Giatec | Terms and Conditions

TERMS AND CONDITIONS OF SALE

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 Your order.

Definitions.  As used in the Sales Terms, the following terms shall have the following meanings:

“Affiliate” of Giatec means any corporation or other entity that Giatec directly or indirectly controls, is controlled by, or is under common control with. In this context, Giatec “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;

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

“Giatec App” means the iOS and/or Android mobile Giatec applications developed by Giatec and used in connection with certain Giatec 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;

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

“Giatec Smart Concrete App” means a version of the Giatec App that is used as part of the Giatec “Smart Concrete” solution;

“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;

“Smart Concrete™ Product” means concrete that combines a concrete provider’s ready-mix product with Smart Concrete™ 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 Smart Concrete App and the Giatec SaaS Service about the strength of such ready-mix product; and

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

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.  The issuance of a quote by Giatec does not guarantee the availability of any Product(s) listed in such quote irrespective of any expiration date that may be indicated in such quote.  Customer acknowledges and agrees that the Product(s) may not be in stock or available at the time Customer submit an order.  Giatec shall only be obliged to deliver Product(s) specified in any quote after having accepted an order submitted by Customer for such Product(s) and provided Customer with notice of such acceptance.

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 only be obliged to fulfill accepted purchase orders for Product(s) if Customer is not in default of any of Customer’s obligations under these Sale Terms, including, without limitation, payment obligations and Giatec shall have the right, without limitation, to withhold shipment or to stop shipments that are in the possession of a carrier or any other person.  Customer may not cancel an order once it has been accepted by Giatec.

Payment; Purchase Price and Associated Charges.  Payment must be made at the time Customer submit Customer’s order unless otherwise agreed by Giatec. 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 on the emailed invoice. Customer is also responsible for all taxes related to any purchase and 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 imposed by any governmental entity.  If Giatec has extended credit to Customer and if any payment, or any other sum due to Giatec under these 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.

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.  If Giatec reduces the price of a Product, Giatec will offer such reduced pricing on any purchase orders Customer has placed with Giatec for such Product, but which have not yet been shipped at the time of publication of such reduced price.  Giatec may discontinue offering any Product at any time.

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 paid for in full. 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.

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).  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 but not limited to scratches, dents and broken plastic on ports; (c) 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), or improper installation; (d) damage caused by electrical disturbances or acts of God (including, but not limited to, civil disturbance, war, terrorism, flood, fire, rodents or insects); (e) situations where manufacturer’s serial numbers and 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 without limitation 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.  Subject to applicable law, Giatec shall have the right to modify the Warranty at any time, at its sole discretion upon written notice to Customer.

Giatec does not warrant that the operation of the Product(s) will be uninterrupted or error-free.  Giatec is not responsible for damage arising from failure to follow instructions relating to a Product’s use.  The Warranty is voided immediately if repair, modification (including, but not limited to, upgrades, expansions or the use 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 Product casing should not be violated for any reason, unless expressly authorized by Giatec in writing.

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 (as such Warranty may have been modified by Giatec as permitted 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 inquiry. If a support problem cannot be rectified via phone or email, Customer will be provided with return instructions for the affected Product.

Customer agrees and understands that it may be necessary for Giatec to collect, process, and use Calibration Data submitted by Customer to Giatec in order to perform the support and repair obligations specified in these Sale Terms. In performing its support and repair obligations pursuant to these Sale Terms, Giatec may transfer Calibration Data to third parties that are contracted with Giatec to assist Giatec in meeting these obligations.  In doing so, Giatec will (i) impose reasonable confidentiality obligations on the use of Calibration Data; and (ii) not provide any Calibration Data to any third parties other than for the reasons set forth above.

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 assign, transfer and convey to Giatec all of Customer’s right, title and interest (including all intellectual property rights) in and to such Service Data.  Giatec shall be entitled to use the Service Data as Giatec may elect in its discretion, including to generate statistics and analytics. 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, You acknowledge and agree that when You use the Giatec Smart Concrete App, Service Data that can be traced back to You will be provided to the ready-mix concrete supplier who sold you the corresponding Smart Concrete 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 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 assign, transfer and convey to Giatec all of Customer’s right, title and interest (including all intellectual property rights) in and to such Service Data Analytics.  The license granted by Customer in this Section shall survive termination or expiration of these Sale Terms for any reason.

Suggestions.  If You provide Giatec with any suggestions, comments or other feedback relating to any aspect of 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, sublicensable, irrevocable, perpetual, unrestricted license to fully exploit such Feedback, including, within the Giatec SaaS Service, the Giatec App(s) or any other Giatec products or services.

Repair.  Customer should carefully inspect each Product upon its delivery. Customer should maintain all original packaging upon receiving a Product until such Product has been installed and is found to be in proper working order.

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.  Customer is responsible for properly packing return shipments of Product(s) to Giatec and for shipping and insurance costs for such return shipments.

If Customer fails to notify Giatec within thirty (30) days of the Delivery Date about any Product received by Customer that is damaged or defective upon initial delivery to Customer, then (i) the Refund Policy below will not apply, and (ii) Customer will bear the cost of returning the Product for repair.

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 Product(s) to Giatec 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.

Refund Policy and Product Return.  On a case-by-case basis, Giatec reserves the right to authorize a full refund of any Product purchase made where a refund is requested within thirty (30) days of the Delivery Date.  In cases where a refund is approved by Giatec, End User will return the affected Product(s) to Giatec if the End User made such order itself. If the Product was ordered by a distributor or reseller, such distributor or reseller will coordinate with Giatec for the return of the Product. In either case, Customer is responsible for shipping and insurance charges and any damage to the Product which takes place while being shipped to Giatec.  Giatec reserves the right to charge a re-stock fee for any such returns.

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.

Not For Resale. The Product(s) may not be purchased for resale purposes by Customer unless Customer is an authorized reseller of Giatec Product(s).

Indemnification. You shall defend Giatec including its Affiliates and its and their 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 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; (iii) any claims that the trademarks, logos, or branding provided by You or an End User to Giatec infringe third party rights; (iv) any defects, malfunctions or product liability claims arising in connection with Your or an End User’s products; (v) any breach of contract in any agreement between You and any End User; (vi) 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 (collectively, the matters contemplated in items (i) to (vi) hereinafter referred to as “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 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 Claim. As conditions for such defense and indemnification by You, (i) Giatec shall notify You promptly in writing upon becoming aware of all pending Claims; (ii) the Giatec Indemnitees shall give You sole control of the defense and settlement of such Claims; (iii) the Giatec Indemnitees shall cooperate fully with You in the defense or settlement of such Claims; and (iv) the Giatec Indemnitees shall not settle any Claims without Your written consent, or compromise the defense of any such Claims or make any admissions in respect to any Claims.

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

High-Risk Uses. Customer will not purchase Product(s) for use in connection with any high risk or strict liability activity (including, without limitation, air travel, space travel, firefighting, police operations, vehicle operations, power plant operations or power generation applications, transport management systems, military operations, rescue operations, hospital and medical operations or the like) where such use could cause or contribute to damage to property or injury to or death of persons.

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 on the same webpage that contains these Sale Terms 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).

Product Disposal/Recycling. Giatec is unable to dispose of or recycle Product(s) following use.  End Users may dispose of or recycle Product(s) or arrange for the same through the Giatec distributor or reseller from which the applicable Product(s) were purchased.  Any disposal or recycling of Product(s) must be done in accordance with all applicable laws.

Export. The Product(s) and related information are subject to export and import restrictions. By purchasing the Product(s), Customer is representing and warranting that Customer not located in, under the control of, nor is a national or resident of, any country to which the export of the Product(s) and/or related information would be prohibited by the laws and/or regulations of Canada and/or the United States. Customer is also representing and warranting that Customer is not an individual to whom the export of the Product(s) or related information would be prohibited by the laws and/or regulations of Canada or the United States. Customer shall comply with the export laws and regulations of Canada and the United States that are applicable to the Product(s) and related information and Customer shall comply with any local laws and/or regulations in Customer’s jurisdiction that may impact Customer’s right to export, import, or use the Product(s) or related information, and Customer represents and warrants that Customer has complied with any such applicable laws and/or regulations. The Program(s) 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. Customer shall be responsible for procuring all required permissions for any subsequent export, import, or use of the Product(s) or related information.

