AppGallery Developer Distribution and Test Agreement

Version 6

     

    Zebra Technologies App Developer Distribution

    and

    Test Agreement

     

    This App Developer Distribution and Test Agreement including all the Schedules thereto (the “Agreement”), effective as of ______, 20__ (the “Effective Date”), is made and entered into by and between Zebra Technologies  Corporation, a Delaware corporation, having its offices at  One Motorola Plaza, Holtsville, NY 11742 and its subsidiary companies (“Zebra”) and ___________________, a ___________ corporation, having its principal place of business at ________________________________________________ (“Company).

     

    RECITAL

     

    1. Zebra has agreed to assist and support members of its PartnerEmpower Program            (“Members”) and certain other software developers (“Registered App Developer(s)” or “Developers”) (together referred to for purposes of this Agreement as “Company”) in their go-to-market efforts.  Company will have the opportunity to submit its software application(s) (“Apps”) for testing and consideration to be included in the Zebra AppGallery (“ZAG”).  Company understands that the ZAG is a publicly available site where Registered App Developers can distribute Apps, on their own behalf and not for Zebra, for user devices that can access the ZAG (“Devices”).  Additionally, Company may participate in the testing and validation of the interoperability of its Apps (also referred to as “Product(s)”) with Zebra’s products. This testing and validation is being done to assist Zebra in evaluating  Company’s solution and the suitability of Product(s) submitted by Members only to bear the Zebra Validated or Zebra Compatible logo, as applicable (referred to as the “Logo”), under the license provisions specified herein. 

     

    1. This Agreement covers the use of the ZAG and testing and validation of the Product(s) set forth in the “Test Plan(s)” under Zebra’s Compatible or Validated process. 

     

    1. As a Registered App Developer(s), Company is responsible for maintaining accurate and complete information in the developer profile and support their Apps distributed through the ZAG.  Failure to update the developer profile or support its Apps may result in removal of the Apps from the ZAG.

     

    1. The Validated process (herein referred to as “Validated”) tests the Product(s) functionality with the Zebra product(s) specified in each Test Plan, and also includes interoperability testing of the Product(s) with Zebra product(s). It is performed by Zebra at Zebra’s location with Company’s participation.


    5. The Compatibility process (herein referred to as “Compatible”) is dedicated to Product(s) interoperability with the relevant Zebra product(s).  It is conducted by Company at its own facility and is concluded by providing written test reports to Zebra.  Zebra may request Company to repeat testing or perform additional testing and may also perform testing at its own facility with Company’s assistance and support.
    6. The Validated and the Compatible processes shall be performed under the terms and subject to the conditions of this Agreement including (without limitations) Schedule A hereof (the “Testing Services”).
    Company and Zebra, intending to be legally bound hereby agree as follows:

    1. USE of the ZAG.


    1.1 Other than the license rights granted by Company in Section 3 below, Zebra agrees that it obtains no right, title or interest under this Agreement in or to any of the Apps, including any intellectual property rights in the Apps.
    1.2    Company will be responsible for uploading its Apps to the ZAG and for providing App information and support to users.  Company must accurately disclose the security permissions necessary for the Apps to function on user devices. Apps that are not uploaded in accordance with this clause will not be published in the ZAG.
    1.3   Company may only use the ZAG for purposes allowed by this Agreement and Company agrees to comply with any applicable law or regulation in the relevant jurisdictions.
    1.4   APPS ON THE ZAG MAY BE SUBJECT TO UNITED STATES EXPORT CONTROL LAWS AND REGULATIONS. COMPANY MUST COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO YOUR DISTRIBUTION OR USE OF APPS. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, USERS AND END USE.
    1.5   If Company uses the ZAG to distribute Apps, Company agrees to protect the privacy and legal rights of users. If the App will collect any user information, Company shall inform users and provide legally required privacy notices and protection for such information. Apps can only use collected information for the limited purposes for which the user has provided consent and hold the information for the limited time required, unless the user has opted into a separate agreement with Company that allows Company or Company’s App to collect or use personal or sensitive information.  In that case, the terms of that separate agreement will govern Company’s use of such information.

    2.         Prohibitions and Restrictions of the ZAG.

    1. Company is solely responsible for any Apps Company distributes through the ZAG including use of any ZAG APIs. Company will not engage in any activity with the ZAG, including the development or distribution of Apps, that interferes with, disrupts, damages, or accesses in an unauthorized manner user devices, servers, networks, or other properties or services of Zebra or any mobile network operator or other third party.

     

    1. As a Registered App Developer(s), Company is responsible for maintaining accurate and complete information in the developer profile and support of their Apps distributed through the ZAG.  Failure to update the developer profile or support Apps may result in removal of the Apps from the ZAG.

     

    1. Company will not use the ZAG in any way that is unlawful or causes harm to any user, Zebra or any other third party

     

    1. Company agrees that it is solely responsible for, and that Zebra has no responsibility to Company or to any third party for, any breach of Company’s obligations under this Agreement, any applicable third party contract or terms of service, or any applicable law or regulation, and for the consequences (including any loss or damage which Zebra or any third party may suffer) of any breach by Company.

