TERMS AND CONDITIONS OF SALE
Please read these Terms and Conditions of Sale before using the Giatec Scientific Inc. (“Giatec”) product (the “Product”) and related licensed software. By finalizing Your purchase order, You, the purchaser of the Product, and, if applicable, any end user (“End User”) on whose behalf You are making this purchase (You and the End User are hereafter collectively referred to as “Customer”; Customer and Giatec are hereafter together referred to as “Parties”) agree to be bound by and accept the terms and conditions provided below. If You and/or the End User, as the case may be, disagree with these terms and conditions, do not finalize Your order, or if the order has been placed, return the Product immediately upon receipt without using it.
Payment; Purchase Price and Associated Charges. Payment must be made at the time of order unless otherwise agreed by the Parties. Customer will pay the total purchase price plus shipping and handling, if any, as specified on the emailed invoice. Customer is also responsible for all taxes related to this purchase and to the import of the Product, 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.
Title; Risk of Loss. Title to the Product passes to Customer when the Product is paid for in full. However, Giatec bears all responsibility for loss of or damage to the Product during initial shipment after purchase and until Product is received by Customer, unless Customer selects its own mode of shipping. In repair cases, risk of loss is borne by Customer for return of the Product, but by Giatec following repair and upon return to Customer.
Limited Warranties. Giatec warrants the Product against defects in materials and workmanship under normal use (the “Warranty”) for a period of 12 months from the Delivery Date (the “Warranty Period”), on the condition that the Product has been completely paid for. Unless otherwise mandated by local law, the Warranty Period does not restart if Customer receives a replacement appliance and/or replacement Software. This Warranty does not apply: (a) to consumable parts, such as batteries, Plexiglas cell units and cables unless damage has occurred due to a defect in materials or workmanship; (b) to cosmetic damage, including but not limited to scratches, dents and broken plastic on ports; (c) to damage caused by accident, abuse, misuse, neglect or failure to properly maintain (to include but not limited to water damage and/or condensation or improper temperatures during storage), or improper installation; (d) to damage caused by electrical disturbances or acts of God, to include but not limited to civil disturbance, war, flood, fire, rodents or insects; (e) where manufacturer’s serial numbers and security labels have been removed from the Product; and (f) to damage caused during shipment (due to Customer’s improper packaging) from Customer to Giatec in the case of Product returns for repair.
Giatec disclaims all other representations, warranties and conditions, express or implied, including without limitation any 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 reserves the right to modify this Warranty at any time, at its sole discretion, and with notice to Customer.
Giatec does not warrant that the operation of the Product will be uninterrupted or error-free. Giatec is not responsible for damage arising from failure to follow instructions relating to the Product’s use. This Warranty 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 appliance casing (aka the box) 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 the then-current support policy in effect and in accordance with the Warranty provided herein, unless full payment for the purchase of the Product is not 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.
Customer agrees and understands that it may be necessary for Giatec to collect, process, and use Customer data to perform the support and repair obligations identified herein. This may include the necessity to transfer data to affiliated third parties that are contracted with Giatec to assist in meeting these obligations. In doing so, Giatec will (i) protect and keep confidential such information, (ii) not use such information for reasons other those discussed above, and (iii) not sell, distribute or pass on such information to any third party.
Repair. Customer should carefully inspect the Product upon its delivery. Customer should maintain all original packaging upon receiving the Product until the Product has been installed and is found to be in proper working order.
If the Product arrives to Customer (the date of arrival is referred to herein as the “Delivery Date”) damaged or defective at initial delivery, Customer must notify Giatec Technical Support within 30 days from the Delivery Date of the condition of the Product and obtain return instructions if needed. Product must then be returned immediately to Giatec for repair or replacement at Giatec’s discretion. Giatec will then arrange for delivery of temporary or permanent replacement Product. Customer is responsible for properly packing the return shipment of the Product. Giatec will arrange for shipping and insurance.
If Customer fails to notify Giatec within 30 days of the Delivery Date, (i) the Refund Policy below will not apply, (ii) Customer will bear the cost of returning the Product for repair, and (iii) damaged Product will not be accepted.
If during the Warranty Period (as described herein) but following the initial 30 day period the Product is not working properly, Customer must contact Giatec Technical Support to confirm the problem and obtain return instructions if needed. Customer will pay shipping and insurance costs when returning the Product for repair.
