Zatar Developer Terms of Service Agreement
THESE ZATAR TERMS OF SERVICE AGREEMENT TOGETHER WITH ALL APPLICABLE ORDER FORMS (EACH AS DEFINED BELOW) (COLLECTIVELY, THIS “AGREEMENT”) GOVERNS YOUR USE OF THE SERVICES AND THE ZATAR SITE (EACH AS DEFINED BELOW), INCLUDING ANY FREE TRIALS.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
Upon your acceptance of this Agreement (as set forth above), this Agreement will be a binding agreement between Zebra Technologies Corporation (“Zebra” or “we” or “us” or “our”) and you, and is effective as of the date of your acceptance (“Effective Date”).
"Affiliate" means, with respect to a Party, any company or legal entity that directly or indirectly controls, is controlled by or is under common control with such Party, where “control” means direct or indirect ownership or control of more than 50% of the voting interests of the Party or company or legal entity.
“APIs” means the application programming interfaces that are documented and identified by us as being available for Devices or external applications to interface with the Service Offerings.
“Application” means an external application or Zatar Application, as applicable.
“Device” means any device (including sensors and RFID) that communicates with a Service offering via any communication means (including IP (Internet Protocol) and SMS (short message service), Zatar Gateway, or via another Device), whether wired or wireless.
“Documentation” means Our online user guides, documentation, and help and training materials, as updated from time to time, accessible on any of the Zatar Sites.
“External Application” means any application that makes use of any of the Zatar APIs, which is not a Zatar Application. Such applications may have separate terms of service and/or licensing terms that pertain to their use and are not part of this Agreement.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
"Purchased Services" means Services, including Zatar Developer Services, that You or Your Affiliate purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
“Services” means the products and services (including Zatar Developer Services) that are ordered by You under a free trial or an Order Form and made available online by Us, including associated offline components, as described in the Documentation. “Services” exclude Zatar Applications.
“Shared Device” means a Device that a User has authorized other Users (whether such Users are under the same or different accounts) to access through a Service Offering or the Zatar Site.
“User” means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
"We," "Us" or "Our" means the Zebra Technologies Corporation.
"You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Your Applications” means any External Applications that you as a Zatar Developer create and register on Zatar.
“Your Application Users” means any and all Users who make use of Your Applications.
“Your Data” means electronic data and information submitted by or for You to the Purchased Services or collected and processed by or for You using the Purchased Services, excluding Zatar Applications.
“Your Device Types” means any new Device types, models, or Device software that you as a Zatar Developer create, register, and/or use on Zatar.
“Your Device Type Users” means any and all Users who make use of Your Device Types.
“Your Devices” means any and all Devices that communicate with or interact with the Services through Your Account.
“Your Users” means any and all Users whose access or use is through Your Account.
“Zatar Application” means any application that We make available for access or use through a Service offering or the Zatar Sites, which may include applications licensed by Us from third parties. Authorized External Applications are not included in this definition.
“Zatar Developer Services” means products, services, and APIs made available by Us for registered Zatar Developers who wish to create, use, and share External Applications, Avatar Definitions, and new Device Types that make use of the Zatar APIs.
“Zatar Gateway” means a Device that runs a Zatar-provided and maintained gateway software stack and is intended to provide bridge communications between certain legacy Devices and the Zatar Services and APIs. The Zatar Gateway will only provide support for Devices that are, in Our sole discretion, applicable for the Gateway.
2. TRIAL/BETA SERVICES
If You register on our website for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s). Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
NOTWITHSTANDING SECTION 9 (REPRESENTATIONS AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY. WE HAVE NO OBLIGATION TO SAVE ANY DATA YOU ENTER INTO THE SERVICES, OR TO MAINTAIN THE SERVICES IN OPERATION, DURING YOUR FREE TRIAL.