     

    1. Any Apps Company distribute on the ZAG must adhere to the ZAG Developer Program Policies define in Schedule C and found at https://developer.zebra.com/docs/DOC-3258

     

    1. Company acknowledges it has read the ZAG Developer Program Policies and agrees that they are a part of this Agreement and Company will comply with the requirements of the ZAG Developer Program Policies.

    3.   Apps License Grant.3.1  Company grants to Zebra a nonexclusive, worldwide, and royalty-free license to: reproduce, perform, display, and use the Apps for administrative and demonstration purposes in connection with the operation and marketing of the ZAG and the marketing of devices and services that support the use of the Apps.3.2   Company grants to Zebra a non-exclusive and royalty-free license to distribute the Apps in the ZAG. 3.3   Company grants to the user a non-exclusive, worldwide, and perpetual license to perform, display, and use the Apps on a device. If Company chooses, Company may include a separate end user license agreement (EULA) in Company’s Apps that will govern the user's rights to the Apps. 3.4  Company represents and warrants that Company has all intellectual property rights, including all necessary patent, trademark, trade secret, copyright or other proprietary rights, in and to the Apps. Company represents and warrants that Company has the right to distribute any third-party material in the App and that Company will not submit material to ZAG that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including patent, privacy and publicity rights, unless Company is the owner of such rights or have written permission from their rightful owner to submit the material. 4.  Administration of Apps. 4.1   Company may remove Company’s Apps from the ZAG at any time. Removing Company’s Apps from the ZAG does not affect the license rights of users who have previously downloaded Company’s Apps, nor remove Company’s Apps from Devices or from any part of the ZAG where previously downloaded Apps are collected on behalf of users.  Removal of Apps from the ZAG does not change Company’s obligation to deliver or support Apps that have been previously downloaded by users. Notwithstanding the foregoing, in no event will Zebra maintain on any portion of the ZAG any Apps that Company has removed from the ZAG and provided written notice to Zebra that such removal was due to an allegation of infringement, or actual infringement, of any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person, (ii) an allegation of defamation or actual defamation, (iii) an allegation of violation, or actual violation, of any third party's right of publicity or privacy, or (iv) an allegation or determination that such Apps does not comply with applicable law. 4.2  Zebra does not undertake any obligation to monitor Apps or their content.  Zebra reserves the right to remove or disable any Apps from the ZAG or reclassify the Apps at its sole discretion. Zebra reserves the right to suspend and/or bar any Developer from the ZAG at its sole discretion. 4.3  Company agrees that it is responsible for maintaining the confidentiality of any developer credentials that Zebra may issue to Company or which Company may choose itself and that Company will be solely responsible for all Apps that are developed under Company’s developer credentials. 5.  Privacy and Information. In order to continually innovate and improve the ZAG, Zebra may collect certain usage statistics from the ZAG and Devices, including but not limited to, information on how the ZAG and Devices are being used. To ensure the improvement of Apps, limited aggregate data may be available to Registered App Developers upon written request.

    1. Testing Services. 


    6.1  Upon submission of the items specified in Section 7.1, Zebra and/or Company (as applicable) shall complete the testing as specified in the Test Plan.  Testing will be conducted at either party’s facility, or in both facilities, as specified in the Test Plan, and each party will provide adequate lab space, security, equipment and personnel to complete the testing procedures and report the results. In the event Zebra finds defects that pre-empt the testing or would cause the Product under test to fail the testing, Zebra will provide to Company a failure notice with the details specified in Section 8.2 (the “Failure Notice”). Failure Notice shall only be provided by Zebra to Company and not to any third party. 
    6.2  Upon successful completion of the Testing Services, Zebra shall provide to Company a report concluding that the Product(s) have passed the Compatible or Validated (as applicable) testing requirements ( the “Test Report”).  Obtaining any particular grade or result in the Test Report will not ensure that Zebra will grant to Company any right to use the Logo or any other trademark of Zebra, or to participate in any Zebra sponsored program.
    6.3  After submitting the Test Report(s) to Company, Zebra will have no further responsibility with respect to their use or further disclosure, whether by Company or by any third party. Zebra may post or otherwise publish the Test Report(s) both internally and externally.
    6.4      Company acknowledges that testing conducted by Zebra shall only be valid for the Product(s) and version(s) of Product(s) and the Zebra products specified in each applicable Test Plan(s). 
    7.   Company’s Deliverables to Zebra. 
    7.1  Prior to the commencement of any testing, Company must submit the following items to Zebra:
    approved and signed Test Plan(s) covering each Product and the Zebra Product or platform required to be tested with such Product; and (ii) the actual Product(s) to be tested in the same form(s) Company intends to deliver them to its customers. Company is responsible for all costs associated with the delivery of the Product(s) to Zebra. 
    7.2  (a) Zebra may archive the Product Company supplies for testing, along with any related materials, but excluding any hardware.  Company acknowledges that following the delivery of a Test Report to Company, Zebra may use the Product(s) for demonstration purposes (both internally and externally) unless Company otherwise directs in the Test Plan where Company may specifically state that it will not leave the tested Product for demonstration to others, or that Company agrees to leave the Product for demonstration to others with certain exception which Zebra will honor.  For purposes hereof, internal use may include (without limitations) demonstration within Zebra’s Solution Center and Executive Briefing Center and external use may include (without limitations) use at trade shows, posted to Zebra.com, AppGallery, or a similar medium or as part of multi-partner demonstrations. 
    (b) After receipt by Company of the Test Report, Company will be able to post a demo application of the Product on Zebra’s Click2Demo website at https://developer.zebra.com/community/click2demo (or any equivalent website) which will be accessed by Zebra employees as well as Zebra’s channel partner community or other third parties. All of Company’s equipment and software supplied to or used by Zebra in connection with the Testing Services under this Agreement will remain Company’s property. 
    8.   Deliverables to Company.
    8.1      The Test Report(s) submitted to Company shall include the following information for each Product tested: date(s) tested; (ii) Product name and version and the Zebra products tested with such Product; (iii) version of operating system and hardware components used; (iv) Test platform configuration; and (v) test “Passing” grade. 
    8.2  A Failure Notice will specify:  date(s) tested; (ii) Product and version of the application and the Zebra products tested with such Product; (iii) version of operating system and hardware components used, if applicable; (iv) test platform configuration, if applicable; and (v) detailed reasons for the failure. 

