END USER LICENSE AGREEMENT
IMPORTANT PLEASE READ CAREFULLY: This End User License Agreement (“EULA”) is a legal agreement between you (either an individual or a company) (“Licensee”) and Zebra Technologies Corporation (“Zebra”) for Software, owned by Zebra and its affiliated companies and its third-party suppliers and licensors, that accompanies this EULA. For purposes of this EULA, “Software” shall mean machine-readable instructions used by a processor to perform specific operations. BY USING THE SOFTWARE, LICENSEE ACKNOWLEDGES ACCEPTANCE OF THE TERMS OF THIS EULA. IF LICENSEE DOES NOT ACCEPT THESE TERMS, LICENSEE MAY NOT USE THE SOFTWARE.
1. GRANT OF LICENSE. Zebra grants Licensee, the following rights provided that Licensee complies with all terms and conditions of this EULA: For Software provided with Zebra hardware, Zebra hereby grants Licensee a limited, personal, non-exclusive license during the term of this EULA to use the Software solely and exclusively for Licensee’s internal use in support of the operation of Licensee’s associated Zebra hardware and for no other purpose. Licensee has no right to use Software provided with Zebra hardware to support non-Zebra hardware. To the extent that non-device specific Software is provided to Licensee in a manner that is designed to be installed by Licensee, Licensee may install one copy of the installable Software on one hard disk or other device storage for one printer, computer, workstation, terminal, controller, access point or other digital electronic device, as applicable (an “Electronic Device”), and Licensee may access and use that Software as installed on that Electronic Device so long as only one copy of such Software is in operation. Licensee may install, use, access, display and run only the number of copies of the Software to which Licensee is entitled under a purchase order, support contract or other agreement with Zebra. In the absence of a support contract, Licensee is entitled, for a period of ninety (90) days from when the instance of Software (or hardware including the Software) are first shipped by Zebra or downloaded by Licensee, to obtain, if available, updates, from Zebra and operational technical support, not including implementation, integration or deployment support (“Entitlement Period”). Licensee may not obtain updates from Zebra after the Entitlement Period, unless covered by a Zebra support contract or other written agreement with Zebra. 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 Licensee on a Legal Notices readme file available on Licensee’s device and/or in System Reference guides or in Command Line Interface (CLI) reference guides associated with certain Zebra software or products.
1.1 Authorized Users. The licenses granted herein are subject to the condition that Licensee ensures the maximum number of authorized users accessing and using the Software either alone or concurrently is equal to the number of user licenses for which Licensee is entitled to use either through a Zebra channel partner member or Zebra. Licensee may purchase additional user licenses at any time upon payment of the appropriate fees to the Zebra channel partner member or Zebra.
1.2 Software Transfer. Licensee may only transfer this EULA and the rights to the Software or updates granted herein to a third-party in connection with the support or sale of a device which the Software accompanied during the Entitlement Period or as covered by a Zebra support contract. In such event, the transfer must include all of the Software (including all component parts, the media and printed materials, any upgrades, and this EULA) and Licensee may not retain any copies of the Software. The transfer may not be an indirect transfer, such as a consignment. Prior to the transfer, the end user receiving the Software must agree to all the EULA terms. If Licensee is purchasing Zebra products and licensing Software for end use by a U.S. Government end user, Licensee may transfer such Software license, but only if: (i) Licensee transfers all copies of such Software to the U.S. Government end user or to an interim transferee, and (ii) Licensee has first obtained from the transferee (if applicable) and ultimate end user an enforceable end user license agreement containing restrictions substantially identical to the ones contained in this EULA. Except as stated in the foregoing, Licensee and any transferee(s) authorized by this provision may not otherwise use or transfer or make available any Zebra software to any third-party nor permit any party to do so.
2. RESERVATION OF RIGHTS AND OWNERSHIP. Zebra and its suppliers and licensors reserve all rights not expressly granted to Licensee in this EULA. The Software is protected by copyright and other intellectual property laws and treaties. Zebra or its suppliers or licensors own the title, copyright and other intellectual property rights in the Software. The Software is licensed, not sold. Licensee understands and agrees that Zebra may license the Software or part of the Software from one or more third-party licensors and any such applicable third-party licensor is an intended third-party beneficiary to this EULA and any such third-party licensor and its successors and assigns may enforce any and all terms of this EULA, and nothing herein shall limit such third-party licensor’s legal or equitable rights (including injunctive relief), benefits, or remedies of any nature whatsoever under or by reason of this EULA.