Entire Agreement. These Sale Terms (including the EULA as incorporated into these Sale Terms) constitute the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior offers, agreements, arrangements, negotiations and understanding, written or oral between the Parties relating to that subject matter.  These Sale Terms cannot be modified or amended except by a written agreement signed by an authorized officer of Giatec.

Severability; Assignment. 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 or others does not constitute a waiver and shall not limit Giatec's rights with respect to such breach or any subsequent breaches. Giatec expressly reserves the right to assign these Sale Terms and to delegate any of its obligations under these Sale Terms. Customer may not assign, delegate or otherwise transfer (whether by operation of law or otherwise) these Sale Terms or any of Customer’s rights or obligations pursuant to these Sale Terms without the prior written consent of Giatec. Giatec may assign the provision of repair services to third parties.

Governing Law. These Sale Terms shall be governed by the laws of the Province of Ontario, Canada and the laws of Canada applicable therein, excluding conflicts of law and choice of law principles and the United Nations Convention on Contracts for the International Sale of Goods, and any legislation implementing such Convention. Customer consents and attorns to the exclusive jurisdiction of the Ontario courts and waives trial by jury, except to the extent a waiver of a jury trial is not permitted by applicable law.  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 agrees to comply with all applicable laws as they relate to these Sale Terms and Customer’s use of the Product(s).

Any non-English language translation of these Sale Terms is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of these Sale Terms shall govern.

Last Updated: May 6, 2019.

END USER LICENSE AGREEMENT

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

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

THIS EULA MAY BE AMENDED OR UPDATED BY GIATEC FROM TIME TO TIME AND MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THE GIATEC WEBSITE OR YOUR LAST USE OF THE LICENSED PROGRAM(S). IT IS YOUR RESPONSIBILITY TO REVIEW THIS EULA FOR ANY CHANGES. YOUR USE OF THE LICENSED PROGRAM(S) AFTER ANY AMENDMENTS OR UPDATES OF THIS EULA SHALL SIGNIFY YOUR ASSENT TO AND ACCEPTANCE OF THE REVISED EULA. ANY NEW FEATURES THAT MAY BE ADDED TO THE LICENSED PROGRAM(S) FROM TIME TO TIME WILL BE SUBJECT TO THIS EULA, UNLESS STATED OTHERWISE. YOU SHOULD VISIT THIS WEBPAGE PERIODICALLY TO REVIEW THIS EULA.

  1. Definitions. For the purposes of this EULA, in addition to the capitalized terms defined elsewhere in this EULA, the following terms shall have the meanings ascribed to them as follows:

“Affiliate” of Giatec means any corporation or other legal entity that Giatec directly or indirectly controls, is controlled by, or is under common control with. In this context, Giatec “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;

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

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

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

“Giatec Smart Concrete App” means a version of the Giatec App that is used as part of the Giatec “Smart Concrete” solution;

“Licensed Program(s)” mean (i) Giatec software (whether embedded in a Giatec product or provided as a separate component that operates with a Giatec product); (ii) a Giatec App; (iii) firmware that operates within Giatec products; and (iv) any accompanying documentation;

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

 “Smart Concrete™ Product” means concrete that combines a concrete provider’s ready-mix product with Smart Concrete™ 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 Smart Concrete App and the Giatec SaaS Service about the strength of such ready-mix product; and

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

  1. Service Terms. The data and reports made available by Giatec sensors to the Licensed Program(s) are intended to report and provide insights on concrete quality for Your internal use and You accept full responsibility for the use of such data and reports. You acknowledge and agree that access to the Licensed Program(s) and Giatec services is provided on the condition that Giatec is not providing any professional advice or recommending any actions based on the data made available by the Giatec sensors. Giatec does not guarantee or warrant the accuracy, reliability, completeness or currency of the data or reports made available by Giatec to You or the usefulness of such reports or data in achieving any of Your purpose(s). Accordingly, the Licensed Program(s) and all of the data and reports made available by the Giatec products and/or services are provided “as is”, without representations, warranties or conditions of any kind, express or implied, including, but not limited to any representations, warranties and/or conditions of performance, merchantability, merchantable quality, non-infringement or fitness for a particular purpose. In no event will Giatec, or its partners, suppliers, licensors, directors, officers, employees or agents, be liable to You 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 the Licensed Program(s) and/or any data or reports generated by the Giatec products and/or services (including the Giatec SaaS Service), any decision made or action taken in reliance on the use of the Licensed Program(s) and/or any data or reports generated by the Giatec products and/or services (including the Giatec SaaS Service).
  1. License Terms.

3.1 License Grant. Subject to the terms of this EULA, Giatec grants to You a license as follows:

a. Firmware and Embedded Software. If You are the lawful possessor of Giatec hardware product(s), Giatec grants You a non-exclusive, non-transferable license to run the Licensed Program(s) embedded in such Giatec hardware product(s) together with and any updated versions of such Licensed Program(s) downloaded by You (subject to You being entitled to receive such updated versions pursuant to Your support arrangement in respect to the Licensed Program(s) and payment of any additional fees for any new features that Giatec may charge separately for in such new versions) only on and as incorporated in such hardware product(s).

b. Standalone Components. For Licensed Program(s) provided as a standalone component (including the Giatec App(s) but excluding the Giatec SaaS Service), Giatec grants You a non-exclusive, non-transferable license to use such Licensed Program(s) on a single computer, device or system for Your internal use and You may not distribute such Licensed Program(s) to any third party.

c. Backup/Archival Copies. You may also: (i) make one (1) copy of the Licensed Program(s) for backup or archival purposes, as long as You reproduce in full all copyright and other proprietary or intellectual property notices pertaining to the Licensed Program(s) that appear in the Licensed Program(s) and provided the Licensed Program(s) are only used for the foregoing purposes; and (ii) store or install a copy of the Licensed Program(s) on a storage device, such as a network server, used only to install or run the Licensed Program(s) on Your other devices, computers over an internal network, provided that You must acquire and dedicate a license for each separate computer on which the Licensed Program(s) are installed or run from a storage device. All other rights are specifically reserved to Giatec and its licensors and no implied license are granted pursuant to this EULA.

d. Giatec SaaS Service. No rights are granted to You pursuant to this EULA for the Giatec SaaS Service.

3.2 New Releases.  This EULA does not automatically grant You the right to any updates or enhancements of any Licensed Program(s) or the right to receive any technical support in respect to the Licensed Program(s). Such updates, enhancements and other technical support services, if available, may be purchased separately from Giatec. Giatec reserves the right at any time to not release or to discontinue the release of any Licensed Program(s) and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Licensed Program(s). If Giatec releases any updates, upgrades or new versions of any Licensed Program(s) or supplemental code or supporting materials for any Licensed Program(s) (“Additional Licensed Program Releases”), then You shall be entitled to use such Additional Licensed Program Releases if You have a separate maintenance and support agreement with Giatec that permits You to receive such Additional Licensed Program Releases.  All Additional Licensed Program Releases that You are entitled to receive pursuant to any separate maintenance and support agreement in respect to the Licensed Program(s) shall be considered part of the Licensed Program(s) and subject to the terms and conditions of this EULA along with any additional terms and conditions that accompany the Additional Licensed Program Releases.

3.3 Restrictions.  YOU MAY NOT (i) use the Licensed Program(s) or make copies of the Licensed Program(s) except as permitted in this EULA; (ii) translate, reverse engineer, decompile, or disassemble the Licensed Program(s) except to the extent applicable law expressly prohibits the foregoing restriction, and, 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 software and You agree to provide Giatec with written notice of this activity; (iii) rent, lease, assign, or transfer the Licensed Program(s) or make the Licensed Program(s) available as a service bureau or any other service offering (and in respect of Licensed Program(s) that are firmware/embedded software, You shall not rent, lease, assign or transfer such firmware or embedded software to any third party except as incorporated in the Giatec product with which it is provided, and then not for value); (iv) modify any Licensed Program(s), create derivative works of any Licensed Program(s) or merge all or any part of any Licensed Program(s) with other software; or (iv) separate the component parts of any Licensed Program(s) for use on more than one computer.

