Notice to End User: The Datalogic Product you have acquired contains embedded Software, which is integral to the product’s operation. This Software is being provided to you under license, subject to the terms
and conditions of this Agreement. If you use the Datalogic Product, you will be deemed to have accepted
the terms and conditions of this Agreement. If you do not intend to be bound to the terms of this Agreement, Datalogic is not willing to license the Software to you, you may not use the Datalogic Product or the
Software, and you must contact the party from whom you acquired the Datalogic Product for instructions.
This End User Software License Agreement (“Agreement”) is a legally binding agreement governing the licensing of
the Software and Documentation by Datalogic, Scanning Holdings, Inc. and its wholly owned subsidiaries and affiliates (“Datalogic”) to the entity or person who has purchased or otherwise acquired a Datalogic Product (“End User”).
For purposes of this Agreement, any software that is associated with a separate end-user license agreement is
licensed to you under the terms of that license agreement. Datalogic and End User hereby agree as follows:
1. Definitions.
1.1 "Documentation" means materials such as user’s guides, program reference guides, quick reference guides,
manuals, or similar materials associated with or related to the Datalogic Product, whether in printed, “online”,
or other form.
1.2 "Proprietary Information" means: (a) source code, object code, software, documentation, and any related
internal design, system design, data base design, algorithms, technology, technical data or information, implementation techniques, and trade secrets related to the Software, (b) any other trade secrets marked appropriately or identified as proprietary or confidential, and (c) any information that End User, under the
circumstances, should recognize as confidential. Proprietary Information does not include any information that
the receiving party can establish was (1) in the public domain, (2) already in the receiving party’s possession
or rightfully known prior to receipt, (3) rightfully learned from a third party not in violation of any other's proprietary rights, or (4) independently developed without access to Proprietary Information.
1.3 “Datalogic Product” means the Datalogic Powerscan® series, Powerscan® Imager series, Powerscan® EP
series, Powerscan® LR series, Powerscan® HD series, and/or Powerscan RF® series scanner and/or scanner/scale product, including all embedded Software in and all Documentation related to such product, which
has been purchased or otherwise acquired by End User, whether obtained directly or indirectly from Datalogic.
1.4 "Software" means any software or computer programs of Datalogic or its third party licensors in machine readable form which is embedded in the Datalogic Product, whether obtained directly or indirectly from Datalogic,
including any replacement, update, upgrade, enhancement or modification.
2. Scope Of License Granted.
2.1 Datalogic grants to End User a non-exclusive, non-transferable, perpetual license to use the Software, solely
on the Datalogic Product in which it is embedded (“designated Datalogic Product”), in machine-readable form
only, solely for End User's internal business purposes. This Agreement does not convey ownership of the
Software to End User. Title to the Software shall be and remain with Datalogic or the third party from whom
Datalogic has obtained a licensed right. As used in this Agreement, the term “purchase” or its equivalents
when applied to the Software shall mean “acquire under license.” End User is not entitled to receipt or use of
the source code to any Software.
2.2 End User shall not copy, modify, decompile, disassemble, reverse engineer, or otherwise reproduce or remanufacture the Software, whether modified or unmodified, nor sell, assign, sublicense, distribute, lend, rent, give,
or otherwise transfer the Software to any other person or organization, for purposes other than as expressly
provided in this Agreement, without Datalogic’s prior written consent.
3. Transfers, Support.
3.1 Any copying, installing, reproduction, remanufacture, reverse engineering, electronic transfer, or other use of
the Software on other than the designated Datalogic Product will be a material breach of this Agreement.
However, Datalogic may elect not to terminate this Agreement or the granted licenses, but instead may elect
to notify End User that End User is deemed to have ordered and accepted a license for each breaching use.
End User shall pay Datalogic the applicable list price for such licenses as of the date of such breach.
3.2 End User shall not sell, assign, sublicense, distribute, lend, rent, give, or otherwise transfer the Datalogic
Product to any third party unless such third party agrees with Datalogic in writing to be bound by the terms
and conditions of this Agreement. Any such transfer of the Datalogic Product absent such agreement shall be
null and void.
3.3 End User may obtain support for Software from Datalogic at Datalogic’s standard support fees and under Datalogic’s standard support terms and conditions in effect at the time the support is requested.
4. Intellectual Property.
End User acknowledges that the Software constitutes valuable trade secrets of Datalogic or Datalogic’s third party
licensors and that the Software is protected by intellectual property laws and treaties. The license set forth in this
Agreement does not transfer to End User any ownership of Datalogic’s or its third party licensors' copyrights, patents,
trademarks, service marks, trade secrets, or other intellectual property rights and End User shall have no right to
commence any legal actions to obtain such rights. End User shall not remove, modify, or take any other action that
would obscure any copyright, trademark, patent marking, or other intellectual property notices contained in or on the
Datalogic Product.
5. Proprietary Information.
5.1 End User acknowledges that Proprietary Information is the confidential, proprietary, and trade secret property
of Datalogic and Datalogic’s third party licensors and End User acquires no right or interest in any Proprietary
User’s Guide i
Information.