If the Product is returned for repair or replacement at any time following purchase by Customer and Giatec discovers that the Warranty is inapplicable due to the reasons provided above (see the “Limited Warranties” section hereof), the Product will not be repaired and will be returned to Customer at Customer’s expense, unless Customer authorizes and pays for repair. Whether Customer authorizes repair or not, Giatec reserves the right to charge a “No Fault Found” fee where the Product is found not to be defective due to any fault of Giatec.
Any Giatec reseller or distributor involved in the purchase of the Product is not authorized to make any modification, extension, or addition to the Warranty provided by Giatec herein, although any such reseller or distributor may provide its own warranty in addition to the warranty coverage 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 30 days of the Delivery Date. In such cases where a refund is approved, End User will return the Product 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 en route to Giatec. Giatec reserves the right to charge a nominal re-stock fee for any such returns.
Limitation of Liability. Giatec is not liable under any other agreement between End User and a Giatec reseller or distributor for the provision of support (to include but not limited to an extended warranty or any support, service or repair agreement).
If found to have breached this Sale Agreement, Giatec is not liable for any amount above the aggregate dollar amount paid by Customer for the purchase of the Product under this Sale Agreement. Except as provided in the Warranty and to the extent permitted by law, Giatec is not responsible for indirect, special, incidental or consequential damages resulting from any breach of this Sale Agreement, including but not limited to loss of use; loss of revenue; loss of actual or anticipated profits (including loss of profits on contracts); loss of the use of money; loss of anticipated savings; loss of business; loss of opportunity; loss of goodwill; loss of reputation; loss of, damage to or corruption of data or software programs; or any indirect or consequential loss or damage howsoever caused including the replacement of equipment and property, any costs of recovering, programming, or reproducing any program or data stored or used with the Product and any failure to maintain the confidentiality of data stored on the product.
Not For Resale. The Product may not be purchased for resale purposes by Customer unless Customer is a legal and authorized reseller of Giatec products.
High Risk Uses. Customer will not purchase the Product for usage 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) whereby such usage could cause or contribute to damage to property or injury to persons.
Software License. The Product is and contains the intellectual property of Giatec and is protected by Canadian, U.S. and international copyright, patent and trade secret laws and international treaties. This Sale Agreement is not intended to grant, and shall in no way be construed to grant, to Customer any rights in the intellectual property of Giatec, including the intellectual property in the Products. The Customer shall only obtain a non-exclusive license to use the software contained in or related to the Product (the “Software”) in accordance with the terms of the Software License Agreement, attached hereto as Exhibit A. Customer acknowledges that the Software is the intellectual property of Giatec and respects Giatec’s rights as the intellectual property rights holder. Customer may not and customer agrees not to, or to enable others to, copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Software or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law). Any attempt to do so is a violation of the rights of Giatec. All rights, title and interest in the Software shall at times remain the property of Giatec.
Product Disposal/Recycling. Giatec is unable to dispose of or recycle the Product following use. End User may dispose of recycle the Product or arrange for the same through the Giatec distributor or reseller which made the Product sale. Any disposal or recycling of the Product must be done in accordance with local government directives.
Export. Customer must comply with all export laws and restrictions and regulations of Canada. Furthermore, Customer will not export, or allow the export or re-export of the Product in violation of any such restrictions, laws or regulations. Additionally, Customer agrees to comply with the above and represents and warrants that it is not located in, under the control of, nor are a national or resident of any restricted country.
Entire Agreement. This Sale Agreement (including the Software License Agreement, attached hereto as Exhibit A) constitutes the entire understanding of the Parties as 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.
Severability; Assignment. If any provision of this Sale Agreement 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 this Sale Agreement 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 this Sale Agreement and to delegate any of its obligations hereunder. Customer may not assign, delegate or otherwise transfer (whether by operation of law or otherwise) this Sale Agreement or any of Customer rights or obligations hereunder without the prior written consent of Giatec. Giatec may assign the provision of repair services to third parties.
Governing Law; Dispute Resolution. All disputes arising out of or in connection with this Sale Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The place of arbitration shall be Ottawa, Ontario, Canada. The language of the arbitration shall be English. For the purposes of this arbitration, this Sale Agreement shall be governed by and construed under Ontario law (and the laws of Canada applicable within Ontario) as such law applies to agreements between Ontario residents entered into and to be performed within Ontario, Canada. The decision of the arbitrators shall be binding upon the parties hereto, and the expense of the arbitration (including without limitation the award of attorneys' fees to the prevailing party) shall be paid as the arbitrators determine. The decision of the arbitrators shall be executory, and judgment thereon may be entered by any court of competent jurisdiction.
