Symbol Technologies, Inc. (“Symbol”) is willing to license its software and the accompanying documentation to you only on the condition that you accept all the terms in this License Agreement ("Agreement").
IMPORTANT: BY DOWNLOADING THIS SOFTWARE YOU ACKNOWLEDGE THAT YOU HAVE READ THE END USER LICENSE AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, SYMBOL IS NOT WILLING TO LICENSE THE PRODUCT TO YOU. IF YOU DO NOT AGREE TO THESE TERMS DO NOT INITIATE DOWNLOAD OF THIS SOFTWARE. NO REFUND WILL BE APPLICABLE AS THERE IS NO COST ASSOCIATED WITH THIS SOFTWARE.
This is a legal agreement between Symbol and you for the use of the Product. The word “you” includes the organization or entities that you represent.
For purposes of this Agreement, the terms provided below shall have the following meaning:
1.1 "Software" refers to the software this Agreement is attached to.
1.2 "Documentation" refers to electronic or printed manuals and accompanying instructional aides licensed to you. 1.3 "Product(s)" refers to the specific combination of Software and Documentation that you have licensed and which has been provided to you under the terms of this Agreement.
- License Grant.
Provided that you comply with the Conditions of Use set forth in Section 3 below, Symbol grants you a personal, nonexclusive, nontransferable license to use the Product. All uses of the licensed Software must be in accordance with the Documentation provided for the licensed Software. The license granted herein will automatically terminate in the event of any violation of this Agreement by you. You is not granted any rights or licenses in the Product other than those rights expressly granted in this Agreement. Symbol reserves all rights not expressly granted to you under this Agreement.
- Conditions of Use.
3.1 Any use of the Products outside of the conditions set forth herein is strictly prohibited and will be deemed a breach of this Agreement.
3.2 Only you, your employees or agents may use the Products. You shall take all necessary steps to insure that your employees and agents abide by the terms of this Agreement.
3.3 You shall use the Products (i) only for your own use; (ii) only as described in the Products; and (iii) in strict accordance with this Agreement.
3.4 You may install and use the Products on a single device, provided that the use is in conformance with the terms set forth in this Agreement. The Products may not be transferred to another party without the express written consent of Symbol, regardless of whether or not such transfer is accomplished by physical or electronic means.
3.5 Portions of the Products are protected by United States copyright laws, international treaty provisions, and other applicable laws. Therefore, you must treat the Products like any other copyrighted material (e.g., a book or musical recording) except that you may either: (i) make 1 copy of the transportable part of the Products (which typically is supplied on diskette, CD-ROM, or downloadable internet), solely for back-up purposes; or (ii) copy the transportable part of the Products to a PC hard disk, provided you keep the original solely for back-up purposes. If the Documentation is in printed form, it may not be copied. If the Documentation is in electronic form, you may print out 1 copy, which then may not be copied. With regard to the copy made for backup or archival purposes, you agree to reproduce any Symbol copyright notice, and other proprietary legends appearing thereon. Such copyright notice(s) may appear in any of several forms, including machine-readable form, and you agree to reproduce such notice in each form in which it appears, to the extent it is physically possible to do so. Unauthorized duplication of the Software or Documentation constitutes copyright infringement, and in the United States is punishable in federal court by fine and imprisonment.
3.6 You agree to maintain your records regarding your use of the Product during the term of this agreement and seven (7) years thereafter. You grant Symbol the right, which Symbol will exercise at its own expense and no more than once per year, to enter your premises during business hours for the sole purpose of examining your records and other information relating to the your use of the Products. If this examination reveals that you have underpaid fees or improperly used the Products, Symbol shall invoice you for such unauthorized use based upon Symbol’s standard fees in effect at the time the examination is completed. If the underpaid fees exceed five percent (5%) of the fees actually paid, then you shall also pay Symbol’s reasonable costs of conducting the examination, and is hereby bound to pay Symbol an amount equal to one hundred twenty-five percent (125%) of that which you has failed to report or pay to compensate Symbol for its internal costs and interest due to delayed payment in connection with the inspection. Any payments due under this Section shall be due immediately following notice from Symbol of such deficiency or failure to report.
3.7 You shall not, and shall not permit others to: (i) modify, translate, decompile, bootleg, reverse engineer, disassemble, or extract the inner workings of the Software or Documentation, (ii) copy the look-and-feel or functionality of the Software or Documentation; (iii) remove any proprietary notices, marks, labels, or logos from the Software or Documentation; (iv) rent or transfer all or some of the Software or Documentation to any other party without Symbol’s prior written consent; or (v) utilize any computer software or hardware which is designed to defeat any copy protection device, should the Products be equipped with such a protection device. If the Products contain Software or Documentation that is provided on multiple types of media (such as diskette, CD-ROM, downloadable internet), then you shall only use the medium which best meets your specific needs, and shall not loan, rent, lease, or transfer the other media contained in the package without Symbol’s written consent. Unauthorized copying of the Software or Documentation, or failure to comply with any of the provisions of this Agreement, will result in automatic termination of this license.
