of Customer’s obligations under these Sale Terms and Giatec shall have the right, without limitation, to withhold shipment or to stop shipments of Product(s). Customer may not cancel an order once it has been accepted by Giatec.
4. Payment; Purchase Price and Associated Charges. Payment must be made at the time Customer submits Customer’s order unless otherwise agreed by Giatec in writing. Giatec is under no obligation to extend credit arrangements to Customer. Customer will pay the total purchase price for each order plus shipping and handling, if any, as specified in the emailed invoice. Customer is also responsible for all taxes related to any purchase and for any duties or other fees for the import of the Product(s), if applicable, including but not limited to all sales taxes, value-added taxes, import taxes/customs/duties, and any other similar taxes or fees imposed by any governmental entity. For Canadian sales, Giatec will invoice Customer for the applicable sales-related taxes and subject to Customer’s payment of such taxes will submit such amounts to the applicable Canadian taxation authority. For non-Canadian sales, Customer 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. If Giatec has extended credit to Customer and if any payment, or any other sum due to Giatec under these Sale Terms becomes past due for more than thirty (30) days, Giatec may charge Customer a late payment charge of one percent (1%) per month (12.67% annually) or the maximum rate legally permitted, whichever is less, commencing from the date the payment first became overdue.
5. Price Changes. Giatec may change, in its sole discretion, any pricing set forth in its price lists at any time. If Giatec increases the price of a Product, all orders for such Product accepted prior to the effective date of the price increase shall be invoiced at the previous price. Giatec may discontinue offering any Product at any time.
6. Title; Risk of Loss. Title to ordered Product(s) (other than any software and/or firmware embodied therein) passes to Customer when these Product(s) are provided by Giatec to the common carrier selected to ship the Product(s) to Customer. However, Giatec bears all responsibility for loss of or damage to purchased Product(s) during initial shipment after purchase and until such Product(s) are received by Customer, unless Customer selects its own mode of shipping. For Product(s) being returned for repair, risk of loss is borne by Customer for return shipment of the Product to Giatec and by Giatec following repair and upon shipment to Customer.
7. Limited Warranty. Giatec warrants purchased Product(s) against defects in materials and workmanship under normal use (the “Warranty”) for a period of twelve (12) months from the Delivery Date (the “Warranty Period”) subject to the condition that Customer has completely paid for the applicable Product(s). Giatec does not warrant that the operation of the Product(s) will be uninterrupted or error-free. Unless otherwise required by applicable law, the Warranty Period does not restart if Customer receives a replacement Product pursuant to the Warranty. The Warranty does not apply to: (a) consumable parts, such as batteries, Plexiglas cell units and cables unless the relevant damage has occurred due to a defect in materials or workmanship; (b) cosmetic damage, including scratches, dents and broken plastic on ports; (c) damage caused by accident, abuse, misuse, neglect or failure to properly maintain (including water damage and/or condensation or improper temperatures during storage), or improper installation or use or any attempted repair or modification by anyone other than Giatec; (d) damage caused by electrical disturbances or acts of God (including, civil disturbance, war, terrorism, flood, fire, rodents or insects); (e) situations where manufacturer’s serial numbers and/or security labels have been removed from applicable Product(s); and (f) damage caused during shipment (due to Customer’s improper packaging) from Customer to Giatec in the case of Product returns for repair.
Except for the Warranty, Giatec disclaims all other representations, warranties and conditions, express or implied, including any implied warranties and/or conditions of merchantability, merchantable quality, non-infringement, fitness for a particular purpose, or against hidden or latent defects. Giatec’s responsibility for claims in respect to the operation of purchased Product(s) is limited to the repair or replacement of Product(s) under the Warranty that are within their applicable Warranty Period.
8. Technical Support. Giatec will provide technical support to Customer in accordance with Giatec’s then-current support policy and in accordance with the Warranty set forth in these Sale Terms, unless full payment for the applicable Product(s) has been received. Giatec will respond to Customer support problems by phone or by email. If a support problem cannot be rectified via phone or email, Customer will be provided with return instructions for the affected Product.
9. Data Ownership. Except for Calibration Data submitted by Customer to the Giatec SaaS Service, Giatec shall own all right, title and interest (including all intellectual property rights) in and to the Service Data. If any rights in any Service Data initially vest in Customer, Customer hereby assigns, transfers and conveys to Giatec all of Customer’s right, title and interest (including all intellectual property rights) in and to such Service Data. Giatec will be entitled to make Service Data available to third parties in Giatec’s discretion if such Service Data does not identify Customer and cannot be traced back to Customer. Notwithstanding the foregoing, Customer acknowledges and agrees that when Customer uses the Giatec SmartRock™ Plus App, Service Data that can be traced back to Customer will be provided to the ready-mix concrete supplier who sold Customer the corresponding SmartRock™ Plus Product. Customer hereby grants to Giatec a non-exclusive, non-transferrable, worldwide, royalty-free, fully paid up, perpetual, irrevocable license to access and use the Calibration Data that Customer uploads to the Giatec SaaS Service for the purpose of allowing Giatec to provide the Giatec SaaS Service and to create anonymized, aggregate statistics using such Calibration Data (such anonymized, aggregate statistics hereinafter referred to as the “Service Data Analytics”). For greater certainty, Giatec shall own all right, title and interest (including all intellectual property rights) in and to the Service Data Analytics and shall be entitled to use the Service Data Analytics without any requirement for Customer’s permission provided that the Service Data Analytics do not identify Customer and cannot be traced back to Customer. If any rights in any Service Data Analytics initially vest in Customer, Customer hereby assigns, transfers and conveys to Giatec all of Customer’s right, title and interest (including all intellectual property rights) in and to such Service Data Analytics.
