This End User License Agreement (“EULA”) accompanies the Datalogics™ software product (“Software”) and any related explanatory materials and samples (“Materials”) provided to you by Datalogics, Inc. an Illinois corporation located at 1207 Delaware Ave., Suite # 1810, Wilmington, DE 19806 (“Datalogics”). The term “Software” shall also include any upgrades, modified versions or updates of the Software and Materials.
This EULA is entered into in conjunction with a sales quotation from Datalogics for the Software (“Quotation”), the terms of which are incorporated herein by reference. Please read this EULA carefully before indicating acceptance at the end of the text. If you do not agree to the terms, decline where instructed and you will not receive access to the Software.
1. License Grant and Restrictions
a. Subject to the terms and conditions set forth in this EULA, Datalogics hereby grants to you a worldwide, nonexclusive, nontransferable license during the term of this EULA to use the Software on the number of servers and processor cores listed in your Quotation and integrate the Software into your own application (“Host Application”).
b. If the Type field of your Quotation specifies “SaaS”, the Host Application may be a service made available over the internet to external users.
c. If the Type field of your Quotation specifies “End-User”, the Host Application may be made available to your own employees through your own internal network.
d. If the Software listed on your Quotation is “Forms Extension”, the Software may be used solely in a server-side workflow Host Application.
e. You are not licensed to sell, redistribute, sublicense or otherwise provide the Software to others in any form without the specific written consent of Datalogics.
f. You may not modify the Software, or decompile, reverse assemble, disassemble or otherwise reverse engineer or reduce any software provided solely in binary or object code form into human readable source code.
g. You may download an additional copy of the Software at any time via the same method you received your initial copy.
h. You may make one copy of the Software for backup and archival purposes.
2. Proprietary Rights
a. The structure and organization of the Software is proprietary to Datalogics and its suppliers, and the respective owner retains exclusive ownership of the Software and its trademark. Except as provided herein, you are not granted any rights to patents, copyrights, trade secrets, trade names, trademarks (whether registered or unregistered), or in any other rights, franchises or licenses with respect to the Software.
b. You agree not to delete or in any manner alter the copyright notices, trademarks, logos or related notices, or other proprietary rights notices of Datalogics and its suppliers appearing on or within the Software.
c. Third party suppliers may be the owners of certain proprietary information and intellectual property rights included in the Software and the Materials. Consequently, such third-party suppliers are third party beneficiaries entitled to enforce Datalogics’ rights and your obligations hereunder and to seek appropriate legal and equitable remedies, including but not limited to, damages and injunctive relief if you breach such obligations.
d. Software may include technology owned and developed by Adobe Inc., 345 Park Avenue, San Jose, CA 95110-2704 distributed in accordance with an agreement between Adobe and Datalogics (“Adobe Enabling Agreement”).
e. Software may include technology from callas software GmbH, Schoenhauser Alle 6/7, 10119 Berlin, Germany and is distributed in accordance with an agreement between callas and Datalogics (“callas Enabling Agreement”).
f. Upon any termination of the Adobe Enabling Agreement or callas Enabling Agreement, you are permitted the continued and uninterrupted use of the Software for the balance of the term of this EULA, provided that and so long as you are not in default of the EULA.
g. Datalogics and its product names are trademarks of Datalogics, Inc. Other trademarks are the property of by their respective trademark owners.
3. Software Maintenance and Support
a. Datalogics may, at its sole discretion, modify the Software and/or the Materials and deliver modified copies to you. You will receive all new releases of the software and its documents for the platform on which you have a valid license.
b. Report suspected errors in the Software via electronic mail to the email address specified in your download instructions.
c. Datalogics will maintain older versions of the Software on an older version of an operating system for six (6) months following release of a new version.