Any non-English language translation of this Sale Agreement is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this Sale Agreement shall govern.
GIATEC SCIENTIFIC INC. LICENSE AGREEMENT
IMPORTANT NOTICE: THIS LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL CONTRACT BETWEEN YOU (OR YOUR ORGANIZATION) AND GIATEC SCIENTIFIC INC. ("GIATEC", “We” or “Us”) FOR: (I) GIATEC SOFTWARE (WHETHER EMBEDDED IN A GIATEC PRODUCT, PROVIDED AS A SEPARATE COMPONENT SUCH AS A DOWNLOADABLE MOBILE APPLICATION IF YOU HAVE AN IOS OR ANDROID SUPPORTED-DEVICE OR MADE AVAILABLE IN A SOFTWARE-AS-A-SERVICE MODE), (II) FIRMWARE THAT OPERATES WITH GIATEC PRODUCTS/DEVICES; AND (III) ANY ACCOMPANYING DOCUMENTATION, HARDWARE OR MEDIA (COLLECTIVELY THE ‘LICENSED PROGRAM’). IF YOU DO NOT AGREE THIS LICENSE AGREEMENT DO NOT INSTALL OR USE THE LICENSED PROGRAM. YOUR DOWNLOAD, INSTALLATION, POWER UP OR USE OF THE LICENSED PROGRAM WILL BE DEEMED TO BE YOUR IRREVOCABLE CONSENT TO BE BOUND BY AND COMPLY WITH ALL OF THE TERMS OF THIS AGREEMENT. THE LICENSED PROGRAM PROVIDED PURSUANT TO THIS AGREEMENT IS PROVIDED UNDER LICENSE; NOT SOLD.
IF YOU ARE AN EMPLOYEE, CONTRACTOR OR OTHERWISE INSTALLING OR USING A LICENSED PROGRAM BY OR ON BEHALF OF AN ORGANIZATION, YOU REPRESENT AND WARRANT TO GIATEC THAT (I) YOU ARE OF THE AGE OF MAJORITY IN YOUR JURISDICTION; AND (II) YOU HAVE ALL REQUISITE CAPACITY, RIGHT, POWER AND AUTHORITY TO ACCEPT THIS LICENSE ON BEHALF OF SUCH ENTITY; AND (III) SUCH ENTITY WILL BE IRREVOCABLY BOUND BY AND WILL COMPLY WITH ALL OF THE TERMS OF THIS AGREEMENT.
THIS AGREEMENT MAY BE AMENDED OR UPDATED BY US FROM TIME TO TIME AND MAY HAVE CHANGED SINCE YOUR LAST VISIT TO OR USE OF THE LICENSED PROGRAM. IT IS YOUR RESPONSIBILITY TO REVIEW THIS AGREEMENT FOR ANY CHANGES. YOUR USE AFTER ANY AMENDMENTS OR UPDATES OF THIS AGREEMENT SHALL SIGNIFY YOUR ASSENT TO AND ACCEPTANCE OF SUCH REVISED AGREEMENT. ANY NEW FEATURES THAT MAY BE ADDED FROM TIME TO TIME WILL BE SUBJECT TO THIS AGREEMENT, UNLESS STATED OTHERWISE. YOU SHOULD VISIT THIS PAGE PERIODICALLY TO REVIEW THIS AGREEMENT.
1. Service Terms. The Licensed Program enables users to connect through wireless networks to access, obtain, download and transmit data from GIATEC sensors in real-time or off-line. The data generated from GIATEC sensors to the Licensed Program is intended to report and provide insights on concrete quality for the internal use of the recipient organization, who accepts full responsibility for its use. You acknowledge that access to the Licensed Program and GIATEC services is provided on the understanding that GIATEC is not providing any professional advice or recommending any actions based on the results generated. GIATEC does not guarantee or warrant the accuracy, reliability, completeness or currency of data or its usefulness in achieving any purpose. Accordingly, all information in this document is provided “as is”, without representation, warranty or condition of any kind, express or implied, including, but not limited to any warranties or conditions of performance, merchantability, merchantable quality or fitness for a particular purpose. In no event will Giatec, or its partners, suppliers, employees or agents, be liable to the recipient organization or anyone else for any loss, damage, cost or expense of any kind, including any consequential, special or similar damages, arising in connection with results obtained from the use of this information, any decision made or action taken in reliance on the service or data or any information provided as part of the services.