3.4 Security.  Information sent or received over the Internet is generally unsecure and Giatec cannot and does not make any representation or provide any warranty or condition concerning the security of any communication to or from the Giatec SaaS Service or any representation, warranty or condition regarding the interception by third parties of personal or other information that is transmitted over the Internet. You are responsible for safeguarding the password You use to access the Licensed Program(s) and/or any related services (including the Giatec SaaS Service) 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 the requirements in this Section.

  1. App Providers. If You obtain the Licensed Program(s) through the Apple AppStore, GooglePlay or another approved site operated by a third party (an “App Provider”), You acknowledge that the App Provider has no obligation to furnish any maintenance or support services with respect to the Licensed Program(s). In the event of any failure of the Licensed Program(s) 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(s) 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(s). 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 the Licensed Program(s) must be directed to Giatec (see Section 12 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(s) or Your possession and use of the Licensed Program(s), including, but not limited to: (i) product liability claims; (ii) any claim that the Licensed Program(s) fail 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(s) or Your possession and use of that Licensed Program(s) infringe that third party’s intellectual property rights, as between the App Provider and Giatec, Giatec will be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this EULA. You should promptly inform Giatec of any claim in respect to the Licensed Program(s) that comes to Your attention.

The App Provider, and its subsidiaries, are third-party beneficiaries of this EULA, and upon Your acceptance of this EULA, the App Provider will have the right (and will be deemed to have accepted the right) to enforce this EULA as related to Your exploitation of the Licensed Program(s) against You as a third-party beneficiary of this EULA. If You are using any of the cloud-related capabilities of any Giatec products, You must also comply with the terms of service for the Giatec SaaS Service and all applicable third-party terms of service when using the Licensed Program(s).

  1. Fees. In consideration of the grant of the rights granted in this EULA, You agree to pay the applicable Licensed Program(s) license fees.
  1. Term and Termination.

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

6.2 Effects of Termination. 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 EULA and will remain in full force and effect even after termination.  The following Sections shall survive any expiration or termination of this EULA: 1, 3.3, 4, 5, 6.2, 7, 8, 9, 10 and 11.

  1. No Warranty; Limitations of Liability; Indemnification.

7.1 THE LICENSED PROGRAM(S) ARE 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 LICENSED PROGRAM(S) WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE LICENSED PROGRAM(S) AND YOU ARE SOLELY RESPONSIBLE FOR THE ADEQUATE PROTECTION AND BACKUP OF THE DATA AND EQUIPMENT USED IN CONNECTION WITH THE LICENSED PROGRAM(S).

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

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

7.4 Indemnification. You shall defend Giatec including its Affiliates and its and their officers, employees and subcontractors (collectively, the “Giatec Indemnitees”) against any action, suit or proceeding by a third party arising in connection with (i) any bodily injury, damage to real or personal property arising in connection with Your products and/or any Calibration Data provided by or on Your behalf to the Giatec SaaS Service, including Your failure to provide accurate, up-to-date Calibration Data on an on-going basis, or to adhere to the ASTM C1074 Standard; (ii) Your negligence or willful misconduct; (iii) any errors, omissions, inaccuracies or other claims arising in connection with Calibration Data provided by You or on Your behalf to the Giatec SaaS Service; and (iv) any defects, malfunctions or product liability claims arising in connection with Your products (collectively, the matters contemplated in items (i) to (iv) hereinafter referred to as “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 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 Claim. As conditions for such defense and indemnification by You, (i) Giatec shall notify You promptly in writing upon becoming aware of all pending Claims; (ii) the Giatec Indemnitees shall give You sole control of the defense and settlement of such Claims; (iii) the Giatec Indemnitees shall cooperate fully with You in the defense or settlement of such Claims; and (iv) the Giatec Indemnitees shall not settle any Claims without Your written consent, or compromise the defense of any such Claims or make any admissions in respect to any Claims.

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

  1. Ownership, Title and Feedback.

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

8.2 Giatec IP. The Licensed Program(s), including all copies, and all copyrights and all other intellectual property and/or proprietary rights, title and interest subsisting in or related to the Licensed Program(s), shall at all times remain the property of Giatec or its licensors, as the case may be. You must reproduce any copyright or other intellectual property and/or proprietary rights notices on the Licensed Program(s) in their entirety in all copies of the Licensed Program(s). Giatec and its licensors reserve all rights not expressly granted to You. If You provide Giatec with any suggestions, comments or other feedback relating to any aspect of the Licensed Program(s), Giatec products or services (including the Giatec SaaS Services) ("Feedback"), You grant Giatec a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to fully exploit such Feedback, including, within the Licensed Program(s), Giatec products or services (including the Giatec SaaS Services) and/or any other products or services.

  1. U.S. Government End-Users. The Licensed Program(s) are each a "commercial item" as that term is defined at FAR 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are defined in FAR 12.212, and are provided to the U.S. Government only as commercial end items. Government end users acquire the rights set out in this EULA for the Licensed Program(s) consistent with: (i) for acquisition by or on behalf of civilian agencies, the terms set forth in FAR 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, the terms set forth in DFARS 227.7202. Use of the Licensed Program(s) is further restricted by the terms and conditions of this EULA. For the purposes of any applicable government use, the Licensed Program(s) were developed exclusively at private expense and are a trade secret of Giatec Scientific Inc. for the purpose of any Freedom of Information legislation or any other disclosure statute, regulation or provision.
  1. Export Restrictions. The Licensed Program(s) and related information are subject to export and import restrictions. By downloading, installing, or using the Licensed Program(s), 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(s) 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(s) 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(s) 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(s) or related information, and You represent and warrant that You have complied with any such applicable laws and/or regulations. The Licensed Program(s) 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(s) or related information.
  1. General. This EULA is the entire agreement between Giatec and You concerning the subject matter hereof and supersedes all other EULAs, discussions and negotiations, whether oral or written. This EULA cannot be modified or amended except by a written agreement signed by an authorized officer of Giatec. This EULA shall be governed by the laws of the Province of Ontario, Canada and the laws of Canada applicable therein, excluding conflicts of law and choice of law principles and the United Nations Convention on Contracts for the International Sale of Goods, and any legislation implementing such Convention. You consent and attorn to the exclusive jurisdiction of the Ontario courts and waive trial by jury, except to the extent a waiver of a jury trial is not permitted by applicable law. If any provision of this EULA is found to be illegal, invalid or unenforceable, such provision shall be deemed severed and the remainder of this EULA shall continue in full force and effect. You agree to comply with all applicable laws as they relate to this EULA and Your use of the Licensed Program(s).
  1. Contact. If You have any questions about this EULA please contact Giatec at: www.giatec.ca.

Last Updated: May 6, 2019

SaaS Service Terms and Conditions

PLEASE READ THESE SAAS SERVICE TERMS AND CONDITIONS (THESE “SAAS TERMS” or “SaaS Terms”) BEFORE PROCURING THE SAAS SERVICE (AS HEREINAFTER DEFINED).

GIATEC SCIENTIFIC INC. (“GIATEC”) OWNS AND OPERATES SAAS SERVICE FOR THE STORAGE AND ANALYSIS OF DATA COLLECTED THROUGH GIATEC SENSOR PRODUCTS AS FURTHER DESCRIBED IN THESE SAAS TERMS UNDER SPECIFIC SUBSCRIPTION PLANS OFFERED BY GIATEC FROM TIME TO TIME. THE SAAS SERVICE IS PROVIDED BY GIATEC THROUGH THE WEBSITE AT WWW.GIATECSCIENTIFIC.COM (THE “WEBSITE” or “Website”).  BY USING THE SAAS SERVICE YOU INDICATE YOUR ACCEPTANCE OF THESE SAAS TERMS.  IF YOU DO NOT ACCEPT THESE SAAS TERMS, THEN DO NOT USE THE SAAS SERVICE.

IF YOU ARE AGREEING TO THESE SAAS TERMS ON BEHALF OF AN ENTITY OR ORGANIZATION, YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE ALL NECESSARY PERMISSIONS AND AUTHORITY TO AGREE TO THESE SAAS TERMS AND TO BIND SUCH ENTITY OR ORGANIZATION TO THESE SAAS TERMS.