3. LIMITATIONS ON END USER RIGHTS. Licensee may not reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or algorithms of, the Software or modify, or disable any features of, the Software, or create derivative works based on the Software. Licensee may not rent, lease, lend, sublicense or provide commercial hosting services with the Software.
4. MACHINE DATA. “Machine Data” means usage data collected by software or devices sold (or licensed) under this EULA such as battery management (time to empty, standby current, average current), device system time, CPU processing load, application usage time, 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 memory availability, power cycle count, and device up time. Notwithstanding anything else in this EULA, all title and ownership rights in and to Machine Data are held by Zebra. In the event, and to the extent Licensee is deemed to have any ownership rights in Machine Data, Licensee hereby grants Zebra a limited, irrevocable, non-exclusive right and license to use Machine Data.
5. AGGREGATE DATA COLLECTION. Licensee acknowledges and agrees that Zebra may as permitted by law (a) collect, process, and use aggregated data, stored by or related to the Software, including, without limitation, data generated by the Software or data generated by any device incorporating the Software, and create anonymized and/or aggregated data records that do not allow Zebra to identify any natural person (“Aggregate Data”), (b) use such Aggregate Data to improve the Software, develop new software or services, understand industry trends, create and publish white papers, reports, or databases summarizing the foregoing, and generally for any legitimate purpose related to Zebra’s business, and (c) use Aggregate Data to investigate and help address and/or prevent actual or potential unlawful activity.
6. LOCATION INFORMATION. The Software may enable Licensee to collect location-based data from one or more client devices which may allow Licensee to track the actual location of those client devices. Zebra specifically disclaims any liability for Licensee’s use or misuse of the location-based data. Licensee agrees to pay all reasonable costs and expenses of Zebra arising from or related to third-party claims resulting from Licensee’s use or misuse of the location-based data.
8. SOFTWARE RELEASES. During the Entitlement Period, Zebra or Zebra’s channel partner members may make software releases available to Licensee as those releases become available after the date Licensee obtains its initial copy of the Software. This EULA applies to all and any component of the release that may be made available to Licensee after the date Licensee obtains its initial copy of the Software, unless Zebra provides other license terms along with such release. To receive Software provided through the release, Licensee must first be licensed for the Software identified by Zebra as entitled to the release. Zebra recommends that Licensee enter into a Zebra support contract to ensure that Licensee is entitled to receive any available Software releases. Some features of the Software may require Licensee to have access to the internet and may be subject to restrictions imposed by Licensee’s network or internet provider.
9. EXPORT RESTRICTIONS. Licensee acknowledges that the Software is subject to export restrictions of various countries. Licensee agrees to comply with all applicable international and national laws that apply to the Software, including all the applicable export restriction laws and regulations.
10. ASSIGNMENT. Licensee may not assign this EULA or any of Licensee’s rights or obligations hereunder (by operation of law or otherwise) without the prior written consent of Zebra. Zebra may assign this EULA and its rights and obligations without Licensee’s consent. Subject to the foregoing, this EULA shall be binding upon and inure to the benefit of the parties to it and their respective legal representatives, successors and permitted assigns.
11. TERMINATION. This EULA is effective until terminated. Licensee’s rights under this EULA will terminate automatically without notice from Zebra if Licensee fails to comply with any of the terms and conditions of this EULA. Zebra may terminate this EULA by offering Licensee a superseding agreement for the Software or for any new release of the Software and conditioning Licensee’s continued use of the Software or such new release on Licensee’s acceptance of such superseding agreement. Upon termination of this EULA, Licensee must cease all use of the Software and destroy all copies, full or partial, of the Software.
12. 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 EULA 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 LICENSEE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY LICENSEE 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.
14. 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 LICENSEE. NOTWITHSTANDING THE FOREGOING, ZEBRA’S TOTAL LIABILITY TO LICENSEE FOR ALL LOSSES, DAMAGES, CAUSES OF ACTION, INCLUDING BUT NOT LIMITED TO THOSE BASED ON CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF LICENSEE’S 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 LICENSE OR AMOUNT PURCHASER PAID SPECIFICALLY FOR THE SOFTWARE LICENSE. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS (INCLUDING SECTIONS 11, 12, 13, 14 AND 18) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
15. INJUNCTIVE RELIEF. Licensee acknowledges that, in the event Licensee breaches any provision of this EULA, Zebra will not have an adequate remedy in money or damages. Zebra shall therefore be entitled to seek 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.
16. MODIFICATION. No modification of this EULA 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. Continued usage of the Software shall, following modification to the updated EULA, constitute consent to be bound by the updated terms.
17. 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.
18. 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.