    9. Fees and Payment. 
    9.1            For Members in good standing, Zebra will waive the fees associated with the Testing Services. Zebra may charge Developer(s) for each Product to be tested, and such fee may be specified in the Test Plan.   Total fee will be due and payable upon submission by Zebra of an invoice to Developer therefore.  
    9.2          Company agrees that any refusal by Zebra to license the Logo or termination of the use rights thereof, will not entitle Company to seek a refund of any fees to the extent paid to Zebra. 
    9.3          Applicable payments are due in full whether or not the Product meets the testing requirements and whether or not Zebra agrees to license any of the Logos identified in this program. Fees paid to Zebra for the Testing Services will not be refunded, and a submission for a re-test will be considered a new engagement and will require a new testing fee. 
    10.   Ownership and Trademarks
    10.1  Zebra and the stylized Zebra head are trademarks of ZIH Corp, registered in many jurisdictions worldwide (“Zebra Trademarks”). All other trademarks are the property of their respective owners. Nothing in this Agreement grants or is intended to grant Company any right whatsoever to use the Zebra Trademarks, or other trade mark/name or service mark of Zebra or any Zebra affiliate for any purpose, including but not limited to advertising, Company web site and promotional literature in connection with the Product(s). 
    10.2  Member’s rights to use the Logo, will be subject to the terms and conditions of the Logo License Agreement attached herewith as Schedule B, and such other conditions as Zebra may communicate to Member from time to time.
    10.3  Company acknowledges and agrees that all proprietary rights to any Zebra testing methodologies are owned by Zebra or its licensors and that nothing in this Agreement grants or is intended to grant Company any right to copy, sell or otherwise use any Zebra test methodology or test document(s), except as expressly stated in this Agreement or subsequent agreements signed by both parties. 
    11.   No Restrictions on Zebra‘s Activities. 
    Nothing in this Agreement prohibits or restricts Zebra from providing similar testing services to any third party in connection with any product including products similar to the Products. 
    12.   Disclaimers.
    12.1  Company acknowledges and agrees that any determinations and/or statements made by Zebra, including but not limited to the Test Report with respect to the Product(s), shall be based upon Zebra's testing activities and analysis and are the opinions of Zebra. 
    12.2  Company acknowledges and agrees that the Zebra’s Compatible or Validated programs and the Testing Services are not intended to be a "certification" program and any Logo use by Member does not represent that Zebra certifies or warrants the Product(s) or other Member’s product(s) in any way. 
    12.3  Member acknowledges that the licensing and/or use of the applicable Logo can only be authorized under Schedule B and subject to its terms.  Zebra shall in no way be responsible for any decisions made by Member regarding the Products. Zebra makes no guarantees, representations or warranties regarding Member's ability to meet the Logo license and use standards, or Company's ability to continue the use thereof even if such standards are met.
    12.4  Company acknowledges that Zebra disclaims any obligation that may result from this Agreement and the Test Services, and will NOT compensate or in any way indemnify Company or any third party from Zebra’s acts and omissions associated with or related to the Test Services.  Zebra does not guarantee or warrant the Products or the interoperability thereof with any Zebra products. Company will include in every document bearing the applicable Logo or referencing the Testing Services including the Test Report, the following language:
    "Zebra Technologies Corporation and its subsidiaries make no express or implied representation or warranty with respect to: any of the Products referenced herein; (ii) the information provided herein (including without limitation the key findings and test results regarding the Products and the functionality or interoperability thereof) (“Information”) or any solution, combination or system that may be created with the use thereof.  The Information is offered “as is” with all faults and does not constitute professional, technical, legal or other advice to the user.”
    12.5    EXCEPT AS SPECIFICALLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTY, EXPRESS NOR IMPLIED TO THE OTHER PARTY WITH RESPECT TO THE TESTING SERVICES. EACH PARTY HEREBY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 
    13.   Priority and Order of Precedence.In the event of any conflict or inconsistency between the terms of this Agreement and any of the Schedules thereto, the order of precedence (with the first one taking precedence over the subsequent documents) will be as follows: Schedule A- Terms and Conditions (ii) the main body of this Agreement; (iii) Schedule B – Logo License Agreement including Exhibit A and (iv) Schedule C – Zebra AppGallery Developer Program Policies thereof.  
    14.   Electronic Version as Original.   A true and correct computer image of this Agreement and the Test Plan(s) shall be treated and shall have the same effect as an original hard copy of the Agreement. A facsimile copy or computer image, such as a PDF or tiff image, of a signature shall be treated and shall have the same effect as an original signature. 