IN ORDER TO USE THE SAAS SERVICE, YOU WILL BE REQUIRED TO PROVIDE CERTAIN INFORMATION, INCLUDING PERSONAL INFORMATION. ALL PERSONAL INFORMATION YOU PROVIDE TO GIATEC IN RESPECT TO OR USING THE SAAS SERVICE WILL BE TREATED IN ACCORDANCE WITH THE GIATEC PRIVACY POLICY, THE TERMS OF WHICH ARE INCORPORATED BY REFERENCE INTO THESE SAAS TERMS

  1. DEFINITIONS

1.1 Defined Terms.  For the purposes of these SaaS Terms, the following terms shall have the following meanings:

“Affiliate” of Giatec means any corporation or other entity that Giatec directly or indirectly controls, is controlled by, or is under common control with. In this context, Giatec “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;

“Calibration Data” means concrete maturity calibration data that is uploaded to the SaaS Service for the purposes of specifying a relationship between maturity and strength for a specific concrete mix.

“Confidential Information” means any business, marketing, technical, scientific or other information disclosed by either party which, at the time of disclosure is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by the parties, exercising reasonable business judgment, to be confidential;

“Documentation” means “how to” user guides and reference materials on the Website or within the SaaS Service that describe the capabilities and operational features of the SaaS Service;

“Fees” means the applicable subscription fees payable by Customer to Giatec for the right to access and use the SaaS Service, as further described in the Documentation, and in accordance with the SaaS Service subscription purchased by You;

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

“Giatec Smart Concrete App” means a version of the Giatec App that is used as part of the Giatec “Smart Concrete” 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;

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;

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

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

“Smart Concrete™ Product” means concrete that combines a concrete provider’s ready-mix product with Smart Concrete™ 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 Smart Concrete App and the SaaS Service about the strength of such ready-mix product; and

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

“Term” has the meaning ascribed to that term in Section 6.1.

  1. LICENSE TERMS

2.1 Creating an Account. You must create an account through the Website in order to use the SaaS Service. To create an account, You will be asked to provide certain basic information in order to purchase a subscription for and to use the SaaS Service. This information may include Your company name, address, main contact person including that person’s business telephone number, email address and credit card details. All financial information is held by Giatec's payment processor and Giatec will process Your personal information in accordance with the terms of the Giatec Privacy Policy. Customer is responsible for all activities that occur in Customer’s accounts and for maintaining the security and confidentiality of any login details for such accounts. When creating an account, You will be required to select and subscribe to a subscription plan which may include different options for different features and capabilities of the SaaS Service. Certain optional features of the SaaS Service may require implementation and set-up and further information about such implementation and set-up may be obtained by contacting Giatec. Customer shall notify Giatec as soon as reasonably practicable if Customer becomes aware of, or suspects that there has been, any unauthorized access to any of Customer’s SaaS Service accounts.

2.2 Trial License.  You may use certain features and capabilities in the SaaS Service on a trial basis for the trial evaluation period indicated at the time You select a trial subscription plan. For greater certainty, trials are at the discretion of Giatec and Giatec reserves the right to cancel or terminate a trial subscription immediately at any time on provision of notice to You.  If You select a trial subscription plan, subject to the terms and conditions of these SaaS Terms, Giatec hereby grants to You a non-exclusive, non-transferable, royalty-free, revocable, internal license, during the trial evaluation period, to access and use the SaaS Service for evaluation purposes only. Giatec may in its discretion provide You with email support requested by You for the trial evaluation period in connection with Your access and use of the SaaS Service.

2.3 Commercial License.  If You select a commercial subscription plan, subject to the terms and conditions of these SaaS Terms, including payment of the applicable Fees, Giatec hereby grants to You a non-exclusive, non-transferable, revocable, internal license to access and use the SaaS Service during subscription term(s) for which You have paid the applicable Fees. You shall be entitled to use the features and capabilities specified in the subscription plan selected, purchased and paid for by You. On creation of Your account, You will be able to create Your own login details enabling direct access to the SaaS Service.

2.4 License Restrictions. Permission to access and use the SaaS Service is licensed, not sold. You shall use the SaaS Service solely as contemplated in these SaaS Terms and shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise make the SaaS Service available to any third party. You shall not: (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the SaaS Service except to the extent expressly agreed upon in writing by Giatec; (b) circumvent any user limits or other access or use restrictions that are built into the SaaS Service; or (c) access the SaaS Service in order to (i) build a competitive product or service; or (ii) copy any ideas, features, functions or graphics of the SaaS Service.

2.5 Restrictions on Use of the SaaS Service. You shall not: (a) use, or permit the use of, the SaaS Service for an illegal purpose or infringing purpose or in a manner that would cause interference with network operations; (b) resell, remarket, transfer or share the SaaS Service or receive any payment or other benefit for the use of the SaaS Service; or (c) remove any proprietary notices, labels, or marks from the SaaS Service or modify, alter or deface any of the trademarks, service marks or other Intellectual Property made available through the SaaS Service nor use any of the foregoing except for the specific purpose for which such Intellectual Property is made available to You.

2.6 Lawful purposes. You shall comply with all laws, regulations and policies that may apply to Your use of the SaaS Service in Your country. In this respect, You may not, without limitation: (i) use the SaaS Service to manage any illegal operations; (ii) upload any Malicious Code to the SaaS Service; or (iii) disrupt any part of any system or Internet connection of Giatec or any third party through Your use of the SaaS Service.

2.7 Third Party Software. The technology underlying the SaaS Service may incorporate and embed software and other technology owned and controlled by third parties. Any such third-party software or technology that is incorporated in the SaaS Service falls under the scope of these SaaS Terms. Such third-party software is licensed; not sold and will be provided to You on the license terms of these SaaS Terms unless additional or separate license terms apply as indicated at the time of account access.

  1. SAAS SERVICE TERMS

3.1 Provision of SaaS Service. Subject to the terms and conditions of these SaaS Terms and payment of the Fees, Giatec shall use commercially reasonable efforts to make the SaaS Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime (for which Giatec shall give at least eight (8) hours’ notice via the SaaS Service and which Giatec shall schedule to the extent reasonably practicable outside of business hours (Eastern Time)); or (b) any unavailability caused by circumstances beyond Giatec’s reasonable control, including without limitation, acts of God, acts of government, floods, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Giatec’s 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 and any unavailability caused by a force majeure event (as contemplated in Section 11.1).

3.2 General SaaS Service Warranties. Giatec represents and warrants that during Customer’s subscription term(s): (i) the SaaS Service shall perform materially in accordance with the Documentation; and (ii) the SaaS Service will not contain or transmit to Customer any Malicious Code (except for any Malicious Code contained in Customer-uploaded materials or otherwise originating from Customer). For greater certainty, Giatec does not warrant that Customer’s use of the SaaS Service will be error-free or uninterrupted.

3.3 SaaS Service Responsibilities. The SaaS Service has built in help features to assist Customer in troubleshooting and resolving problems encountered while using the SaaS Service. For matters that cannot be resolved by Customer alone, Giatec may be contacted using the contact information set out on the Website under “Support”.

3.4 Incremental Capabilities. From time to time, additional Giatec or third-party functionality (such functionality being deemed not to be part of the SaaS Service) may be made available by Giatec to Customer (in the case of third-party functionality, such functionality being made available on a pass-through basis pursuant to terms specified by the third-party provider of such functionality), and which additional functionality may be purchased by Customer for additional fees in accordance with any additional terms and conditions specified by Giatec.

3.5 SaaS Service Limitations. The SaaS Service is not a back-up service and accordingly Giatec will not be responsible for any lost data due to server crashes or other events outside Giatec’s reasonable control. However, Giatec maintains a thirty (30) day continuous backup of all data on its servers to reduce the impact of any server crashes.