3. OUR RESPONSIBILITIES
3.1. Purchased Services. We will make the Purchased Services available to you pursuant to the terms of this Agreement. We will provide you with access to our standard support for the Purchased Services at no additional cost and as part of the Purchased Services. We may also offer to provide you with upgraded support for an additional fee, which, if offered, will be offered through a separate agreement. We will use commercially reasonable efforts to make the Purchased Services available to you. We are not responsible for any unavailability due to Force Majeure or maintenance. If we are notified that the Purchased Services fail to operate substantially in accordance with the applicable Documentation, we will use commercially reasonable efforts to correct such failure in accordance with our standard maintenance practices (which are based upon the severity and impact of the failure, and which corrections may be made in the next or later patch, release or version). Notwithstanding the foregoing, we make no guarantees or promises that the Services will be uninterrupted or error-free.
4. USE OF SERVICES
4.1 Your Account. (a) To access the Services, you must register and create an account at the Zatar Site, and to access Zatar Developer Services, you must register on developer.zatar.com (collectively, “Your Account”). You represent that the information you provide in doing so is complete and accurate, and that you will update such information as necessary. (b) You are responsible for all activities that occur under or are authorized through Your Account, including those taken by any person or application you give access to Your Account or Your Devices. Except to the extent caused by our breach of this Agreement, We and our Affiliates are not responsible for unauthorized access to Your Account. You will contact us immediately if you believe an unauthorized third party may be using Your Account or if Your Account information is lost or stolen. Your Users may access Shared Devices that have been shared with them. We do not guarantee that any Shared Devices will continue to be available or the quality of any data from a Shared Device. You are responsible for all actions taken by Devices through Your Account. You are responsible for any unauthorized actions taken by Your Applications, Avatar Definitions, Device Types or software you create and use on Zatar, whether or not used by you or other Users you have made them available to.
4.2 Usage Limits and Access. The Services may be subject to usage limits, including as set forth in an Order Form or displayed when you purchased the Purchased Services, or displayed on a Zatar Application. You and Your Users may only access or use the Services or Zatar Site through (a) the user interfaces that are displayed by them during their normal operation or (b) the use of Authorized External Applications that interface with the Services or Zatar Site only through the APIs, or (c) through authorized use of the APIs by Your Applications, Your Devices, or other software. Your Devices, Your Applications, or Your Device Types or other software may only communicate with the Services or Zatar Site using the APIs or the communication protocols set forth in the applicable documentation provided by us.
4.2.1 Use of the Zatar APIs. Registered Zatar Developers can make use of the authorized Zatar APIs made available to them to create Zatar-compatible External Applications and to add new Device Types (“Your Device Types”) to Zatar. All External Applications and new Device Types must be registered with Zatar prior to connecting and using the Zatar APIs. Registered Developers are authorized to use the Zatar Developers Portal (https://developer.zatar.com) in accordance with provided instructions to obtain keys and other ID information that will allow them to register their Device Types and Applications. Use of the Zatar APIs, the Zatar Developer Portal, tools, applications, and any other Zatar-supplied Services is contingent upon acceptance and continual adherence to these Zatar Developer Terms of Service, including any updates and modifications hereto. You may choose to share Your Applications and/or Your Device Types with other Users; such sharing may incur additional fees.
4.3 Your Responsibilities. You have sole responsibility for correctly authorizing any Users who will have use or access through Your Account, including with respect to which Applications and Devices such Users may use or access through Your Account. You are responsible for all actions taken by Your Users. You will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Zatar Applications, and notify Us promptly of any such unauthorized access or use, and (d) use Services and Zatar Applications only in accordance with the Documentation and applicable laws and government regulations. You have sole responsibility for using the Zatar Developer Services and Zatar APIs in accordance with this agreement and any instructions and limitations provided on the Zatar site(s). You are solely responsible for the correct operation of Your Applications and Your Device Types, whether or not they are being used by you or other users in your account or other accounts.
