END USER LICENSE AGREEMENT (UNRESTRICTED SOFTWARE)
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IMPORTANT PLEASE READ CAREFULLY: This End User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and ZIH Corp ("Zebra") for software, owned by Zebra and its affiliated companies and its third party suppliers and licensors, that accompanies this EULA. ("Software"). BY USING THE SOFTWARE, YOU ACKNOWLEDGE ACCEPTANCE OF THE TERMS OF THIS EULA. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT USE THE SOFTWARE.
1. GRANT OF LICENSE. Zebra grants you, End-User Customer, the following rights provided that you comply with all terms and conditions of this EULA: For Software associated with Zebra hardware, Zebra hereby grants you ("Licensee" or "you") a personal, nonexclusive, nontransferable, nonassignable, nonsublicenseable license to use the Software subject to the terms and conditions of this Agreement. Only your employees or subcontractors may use the Software. You shall take all necessary steps to insure that your employees and subcontractors abide by the terms of this Agreement. You shall use the Software only for your internal business purposes, exclusively to support the Zebra hardware, including the right to (i) use, modify, and incorporate all or portions of the sample source code (the "Sample Code"), runtime library files, and/or documentation files that may be included in the unmodified Software into Licensee’s own programs (the "User Programs") to support the Zebra hardware exclusively, provided that no license is granted herein under any patents that may be infringed by Licensee’s modifications, derivative works or by other works in which any portion of the Software may be incorporated; (ii) distribute the Sample Code in object code format only as substantially modified or only as part of the User Programs to support the Zebra hardware exclusively; and (iii) distribute the runtime library files in their original form to support the Zebra hardware exclusively. For a standalone Software application, you may install, use, modify, and incorporate all or portions of any object code, available source code ("Source Code"), runtime library files, and/or documentation files that may be included with the unmodified Software into your own programs (the "User Programs") and distribute the User Programs to third parties. Any use of the Software outside of the conditions set forth herein is strictly prohibited and will be deemed a breach of this Agreement resulting in immediate termination of your License. Zebra will be entitled to all available remedies at law or in equity (including immediate injunctive relief and repossession of all Software unless Licensee is a Federal agency of the United States Government).
Certain items of the Software may be subject to open source licenses. The open source license provisions may override some of the terms of this EULA. Zebra makes the applicable open source licenses available to you on a Legal Notices readme file available on your device and/or in System Reference guides or in Command Line Interface (CLI) Reference guides associated with certain Zebra products.
2. RESERVATION OF RIGHTS AND OWNERSHIP. Zebra reserves all rights not expressly granted to you in this EULA. The Software is protected by copyright and other intellectual property laws and treaties. Zebra or its suppliers own the title, copyright and other intellectual property rights in the Software. The Software is licensed, not sold.
3. LIMITATIONS ON END USER RIGHTS. You shall not distribute, sublicense, rent, loan, lease, export, re-export, resell, ship or divert or cause to be exported, re-exported, resold, shipped or diverted, directly or indirectly, the unmodified Software under this Agreement. You shall not, and shall not permit others to: (i) combine the Software including any Sample or Source Code, in whole or in part, with any Open Source Software having license terms and obligations that include copyleft obligations and/or intellectual property encumbrances; (ii) remove any proprietary notices, marks, labels, or logos from the Software; (iii) rent or transfer all or some of the Software to any other party without Zebra’s prior written consent; or (iv) utilize any computer software or hardware which is designed to defeat any copy protection device, should the Software be equipped with such a protection device.
4. MACHINE DATA. “Machine Data” means anonymized usage data collected by devices sold (or licensed) under this Agreement such as battery management (time to empty, standby current, average current), device system time, CPU processing load, free RAM, number of running processes, network information (name, identifier), device identifier, firmware version, hardware version device type, audio volume, LED state, beeper volume, backlight level, key light, odometer count, reboot, reboot cause, total storage and physical memory availability, power cycle count, and device up time. Notwithstanding anything else in this Agreement, all title and ownership rights in and to Machine Data are held by Zebra. In the event, and to the extent you are deemed to have any ownership rights in Machine Data, you hereby grant Zebra a limited, revocable, non-exclusive right and license to use Machine Data.
5. LOCATION INFORMATION. The Software may enable you to collect location-based data from one or more client devices which may allow you to track the actual location of those client devices. Zebra specifically disclaims any liability for your use or misuse of the location-based data. You agree to pay all reasonable costs and expenses of Zebra arising from or related to third party claims resulting from your use of the location-based data.
6. SOFTWARE RELEASES. Zebra may periodically release new versions of the Software which will be made available to you.
7. EXPORT RESTRICTIONS. You acknowledge that the Software is subject to export restrictions of various countries. You agree to comply with all applicable international and national laws that apply to the Software, including all the applicable export restriction laws and regulations.