  1. PROPRIETARY RIGHTS, DATA TERMS AND CONFIDENTIALITY

4.1 Exclusive Ownership. Except for the rights and licenses granted in these SaaS Terms, You acknowledge and agree that all Intellectual Property rights to or arising from the software and technology used to provide the Website, SaaS Service and the Giatec App are and shall remain the exclusive property of Giatec and/or its licensors. Nothing in these SaaS Terms is intended to transfer any such Intellectual Property rights to, or to vest any such Intellectual Property rights in You. You are only entitled to the limited use of the Intellectual Property rights expressly granted to You in these SaaS Terms. You will not take any action to jeopardize, limit or interfere with Giatec's Intellectual Property rights. Any unauthorized use of Giatec's Intellectual Property rights is a material breach of these SaaS Terms as well as a violation of Intellectual Property laws and treaties, including without limitation copyright laws and trademark laws.

4.2 Data Ownership; Data License.  Except for Calibration Data submitted to the SaaS Service, Giatec shall own all right, title and interest (including all Intellectual Property rights) in and to the Service Data.  If any rights in any Service Data initially vest in You, You hereby assign, transfer and convey to Giatec all of Your right, title and interest (including all Intellectual Property rights) in and to such Service Data.  Giatec shall be entitled to use the Service Data as Giatec may elect in its discretion, including to generate statistics and analytics.  Giatec will also be entitled to make Service Data available to third parties in Giatec’s discretion if such Service Data does not identify You and cannot be traced back to You.  Notwithstanding the foregoing, You acknowledge and agree that when You use the “Smart Concrete” features of the SaaS Service, Service Data that can be traced back to You will be provided to the ready-mix concrete supplier who sold you the corresponding Smart Concrete Product.  You hereby grant to Giatec a non-exclusive, non-transferrable, worldwide, royalty-free, fully paid up, perpetual, irrevocable license to access and use the Calibration Data You upload to the SaaS Service for the purpose of allowing Giatec to make the SaaS Service available and to create anonymized, aggregate statistics using such Calibration Data (such anonymized, aggregate statistics hereinafter referred to as the “Service Data Analytics”).  For greater certainty, Giatec shall own all right, title and interest (including all Intellectual Property rights) in and to the Service Data Analytics and shall be entitled to use the Service Data Analytics without any requirement for Your permission provided that the Service Data Analytics do not identify You and cannot be traced back to You.  If any rights in any Service Data Analytics initially vest in You, You hereby assign, transfer and convey to Giatec all of Your right, title and interest (including all Intellectual Property rights) in and to such Service Data Analytics. The license granted by You in this Section shall survive termination or expiration of these OEM Terms for any reason.

4.3 Content Responsibilities. Customer is responsible for any and all Calibration Data uploaded to the SaaS Service including obtaining all necessary licenses, permissions and consents to enable all Calibration Data to be made available to Giatec for Giatec to transmit, host, store and otherwise exploit as reasonably required for the provision of the SaaS Service (including the creation of Service Data Analytics).

4.4 Suggestions.  If You provide Giatec with any suggestions, comments or other feedback relating to any aspect of the SaaS Service, the Giatec App(s) or any other Giatec products or services ("Feedback"), You hereby grant Giatec a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to fully exploit such Feedback, including, within the SaaS Service, the Giatec App(s) or any other Giatec products or services.

  1. CONFIDENTIALITY

5.1 Confidentiality. Each party shall maintain in confidence all Confidential Information of the other party, shall use such Confidential Information only for the purpose of exercising its rights and fulfilling its obligations under these SaaS Terms, and shall not disclose any Confidential Information of the other party to any third party except as expressly permitted pursuant to these SaaS Terms or make any unauthorized use thereof. Each party shall treat the Confidential Information of the other party with the same degree of care against disclosure and/or unauthorized use as it affords to its own information of a similar nature, or a reasonable degree of care, whichever is greater. Each party further agrees not to remove or destroy any proprietary or confidentiality legends or markings placed upon any documents or other materials containing Confidential Information of the other party. Each receiving party shall be entitled to provide the disclosing party’s Confidential Information to contractors of the receiving party that have agreed in writing to confidentiality obligations at least as protective as those contained in these SaaS Terms.

5.2 Exemptions. No party shall be bound by obligations restricting disclosure and use set forth in these SaaS Terms with respect to Confidential Information of the other party, or any part thereof, that: (i) was lawfully known or received by the receiving party prior to disclosure without any obligation of confidentiality; (ii) was generally publicly available prior to its disclosure, or becomes generally publicly available other than through a breach of these SaaS Terms by the receiving party; (iii) was disclosed to the receiving party by a third party, provided such third party, or any other person from whom such third party receives such information, is not in breach of any confidentiality obligation in respect of such information; or (iv) is independently designed and developed by the receiving party without the use of any Confidential Information of the other party or any infringement or misappropriation of any Intellectual Property or other rights of the other party.

5.3 Compelled Disclosure. If a receiving party is compelled pursuant to legal, judicial, or administrative proceedings, or otherwise required by law, to disclose Confidential Information of a disclosing party, the receiving party shall provide prior written notice to the disclosing party (to the extent legally permitted) to allow the disclosing party to oppose such disclosure or to seek protective or other court orders.

5.4 Remedies. If a receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of a disclosing party in breach of the confidentiality provisions in these SaaS Terms, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.

  1. TERM AND TERMINATION

6.1 Term of these SaaS Terms and Subscription Terms and Renewals. These SaaS Terms shall commence on the date You submit request for a SaaS Service account and shall continue until terminated as provided in this Section 6 (the “Term”). Subscriptions for the SaaS Service are for periods of time selected at the time You initially sign-up to receive the SaaS Service from Giatec and thereafter upon any renewal of the SaaS Service (such as monthly, quarterly and annual subscriptions). Subscriptions will auto-renew (for the same length of subscription period) at the end of the then-current subscription term unless Your subscription is terminated pursuant to Sections 6.2 or 6.3 below.

6.2 Termination for Cause. A party may terminate these SaaS Terms for cause: (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer, Giatec shall refund Customer any prepaid fees for any time periods after the termination of these SaaS Terms.

6.3 SaaS Service Suspension or Termination by Giatec. Without limiting any other remedies Giatec may have pursuant, Giatec may limit, suspend, or terminate Your right to access and use the SaaS Service, prohibit access to the Website and delete Your SaaS Service account, with immediate effect, if any outstanding invoices are more than thirty (30) days past due, if Giatec reasonably believes You are in breach of these SaaS Terms, creating problems, legal liabilities (actual or potential), acting inconsistently with respect to our policies (which can be found on the Website or as otherwise specified within the SaaS Service), infringing someone else's Intellectual Property rights, engaging in fraudulent or illegal activities, or for other similar reasons. Giatec shall implement such limitation, suspension, or termination by providing notice to You at the email address You have provided (if any) when signing up for the SaaS Service.

6.4 Effect of Termination. Upon termination of these SaaS Terms, your SaaS Service subscriptions shall also terminate and Giatec will remove Your SaaS Service account thirty (30) days after a failure to renew Your subscription or if these SaaS Terms are terminated for any other reason. Giatec will not be liable in respect of any damage caused by the termination of these SaaS Terms or removal of Your SaaS Service account.

6.5 Survival. The following provisions of these SaaS Terms shall survive any expiration or termination of these SaaS Terms: Sections 1, 4, 5, 6.4, 6.5, 7, 8.1, 10 and 11. Termination or expiration of these SaaS Terms shall not relieve Customer of the obligation to pay any fees accrued or payable to Giatec prior to the effective date of termination or expiration of these SaaS Terms.

  1. PAYMENT TERMS

7.1 Fees. The right to access and use the SaaS Service is purchased for subscription terms with payment for the specific period being due and payable in advance. There are no charges for basic support. Professional services are available on a time and materials or fixed quote basis as agreed with Giatec in an order form or quotation provided by Giatec to You.  The Fees are non-refundable except if these SaaS Terms have been terminated by You for Giatec’s material breach.