    By checking/clicking the “I Accept” button, I _________________________________    [ add individual’s name here] confirm that I am authorized to represent and sign this Agreement including all the Schedules thereto on ________________[ add the date of click accepting the Agreement here] (the “Effective Date”) on behalf of _________________________                      [ add the name of Company  here]              (“Company”)  and acknowledge that the Agreement (including all the Schedules thereof)  has been made available to Company by Zebra in an electronic format. 


    [Electronic “click button”] Schedule A: Terms and Conditions
    1. All terms not herein defined will have the meaning assigned thereto in the body of the Agreement.
    2.  Termination.  Company may terminate this Agreement by providing Zebra with thirty (30) days prior written notice and cease use of any relevant developer credentials. Zebra may immediately terminate this Agreement with Company if Company has breached any provision of this Agreement; or Zebra is required to do so by law.  Zebra may terminate this Agreement at any time by providing Company with thirty (30) days prior written notice.  Zebra reserves the right to immediately remove Company’s Product from the ZAG and suspend or not perform any additional Testing Services if either party terminates under this section 2. If for any reason, the form of payment submitted to Zebra by Developer is not valid or honored by Developer's financial institution, Zebra shall have the right to suspend the Testing Services (including reporting) and to terminate this Agreement or any part thereof immediately upon written notice to Developer. 
    3. Proprietary Rights & Ownership. 
    (a) Company Proprietary Rights. Company, at all times, will own all right, title, and interest in and to all information and data provided by Company to Zebra hereunder ("Company Materials").  Company Materials shall be deemed to include the software and equipment acquired by Zebra through a lease or purchase on behalf of Company, and for which Company has paid all applicable fees and charges. 
    (b) Zebra Proprietary Rights. Notwithstanding the foregoing, Company's rights shall not include, or be construed to include, the following: any development tools, routines, subroutines and other programs, data, materials, or equipment or software acquired by Zebra independent of Company's activities, that are used in the performance of the Testing Services hereunder ("Background Technology"); and (ii) any skill, knowledge, know-how, or expertise (collectively, "Know-How") acquired or developed by Zebra either prior to this Agreement or in connection with the performance of Testing Services under this Agreement, including Know-How similar to that which Zebra regularly uses for the benefit of other clients. Zebra, at all times, shall own all right, title, and interest in the Background Technology and the Know-How, which will be treated by Company as Confidential Information of Zebra. 
    (c)  Company agrees that it is responsible for maintaining the confidentiality of any developer credentials that Zebra may issue to Company or which Company may choose itself and that Company will be solely responsible for all Apps that are developed under Company’s developer credentials. 4. Confidential Information. (a) Developers shall be bound by the confidentiality provisions contained in Section 4 (b) hereof. A Member shall be bound by the confidentiality provisions agreed to (either electronically or in a mutually signed version) when becoming a participant in the PartnerEmpower Program (the “PartnerEmpower Agreement),  which provisions are incorporated herein by this reference, and shall remain in full force and effect for the duration of this Agreement. 
    (b)    Each party (referred to herein as the ‘Discloser” or the “Recipient” as the context mandates) agrees that during the period of this Agreement and for a period of three (3) years after the expiration or termination thereof, it will keep confidential and not disclose or make any use of, except pursuant to the terms of this Agreement, any Confidential Information disclosed to it by the other party.  For purposes of this section, the term “Confidential Information” shall mean, without limitation, any information, trade secrets, technical data or know-how of a party   ( including the Know How and Background Information referenced  in Section 3(b)) that relates to the Testing Services, the Products, Zebra products and each party’s pricing, market development, engineering, marketing or finances whether tangible or intangible and whether disclosed in writing, orally or visually, and whether or not marked as confidential.  Confidential Information shall exclude information that Recipient can demonstrate by documentation: is now available or becomes available to the public without breach of this provision; (ii) is explicitly approved for release by written authorization of Discloser; (iii) is lawfully obtained from a third party or parties without a duty of confidentiality; (iv) is known to the Recipient prior to such disclosure without an obligation of confidentiality; or (v) is independently developed by Recipient without the use of any of Discloser’s Confidential Information or any breach of this Agreement.
    (ii) In the event Recipient is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other process) to disclose Discloser’s Confidential Information, Recipient will provide Discloser prompt notice of any such request or requirement so that Discloser may seek an appropriate protective order or waive Recipient’s compliance with the terms of this provision.  If, failing the entry of a protective order or the receipt of a waiver hereunder, Recipient is, in the written opinion of its counsel, legally compelled to disclose Discloser’s Confidential Information, Recipient may disclose that portion of the Confidential Information that its counsel advises in writing that it is compelled to disclose.  In any event, Recipient will not oppose reasonable action by the Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be afforded its Confidential Information.  Upon termination of this Agreement, Recipient shall return to Discloser all materials or documents which were furnished in connection with this Agreement, along with all copies thereof including, without limitation, the Confidential Information.  Recipient shall have no right to prepare any derivative works from the Discloser’s Confidential Information.