2. License Terms.
2.1 License Grant. Subject to the terms of this Agreement, GIATEC grants to you a, license as follows:
a. Firmware and Embedded Software – if you are the lawful possessor of a Giatec product, Giatec grants you a non-exclusive, non-transferable license to run the Licensed Program provided with that product together with and any updated versions downloaded by you only on and as incorporated in the product.
b. For Licensed Programs provided as a standalone component (including mobile software applications) – Giatec grants you a non-exclusive, non-transferable license to use such Licensed Programs on a single computer, device or system for your internal use and you may not distribute the same to any third party.
c. For Licensed Programs provided in a software-as-a-service (“SaaS”) mode, Giatec grants you a non-exclusive, non-transferable license to access and use the Licensed Programs during the Subscription Period. The “Subscription Period” means the period of time for which you have paid Giatec the applicable license fee for the Licensed Programs. For SaaS Licensed Programs, you will be provided with User accounts to access the SaaS Licensed Programs. User accounts are for use by designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Licensed Programs. You are responsible for all activities that occur in User accounts and for Users’ compliance with this Agreement. You shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all data you submit to the SaaS Licensed Programs; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the SaaS Licensed Programs, 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 using the SaaS Licensed Programs. For the purposes of this Agreement, “User” means an individual or entity who is authorized by Giatec to use a SaaS Licensed Program, and who has been supplied an account and password by Giatec for such SaaS Licensed Program.
d. Backup/Archival Copies. For Licensed Programs other than SaaS Licensed Programs, you may also: (i) make one (1) copy of the Licensed Program for backup or archival purposes, as long as you reproduce in full all copyright and other proprietary notices pertaining to the Licensed Program that appear in the Licensed Program and it is only used for the foregoing purposes; and (iii) store or install a copy of the Licensed Program on a storage device, such as a network server, used only to install or run the Licensed Program on your other devices, computers over an internal network, provided that you must acquire and dedicate a license for each separate computer on which the Licensed Program is installed or run from a storage device. All other rights are specifically reserved to GIATEC and its licensors.
2.2 New Releases. Except for SaaS Licensed Programs, this Agreement does not automatically grant You the right to any updates or enhancements of a Licensed Program or the right to receive any technical support in respect to the Licensed Program. Such updates and other technical support services, if available, may be purchased separately from GIATEC. For SaaS Licensed Programs, you will receive all improvements and enhancements of such SaaS Licensed Programs released during your Subscription Term other than new capabilities that are added to such SaaS Licensed Programs and for which Giatec is charging of its customers separate fees. GIATEC reserves the right at any time to not release or to discontinue release of any Licensed Program and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Licensed Program. Should GIATEC release any updates, upgrades or new versions of the Licensed Program or supplemental code or supporting materials for the Licensed Program (“Additional Licensed Program Releases”), and such Additional Licensed Program Releases are provided to you pursuant to a maintenance and support agreement with GIATEC or as part of your subscription for a SaaS Licensed Program, all such Additional Licensed Program Releases shall be considered part of the Licensed Program and subject to the terms and conditions of this Agreement and any additional terms and conditions that accompany the Additional Licensed Program Releases.
2.3 Restrictions. YOU MAY NOT (i) use the Licensed Program or make copies of it except as permitted in this License; (ii) translate, reverse engineer, decompile, or disassemble the Licensed Program except to the extent applicable law expressly prohibits the foregoing restriction (to the extent you are authorized by law to engage in any of the foregoing, you may only do so to the extent required to achieve interoperability with other Licensed Programs and you agree to provide Us with written notice of this activity); (iii) rent, lease, assign, license, sublicense, sell, resell or transfer the Licensed Program (and in respect of firmware/embedded software, you shall not rent, lease, assign, license, sublicense, sell, resell or transfer the firmware or embedded software to any third party except with and incorporated in the product it is provided with, and then not for value); (iv) modify the Licensed Program, create derivative works of the Licensed Program or merge all or any part of the Licensed Program with another Licensed Program; (iv) separate the component parts of the Licensed Program for use on more than one computer; (v) upload any Malicious Code to the SaaS Licensed Programs (for the purposes of this Agreement, “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs); (vi) attempt to gain unauthorized access to the SaaS Licensed Programs or their related systems or networks; or (vii) use the SaaS Licensed Programs in providing any service bureau or other SaaS or managed service offering.