7.2 Payment and Charges. Your access to and use of the SaaS Service is subject to Your payment of the applicable Fees due for the SaaS Service subscription selected by You as set out on the Website or in a quote provided by Giatec to You. Unless otherwise stated in Giatec’s invoice, all invoiced amounts are due upon receipt and will be processed immediately using the credit card on file for You. You shall: (i) keep the billing, credit card and payment information You provide to Giatec or its payment processors, including name, credit card number and expiry date, mailing address, email address and telephone number, accurate and up to date; otherwise, Giatec may suspend Your access to and use of the SaaS Service; (ii) promptly advise Giatec if Your credit card information changes due to loss, theft, cancellation, card renewal or otherwise; (iii) be liable for Your failure to pay any Fees billed to You by Giatec caused by Your failure to provide Giatec with up to date billing information. To offset its additional processing costs, Giatec may charge You for administrative charges as set from time to time for administrative or account activities including: collection efforts due to non-payment or having a balance over Your credit limit; returned or rejected payments; or changes in personal identifier information. All administrative charges charged to You will be indicated to You on Your invoice or receipt and You shall pay all such charges.

7.3 Taxes. You are responsible for paying any applicable governmental sales, use, value-added, commodity, harmonized and other taxes imposed on Your purchase of SaaS Service subscriptions and professional services. To the extent Giatec is required to collect such taxes, the applicable tax will be added to Your invoices.

7.4 Transaction Processing. Giatec will cause transactions in respect of Your purchase of SaaS Service subscriptions to be processed and applicable fees owing by You to be collected using the credit card credentials maintained by You with Giatec’s payment processor. All subscriptions will automatically renew and the relevant fees will be processed and charged to You in full unless You notify Giatec at least thirty (30) days in advance of the anniversary of a renewal period that You wish to discontinue your SaaS Service subscription. Recurring payments for periodic SaaS Service subscriptions are processed on the account anniversary date for any subscriptions.

7.5 Pre-authorized Payment. By providing a credit card to Giatec as part of Your account set-up for pre-authorized payments, You authorize Giatec to charge Your credit card for all outstanding Fees, taxes and charges and outstanding account balances due under these SaaS Terms, and this constitutes Giatec's good and sufficient authority for so doing. If Your pre-authorized payment method fails, Giatec will provide notification to You of payment failure. If You fail to rectify the payment failure within ten (10) days of written notice, Giatec may immediately deactivate Your account without notice to You and collect Fees owing using other collection mechanisms. If You have not paid applicable fees within thirty (30) days of the due date, Giatec will automatically terminate Your account and all Calibration Data from our servers. You are solely responsible for all charges incurred under Your account by You or third-parties.

  1. CHANGES TO THE SAAS SERVICE AND THESE SAAS TERMS

8.1 Updates to these SaaS Terms. Giatec reserves the right to modify these SaaS Terms at any time by publishing the revised SaaS Terms on the Website and/or providing a copy of these SaaS Terms to Your account by email. The revised SaaS Terms shall become effective within five (5) business days of such publication or provision to You, unless You expressly accept the revised SaaS Terms earlier by clicking on the accept button. Your express acceptance or Your continued use of the SaaS Service after expiry of the notice period of five (5) business days (being weekdays excluding any statutory holidays in Ontario), shall constitute Your acceptance to be bound by the terms and conditions of the revised SaaS Terms.

8.2 Fees Changes and Changes to the SaaS Service. Giatec may change the SaaS Service and/or any Fees at any time upon reasonable notice to You by posting the change on the Website, sending notice via: an email to the email address You provide on registration, a message on Your invoice, in writing, or any other notice method likely to come to Your attention. If You do not accept the change, Your sole recourse is to terminate Your subscription(s) for the SaaS Service. Your continued access to and use of the SaaS Service after the change has come into effect constitutes Your acceptance of the change and You acknowledge and agree that (i) You will be deemed to have accepted the change, with no additional written agreement or express acknowledgement required; and (ii) You will continue to be responsible to pay for the SaaS Service for the remainder of Your SaaS Service subscriptions.

  1. SUPPORT AND MAINTENANCE

9.1 Technical Support. Depending on the SaaS Service subscription tier ordered and paid for by You, Giatec will provide basic support for the SaaS Service.

9.2 Maintenance. Giatec will provide updates and upgrades to the technology underlying the SaaS Service from time to time to provide new features and improvements, bug fixes and error corrections which will be available across the SaaS Service, provided, however, that for some new features or capabilities, Giatec may charge incremental Fees.

9.3 Professional Services. One-off consulting and professional services may be requested and agreed with Giatec, including customized data analytics. All professional services should be requested via the Website or by contacting Giatec by telephone found on the contact page on the Website. If any work product or deliverables are generated through the provision of professional services under these SaaS Terms (“Deliverables”), the parties will determine ownership of such Deliverables in the purchase order executed for the professional services. Notwithstanding the generality of the foregoing, any enhancements, modifications or other customizations to any Giatec technology (including the SaaS Service) will be owned by and vest in Giatec exclusively including all title and interest in and to all Deliverables embodying any Giatec technology including all Intellectual Property rights therein.

  1. LIABILITY AND INDEMNIFICATION PROVISIONS

10.1 NO WARRANTIES. GIATEC CANNOT GUARANTEE THAT THE SAAS SERVICE WILL ALWAYS BE AVAILABLE, THAT SAAS SERVICE WILL OPERATE WITHOUT FLAW OR THAT SAAS SERVICE WILL NOT CAUSE ANY DATA LOSS. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 3, THE SAAS SERVICE, PROFESSIONAL SERVICES AND ALL GIATEC SOFTWARE AND TECHNOLOGY ARE PROVIDED "AS IS" WITH NO REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS WHATSOEVER. GIATEC DISCLAIMS ANY AND ALL IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF QUALITY, PERFORMANCE, INTEGRITY OF DATA, NON-INFRINGEMENT, MERCHANTABILITY, MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. GIATEC FURTHER DOES NOT REPRESENT OR PROVIDE ANY WARRANTIES OR CONDITIONS THAT THE SAAS SERVICE OR GIATEC TECHNOLOGY WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES GIATEC PROVIDE ANY WARRANTIES OR CONDITIONS THAT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET WILL BE UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND/OR ERROR-FREE.

10.2 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER GIATEC NOR ANY OF ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS SHALL HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES (WHETHER ARISING FROM THESE SAAS TERMS, RELATED TO THE SAAS SERVICE OR TO ANY PROFESSIONAL SERVICES PROVIDED TO YOU BY GIATEC (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS)) FOR ANY INDIRECT, RELIANCE, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOSS OF OR DAMAGE TO DATA, BUSINESS INTERUPTION, LOSS OF DATA, REPLACEMENT OR RECOVERY COSTS, OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER ARISING FROM CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF GIATEC (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. IN NO EVENT SHALL GIATEC’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE SAAS TERMS, THE SAAS SERVICE OR TO ANY PROFESSIONAL SERVICES PROVIDED TO YOU BY GIATEC (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS), WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU TO GIATEC PURSUANT TO THESE SAAS TERMS FOR THE SAAS SERVICE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE CLAIM.

10.3 THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR FUNDAMENTAL BREACH. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU.

10.4  Your Indemnification. You shall defend Giatec including its Affiliates and its and their officers, employees and subcontractors (collectively, the “Giatec Indemnitees”) against any action, suit or proceeding by a third party 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 by or on Your behalf to the SaaS Service, including Your failure to provide accurate, up-to-date Calibration Data on an on-going basis, or to adhere to the ASTM C1074 Standard; (ii) Your negligence or willful misconduct; (iii) any errors, omissions, inaccuracies or other claims arising in connection with the Calibration Data provided by You or on Your behalf to the SaaS Service; (iv) any claims that the trademarks, logos, or branding provided by You to Giatec infringe third party rights; or (v) any defects, malfunctions or product liability claims arising in connection with Your products (collectively, the matters contemplated in items (i) to (v) hereinafter referred to as “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 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 Claim. As conditions for such defense and indemnification by You, (i) Giatec shall notify You promptly in writing upon becoming aware of all pending Claims; (ii) the Giatec Indemnitees shall give You sole control of the defense and settlement of such Claims; (iii) the Giatec Indemnitees shall cooperate fully with You in the defense or settlement of such Claims; and (iv) the Giatec Indemnitees shall not settle any Claims without Your written consent, or compromise the defense of any such Claims or make any admissions in respect to any Claims.