    1. Non-solicitation. During the term of this Agreement and for a period of one (1) year thereafter, Company will not solicit or causes to be solicited for hire any Zebra employees or contractors. 

     

    1. Disclaimer of Warranty.

     

    1. COMPANY EXPRESSLY UNDERSTANDS AND AGREES THAT COMPANY’S USE OF THE ZAG IS AT ITS SOLE RISK AND THAT THE ZAG IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND.

     

    1. COMPANY USE OF THE ZAG AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE ZAG IS AT COMPANY’S OWN DISCRETION AND RISK AND COMPANY IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE.



    7. Limitation of Liability.  (a) Nothing in this Agreement shall affect any liability that cannot be excluded or limited by law. Zebra accepts unlimited liability for death or bodily injury resulting from its negligence. Clauses 7 (b) and 7 (c) do not apply to such liability.
    (b) Subject to Clause 7(a) under no circumstances including any infringement claims, shall Zebra be liable to Company, either in contract, tort (including negligence) or otherwise for any loss of profits; (ii) loss of revenues; (iii) loss of business; or (iv) anticipated savings; and/or (v) any destruction or loss of data (in each case, whether direct or indirect); and/or (vi) any indirect, special or consequential loss or damage.
    (c) Zebra’s liability to Company in agreement, tort (including negligence) or otherwise in relation to this Agreement is limited to the fees paid to Zebra for the Testing Services or use of the ZAG giving rise to the applicable claim.
    (d) Each provision of this Agreement, excluding or limiting liability, operates separately. If any part is held by a court to be unreasonable or inapplicable, the other parts will continue to apply.
    8. Indemnification.  8.1 To the maximum extent permitted by law, Company agrees to defend, indemnify and hold harmless Zebra, its affiliates and their respective directors, officers, employees and agents, and authorized carriers from and against any and all third party claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from (a) Company's performance, or Company’s failure to perform its obligations, under this Agreement, (b) Company’s use of the ZAG in violation of this Agreement, and (c) Company’s App that infringes any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person and/or (d) Company’s defamation of any person or violation of their rights of publicity or privacy.
    8. 2 To the maximum extent permitted by law, Company agree to defend, indemnify and hold harmless the applicable payment processors (which may include Zebra and/or third parties) and the payment processors' affiliates, directors, officers, employees and agents from and against any and all third party claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from taxes related to Company’s distribution of App through the ZAG.
    9. Entire Agreement.  The Agreement and all Schedules thereto constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes any terms and conditions that may be included in a statement of work or in a purchase order submitted by Company to Zebra or in an acknowledgement thereof. The Agreement (including the Schedules thereto) supersede and govern, any prior or contemporaneous agreements, whether oral or written, with respect to the subject matter hereof. 
    10. No Partnership or Joint Venture.  The parties hereto are independent contractors and neither party is the legal representative, agent, joint venturer, partner, or employee of the other party for any purpose whatsoever. Neither party has any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other party, whether express or implied. 
    11.   Governing Law; Jurisdiction.  This Agreement shall be governed by and enforced in all respects in accordance with the laws of the State of Illinois, United States of America, exclusive of its provisions on conflicts of law principles. The parties agree that any action arising out of or in connection with this Agreement or the breach thereof shall be brought to the state or federal courts located in Cook County, Illinois which courts shall have exclusive jurisdiction over any such action, and each of the parties hereby consents to the personal jurisdiction of, and waives any objection to venue in, such courts. 
    12. Notices. All notices required under this Agreement will be in writing, will reference this Agreement, will be effective as of the date of issuance, and shall be delivered by Zebra via email, first-class mail, overnight courier or facsimile; and (ii) by Company via first- class mail or overnight courier to Legal Dept, Zebra Technologies Corporation, One Zebra Plaza, MS A-6, Holtsville NY 11742. If any such notice to Company is delivered via email, mail or facsimile, it will be deemed delivered if sent to the fax number, email or street address provided by Company to Zebra. Company is solely responsible to keep its addresses and all contact information accurate and current at all times.
    13. Waiver. No failure or delay on the part of either party in exercising any right or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or of any other right or remedy. No provision of this Agreement may be waived except in a writing signed by the party granting such waiver. 
    14. Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. 
    15. Successor and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.  Company will not assign or transfer its rights and obligations under this Agreement without Zebra’s express prior written consent.
    16. Attorney's Fees. If any action, suit or other proceeding is instituted concerning or arising out of this Agreement, the prevailing party shall recover all of such party's reasonable costs and attorneys' fees incurred in each and every such action, suit or other proceeding, including any and all appeals or petitions therefrom.
    17. Counterparts. Each Test Plan to be issued for Testing Services under this Agreement, may be executed in counterparts, all of which taken together shall constitute one single agreement between the parties. Additionally, Test Plans may be agreed to using electronic ‘click accept’ methods, and such electronic acceptance will have full force and effect.  
    18. Term. This Agreement shall remain in effect for a period of one (1) year from the Effective Date hereof.  Thereafter it will automatically renew for additional one (1) year terms unless either party gives to the other party a notice of its intention not to renew thirty (30) days prior to the expiration of the then current term. Additionally, Zebra shall have the right to terminate this Agreement without cause, on thirty (30) days written notice.  
    19. Heading. Section and paragraph headings used in this Agreement are for convenience only and cannot be used to construe the provisions of this Agreement
    Schedule B: Logo License Agreement
    This Logo License Agreement (the “Agreement”) serves as Schedule B of the Zebra Technologies Test Agreement (referred to in this Schedule B as the “Test Agreement”) and will apply with respect to the use by Member of the Validated Logo or the Compatible Logo, as applicable. 
    1. DEFINITIONS. Throughout this Agreement, the following expressions shall be interpreted as set forth below: 
    A. “Validated Logo”, “Compatible Logo” or “Logos”: The 2 logos only as shown in Exhibit A and only as provided by Zebra or such additional or replacement logos as Zebra may provide from time to time at its sole discretion. 
    B. Zebra and the stylized Zebra head are trademarks of ZIH Corp, registered in many jurisdictions worldwide (“Zebra Trademarks”). All other trademarks are the property of their respective owners.
    Capitalized terms not defined herein shall have the meaning ascribed to them in the Test Agreement.