4.4 Usage Restrictions. You will not (a) make any Service, API, Zatar Applications, or the Zatar Site available to anyone other than Users authorized by you or to any Device or Application other than those authorized by you, (b) use or permit the use of a Service, API, Device Type, or Application for any unlawful or fraudulent purpose or activity, or to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or other rights, (c) use or permit the use of a Service or API to store or transmit Malicious Code, (d) interfere with or disrupt the integrity or performance of any software (including Zatar Gateway software), Service or API, (e) gain or attempt to gain unauthorized access to any Service or API or its related systems or networks, (f) gain or attempt to gain direct or indirect access to or use of any Service, API or Zatar Applications in a way that circumvents a contractual usage limit or other restriction (including those set forth in Section 4.2), (g) copy a Service, API or Zatar Application or any part, feature, function or user interface thereof, (h) frame or mirror any part of any Service or API other than as permitted in the Documentation, or (i) reverse engineer any software (including Zatar Gateway software), Service or API (to the extent such restriction is permitted by applicable law).
4.5 Suspension of Services. (a) We may suspend your or any of Your Users’ right to access or use any portion or all of the Services, APIs, or Zatar Site, or the ability of a Device, Device Type, or Application to communicate with or access the Services, APIs, or Zatar Site, immediately if we determine: (1) such use, access or communication (i) poses a security risk to the Services, Users, APIs, the Zatar Sites, our network or systems, or any third party, (ii) may adversely impact the Services, the Zatar Site, our network or systems, or (iii) may subject us, our affiliates, or any third party to liability; (2) you are in breach of this Agreement, including if you are delinquent on your payment obligations for more than 15 days; or (3) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. Our right to suspend set forth in this Section is in addition to our right to terminate this Agreement pursuant to Sections 12.2 and 12.3 Also we may immediately suspend any Account, Application, Device Type or Device which has exceeded any usage restrictions that have been put in place for it. We will make reasonable effort to notify You of any such suspension via the contact information in your Developer profile.
(b) If we suspend any access, use or communication pursuant to this Section: (1) you remain responsible for all fees and charges you have incurred through the date of suspension; (2) you remain responsible for any applicable fees and charges for any Services to which you continue to have access; and (3) we will not erase any of Your Data as a result of your suspension, except as specified elsewhere in this Agreement. Resumption of activities may be contingent upon both a) removal or cancellation of any offending activity, and b) payment of any incurred accrued fees.
4.6. Changes to the Services. We may change or discontinue any of the Services, APIs, or Zatar Applications or change or remove features or functionality of the Services, APIs, or Zatar Applications. We will notify you of any material change to or discontinuation of Service.
5. APPLICATIONS. You have sole responsibility for correctly authorizing any Applications that will communicate with or through Your Account. Any third-party applications included in the Zatar Applications are subject to the terms of any applicable third-party licenses which we notify you about. You are responsible for all actions taken by Applications through Your Account. As a registered Zatar Developer, you will have the opportunity to register and create Zatar External Applications (“Your Applications”) and Device Types (“Your Device Types”) that you can use in your Account. When used in Your Account the above wording applies. When Your Applications or Device Types are shared with other Zatar Users, then you are responsible to ensure that Your Applications and Device Types adhere to the proper usage of the Zatar APIs and any other terms and conditions governing their use that are, in Our sole judgment, under Your control as a developer.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1. Fees. You will pay Us the applicable fees and charges for use of the Services as described on the Zatar Site or an applicable Order Form, including but not limited to any per-API-call fees incurred by Your Applications and/or Your Device Types, regardless of which account(s) they are currently operating in, using one of the payment methods we support. Any applicable fees shall be clearly communicated to you prior to any charges being incurred. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Fees and charges for any new Service or new feature of a Service will be effective when we post updated fees and charges on the Zatar Site(s) unless we expressly state otherwise in a notice. We may increase or add new fees and charges for any existing Services by giving you at least 30 days advance notice. We may charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.
6.2. Invoicing and Payment. Invoices will be provided by Us up to forty-five (45) days in advance of the applicable billing period. All terms are thirty (30) days net from the date of invoice for all service agreements. We reserve the right, at any time, to revoke any credit extended if payment is in arrears for more than thirty (30) days after notice, or if in Our sole discretion Your credit does not warrant further extension of credit. Additionally, We may charge late payment interest of the lesser of the highest legally permissible rate or 1.5% per month for the late payment of any and all balances of invoices from when they are due and payable.