10.5 THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY AND INDEMNIFICATION PROVISIONS CONSTITUTE AN ESSENTIAL PART OF THESE SAAS TERMS. YOU ACKNOWLEDGE THAT BUT FOR THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS, LIMITATION OF LIABILITY AND INDEMNIFICATION PROVISIONS, NEITHER GIATEC NOR ANY OF ITS LICENSORS OR SUPPLIERS WOULD GRANT THE RIGHTS GRANTED IN THESE SAAS TERMS. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SAAS SERVICE IS TO IMMEDIATELY CEASE USE OF SUCH SAAS SERVICE.

  1. GENERAL TERMS

11.1 Force Majeure. Except for each party’s obligations to pay money, neither party shall be deemed to be in breach of these SaaS Terms for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes or shortages of materials.

11.2 Logos. Giatec may refer to You in Giatec’s customer list and may use Your corporate name and logo for this purpose. For the avoidance of doubt, Giatec will not use Your name, logo or any other trademark or trade-name of Yours for any other purposes without Your prior consent.

11.3 Third Party Relationships. Giatec or its business partners may present service or product offerings, advertisements or promotional materials via the SaaS Service. Your dealings with, or participation in promotions of any third party that You became aware of through the SaaS Service are solely between You and such third party and Your participation is subject to the terms and conditions associated with that offering, advertisement or promotion. You agree that Giatec is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presentation of such opportunities via the SaaS Service.

11.4 Third-Party Services. The SaaS Service may present links to third-party websites or third-party services not owned or operated by Giatec. Giatec is not responsible for the availability of these third-party sites or services or their contents. You agree that Giatec is not responsible or liable, directly or indirectly, for any damage or loss caused by or in connection with Your use of or reliance on any content of any such third-party website or services or goods or services available through any such third-party website or services.

11.5 Entire Agreement. The terms and conditions of these SaaS Terms constitute the entire agreement between You and Giatec with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.

11.6 Severability & Waiver. If any term or provision of these SaaS Terms is deemed invalid, void or un-enforceable either in its entirety or in a particular application, the remainder of these SaaS Terms shall nonetheless remain in full force and effect and the invalid, void or unenforceable portion will be severed from these SaaS Terms. If Giatec does not take action against all breaches of these SaaS Terms, it does not mean that Giatec waives its right at a later time to enforce such rights.

11.7 Assignment. You are not allowed to assign these SaaS Terms or any rights pursuant to these SaaS Terms without the prior written consent of Giatec, such consent not to be unreasonably withheld. Giatec is allowed at its sole discretion to assign these SaaS Terms or any rights pursuant to these SaaS Terms to any third party, without giving prior notice.

11.8 Applicable Law and Venue. These SaaS Terms shall be governed by and construed in accordance with the laws of Ontario, Canada (including the laws of Canada applicable within Ontario) without giving effect to any conflict of laws provisions. Any legal proceedings arising out of or relating to these SaaS Terms will be subject to the jurisdiction of the federal and provincial courts in Ottawa, Ontario, Canada, provided that each party shall be entitled to seek injunctive or other equitable relief in any jurisdiction with a reasonable connection to the subject matter of these SaaS Terms. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to these SaaS Terms.

Last Updated: May 6, 2019.

Smart Concrete Terms and Conditions

PLEASE READ THESE SMART CONCRETE TERMS AND CONDITIONS (THESE “OEM TERMS”) BEFORE PROCURING THE GIATEC SOLUTION (AS HEREINAFTER DEFINED).

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 SAAS SERVICE” or the “Giatec SaaS Service”).

BY SIGNING A QUOTE, SUBMITTING A PURCHASE ORDER, TAKING DELIVERY OF ANY SMART CONCRETE™ SENSORS AND/OR USING THE GIATEC SAAS SERVICE IN CONNECTION WITH ANY SMART CONCRETE™ SENSORS YOU INDICATE YOUR ACCEPTANCE OF THESE OEM TERMS. IF YOU DO NOT ACCEPT THESE OEM TERMS, THEN DO NOT SIGN THE QUOTE, TAKE DELIVERY OF ANY SMART CONCRETE™ SENSORS AND/OR USE THE GIATEC SAAS SERVICE IN CONNECTION WITH ANY SMART CONCRETE™ SENSORS.

IF YOU ARE AGREEING TO THESE OEM 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 OEM TERMS AND TO BIND SUCH ENTITY OR ORGANIZATION TO THESE OEM TERMS.

IN ORDER TO USE THE GIATEC SAAS SERVICE, YOU MAY BE REQUIRED TO PROVIDE CERTAIN INFORMATION, INCLUDING PERSONAL INFORMATION. ALL PERSONAL INFORMATION YOU PROVIDE TO GIATEC USING THE GIATEC SAAS SERVICE WILL BE TREATED IN ACCORDANCE WITH THE GIATEC PRIVACY POLICY, THE TERMS OF WHICH ARE INCORPORATED BY REFERENCE INTO THESE OEM TERMS.

  1. DEFINITIONS

1.1 Defined Terms.  For the purposes of these OEM Terms, the following terms shall have the following meanings:

“Affiliate” of a Party means any corporation or other 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;

“Calibration Data” means concrete maturity calibration data uploaded by You to the Giatec SaaS Service in respect to Your Products for the purposes of specifying a relationship between maturity and strength for Your Products;

“Confidential Information” has the meaning set forth in Section 6(a) (Confidential Information);

“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 first 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/or Android mobile Giatec applications developed by Giatec and used in connection with the Giatec Smart Concrete™ Sensors and the Giatec SaaS Service 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 SaaS Service and the 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 OEM Terms will be in effect between You and Giatec as specified in the Quote;

“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.

“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 OEM Terms;

“Service Data” means any information, data and material that is uploaded or transmitted to the Giatec SaaS Service, including information provided by End Users via the Giatec App (including information that is automatically uploaded by the Giatec App), and information and materials provided by You and/or Your Affiliates;

“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.

  1. ORDERS, LICENSES, RE-SALE RIGHTS

(a) Orders. Giatec agrees to sell the Giatec Solution to You in accordance with these OEM 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 OEM 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 OEM Terms, these OEM Terms shall control and take precedence. Any additional terms in an Order beyond the terms contained in these OEM Terms shall be of no effect between the Parties. You shall be responsible for reselling Smart Concrete™ Sensors purchased by You pursuant to these OEM 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 EULA when such End Users download the Giatec App from Google Play or the Apple App Store.  Giatec shall have no obligation to make the Giatec App available to End Users who have not agreed to the terms of the Giatec EULA.  Any software or firmware that is embodied in or provided with any Smart Concrete™ Sensor purchased by You is licensed pursuant to the terms and conditions of the Giatec EULA, a copy of which may be found on the same webpage that contains these OEM Terms and which EULA is hereby incorporated by reference into these OEM Terms.

(c) Access to the Giatec SaaS Service Dashboard. Subject to the terms and conditions of these OEM 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 SaaS Service 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 SaaS Service 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 SaaS Service and for Your employees’, contractors’, customers’ and agents’ compliance with these OEM Terms, including such employees’, contractors’ and agents’ activities in the Giatec SaaS Service. You shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Service Data transmitted to the Giatec SaaS Service 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 SaaS Service, 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 SaaS Service. End Users who wish to use the Giatec SaaS Service will be required to accept the Giatec SaaS Terms, a copy of which may be found on the same webpage that contains these OEM Terms. Giatec shall have no obligation to make the Giatec SaaS Service available to End Users who have not agreed to the Giatec SaaS Terms.