10. Suggestions. If You provide Giatec with any suggestions, comments or other feedback relating to any aspect of the Products, the Giatec 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 Products, the Giatec SaaS Service, the Giatec App(s) or any other Giatec products or services.
11. Repair. If a Product is damaged or defective upon initial delivery to Customer (the date of delivery is hereinafter referred to as the “Delivery Date”), Customer must notify Giatec technical support within thirty (30) days of the Delivery Date to receive a replacement for such Product. Upon receipt of timely notification about any Product that was damaged or defective upon initial delivery to Customer, Giatec will provide return instructions, if required. Product(s) that were damaged or defective upon initial delivery to Customer, must then be returned to Giatec as soon as reasonably practicable for repair or replacement in Giatec’s discretion. Giatec may arrange for the delivery of temporary or permanent replacement Product(s) for Product(s) that were damaged or defective upon initial delivery. If a Product is damaged or defective upon initial delivery to Customer, Giatec may in its discretion provide a refund for the affected Product(s) instead of repairing or replacing the affected Product.
If during the Warranty Period, but, following the initial thirty (30) day period, a Product fails to comply with the Warranty, Customer must contact Giatec technical support to confirm the Warranty non-compliance and to obtain return instructions if needed. Customer shall be responsible for properly packing return shipments of all Product(s) to Giatec (for whatever reason) and for shipping and insurance costs for such return shipments. If a Product is returned for repair or replacement at any time following purchase by Customer and Giatec discovers that the Warranty is inapplicable due to a Warranty exclusion, the Product will not be repaired and will be returned to Customer at Customer’s expense, unless Customer authorizes and pays for the applicable repair. Whether Customer authorizes a repair or not, Giatec reserves the right to charge a “No Fault Found” fee if a Product is found not to be defective.
Any Giatec reseller or distributor involved in the purchase of a Product is not authorized to make any modification, extension, or addition to the Warranty provided by Giatec pursuant to these Sale Terms, although any such reseller or distributor may provide its own warranty in addition to the Warranty provided by Giatec.
12. Limitation of Liability. NEITHER GIATEC NOR ITS LICENSORS, RESELLERS, DEALERS OR SUPPLIERS SHALL HAVE ANY LIABILITY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR ANY OTHER SIMILAR DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF GIATEC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. GIATEC IS ALSO NOT RESPONSIBLE FOR CLAIMS BY A THIRD PARTY. THE PRODUCT(S) ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS PRODUCTS FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE IN WHICH THE FAILURE OF THE PRODUCT(S) COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. GIATEC’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER, AND THAT OF GIATEC’S LICENSORS, DEALERS. RESELLERS AND SUPPLIERS SHALL NOT EXCEED THE PRICE PAID FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM. THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR A FUNDAMENTAL BREACH.
13. 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 or an End User’s products and/or the Calibration Data provided by You or an End User or on Your or an End User’s behalf to the Giatec SaaS Service, including Your or an End User’s failure to provide accurate, up-to-date Calibration Data on an on-going basis, or to adhere to the ASTM C1074 Standard; (ii) Your or an End User’s negligence or willful misconduct; (iii) any errors, omissions, inaccuracies or other claims arising in connection with the Calibration Data provided by You or an End User or on Your or an End User’s behalf to the Giatec SaaS Service; (iv) any claims that the trademarks, logos, or branding provided by You or an End User to Giatec infringe third party rights; (v) any defects, malfunctions or product liability claims arising in connection with Your or an End User’s products; (vi) any breach of contract in any agreement between You and any End User; (vii) any representation or warranties made by You that extend, expand or modify the representations and warranties made by Giatec in these Sale Terms in respect to the Products; and/or (viii) any breach by Customer of these Sale Terms.
14. Software Licenses. Any software or firmware that is embodied in or provided with any Product(s) purchased by a Customer is licensed pursuant to the terms and conditions of the Giatec EULA, a copy of which may be found at https://www.giatecscientific.com/end-user-license-agreement/ and which EULA is hereby incorporated by reference into these Sale Terms. No rights are granted to Customer pursuant to these Sale Terms for the Giatec SaaS Service. Customer shall not reproduce, modify, reverse engineer, decompile, disassemble, or create derivative works based upon any software and/or firmware furnished with any of the Product(s).
15. General. These Sale Terms (including the EULA as incorporated into these Sale Terms) are the entire agreement between Customer and Giatec in respect to the purchase by Customer of any Product(s) from Giatec. These Sales Terms may not be changed except by a written agreement with Giatec. Customer may not assign Customer’s rights and/or obligations under these Sale Terms without Giatec’s prior written consent. Giatec may assign Giatec’s rights and/or obligations under these Sale Terms at any time without notice. If any provision of these Sale 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 Sale Terms by Customer does not constitute a waiver and shall not limit Giatec’s rights with respect to such breach or any subsequent breaches. The Product(s) and related information are subject to the export and import laws and regulations of Canada and the United States and Customer 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 Sale 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 Sale Terms. Customer consents and attorns to the exclusive jurisdiction of the Ontario courts and waives trial by jury. If any provision of these Sale Terms is found to be illegal, invalid or unenforceable, such provision shall be deemed severed and the remainder of these Sale Terms shall continue in full force and effect. Customer shall comply with all applicable laws as they relate to these Sale Terms and Customer’s use of the Product(s). The provisions of these Sale Terms which, by their terms, require performance after the termination of these Sale Terms (which shall include all licenses granted to Giatec pursuant to these Sale Terms), or have application to events that may occur after the termination of these Sale Terms, shall survive the termination or expiration of these Sale Terms.
Last Updated: August 7, 2019.