5.2 End User shall not disclose, provide, or otherwise make available the Proprietary Information of Datalogic or
its third party licensors to any person other than End User’s authorized employees or agents who are under
confidentiality agreement, and End User shall not use the Proprietary Information other than in conjunction
with use of the Datalogic Product exclusively for End User’s internal business purposes. End User shall take
steps to protect the Proprietary Information no less securely than if it were End User's own intellectual property.
5.3 The provisions of this Proprietary Information Section shall sur vive and continue for five (5) years after the termination of this Agreement.
6. Limited Warranty.
6.1 Datalogic warrants that, under normal use and operation, the Datalogic Product will conform substantially to
the applicable Documentation for the period specified in the Documentation. During this period, for all reproducible nonconformities for which Datalogic has been given written notice, Datalogic will use commercially
reasonable efforts to remedy nonconformities verified by Datalogic. End User agrees to supply Datalogic with
all reasonably requested information and assistance necessary to help Datalogic in remedying such nonconformities. For all defects reported to Datalogic within the warranty period, Datalogic’s liability is limited to providing End User with one copy of corrections or responding to End User's problem reports according to
Datalogic's standard assistance practices. Datalogic does not warrant that the product will meet End User's
requirements or that use of the product 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.
6.2 EXCEPT 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.
7.1 Datalogic will defend End User against any claim in a lawsuit that the Datalogic Product furnished hereunder
infringe a United States patent 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 settlement 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 Scanning, Inc., Legal Department, 111 SW Fifth Ave. Suite 4100, Portland, OR 97204-3644.
7.2 In the defense or settlement of any such claim, Datalogic may, at its option, 1) procure for End Userthe 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 allowance for use.
7.3 Datalogic 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, manufactured, or modified to the specifications of End User, or 3) End User’s modification of the Datalogic Product without written authorization
from Datalogic.
7.4 THE 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), PRODUCT 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.
9.1 Use, 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.
9.2 If 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.
10.1 Either 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.
10.2 Upon termination of this Agreement, End User immediately shall cease using any non-embedded software
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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.
11.1 Entire Agreement; Amendment. This document contains the entire agreement between the parties relating to
the licensing of the Software and supersedes 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.
11.2 Notice. 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 ofContract Administration, Datalogic Scanning Inc., 959 Terry Street, Eugene, OR 97402, or such other address as may be
specified by Datalogic in writing.
11.3 Waiver. 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.
11.4 Governing 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 Multnomah 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.
11.5 Attorneys’ Fees. In the event an action is brought to enforce the terms and conditions of this Agreement, the
prevailing party shall be entitled to reasonable attorneys’ fees, both at trial and on appeal.
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User’s Guide iii
Standard Warranty
Datalogic warrants to Customer that Datalogic's products will be free from defects in materials and workmanship for
a period of three years from product shipment.
In order to obtain service under this Warranty, Customer must notify Datalogic of the claimed defect before the expiration of the Warranty period and obtain from Datalogic a return authorization number for return of the product to
designated Datalogic service center. If Datalogic determines Customer’s claim is valid, Datalogic will repair or
replace product without additional charge for parts and labor. Customer shall be responsible for packaging and shipping the product to the designated Datalogic service center, with shipping charges prepaid. Datalogic shall pay for
the return of the product to Customer if the shipment is to a location within the country in which the Datalogic service
center is located. Customer shall be responsible for paying all shipping charges, duties, taxes, and any other charges
for products returned to any other locations.
Warranty is subject to the limitations and exclusions set forth below. Warranty set forth above is in lieu of any other
warranties, expressed or implied, including merchantability and fitness.
Exclusions
Warranty coverage shall not apply to any claimed defect, failure or damage which Datalogic determines was caused
by: improper use of product; failure to provide product maintenance, including but not limited to cleaning of the scan
windows in accordance with product manual; installation or service of product by other than Datalogic representatives; use of product with any other instrument, equipment or apparatus; modification or alteration of product. External cables and replacement of scan windows due to scratching, stains or other degradation will not be covered under
the Warranty. Products returned for service must be accompanied by the original external power supplies for performance of service.
Limitations of Liability
Datalogic repair or replacement of defective product as set forth above is the customer's sole and exclusive remedy
on account of claims of breach of warranty or product defect. Under no circumstances will Datalogic be liable to customer or any third party for any lost profits, or any incidental, consequential indirect, special or contingent damages
regardless of whether Datalogic had advance notice of the possibility of such damages.
Assignment
Customer may not assign or otherwise transfer its rights or obligations under Warranty except to a purchaser or
transferee of product. No attempted assignment or transfer in violation of this provision shall be valid or binding upon
Datalogic.
Risk of Loss
Customer shall bear risk of loss or damage for product in transit to Datalogic. Datalogic shall assume risk of loss or
damage for product in Datalogic’s possession or product being returned to Customer by Datalogic, except such loss
or damage as may be caused by the negligence of Customer, its agents or employees. In the absence of specific
written instructions for the return of product to Customer, Datalogic will select the carrier, but Datalogic shall not
thereby assume any liability in connection with the return shipment.
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Table of Contents
Unpacking and Inspecting Your Scanner..................................... 3