END-USER LICENSE AGREEMENT FOR DATACARD CORPORATION SOFTWARE

Transcription

1 END-USER LICENSE AGREEMENT FOR DATACARD CORPORATION SOFTWARE IMPORTANT READ CAREFULLY: This Datacard Open Platform Driver End-User License Agreement ( EULA ) is a legally-binding contract between you, as defined below, and DataCard Corporation, a Delaware corporation located at Bren Road West, Mailstop 710, Minnetonka, MN ( Datacard ) for the software that accompanies this EULA and is available to you as result of your clicking the I AGREE button below as well as all associated media and documentation (collectively, the Software ). You means the entity or individual that is the licensee of the Software under this EULA. If the licensee is an individual, you means the individual who agreed to the terms of the EULA by clicking the I AGREE button when downloading the Software. If the licensee is not an individual but some other form of legal entity, you means that entity, but in addition the individual who clicked the I AGREE button during the download process represents to Datacard that he or she is authorized by the licensee entity to enter into this EULA on behalf of such entity. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS CONTAINED IN THIS EULA YOU MAY NOT INSTALL, COPY OR OPERATE THE SOFTWARE, AND YOU MUST COMPLETELY REMOVE THE SOFTWARE FROM THE COMPUTER SYSTEM ON WHICH IT WAS INSTALLED OR COPIED. BY INSTALLING, COPYING OR USING THIS SOFTWARE YOU UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS OF THIS EULA. 1. Definitions. A. The Original Software Distribution is the package of files created and distributed by Datacard constitute the entirety of the Open Platform Driver software as originally provided to you. B. "Open Platform Driver means the Software, which includes certain executable objects, configuration files, sample cards and messages, scripts, API files, sample source, documentation and fonts delivered to you by Datacard, whether directly or indirectly, including any upgrades, updates, modifications, or new version releases thereto, if any. C. Executable Objects means Software that is provided to you in binary form, including filters, daemons and utilities. D. Configuration Files means Software that is provided to you as editable text files, including PPD (Postscript Printer Definition) files, MIME types and conversions. E. Sample Cards and Messages means Software that is provided to you as editable PostScript files [or?] as binary raw messages for printer cleaning.

2 F. Scripts means Software that is provided to you as editable text files including initialization scripts and sample printing scripts. G. API means Software that is in the form of an application programming interface comprised of text files defining a set of Web services. H. Sample Source means Software that is provided to you as editable text files for developing client applications and libraries. I. Documentation means any explanatory written materials or files contained in the Open Platform Driver including without limitation user guides and installation manuals. J. Fonts means files defining Free UCS (Universal Character Set) Outline fonts. These files are not owned by Datacard and are licensed to you separately under the GNU General Public License. K. Licensee Derivative means a version of the Original Software Distribution delivered to you by Datacard that has been subsequently modified by you in accordance with Section 2.B. References to the term Software are a reference to either the Original Software Distribution or a Licensee Derivative as the case may be. 2. License Grants. A. Datacard hereby grants to you a revocable, limited, non-transferable, non-exclusive license to install and use the Software on any computer that is connected to a Datacard printer or that is used in your maintenance or configuration of a Datacard printer. B. Datacard hereby grants to you a revocable, limited, non-transferable, non-exclusive license to modify the Software or any portion of it, so long as you do so for the purpose of modifying the Software for use with your own systems and products that are being distributed directly with a Datacard Printer. C. Datacard hereby grants to you a revocable, limited, non-transferable, non-exclusive license to copy and distribute any Licensee Derivative or the Original Software Distribution to others who intend to use such in conjunction with a Datacard Printer, with such license conditioned on your full compliance with all of the following conditions: i) You must cause the modified files in any Licensee Derivative to carry prominent notices stating that you changed the files and the date of any changes. If you are providing a Licensee Derivative you must also provide a complete and intact copy of the Original Software Distribution as well. ii) You must subject all subsequent users, copies, installers and licensees to the to the terms of this EULA or an equivalent document that has been pre-approved by Datacard as adequately protecting Datacard s rights and protecting Datacard from risks at least as

3 strong as those in this EULA, which contains these same conditions regarding the redistribution of the Software others, and must set forth the Limited Warranty. iii) Copies of the Software must contain all of Datacard s original notices of copyright, patent and trademark rights as may be found in any user interfaces, code or Documentation. iv) You may not state or imply that Datacard has endorsed, approved or otherwise promotes the use of any Licensee Derivative. v) You may include copies of the Documentation with any copy of the Software that is being redistributed by you, so long as you do not alter the copyright notices nor the substance of the instructions. D. The requirements set forth in Section 2(C) apply to a Licensee Derivative distributed as a whole. If identifiable sections of that work are not derived from the Original Software Distribution, and can be reasonably considered independent and separate works in themselves, then this EULA does not apply to those sections when you distribute them as separate works. But when you distribute the same sections as part of a whole Licensee Derivative, the distribution of the whole Licensee Derivative must be on the terms of this EULA, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it. Thus, it is not the intent of this section to claim rights or contest your rights to work written entirely by you; rather, the intent is to exercise the right to control the distribution of derivative or collective works based on the Software. In addition, mere aggregation of another work not based on the Software with the Software (or with a work based on the Software) on a volume of a storage or distribution medium does not bring the other work under the scope of this EULA. 3. Restricted Rights. You may not copy, modify, sublicense, or distribute the Software except as expressly provided under this EULA. Any attempt otherwise to copy, modify, sublicense or distribute the Software is void, and will automatically terminate your rights under this EULA. However, others who have received copies from you as permitted under this EULA and who themselves have entered into their own EULA with Datacard will not have their licenses terminated as a direct result of your licenses being terminated. 4. No Support. Datacard is under no obligation to provide any support of any kind under this EULA, including upgrades or future versions of the Software or otherwise to you or to any other party. 5. Intellectual Property Rights. The Software and any copies you are authorized by Datacard to make, as well as any copyrights in the Licensee Derivatives when viewed as a whole, are the intellectual property of and are owned by DataCard Corporation or its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of DataCard Corporation and its suppliers. As such, you shall exercise the same level of care in protecting the proprietary rights of Datacard and its suppliers in the Software as you would to protect your own most confidential information, which shall in no event be less than reasonable care. The Software is

