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Datalogic Mobile Falcon® Management Utility™ End User License Agreement
7. Infringement.
7.1Datalogic will defend End User against any claim that the Licensed Products furnished hereunder infringe a United States patent, trademark, or copyright of a third party and Datalogic will pay any damages finally awarded against End User by a court of competent jurisdiction that are attributable to such claim or will pay End User’s part of any settlement that is attributable to such claim, provided, that 1) End User notifies Datalogic promptly in writing of the claim, 2) Datalogic controls the defense or set- tlement of the claim, and 3) End User cooperates fully with Datalogic in such defense or settlement. All notices of a claim should be sent to Datalogic Mobile, Inc., General Counsel, 1505 Westec Drive, Eugene, Oregon, 97402.
7.2In the defense or settlement of any such claim, Datalogic may, at its option, 1) procure for End User the right to continue using the Licensed Products, 2) modify the Licensed Products so that they become
7.3Datalogic shall have no liability to End User for claims of infringement based upon 1) the use of any Licensed Product in com- bination with any product which Datalogic has not either furnished or authorized for use with such Licensed Product, 2) the use of any Licensed Product designed, manufactured, or modified to the specifications of End User, or 3) End User’s modification of the Licensed Products without written authorization from Datalogic.
THE FOREGOING STATES DATALOGIC’S COMPLETE AND ENTIRE OBLIGATION TO END USER CONCERNING CLAIMS OF PATENT, TRADEMARK, COPYRIGHT, OR OTHER INTELLECTUAL PROPERTY INFRINGEMENT, CANCELS AND SUPERCEDES ANY PRIOR AGREEMENTS, WHETHER ORAL OR WRITTEN, BETWEEN DATALOGIC AND END USER CONCERNING SUCH CLAIMS, AND WILL NOT BE MODIFIED OR AMENDED BY ANY PAST, CONTEMPORANEOUS, OR FUTURE AGREEMENTS OR DEALINGS BETWEEN DATALOGIC AND END USER, WHETHER ORAL OR WRITTEN, EXCEPT AS SET FORTH IN A FUTURE WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF EACH PARTY.
8. Limitation of Liability.
EXCEPT AS PROVIDED IN SECTION 8, DATALOGIC SHALL NOT BE LIABLE FOR ANY CLAIMS AGAINST END USER BY ANY OTHER PARTY NOR SHALL DATALOGIC'S LIABILITY FOR DAMAGES, IF ANY, WHETHER BASED UPON CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY, WARRANTY, OR ANY OTHER BASIS, EXCEED THE PRICE OR FEE PAID BY END USER FOR THE LICENSED PRODUCTS. UNDER NO CIRCUMSTANCES SHALL DATALOGIC BE LIABLE TO END USER OR ANY THIRD PARTY FOR LOST PROFITS, LOST DATA, INTERRUPTION OF SERVICE, OR FOR ANY SPECIAL, CONSEQUENTIAL, CONTINGENT, INDIRECT, INCIDENTAL, PUNITIVE, EXEM- PLARY, OR OTHER SIMILAR DAMAGES, EVEN IF DATALOGIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAM- AGES.
9. Government Restricted Rights; International Use.
The Licensed Products are provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to the restrictions for computer software developed at private expense as set forth in the U.S. Federal Acquisition Regulations at FAR
10. Termination.
10.1Either party may terminate this Agreement or any license granted under this Agreement at any time upon written notice if the other party fails to comply with any material term or condition. Datalogic may terminate this Agreement immediately in the event that End User (i) fails to pay any amount that is due within thirty (30) days of receiving a written demand, (ii) breaches any provision of this Agreement unless such breach is corrected or cured within fifteen (15) days after receipt of written notice from Datalogic, (iii) transfers any substantial part of its business or in any manner ceases to continue its business, or experiences any material change or transfer in its management or control, or (vi) becomes insolvent, voluntarily files a petition in bankruptcy, becomes the subject of an involuntary bankruptcy proceeding which is not dismissed within thirty (30) days, or is otherwise the subject of an action provided by law which is intended to relieve it from any of its debts.
10.2Upon termination of this Agreement, End User immediately shall cease using the Software and shall return to Datalogic or destroy all Licensed Products covered by this Agreement, and shall furnish Datalogic with a certificate of compliance with this provision signed by an officer or authorized representative of End User.
User’s Manual | vii |