    2. LICENSE GRANT.  A. Logo: Subject to Member’s compliance with the terms and conditions of this Agreement and the Test Agreements (including Schedule A thereof), Zebra hereby grants to Member a non-exclusive, non-transferable, royalty-free license to use the Validated Logo or the Compatible Logo  (as applicable) on packaging and marketing materials relating to Products successfully tested to be Compatible or Validated (as indicated by the Test Reports), solely for the purpose of notifying Member’s customers and potential customers that those Products were successfully tested for interoperability with the Zebra products listed in each applicable Test Report(s) (the “License”). Member acknowledges and agrees that the License does not include the right to mark or otherwise use the Validated Logo or the Compatible Logo: on the Products themselves (ii) as part of any brand(s) or trade name(s) of Member or Member’s affiliates, or (iii) in any other manner, including for promoting the Product(s), support services, or other goods or services.  No grant is provided to Member to use the Zebra Trademarks and Member may not make any use thereof.
    B. Reservation: Zebra and its licensors retain all right, title and interest in and to the Logos, and the Zebra Trademarks, and all use of the Logos by Member shall inure to the sole benefit of Zebra and its licensors. The limited authorization for the Logos’ use shall not be transferable or assignable by Member.  Zebra may approve or disapprove any use of the Logos at any time in its sole discretion.  3. TERM. Notwithstanding that the Test Agreement may have expired or terminated, this Agreement shall remain in effect for as long as the Validated or the Compatible Product is distributed by Member, unless earlier terminated under Section 8 hereof. 
    4. NO OTHER RELATIONSHIP.  A. No endorsement: This Agreement does not constitute and shall not be construed as constituting an endorsement, certification, partnership or joint venture between Zebra and Member. Neither party shall have any right to obligate or bind the other party in any manner whatsoever, and nothing contained herein shall give, or is intended to give, any rights of any kind to any third parties. 
    5. USAGE STANDARDS, QUALITY STANDARDS AND QUALITY MAINTENANCE. 
    A. Member shall strictly adhere to the restrictions and specifications provided by Zebra with respect to the use and display of the Logos, as specified in Exhibit B, which may be modified from time to time at Zebra's sole discretion. 
    B. Member represents and warrants that each Product marketed with the use of the Logo(s) shall: maintain interoperability with the applicable Zebra products; and (ii) shall be correctly represented, promoted and advertised to Zebra and Member customers. 
    C. MEMBER AGREES THAT ALL DOCUMENTATION WHICH INCLUDES THE LOGOS WILL INCLUDE CLEAR, CONSPICUOUS “SYSTEM REQUIREMENTS” INFORMATION CONTAINING AT LEAST THE FOLLOWING INFORMATION: 
    (1) A CLEAR INDICATION OF WHICH ZEBRA PRODUCT(S), MODEL AND VERSION INTEROPERATES WITH THE PRODUCTS; AND 
    (2) A CLEAR INDICATION OF WHICH MEMBER PRODUCT(S), MODEL AND VERSION INTEROPERATES WITH THE ZEBRA PRODUCTS; AND 
    (3) A CLEAR INDICATION OF THE OPERATING SYSTEM, HARDWARE REQUIREMENTS AND CONFIGURATION, NECESSARY TO USE THE APPLICABLE PRODUCT.
    (4)  MARKINGMember shall use the following notice on marketing materials and, to the extent commercially reasonable, on packaging materials, relating to Products successfully tested to be Compatible or Validated (as indicated by the Test Reports) to identify uses under this Agreement and the proprietary rights of Zebra:
    “Zebra and the stylized Zebra head are trademarks of ZIH Corp, registered in many jurisdictions worldwide, and are used under license. All other trademarks are the property of their respective owners.”
    D. Member shall not use or misuse or bring into dispute or disrepute the Logos, the applicable Zebra product or any other Zebra products or Zebra. Zebra reserves the right to object to unfair uses or misuses of the Logos or other violations of this Agreement, the Test Agreement (including Schedule A thereof) or applicable law. 
    E. Member shall not: (a) use, apply to register or cooperate in any effort by any third party to register in any country or state any Zebra Trademarks or any trademarks, service marks, trade names, keywords, screen names or Internet domain names containing, or confusingly similar to, the Logos, Zebra Trademarks or other Zebra owned marks; (b) challenge or participate in any challenge of Zebra’s or its licensors’ ownership or use of the Logos, Zebra Trademarks or other Zebra-owned marks; (c) do anything else inconsistent with Zebra’s or its licensors’ ownership of the Logos, Zebra Trademarks, or other Zebra-owned marks (d) remove, alter, or add to the Logos any marks; or (e) combine any of its own names or marks with the Logos, Zebra Trademarks or other Zebra-owned marks. If Zebra notifies Member of any such confusion or risk of confusion, Member shall take appropriate steps to immediately remedy or avoid such confusion or risk thereof, including immediate assignment of any such registrations or rights to Zebra or its licensors at Member’s expense. 