2.4 Security. Information sent or received over the Internet is generally unsecure and Giatec cannot and does not make any representation or warranty concerning security of any communication to or from the Website or any representation or warranty regarding the interception by third parties of personal or other information. You are responsible for safeguarding the password that you use to access the Licensed Program and you are responsible for any activities or actions under your password. You agree to keep your password secure. GIATEC will not be liable for any loss or damage arising from your failure to comply with these requirements.
3 App Providers. If you obtain the Licensed Program through the AppStore , GooglePlay or another approved site operated by a third party (the “App Provider”), You acknowledge that the App Provider has no obligation to furnish any maintenance and support services with respect to the Licensed Program. In the event of any failure of the Licensed Program to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the Licensed Program to you (if applicable) and to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the Licensed Program. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of GIATEC and any complaints or claims you may have in relation to GIATEC should be directed to GIATEC (see section 10 below).
The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the Licensed Program or your possession and use of the Licensed Program, including, but not limited to: (i) product liability claims; (ii) any claim that the Licensed Program fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. In the event of any third party claim that the Licensed Program or your possession and use of that Licensed Program infringes that third party’s intellectual property rights, GIATEC will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You should promptly inform Us of any claim that comes to your attention.
The App Provider, and its subsidiaries, are third party beneficiaries of this Agreement as related to your license of the Licensed Program, and, upon your acceptance of the terms and conditions of this Agreement, the App Provider will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the Licensed Program against you as a third party beneficiary thereof. You must also comply with all applicable third party terms of service when using the Licensed Program.
4 Fees. In consideration of the grant of the foregoing license, you agree to pay the applicable Licensed Program license fees for the Licensed Program.
5 Term and Termination.
5.1 This Agreement shall remain in effect for as long as you are in compliance with its terms and conditions. GIATEC may, under certain circumstances and without prior notice, immediately terminate Your ability to access the Licensed Program and services or portions thereof. Cause for such termination shall include, but not be limited to, (a) breaches or violations of this Agreement or, (b) requests by law enforcement or other government agencies, (c) a request by You, (d) discontinuance or material modification to the Licensed Programs (or any part thereof), and/or (e) unexpected technical, security or legal issues or problems. Termination of Your access may also include removal of some or all of the materials uploaded by You through the Licensed Program. You acknowledge and agree that all terminations may be made by Us in Our sole discretion and that We shall not be liable to You or any third-party for any termination of Your access to the Licensed Program or for the removal of any of the materials uploaded by You through our services. Any termination of this Agreement by Us shall be in addition to any and all other rights and remedies that We may have. If Your account is thirty (30) days or more overdue or you are otherwise in breach of this Agreement, in addition to any of its other rights or remedies, Giatec shall have the right to suspend your (including your Users) access to the SaaS Licensed Programs, without any liability to you.
5.2 Effects of Termination. Your obligations of payment (if any) and your representations, the limitations of liabilities and warranties, ownership and general clauses will survive any termination of this Agreement and will remain in full force and effect even after termination.
6 No Warranty; Limitations of Liability.
6.1 THE LICENSED PROGRAM IS PROVIDED TO YOU "AS IS". GIATEC MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, WARRANTIES 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 WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE LICENSED PROGRAM AND YOU ARE SOLELY RESPONSIBLE FOR THE ADEQUATE PROTECTION AND BACKUP OF THE DATA AND EQUIPMENT USED IN CONNECTION WITH THE LICENSED PROGRAM.
6.2 NEITHER GIATEC NOR ITS LICENSORS, DEALERS OR SUPPLIERS SHALL HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF GIATEC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. GIATEC IS ALSO NOT RESPONSIBLE FOR CLAIMS BY A THIRD PARTY. THE LICENSED PROGRAM IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS LICENSED PROGRAM FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE IN WHICH THE FAILURE OF THE LICENSED PROGRAM COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
6.3 GIATEC’S MAXIMUM AGGREGATE LIABILITY TO YOU, AND THAT OF GIATEC’ LICENSORS, DEALERS AND SUPPLIERS SHALL NOT EXCEED THE PRICE PAID FOR THE LICENSED PROGRAM GIVING RISE TO THE CLAIM. THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR A FUNDAMENTAL BREACH.