Title to all copies of Software will not pass to you at any time and remains vested exclusively in Symbol. Symbol owns and retains all of its proprietary rights in any form concerning the Software and Documentation, including all rights in patents, patent applications, inventions, copyrights, trade secrets, trademarks, trade names, and other intellectual properties (including any corrections, bug fixes, enhancements, updates, or modifications to or derivative works from the Software whether made by Symbol or another party, or any improvements thereof). Nothing in this Agreement is intended to restrict the proprietary rights of Symbol or to grant by implication or estoppel any proprietary rights. All intellectual property developed, originated, or prepared by Symbol in connection with providing Software, Products, Documentation, or related services remain vested exclusively in Symbol, and this Agreement does not grant to you any shared development rights of intellectual property.
4.1 If you transfer possession of any copy of the Products to another party outside of the terms of this agreement, your license is automatically terminated. Title and copyrights to the Products and any copies made by you remain with Symbol and its licensors.
You acknowledge that all Products contain valuable proprietary information and trade secrets and that unauthorized or improper use of the Products will result in irreparable harm to Symbol for which monetary damages would be inadequate and for which Symbol will be entitled to immediate injunctive relief. Accordingly, you will limit access to the Products to those of your employees and agents who need to use the Products for your internal business purposes, and you will take appropriate action with those employees and agents to preserve the confidentiality of the Products, using the same degree of care to avoid unauthorized or improper disclosure as you use for the protection of your own proprietary software, but in no event less than reasonable care. Notwithstanding anything to the contrary herein, you shall have no obligation to preserve the confidentiality of any proprietary information that: (i) was in the public domain at the time of disclosure; (ii) entered the public domain through no fault of yours; (iii) was given to you free of any obligation to keep it confidential; (iv) is independently developed by you; or (v) is disclosed as required by law provided that you notify Symbol prior to such disclosure and provide Symbol with a reasonable opportunity to respond.
- Right to Use SYMBOL’s Name.
Except as required in Section 3.5 above, you shall not, during the term of this Agreement or thereafter, use any trademark, of Symbol, or any word or symbol likely to be confused with any Symbol trademark, either alone or in any combination with another word or words.
Symbol shall not be responsible for maintenance or field service of the Software under this Agreement.
- Limited warranty and warranty disclaimer.
8.1 Limited Warranty. All diskettes or CD-ROMS on which the Products are furnished ("Media") are warranted to be free from manufacturing and material defects for 90 days after the shipment date of the Products to you. Media that becomes defective during such period will be repaired or, at Symbol’s option, replaced. This limited warranty is contingent upon proper use of the Media and does not cover Products which have been tampered with, modified, or subjected to unusual physical or electrical stress. Tampering with or removal of any factory seal or label on any Media voids this warranty and releases Symbol from any and all liability.
8.2 Disclaimer. EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTY, SYMBOLMAKES, AND YOU RECEIVE, NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR IN ANY COMMUNICATION WITH YOU. SYMBOLSPECIFICALLY DISCLAIMS ANY WARRANTY INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILTY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE PRODUCTS ARE PROVIDED "AS IS." SYMBOL DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. SYMBOLMAKES NO WARRANTY WITH RESPECT TO THE CORRECTNESS, ACCURACY, OR RELIABILITY OF THE SOFTWARE AND DOCUMENTATION. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
8.3 Remedies. The entire liability of Symbol, and your exclusive remedy under the warranty provided herein will be, at Symbol’s option, to repair or replace any Media found to be defective within the warranty period, or to refund the purchase price and terminate this Agreement. To seek such a remedy, you must return the entire Product to Symbol, with a copy of the original purchase receipt, within the warranty period.
- Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, SYMBOLAND ITS LICENSORS WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE AMOUNTS YOU PAID FOR THE LICENSED PRODUCT; (II) ANY LOST DATA OR OTHER EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOOD WILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA, OR ANY AND ALL LOST PROFITS, EVEN IF SYMBOLHAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (III) THE COST OF PROCURING SUBSTITUTE GOODS,SERVICES OR TECHNOLOGY. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
- High Risk Activities
The Products are not fault-tolerant and are not designed, manufactured or intended for use or resale as on-line control software in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Products could lead directly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). Symbol and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities, and if you elect to use the Products in any High Risk Activities, you agree to indemnify, defend, and hold Symbol harmless from and against any and all costs, damages, and losses related to that use.
- U.S. Government
If you are acquiring the Products on behalf of any unit or agency of the U.S. Government, the following shall apply. Use, duplication, or disclosure of the Products is subject to the restrictions set forth in subparagraphs (c) (1) and (2) of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19 (JUNE 1987), if applicable, unless being provided to the Department of Defense. If being provided to the Department of Defense, use, duplication, or disclosure of the Products is subject to the restricted rights set forth in subparagraph (c) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (OCT 1988), if applicable. Software and Documentation may or may not include a Restricted Rights notice, or other notice referring specifically to the terms and conditions of this Agreement. The terms and conditions of this Agreement shall each continue to apply, but only to the extent that such terms and conditions are not inconsistent with the rights provided to you under the aforementioned provisions of the FAR and DFARS, as applicable to the particular procuring agency and procurement transaction.