    F. Member further agrees, in order to minimize the risk of any confusion, not to use or register any name, mark, feature name, trade name, domain name or other signifier for use with or on any Member products (including the Products) where such name, mark, feature name, trade name, domain name or other signifier contains the words or prefixes “Zebra Enterprise Validated,” “Zebra Enterprise Validated Logo,”, Zebra Enterprise Compatible Logo “Zebra Enterprise Compatible”,  “Zebra,” “Zebra Technologies ” or phonetic equivalents thereof.
    G. Member shall give Zebra notice of any known or presumed infringements of the Logos, Zebra Trademarks or other Zebra-owned marks, and Member shall render Zebra full cooperation for the protection of same.
    H. Member shall keep written records of tests performed in accordance with this Agreement, and make such records available to Zebra promptly upon written request. Zebra may evaluate and test in any manner any Product bearing the Logo, to verify compliance with this Agreement and the Test Agreement including Schedule A thereof (the “Requirements”).  Member shall give prompt written notice to Zebra of any material customer or third party complaint that any version of the Products bearing the Logo may not conform to the Requirements. Member shall reasonably cooperate with Zebra if Zebra decides, at its sole discretion, to verify compliance of Products with the Requirements. If Zebra determines in its sole discretion that the affected Products do not comply with the Requirements ("Non-Compliant Product"), then Member shall immediately cease using the Logo with such Products until same complies with the Requirements, which compliance Zebra shall determine in its sole and absolute discretion. Any Non-Compliant Product bearing the Logo shall be subject to immediate recall thirty (30) days after written notice to Member from Zebra of the non-compliance, if Member has not made publicly available, for no additional cost to users of Non-Compliant Product, a workaround, which can be used to make such Non-Compliant Product comply with the Requirements. 
    6. INDEMNIFICATION. 
    In addition to Member’s indemnity obligations under Schedule A of the Test Agreement, Member hereby agrees to indemnify and hold Zebra, its subsidiaries, directors, officers and employees, harmless against any loss, liability, damage, cost or expense, including reasonable legal fees: (a) arising by reason of Member’s non-performance under this Agreement including breach of any of Member’s representations and warranties contained herein; (b) arising out of use by Member of the Validated and/or the Compatible Logo; and/or (c) resulting from any personal injury, product liability, professional liability, tort or other claim arising from the production, promotion, distribution, sale, offer for sale, giving away, use, misuse and/or performance of Products or any related applications or services of Member, or any contents thereof. 
    7. NO WARRANTIES BY ZEBRA; LIMITATION OF ZEBRA’S LIABILITY. 
    MEMBER ACKNOWLEDGES AND AGREES THAT ALL USE OF THE LOGOS BY MEMBER IS STRICTLY AT MEMBER’S OWN RISK, THAT THE LOGOS ARE PROVIDED BY ZEBRA AND ITS LICENSORS ON AN "AS IS" BASIS, AND THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ZEBRA AND ITS LICENSORS DISCLAIM ANY REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LOGOS, INCLUDING MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE AND NONINFRINGEMENT. FURTHER, ZEBRA’S AND ITS LICENSORS’ SOLE LIABILITY TO MEMBER FOR ANY DAMAGES RESULTING FROM THE USE OF THE LOGOS, AND FOR ANY DAMAGES RESULTING OUT OF THIS AGREEMENT, WILL BE LIMITED, TO THE MAXIMUM EXTENT PERMITTED BY LAW, TO THE TOTAL FEES PAID BY MEMBER TO ZEBRA UNDER THE TEST AGREEMENT DURING THE PRECEDING TWELVE (12) MONTHS.
    8. TERMINATION 
    A. Zebra shall have the right to terminate this Agreement for its convenience and without cause, on thirty (30) days written notice, unless such termination is at the request of Zebra’s licensors, in which event termination will take effect immediately upon receipt by Member of Zebra’s notice thereof. 
    B. Zebra shall have the right to terminate this Agreement for cause, in the event that Member breaches any term, condition, provision, representation or warranty of this Agreement, upon fifteen (15) days written notice to Member, setting forth the alleged breach or default, provided that Member has not cured such default within fifteen (15) days from the date of such notice (the “Notice Period”). In the event that Member has not cured such breach or default, this Agreement shall terminate automatically at the expiration of the Notice Period and Member shall remove the Logo from all Member’s materials, including but not limited to the Products and the documentation, promoted and/or sold, all within fifteen (15) days of the expiration of the Notice Period.