8. ASSIGNMENT. You may not assign this Agreement or any of your rights or obligations hereunder (by operation of law or otherwise) without the prior written consent of Zebra. Zebra may assign this Agreement and its rights and obligations without your consent. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties to it and their respective legal representatives, successors and permitted assigns.
9. TERMINATION. This EULA is effective until terminated. Your rights under this License will terminate automatically without notice from Zebra if you fail to comply with any of the terms and conditions of this EULA. Zebra may terminate this Agreement by offering you a superseding Agreement for the Software or for any new release of the Software and conditioning your continued use of the Software or such new release on your acceptance of such superseding Agreement. Upon termination of this EULA, you must cease all use of the Software and destroy all copies, full or partial, of the Software.
10. DISCLAIMER OF WARRANTY. UNLESS SEPARATELY STATED IN A WRITTEN EXPRESS LIMITED WARRANTY, ALL SOFTWARE PROVIDED BY ZEBRA IS PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND FROM ZEBRA, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT POSSIBLE PURSUANT TO APPLICABLE LAW, ZEBRA DISCLAIMS ALL WARRANTIES EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR WORKMANLIKE EFFORT, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY OR AVAILABILITY, ACCURACY, LACK OF VIRUSES, NON INFRINGEMENT OF THIRD PARTY RIGHTS OR OTHER VIOLATION OF RIGHTS. ZEBRA DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. TO THE EXTENT THAT THE SOFTWARE COVERED BY THIS EULA INCLUDES EMULATION LIBRARIES, SUCH EMULATION LIBRARIES DO NOT WORK 100% CORRECTLY OR COVER 100% OF THE FUNCTIONALITY BEING EMULATED, ARE OFFERED "AS IS" AND WITH ALL FAULTS, AND ALL THE DISCLAIMERS AND LIMITATIONS CONTAINED IN THIS PARAGRAPH AND THIS AGREEMENT APPLY TO SUCH EMULATION LIBRARIES. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OR LIMITATIONS OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ZEBRA OR ITS AFFILIATES SHALL BE DEEMED TO ALTER THIS DISCLAIMER BY ZEBRA OF WARRANTY REGARDING THE SOFTWARE, OR TO CREATE ANY WARRANTY OF ANY SORT FROM ZEBRA.
12. LIMITATION OF LIABILITY. ZEBRA WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THE USE OR THE INABILITY TO USE THE SOFTWARE OR ANY THIRD PARTY APPLICATION, ITS CONTENT OR FUNCTIONALITY, INCLUDING BUT NOT LIMITED TO DAMAGES CAUSED BY OR RELATED TO ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FAILURE TO CONNECT, NETWORK CHARGES, IN-APP PURCHASES, AND ALL OTHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES EVEN IF ZEBRA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. NOTWITHSTANDING THE FOREGOING, ZEBRA’S TOTAL LIABILITY TO YOU FOR ALL LOSSES, DAMAGES, CAUSES OF ACTION, INCLUDING BUT NOT LIMITED TO THOSE BASED ON CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF YOUR USE OF THE SOFTWARE OR THIRD PARTY APPLICATIONS, OR ANY OTHER PROVISION OF THIS EULA, SHALL NOT EXCEED THE FAIR MARKET VALUE OF THE SOFTWARE OR AMOUNT PURCHASER PAID SPECIFICALLY FOR THE SOFTWARE. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS (INCLUDING SECTIONS 10, 11, 12, AND 15) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
13. INJUNCTIVE RELIEF. You acknowledge that, in the event you breach any provision of this Agreement, Zebra will not have an adequate remedy in money or damages. Zebra shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request without posting bond. Zebra's right to obtain injunctive relief shall not limit its right to seek further remedies.
14. MODIFICATION. No modification of this Agreement shall be binding unless it is in writing and is signed by an authorized representative of the party against whom enforcement of the modification is sought.
15. U.S. GOVERNMENT END USERS RESTRICTED RIGHTS. This provision only applies to U.S. Government end users. The Software is a “commercial item” as that term is defined at 48 C.F.R. Part 2.101, consisting of “commercial computer software” and “computer software documentation” as such terms are defined in 48 C.F.R. Part 252.227-7014(a)(1) and 48 C.F.R. Part 252.227-7014(a)(5), and used in 48 C.F.R. Part 12.212 and 48 C.F.R. Part 227.7202, as applicable. Consistent with 48 C.F.R. Part 12.212, 48 C.F.R. Part 252.227-7015, 48 C.F.R. Part 227.7202-1 through 227.7202-4, 48 C.F.R. Part 52.227-19, and other relevant sections of the Code of Federal Regulations, as applicable, the Software is distributed and licensed to U.S. Government end users (a) only as a commercial item, and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions contained herein.
16. APPLICABLE LAW. This EULA is governed by the laws of the state of Illinois, without regard to its conflict of law provisions. This EULA shall not be governed by the UN Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.