6.3. Taxes. All fees and charges payable by you are exclusive of applicable taxes and duties, including VAT and applicable sales tax. You will provide us any information we reasonably request to determine whether we are obligated to collect VAT from you, including your VAT identification number. If you are legally entitled to an exemption from any sales, use, or similar transaction tax, you are responsible for providing us with legally-sufficient tax exemption certificates for each taxing jurisdiction. We will apply the tax exemption certificates to charges under your account occurring after the date we receive the tax exemption certificates. If any deduction or withholding is required by law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, you will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
7. PROPRIETARY RIGHTS AND LICENSES
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of Our/their right, title and interest in and to the Services, APIs, software (including Zatar Gateway software) and Zatar Applications, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2. License by Us to Use Zatar Applications. We grant to You a worldwide, limited-term license, under Our applicable intellectual property rights and licenses, to use Zatar Applications, Services and APIs pursuant to Order Forms, subject to those Order Forms, this Agreement and the Documentation.
7.3. License by You to Host Your Data and Applications. You grant Us and Our Affiliates a worldwide, royalty-free, limited- term license to host, copy, transmit and display Your Data, and any Applications, Avatar Definitions, Device Types, and program code created by or for You using a Service or API, as necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data or program code. Notwithstanding anything to the contrary, we may use and disclose aggregated or anonymized data collected from Your Devices, Your Applications, Your Device Types, or Shared Devices or from use of the Services for our own purposes.
7.4. Shared Devices. If any of Your Devices is authorized to be a Shared Device, then you hereby consent to information and data to be collected from such Shared Devices and provided to other Users. Any such information and data provided to other Users will be considered to be the “Your Data” of such Users and owned by them as provided for in this Agreement (where such ownership refers to the particular copy of such information and data provided to such Users).
7.5. License by You to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Services.
8.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Zatar Applications; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 8.2.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9. REPRESENTATIONS AND DISCLAIMERS
9.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2. Your Data. You represent and warrant that you have all of the rights necessary for us to process and use Your Data in connection with the Services and for you to grant us the rights to use Your Data as set forth in this Agreement. You also represent and warrant that you have complied with all applicable laws or other restrictions (including your privacy policies) in providing Your Data to us for use in connection with the Services.
9.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ZATAR APPLICATIONS AND SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
10. MUTUAL INDEMNIFICATION
10.1. Indemnification by Us. a. We shall indemnify You by (i) defending any claim and any lawsuit brought against You alleging that a Purchased Service used in accordance with this Agreement directly infringes a US patent in existence as of the date of delivery of such Purchased Service to You ("Infringement Claim"), so long as We are promptly notified in writing by You as to any such claim, We are given sole authority and control of the defense, and We are provided by You all requested information and assistance for resolving or defending the Infringement Claim, and by (ii) paying all damages finally awarded against You by a court of competent jurisdiction to the extent based upon the Infringement Claim. If a Product is subject to an Infringement Claim or, if in Our judgment may become subject to an Infringement Claim, Our obligations under this Section shall be fulfilled if at any time We, in Our sole discretion: (x) obtain a license for You to continue to use or to sell the Purchased Service; (y) replace or modify the Purchased Service so as to be substantially functionally equivalent but non-infringing; or (z) refund the purchase price paid to Us by You for such Purchased Service less a reasonable charge for straight line depreciation and/or prior use. We shall have no liability to You for any alleged or actual infringement in connection with Your ordering, use of Purchased Service after Our notice to You to cease use or transfer of such Purchased Service.
b. We shall have no liability to You under this Agreement (i) for any damages based upon a per-use royalty or Your revenues, or upon any damages theory other than a reasonable royalty applied to, or lost profits of the patent owner based on, the purchase price paid by You to Us for the Purchased Service; or (ii) for any alleged or actual infringement arising out of (a) use of Purchased Services in connection or in combination with equipment or software not provided by Us, (b) use of Purchased Service in a manner for which they were not designed, (c) any modification of Purchased Service by anyone other than Us, (d) compliance with Your designs, specifications, guidelines or instructions, or (e) use of the Purchased Service in a patented process. We shall not be responsible for any compromise or settlement made by You without Our prior written consent.