(d) Service Data Ownership; Data License.  Except for Calibration Data submitted by You to the Giatec SaaS Service, Giatec shall own all right, title and interest (including all intellectual property rights) in and to the Service Data.  If any rights in any Service Data initially vest in You, You hereby assign, transfer and convey to Giatec all of Your right, title and interest (including all intellectual property rights) in and to such Service Data.  Giatec shall be entitled to use the Service Data as Giatec may elect in its discretion, including to generate statistics and analytics and Giatec will make certain End User-related Service Data about Your End Users’ Smart Concrete™ Products available to You via the Giatec SaaS Service for Your internal business purposes, and not for re-sale or distribution to third parties.  You acknowledge and agree that all End User-related Service Data is Giatec’s Confidential Information.  Giatec will also be entitled to make Service Data available to third parties in Giatec’s discretion if such Service Data does not identify You or any of Your End Users and cannot be traced back to You or any of Your End Users.  You hereby grant to Giatec a non-exclusive, non-transferrable, worldwide, royalty-free, fully paid up, perpetual, irrevocable license to access and use the Calibration Data You upload to the Giatec SaaS Service for the purpose of allowing Giatec to make the Giatec SaaS Service available and to create anonymized, aggregate statistics using such Calibration Data (such anonymized, aggregate statistics hereinafter referred to as the “Service Data Analytics”).  For greater certainty, Giatec shall own all right, title and interest (including all intellectual property rights) in and to the Service Data Analytics and shall be entitled to use the Service Data Analytics without any requirement for Your permission provided that the Service Data Analytics do not identify You and cannot be traced back to You or any of Your End Users.  If any rights in any Service Data Analytics initially vest in You, You hereby assign, transfer and convey to Giatec all of Your right, title and interest (including all intellectual property rights) in and to such Service Data Analytics.  The license granted by You in this Section shall survive termination or expiration of these OEM Terms for any reason.

(e) Trademark License. Subject to the terms and conditions of these OEM 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 OEM 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 to the terms and conditions of these OEM 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 OEM Terms), worldwide, royalty free license to copy, reproduce, reformat, display and distribute Your name, logos and branding to include Your name, logos and branding in the Giatec App, website and marketing materials. You shall upload to the Giatec SaaS Service 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. Upon expiration or termination of these OEM Terms, You acknowledge and agree that Giatec shall be entitled to continue to exercise the rights contained in the license granted in this Section 2(g) for the purpose of listing Your name, logo and branding in the Giatec App to allow End Users to select You as the End Users’ provider from among Giatec’s list of concrete suppliers in the Giatec App.

(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 SaaS Service and/or the Giatec Smart Concrete™ Sensors); (ii) use the Service 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, the Giatec SaaS Service and/or the Giatec Smart Concrete™ Sensors); or (iii) remove, delete or in any manner alter the Giatec trademarks or other proprietary notices or intellectual property notices from the Giatec Solution, including the Giatec App.

(i) Suggestions.  If You provide Giatec with any suggestions, comments or other feedback relating to any aspect of the Giatec SaaS Service, the Giatec App, the Giatec Smart Concrete™ Sensors or any other Giatec products or services ("Feedback"), You hereby grant Giatec a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to fully exploit such Feedback, including, within the Giatec SaaS Service, the Giatec App(s), the Giatec Smart Concrete™ Sensors or any other Giatec products or services.

(j)  Reservation of Rights. Except for the rights and licenses granted in these OEM 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 pursuant to these OEM Terms, whether by implication, estoppel or otherwise. You acknowledge that only Giatec shall have the right to maintain, enhance or otherwise modify the Giatec Solution.

(k) Updates and Upgrades. Giatec shall deliver to You all Updates and Upgrades of the Giatec App and the Giatec SaaS Service in accordance with the procedures set forth in Section 3(b). For greater certainty, the licenses set forth in these OEM Terms in respect of the Giatec App and the Giatec SaaS Service shall apply equally to all Updates and Upgrades.

  1. DELIVERY

(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.  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 SaaS Service 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 SaaS Service.

(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 (other than any software and/or firmware embodied therein) ordered by You shall pass to You when such units have been paid for in full by You.

  1. 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.

  1. 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.

  1. CONFIDENTIALITY

(a) Confidential Information. During the Term, each Party may provide the other with Confidential Information. For the purposes of these OEM 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, Service Data, technical information, financial information, pricing, and all other information and materials of a non-public nature. Notwithstanding any other provisions of these OEM 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 OEM Terms; or (v) is expressly approved for release by written authorization of the disclosing Party. The obligations of confidence set forth in these OEM 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 OEM Terms, and shall not disclose any such Confidential Information to any third party except as expressly permitted pursuant to these OEM Terms 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 OEM 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 OEM 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.

  1. WARRANTIES

(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 OEM 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) 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) 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.

(b) 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 SAAS SERVICE 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 INFORMATION 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 INFORMATION 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 SAAS SERVICE OR SECURITY BREACHES ARISING FROM OR ATTRIBUTABLE TO THE INTERNET AND YOU WAIVE ANY AND ALL CLAIMS AGAINST GIATEC IN CONNECTION THEREWITH.

  1. INDEMNIFICATION

(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 permitted use, distribution, sale, resale thereof or any exercise of any other right(s) granted in these OEM 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, the Giatec SaaS Service or any Smart Concrete™ Sensor by anyone other than Giatec; (ii) the use of the Smart Concrete™ Sensor, the Giatec SaaS Service 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 OEM 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 OEM Terms and refund to You any pre-paid fees for any periods after the termination of these OEM 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 and its and their 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 by or on Your behalf to the Giatec SaaS Service, 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 Standard; (ii) Your negligence or willful misconduct; (iii) any errors, omissions, inaccuracies or other claims arising in connection with the Calibration Data provided by You or on Your behalf to the Giatec SaaS Service; (iii) any claims that the trademarks, logos, or branding provided by You to Giatec 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; or (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 OEM 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.

  1. LIMITATION OF LIABILITY

(a) GIATEC SHALL HAVE NO LIABILITY WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH OR RELATED TO THESE OEM TERMS OR THE RIGHTS PROVIDED PURSUANT TO THESE OEM 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, 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 APPLICABLE 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 OEM TERMS IS FOUND TO BE UNENFORCEABLE, IT SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

(d) Beneficiaries.  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.

  1. TERM AND TERMINATION

(a) Term. These OEM 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 OEM 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 OEM 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 OEM Terms by giving a written notice to the other Party: (i) if the other Party commits a material breach of these OEM 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) (Service Data Ownership; Data License), Section 2(g) (Your Trademark License Grant), 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 OEM Terms shall survive the termination or expiration of these OEM Terms. All rights and licenses properly granted to End Users prior to the termination or expiration of these OEM 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 OEM Terms, You may resell such existing inventory and all of the licenses and rights in these OEM 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 OEM 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 pursuant to these OEM Terms, 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.

  1. MISCELLANEOUS

(a) Nature of Obligations Between Parties. The obligations of each Party under these OEM 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 OEM 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 OEM Terms, nothing in these OEM 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 OEM 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
K2H 9E8

Attention: CEO
Tel: 613-240-7451
Fax: 613-280-1544

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 OEM Terms and the rights and obligations of the Parties under these OEM 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 OEM Terms.

(d) Currency. All dollar amounts in these OEM Terms are in the currency specified in the Quote. If no currency is specified in the Quote then the currency for these OEM 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 OEM Terms shall be interpreted in such manner as to be effective and valid under applicable law. If the application of any provision of these OEM 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 OEM 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 OEM Terms may be amended, and the taking of any action required under these OEM 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 OEM Terms preclude any other or further exercise thereof or the exercise of any other right, remedy, or power provided in these OEM 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 OEM Terms or any right or obligation under these OEM 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 OEM Terms (including the Quote and all Orders under these OEM 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 OEM Terms relate. Subject to the foregoing limits on assignment, these OEM 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 OEM 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 OEM 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 OEM Terms. The Parties agree that these OEM 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 OEM Terms, together with the Quote, the schedules to these OEM Terms and any Orders under these OEM 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 OEM Terms in reliance upon any representation, warranty, condition or undertaking of the other Party that is not set out or referred to in these OEM Terms.

SCHEDULE A

SUPPORT SERVICES

  1. Support. 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.

1.4 Videoconferencing. If You purchase additional training, upon request Giatec will provide additional training via videoconference.

  1. 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.

  1. Limitations on Support

3.1 Support Obligation for the Giatec App and the Giatec SaaS Service. Giatec is only obliged to provide support to the latest version of the Giatec App and the Giatec SaaS Service, and only for the Term. If You terminate these Terms, Giatec will cease all support, maintenance and updates for the Giatec Solution.

3.2 Exclusions.  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 Service 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.

SCHEDULE B

TRADEMARK GUIDELINES

“Smart Concrete™” is a trademark of Giatec Scientific Inc.

TRADEMARK GUIDELINES

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.

Last Updated: May 6, 2019.