4. Payment and Pricing
a. Your pricing and payment terms will be listed in the Quotation.
b. Subscriptions are billed annually in advance unless otherwise specified in the Quotation.
c. Datalogics bank details will be provided on each invoice sent to you.
d. Prices and fees for products and services are exclusive of all federal, state, municipal, or other government, excise, sales, use, occupational, or like taxes now in force or enacted in the future and, therefore, prices are subject to an increase equal in amount to any tax, including interest and penalties, Datalogics may be required to collect or pay upon the sale or delivery of items purchased or licensed. If a certificate of exemption or similar document is needed to exempt the sale or services provided from such tax liability, you agree to promptly provide such certificate or document to Datalogics. You shall not be responsible for taxes imposed on Datalogics’ net income or measured by such income.
e. If you notify Datalogics of a dispute relating to an invoice, both parties agree to work in good faith to resolve the dispute. Late charges will not be assessed on any such disputed invoice. However, Datalogics shall not provide any services or to furnish any deliverable during the period in which you are in default of your payment obligations.
f. Terms of any purchase order which differ from those contained herein will be considered invalid unless agreed to in writing by an officer of Datalogics, Inc.
5. Privacy Policy. The Software does not store any personal information about users.
6. Warranty Disclaimer. NEITHER DATALOGICS NOR ITS SUPPLIERS MAKE ANY WARRANTY TO YOU, EXPRESS, IMPLIED OR STATUTORY, AS TO ANY MATTER WHATSOEVER WITH RESPECT TO THE SOFTWARE. DATALOGICS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. Limitation of Liability
a. No action regardless of form may be brought by either party more than two (2) years after the cause of action has arisen, or, in the case of nonpayment, more than two (2) years from the date of the last payment.
b. IN NO EVENT SHALL DATALOGICS BE LIABLE TO YOU FOR DAMAGES IN EXCESS OF AMOUNTS ACTUALLY PAID WITH RESPECT TO THE SERVICES AND SOFTWARE IN THE TWELVE MONTHS PRECEDING THE DATE OF THE CLAIM HEREUNDER.
c. NO PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Confidentiality
a. Any file or the information contained within any file you transfer to Datalogics to obtain support will remain your sole property and be treated as confidential (“Confidential Information”).
b. Confidential information does not include information which is (i) publicly known at the time of disclosure; (ii) known to the Receiving Party at the time of disclosure; (iii) received by Datalogics from a third party without restrictions contained in this section; or (iv) independently created by Datalogics without reference to Confidential Information.
c. Datalogics agrees to use reasonable steps that it takes to protect its own valuable and confidential information to ensure that Confidential Information is not disclosed or distributed to its employees or agents, or any third party.
9. Term and Termination
a. The term of this EULA shall be one year unless otherwise indicated in its related Quotation. The EULA will automatically renew for additional one-year periods unless terminated with thirty (30) days’ notice by either party prior to an annual anniversary date.
b. No refund shall be made for fees paid for the period up to termination.
c. The EULA shall automatically terminate upon failure by you to comply with its terms.
d. After the term of your subscription ends, you agree to promptly destroy the Software and certify its destruction upon request by Datalogics.
10. Governing Law and General Provisions
a. This EULA, including the terms of the Quotation, supersedes any prior or contemporaneous agreement, oral or written, relating to the subject matter herein, expressly including, but not limited to, any purchase order or similar document. These terms do not supersede an OEM Sublicense Agreement or ASP Sublicense Agreement signed by the parties.
b. This EULA shall be governed in all respect by the laws of the United States of America and the State of Illinois. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this EULA.
c. All disputes arising under this EULA shall be brought exclusively in the state and federal courts located in Cook County, Illinois which shall have exclusive jurisdiction over disputes under this EULA. You consent to personal jurisdiction of the above courts.
d. If any proceeding or lawsuit is brought in connection with this EULA, the prevailing party in such proceeding shall be entitled to receive its costs, expert witness fees and reasonable attorney’s fees, including costs and fees on appeal.
e. Datalogics and its suppliers will be entitled to seek an injunction or other equitable remedies in legal proceedings for any threatened or actual violation of the EULA which may cause irreparable harm for which a remedy at law may be inadequate.
f. If any part of this EULA is found void and unenforceable, the balance of the EULA shall remain valid and enforceable according to its terms.
g. You agree that the Software will not be shipped, transferred or exported to any country or used in any manner prohibited by the United States Export Administration Act, or any other export laws, restrictions or regulations.
h. The EULA may only be modified in writing and signed by an authorized officer of Datalogics.