c. THIS SECTION PROVIDES YOUR SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE LIABILITY IN THE EVENT OF AN INFRINGEMENT CLAIM. IN ADDITION, THE RIGHTS AND REMEDIES PROVIDED IN THIS SECTION ARE SUBJECT TO AND LIMITED BY THE RESTRICTIONS SET FORTH IN THE GENERAL LIMIT OF LIABILITY SECTION OF THIS AGREEMENT. IN NO EVENT SHALL WE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, COLLATERAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS OF YOU IN CONNECTION WITH ANY CLAIMS, LOSSES, DAMAGES OR INJURIES UNDER THIS SECTION.
10.2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, Your Applications, Your Device Types, or Your use of any Service, API, or Zatar Applications is in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
11. LIMITATION OF LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE WILL NOT BE LIABLE TO YOU AND/OR TO ANY END USER, THEIR RESPECTIVE AFFILIATES OR ANY OTHER PERSON FOR ANY LOST REVENUES, PROFITS, GOODWILL OR USE, THE COST OF SUBSTITUTED PRODUCTS OR SERVICES, BUSINESS INTERRUPTION OR ANY DAMAGE TO OR LOSS OF ANY SOFTWARE PROGRAMS, DATA OR REMOVABLE DATA STORAGE MEDIA, FOR THE RESTORATION OR REINSTALLATION OF ANY SOFTWARE PROGRAMS OR DATA, OR FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND HOWEVER CAUSED RELATED TO THE SERVICES OR THE AGREEMENT, OR THE INABILITY TO USE THE SERVICES, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING STRICT LIABILITY AND NEGLIGENCE), EQUITY OR ANY OTHER THEORY OF LIABILITY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES OR EVEN IF THOSE DAMAGES ARE FORESEEABLE. YOUR EXCLUSIVE REMEDY IS EXPRESSLY LIMITED TO PERFORMANCE OF THE SERVICES PROVIDED FOR BY THE AGREEMENT OR THE FAIR MARKET VALUE THEREOF. OUR ENTIRE LIABILITY FOR DAMAGES TO YOU AND/OR ANY END USER OR OTHERS RESULTING FROM SERVICES PERFORMED UNDER THE AGREEMENT SHALL IN NO EVENT EXCEED THE ANNUAL SERVICES CHARGE PAID BY YOU OR BY END USER, EXCEPT FOR INSTANCES OF PHYSICAL INJURY TO PERSON OR TANGIBLE PERSONAL PROPERTY DAMAGE. WE DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE OR NONINFRINGEMENT. NEITHER PARTY MAY BRING A LEGAL ACTION UNDER THE AGREEMENT OR RELATED TO THE SERVICES MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION AROSE UNLESS PROVIDED OTHERWISE BY APPLICABLE NONWAIVABLE LAW.
12. TERM AND TERMINATION
12.1 Term of Agreement. The term of this Agreement will begin on the Effective Date and continue until terminated by you or us in accordance with Sections 12.2 or 12.3.
12.2. Termination for Convenience. You may terminate this Agreement for any reason by (i) providing us notice and (ii) closing Your Account for all Services for which we provide an account closing mechanism and (iii) satisfying or complying with all termination provisions (if any) of any application Order Forms. We may terminate this Agreement for any reason by providing you 30 days advance notice.
12.3. Termination for Cause.
(1) By Either Party. Either Party may terminate this Agreement for cause upon 30 days advance notice to the other Party if there is any material default or breach of this Agreement by the other party, unless the defaulting Party has cured the material default or breach within the 30 day notice period.