4 protected by various laws, including without limitation by United States Copyright Law and various international treaties. Any information supplied by Datacard or obtained by you hereunder may only be used by you for the purposes described herein and may not be disclosed to any third party or used to create any software which is substantially similar to the Software. Except as expressly stated herein, this EULA does not grant you any intellectual property rights in the Software and accompanying documentation and all rights not expressly granted are reserved by Datacard. 6. Prohibited Activities. You shall not reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of any Software supplied hereunder that is not specifically provided to you in source code format, except to the extent you may be expressly permitted to decompile under applicable law in order to achieve operability of the Software with another software program provided that you have first requested Datacard to provide the information necessary to achieve such inter-operability and Datacard has refused to make such information available. Datacard reserves the right to impose reasonable conditions and to request a reasonable fee before providing such information. Except as expressly stated herein, you shall not assign, rent, lease or otherwise transfer any rights in or to the Software to any third party. 7. No Warranty. The Software is being delivered to you "AS IS" and Datacard makes no warranty as to its use or performance. DATACARD MAKES NO, AND HEREBY DISCLAIMS, ALL WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. 8. Limitation of Liability. IN NO EVENT WILL DATACARD BE LIABLE TO YOU OR ANYONE FOR ANY DAMAGES, CLAIMS, FEES, OR COSTS WHATSOEVER INCLUDING WITHOUT LIMITATION ANY SPECIAL, CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES SUCH AS LOST PROFITS OR LOST SAVINGS EVEN IF DATACARD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL DATACARD S AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT EXCEED $5 (FIVE DOLLARS). 9. Indemnification. You agree to indemnify, hold harmless and defend Datacard from and against any claims or lawsuits, including attorneys fees, that arise or result from either or both of (a) your performance under this EULA; or (b) the use or distribution of your products containing any Software, especially any Sample Code modified by you or on your behalf. Notwithstanding, you shall not be required to indemnify Datacard to the extent that such a claim or lawsuit is based on the Software, including without limitation the Sample Code, as Datacard delivered it to you hereunder. Datacard agrees to give you prompt written notice of any such claim, tender to you the defense or settlement of such claim at your expense and cooperate with you, at your expense, in defending or settling such claims.

5 10. Term. This EULA is effective upon your clicking I AGREE during the installation of the Software and thereafter until terminated. If you fail to comply with any term of this EULA, then all of your rights and licenses granted to you hereunder shall automatically terminate. In such event, you must immediately cease using, modifying, and distributing any and all parts of the Software and promptly return to Datacard or destroy all full and partial copies of the Software in your possession or under your constructive control. Further, Datacard may terminate this EULA, and all of your rights and licenses hereunder, at any time upon notice to you if you have committed a material breach of this EULA and have failed to cure such breach upon 10 days prior notice to you. You may terminate this EULA, and forfeit all of your rights and licenses hereunder, at any time by giving notice of such to Datacard. Your obligations to Datacard hereunder, as well as all limitations of Datacard s liability and its disclaimers of warranty, shall perpetually survive regardless of whether this EULA is deemed terminated or not. 11. Export Rules. You agree that the Software will not be shipped, transferred, or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions, or regulations (collectively the "Export Laws"). In addition, if the Software is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Syria, Sudan, Cuba, North Korea, and Serbia) and that you are not otherwise prohibited under the Export Laws from receiving the Software. All rights to use, copy, modify or distribute the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this EULA. 12. Government Use. If the Software is licensed for use by the U.S. government, the user agrees that the Software has been developed entirely at private expense and is delivered as "Commercial Computer Software" as defined in DFARS or as "restricted computer software" as defined in FAR , as appropriate. 13. Governing Law. This EULA will be governed by and construed in accordance with the substantive laws of the State of Minnesota, without regard for its conflicts of law provisions. You agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this EULA. You agree that all disputes, lawsuits or claims that you may bring that arise out of this EULA shall be brought exclusively in the state or federal courts seated in Hennepin County, Minnesota USA, and specifically agree to waive any objections as to personal jurisdiction or convenience of venue. 14. General Provisions. If any part of this EULA is found void or unenforceable, it will not affect the validity of the balance of the EULA, which shall remain valid and enforceable according to its terms. This EULA may only be modified by a writing signed by an authorized officer of Datacard. The English version of this EULA shall be the version used when interpreting or construing this EULA.

6 This is the entire agreement between Datacard and you relating to the Software and it shall supersede any prior representations, discussions, undertakings, communications, or advertising relating to the Software. If you have any questions regarding this EULA or if you wish to request any information from Datacard please contact your distributor, dealer, or sales representative or contact Datacard directly at Bren Road West, Attn: General Counsel, Mailstop 710, Minnetonka, MN DATACARD is a registered trademark of DataCard Corporation in the United States and in other countries Rev. A