The limited warranty, exclusive remedies and limited liability set out herein are fundamental elements of the basis of the bargain between you and GIATEC. You acknowledge and agree that GIATEC would not be able to provide the Licensed Program for the fees charged without such limitations. In jurisdictions which do not allow the exclusion or limitation of consequential, incidental or special damages, GIATEC's liability for such damages shall be limited to the maximum extent permitted by applicable law.
7 Ownership, Title and Feedback.
7.1 License to User Content. As between You and GIATEC, You and Your company own the data generated from Your sites where GIATEC’s wireless sensors and devices are installed (“Site Data”). You hereby grant GIATEC a non-exclusive, royalty-free license to access and process Site Data: (i) for the purpose of providing service to You, including backing-up the Site Data on GIATEC’s cloud-based servers; and (ii) to improve the algorithms, functionality and data analytics of the GIATEC sensors, devices, software and services. For greater certainty, Site Data will not be shared with third parties and only aggregated data derived from Site Data will be owned by GIATEC.
7.2 GIATEC IP. The Licensed Program, including all copies, and all copyrights and all other rights, title and interest subsisting in or related to the Licensed Program, shall at all times remain the property of GIATEC or its licensors. You must reproduce any copyright or other proprietary notices on the Licensed Program in their entirety in all copies of the Licensed Program. GIATEC and its licensors reserve all rights not expressly granted to you. If You provide Us with any suggestions, comments or other feedback relating to any aspect of the Licensed Program or GIATEC products or services ("Feedback"), We may use such Feedback in the Website, GIATEC or in any other products or services without remuneration to you.
8 U.S. Government End-Users. The Licensed Program is a "commercial item" as that term is defined at FAR 2.101, consisting of "commercial computer Licensed Program" and "commercial computer Licensed Program documentation" as such terms are defined in FAR 12.212, and are provided to the U.S. Government only as commercial end items. Government end users acquire the rights set out in this Agreement for the Licensed Program consistent with: (i) for acquisition by or on behalf of civilian agencies, the terms set forth in FAR12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, the terms set forth in DFARS 227.7202. Use of the Licensed Program is further restricted by the terms and conditions of this Agreement. For the purposes of any applicable government use, the Licensed Program was developed exclusively at private expense, and is a trade secret of Giatec Scientific Inc. for the purpose of any Freedom of Information legislation or any other disclosure statute, regulation or provision.
9 Export Restrictions. The Licensed Program and related information are subject to export and import restrictions. By downloading, installing, or using the Licensed Program, You are representing and warranting that You are not located in, under the control of, nor are a national or resident of, any country to which the export of the Licensed Program and/or related information would be prohibited by the laws and/or regulations of Canada and/or the United States. You are also representing and warranting that You are not an individual to whom the export of the Licensed Program or related information would be prohibited by the laws and/or regulations of Canada or the United States. You shall comply with the export laws and regulations of Canada and the United States that are applicable to the Licensed Program and related information and You shall comply with any local laws and/or regulations in Your jurisdiction that may impact Your right to export, import, or use the Licensed Program or related information, and You represent and warrant that You have complied with any such applicable laws and/or regulations. The Licensed Program and related information shall not be used for any purposes prohibited by export laws and/or regulations, including, without limitation, nuclear, chemical, or biological weapons proliferation. You shall be responsible for procuring all required permissions for any subsequent export, import, or use of the Licensed Program or related information.
10 General. This Agreement is the entire agreement between GIATEC and you concerning the subject matter hereof and supersedes all other agreements, discussions and negotiations, whether oral or written. This Agreement cannot be modified or amended except by a written agreement signed by an authorized officer of GIATEC. This Agreement shall be governed by the laws of the Province of Ontario, Canada (including 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 Ontario courts and waive trial by jury, except to the extent a waiver of a jury trial is not permitted by applicable law. If any provision of this Agreement is found to be illegal, invalid or unenforceable, such provision shall be deemed severed and the remainder of the Agreement shall continue in full force and effect. You agree to comply with all applicable laws including export restrictions as they relate to this Agreement and your use of the Licensed Program.
11 Contact. If you have any questions about this Agreement please contact us at: [email protected].