(2) By Us. We may also terminate this Agreement immediately upon notice to you (A) for cause, if any act or omission by you or any User or Device or Application results in a suspension described in Section 2.12, (B) if our relationship with a third-party partner who provides software or other technology we use to provide the Services expires, terminates or requires us to change the way we provide the software or other technology as part of the Services, (C) if we believe providing the Services could create a substantial economic or technical burden or material security risk for us, (D) in order to comply with the law or requests of governmental entities, or (E) if we determine use of the Services by you or any User or Device or Application or our provision of any of the Services to you has become impractical or unfeasible for any legal or regulatory reason.
A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.6. Effect of Termination. Upon any termination of this Agreement:(a) all your rights under this Agreement immediately terminate;(b) you remain responsible for all fees and charges you have incurred through the date of termination; and (c) Sections 4.1, 4.3, 5, 7, 9, 10, 11, 13.1 and 13.2 will continue to apply in accordance with their terms.
12.7. Post-Termination Assistance. Unless we terminate this Agreement pursuant to Section 12.3, during the 30 days following termination: (a) we will not erase any of Your Data as a result of the termination; (b) you may retrieve Your Data from the Services only if you have paid any charges for any post-termination use of the Services and all other amounts due; and (c) we will provide you with the same post-termination data retrieval assistance that we generally make available to all customers. Any additional post-termination assistance from us is subject to mutual agreement by you and us.
13. General Provisions
13.1. GOVERNING LAW; JURISDICTION. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Illinois, United States of America, without regard to its conflicts of law principles. Any dispute relating in any way to this Agreement or the Services where a party seeks aggregate relief of $7,500 or more, or an injunction or similar equitable relief, will be adjudicated in any state or federal court located in Chicago, Illinois, United States of America. You consent to exclusive jurisdiction and venue in those courts. We may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our, our affiliates, or any third party’s intellectual property or other proprietary rights. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
13.2(a) To You. We may provide any notice to you under this Agreement by: (a) posting a notice on the Zatar Site; or (b) sending a message to the email address then associated with your account. Notices we provide by posting on the Zatar Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.
13.2(b) To Us. To give us notice under this Agreement, you must contact Zebra as follows: (i) by email sent to both email@example.com and firstname.lastname@example.org; or (ii) by overnight courier or registered or certified mail sent to Zebra Technologies Corporation, Attn: Zatar Team, and with a copy sent to Zebra Technologies Corporation, Attn: General Counsel, 3 Overlook Point, Lincolnshire, IL 60069. We may update the email address or address for notices to us by posting a notice on the Zatar Site. Notices provided by email will be effective upon our receipt, as confirmed by our local email server. Notices provided by overnight courier will be effective on delivery, as confirmed by the courier. Notices provided by registered or certified mail will be effective on delivery, as confirmed by the postal service.
13.3. Export Compliance. Provision of the Services to You may be subject to export control law and regulations. We do not represent that any necessary approvals and licenses will be granted. You will provide reasonable assistance to Us to obtain any necessary consent. If, through no fault of Us, any necessary consent is not granted, the respective parties can terminate the Agreement without any liability to the other.
13.4. Entire Agreement and Order of Precedence. No subsequent agreement, arrangement, relationship or understanding between the parties shall be valid, effective or enforceable and no obligation or liability shall be created on behalf of either party hereto unless and until it is contained in writing, signed by a duly authorized representatives of each party. The Agreement constitutes the entire understanding between Us and You with respect to the subject matter hereof and supersedes and replaces all prior and contemporaneous agreements, whether written or oral, as to such subject matter. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. This Agreement does not replace but rather conjoins the Zatar User Terms of Service; where these agreements conflict this Agreement will hold precedence. Note “click-through” or other means of electronic signing shall be deemed sufficient authorization to enforce this Agreement.
13.5. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other Party, then such other Party may terminate this Agreement upon written notice. In the event of such a termination, we will refund to you any prepaid fees covering the remainder of the term of all Services. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.6. Changes to this Agreement. We may modify this Agreement (including any Supplemental Service Terms) at any time by posting a revised version on the Zatar Site or by otherwise notifying you in accordance with Section 13. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Services after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the Zatar Site regularly for modifications to this Agreement.
13.7. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.8. Third-Party Rights. If applicable, a person who is not party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
13.9. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
13.20. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.