- Term of License
12.1 Your right to use the Products will begin when you click the "ACCEPT" button below, which constitutes acceptance of the terms and conditions herein, and will continue in perpetuity unless terminated as follows. Your right to use the Products will terminate immediately without notice upon a breach of this Agreement by you. Otherwise, this Agreement may be terminated by either party upon 30 days prior written notice. Within 30 days after termination of this Agreement, you will certify to Symbol in writing that through your best efforts, and to the best of your knowledge, the original and all copies, in whole or in part, in any form, of the Software and all related material and Documentation, have been destroyed, except that, with prior written consent from Symbol, you may retain one copy for archival or backup purposes. You may not sublicense, assign or transfer the license or the Products, except as expressly provided in this Agreement. Any attempt to otherwise sublicense, assign or transfer any of the rights, duties or obligations hereunder is null and void.
12.2 You acknowledge that Symbol has made a considerable investment of resources in the development, marketing, and distribution of its proprietary Software and Documentation and that reasonable and appropriate limitations on your use of the Software and Documentation are necessary for Symbol to protect its investment, trade secrets, and valuable intellectual property rights concerning the Software and Documentation. You also acknowledges that its breach of this Agreement will result in irreparable harm to Symbol for which monetary damages would be inadequate. In the event of a breach of this Agreement and in addition to termination of this Agreement, Symbol will be entitled to all available remedies at law or in equity (including immediate injunctive relief and repossession of all non-embedded Software and associated Documentation unless you are a Federal agency of the United States Government). Within thirty (30) days after termination of this Agreement, you must certify in writing to Symbol that all copies of the Software and Documentation have been returned to Symbol or destroyed and are no longer in use by you.
- Governing Law.
This Agreement shall be governed by and construed in accordance with the federal laws of the United States of America and the internal laws of the State of New York without giving effect to any choice of law rule that would result in the application of the laws of any other jurisdiction. Each party (a) hereby irrevocably submits itself to and consents to the jurisdiction of the United States District Court for the Southern District of New York (or if such court lacks jurisdiction, the state courts of the State of New York) for the purposes of any action, claim, suit or proceeding between the parties in connection with any controversy, claim, or dispute arising out of or relating to this Agreement; and (b) hereby waives, and agrees not to assert by way of motion, as a defense or otherwise, in any such action, claim, suit or proceeding, any claim that is not personally subject to the jurisdiction of such court(s), that the action, claim, suit or proceeding is brought in an inconvenient forum or that the venue of the action, claim, suit or proceeding is improper.
- Survival of Provisions.
Sections 3, 4, 5, 9 and 13 of this Agreement shall survive any termination of this Agreement.
- Compliance with Laws.
You will comply with all applicable laws and regulations, including export laws and regulations of the United States. You will not, without the prior authorization of Symbol and the appropriate governmental authority of the United States, in any form export or re-export, sell or resell, ship or reship, or divert, through direct or indirect means, any item or technical data or direct or indirect products sold or otherwise furnished to any person within any territory for which the United States Government or any of its agencies at the time of the action, requires an export license or other governmental approval. Violation of this provision will be a material breach of this Agreement, permitting immediate termination by Symbol.
Failure or delay by either party to exercise a right or power under this Agreement will not be a waiver of the right or power. For a waiver of a right or power to be effective, it must be in writing signed by the waiving party. An effective waiver of a right or power will not be construed as either a future or continuing waiver of that same right or power, or the waiver of any other right or power.
This Agreement may not be assigned or otherwise transferred by you. Symbol may assign any of its rights or subcontract any of its obligations under this Agreement, or encumber or sell any of its rights in any Software, without prior notice to or consent of you. In addition, for any Symbol divestiture, sale or other similar transaction (whether by way of merger, asset sale, stock sale, spin-off or otherwise), Symbol may, without the prior written consent of you and at no additional cost to Symbol or to the assignee entity(ies), assign or split its rights and obligations under this Agreement, in whole or in part, to the resulting entities.
- Entire Agreement and Amendment.
This Agreement constitutes the entire agreement of the parties regarding your use of the Software and Documentation and may be amended or modified only by a written instrument signed by an authorized representative of each party, except that Symbol may modify this Agreement as necessary to comply with applicable laws and regulations. This Agreement will be fairly interpreted in accordance with its terms and conditions and not for or against either party.
If a court of competent jurisdiction renders any part of this Agreement to be invalid or unenforceable, that part will be severed and the remainder of this Agreement will continue in full force and effect.
- Third Party Software.
The Software may contain one or more items of third-party software supplied by other third-party suppliers. The terms of this Agreement govern your use of any third-party software unless a separate third-party software license is included, in which case your use of the third-party software will then be governed by the separate third-party software license. Unless otherwise specifically stated herein, Symbol makes no representations or warranties of any kind regarding third party software.