warranty period, Datalogic’s liability is limited to providing End User with one copy of corrections or responding to End User's problem reports accord- ing to Datalogic's standard assistance practices. Datalogic does not warrant that the product will meet End User's requirements or that use of the prod- uct will be uninterrupted or error free, or that Datalogic's remedial efforts will correct any nonconformance. This limited warranty does not cover any product that have been subjected to damage or abuse, whether intentionally, accidentally, or by neglect, or to unauthorized repair or unauthorized installation, and shall be void if End User modifies the product, uses the product in any manner other than as established in the Documentation, or if End User breaches any of the provisions of this Agreement.
6.2EXCEPT AS PROVIDED IN THIS AGREEMENT, THE DATALOGIC PRODUCT IS PROVIDED “AS IS” AND DATALOGIC MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE PRODUCT, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.Infringement.
7.1Datalogic will defend End User against any claim in a lawsuit that the Datalogic Product furnished hereunder infringe a United States patent or copy- right 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 writ- ing of the claim, 2) Datalogic controls the defense or settlement of the claim, and 3) End User cooperates fully with Datalogic in such defense or settle- ment. All notices of a claim should be sent to Datalogic Scanning, Inc., Legal Department, 111 SW Fifth Ave. Suite 4100, Portland, OR 97204-3644.
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 Datalogic Product,
2)modify the Datalogic Product so that it becomes non-infringing, 3) replace the Datalogic Product with an equivalent product not subject to such claim, or 4) provide End User an opportunity to return the Datalogic Product and receive a refund of the purchase price paid, less a reasonable allow- ance for use.
7.3Datalogic shall have no liability to End User for claims of infringement based upon 1) the use of any Datalogic Product in combination with any product which Datalogic has not either furnished or authorized for use with such Datalogic Product 2) the use of any Datalogic Product designed, manufac- tured, or modified to the specifications of End User, or 3) End User’s modification of the Datalogic Product without written authorization from Datalogic.
7.4THE FOREGOING STATES DATALOGIC’S COMPLETE AND ENTIRE OBLIGATION CONCERNING CLAIMS OF PATENT, COPYRIGHT, OR OTHER INTELLECTUAL PROPERTY INFRINGEMENT, CANCELS AND SUPERCEDES ANY PRIOR AGREEMENTS, WHETHER ORAL OR WRITTEN, BETWEEN THE PARTIES CONCERNING SUCH CLAIMS, AND WILL NOT BE MODIFIED OR AMENDED BY ANY PAST, CONTEMPORANEOUS, OR FUTURE AGREEMENTS OR DEALINGS BETWEEN THE PARTIES, WHETHER ORAL OR WRITTEN, EXCEPT AS SET FORTH IN A FUTURE WRITING SIGNED BY BOTH PARTIES.
8.Limitation Of Liability.
EXCEPT AS PROVIDED IN SECTION 7, DATALOGIC SHALL NOT BE LIABLE FOR ANY CLAIMS AGAINST END USER BY ANY OTHER PARTY. IN NO EVENT SHALL DATALOGIC'S LIABILITY FOR DAMAGES, IF ANY, WHETHER BASED UPON CONTRACT, TORT (INCLUDING NEGLIGENCE), PROD- UCT LIABILITY, STRICT LIABILITY, WARRANTY, OR ANY OTHER BASIS, EXCEED THE PRICE OR FEE PAID BY END USER FOR THE DATALOGIC PRODUCT. UNDER NO CIRCUMSTANCES SHALL DATALOGIC BE LIABLE TO END USER OR ANY THIRD PARTY FOR LOST PROFITS, LOST DATA, INTERRUPTION OF BUSINESS OR SERVICE, OR FOR ANY OTHER SPECIAL, CONSEQUENTIAL, CONTINGENT, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR OTHER SIMILAR DAMAGES, EVEN IF DATALOGIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.Government Restricted Rights; International Use.
9.1Use, duplication, or disclosure of the Software 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 52.227-14(g), or 52.227-19 or in the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013(c)(1)(ii), whichever is applicable.
9.2If End User is using the Datalogic Product outside of the United States, End User must comply with the applicable local laws of the country in which the Datalogic Product is used, with U.S. export control laws, and with the English language version of this Agreement. The provisions of the “United Nations Convention on International Sale of Goods” shall not apply to this Agreement.
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 breaches any provision of this Agreement.
10.2Upon termination of this Agreement, End User immediately shall cease using any non-embedded software and shall return to Datalogic or destroy all non-embedded software 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. For embedded software, End User agrees to sign a waiver prepared by Datalogic concerning further use of the embedded Software. End User’s resumed or continued use of the embedded Software after termination shall constitute End User’s agreement to be bound by the terms and conditions of this Agreement for such use.
11.General Provisions.
11.1Entire Agreement; Amendment. This document contains the entire agreement between the parties relating to the licensing of the Software and super- sedes all prior or contemporaneous agreements, written or oral, between the parties concerning the licensing of the Software. This Agreement may not be changed, amended, or modified except by written document signed by Datalogic.
11.2Notice. All notices required or authorized under this Agreement shall be given in writing, and shall be effective when received, with evidence of receipt. Notices to Datalogic shall be sent to the attention of Contract Administration, Datalogic Scanning Inc., 959 Terry Street, Eugene, OR 97402, or such other address as may be specified by Datalogic in writing.
11.3Waiver. A party’s failure to enforce any of the terms and conditions of this Agreement shall not prevent the party’s later enforcement of such terms and conditions.
11.4Governing Law; Venue:This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Oregon U.S.A, without regard to the rules governing conflicts of law. The state or federal courts of the State of Oregon located in either Mult- nomah or Lane counties shall have exclusive jurisdiction over all matters regarding this Agreement, except that Datalogic shall have the right, at its absolute discretion, to initiate proceedings in the courts of any other state, country, or territory in which End User resides, or in which any of End User's assets are located.
11.5Attorneys’ Fees. In the event an action is brought to enforce the terms and conditions of this Agreement, the prevailing party shall be entitled to reason- able attorneys’ fees, both at trial and on appeal.
-END -