    C. Upon termination of this Agreement in accordance with Section 8 A or B, or at the end of its term (per Section 3 hereof), Member shall immediately cease all use of the Logos, and all rights granted herein to Member shall immediately and automatically revert to Zebra and/or its licensors, 
    9. ATTORNEYS’ FEES AND INJUNCTIVE RELIEF If any legal action is brought hereunder to enforce or interpret this Agreement, the successful or prevailing party shall recover from the non-prevailing party reasonable attorneys’ fees and other costs incurred in that action, in addition to any and all other relief to which it may be entitled. Member further agrees that any uncured material breach by Member of this Agreement will cause irreparable harm to Zebra and its goodwill in the Logos such that Zebra shall be entitled to preliminary and permanent injunctive relief in the event of such a breach. 
    10. NOTICES. All notices required under this Agreement will be in writing, will reference this Agreement, will be effective as of the date of issuance, and shall be delivered by Zebra via email, first-class mail, overnight courier or facsimile; and (ii) by Member via first- class mail or overnight courier to Legal Dept, Zebra Technologies Corporation, One Zebra Plaza, MS A-6, Holtsville NY 11742. If any such notice to Member is delivered via email, mail or facsimile, it will be deemed delivered if sent to the fax number, email or street address provided to Zebra by Member. Member is solely responsible to keep its addresses and all contact information accurate and current at all times.
    11. GOVERNING LAW AND FORUM. This Agreement shall be governed by and enforced in all respects by the laws of the State of Illinois, United States of America exclusive of its provisions on conflicts of law principles. The parties agree that any action arising out of or in connection with this Agreement or the breach thereof shall be brought to the state or federal courts located in Cook County, Illinois which courts shall have exclusive jurisdiction over any such action, and each of the parties hereby consents to the personal jurisdiction of, and waives any objection to venue in, such courts. 
    12. SEVERABILITY. Any provision of this Agreement that is found to be illegal, invalid or unenforceable shall be severable and shall not affect the remaining provisions of this Agreement.
    13. ENTIRE AGREEMENT AND WAIVERS. This Agreement constitutes the entire agreement between the parties concerning the Logos and the use thereof.  No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by an authorized representative of the party making the waiver. An authorized representative of Zebra shall consist only of a Director of the Zebra Solution Centers or an attorney representing Zebra. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. 
    14. SURVIVAL. All relevant provisions of this Agreement, including those pertaining to intellectual property, warranties, indemnification and limitation of liability, shall survive expiration or other termination of this Agreement. 
    15. AUTHORIZATION. The individual accepting this Agreement on behalf of Member represents and warrants that he/she is duly authorized to enter into this Agreement on behalf of Member and to bind Member to its terms. 
    16. CHANGE IN TERMS BY ZEBRA.MEMBER AGREES THAT ZEBRA MAY CHANGE ANY OR ALL TERMS OF THIS AGREEMENT AT ANY TIME IN ZEBRA'S SOLE DISCRETION BY PROVIDING TEN (10) DAYS NOTICE TO MEMBER.  MEMBER’S CONTINUED USE AND DISPLAY OF THE LOGOS AFTER ISSUANCE OF SUCH NOTICE WILL CONSTITUTE MEMBER’S ACCEPTANCE OF ANY AND ALL CHANGED TERMS. IF MEMBER DOES NOT ACCEPT SUCH CHANGE IN TERMS, MEMBER MUST PROMPTLY CEASE ALL USE OF THE LOGOS, AT MEMBER'S OWN COST.









    Exhibit A to Schedule B



    C:\Users\FHT384\AppData\Local\Temp\Temp1_ZEBRA_Enterprise Compatible_Logo.zip\ZEBRA_Enterprise Compatible_Logo\ZEBRA_Partner_Enterprise_Compatible_Logo.jpg

    C:\Users\FHT384\AppData\Local\Temp\Temp1_ZEBRA_Enterprise Validated_Logo.zip\ZEBRA_Enterprise Validated_Logo\ZEBRA_Partner_Enterprise_Validated_Logo.jpg










    Exhibit B to SCHEDULE B
    Use of Logos and Trademarks
    Member shall comply with all guidelines regarding the use of the Logo published by Zebra on https://www.zebra.com web site or an equivalent thereof. Zebra may revise such guidelines from time to time in its sole discretion upon reasonable notice to Member, including by posting on the partner portal web site.  From time to time, Zebra may reasonably request, and Member agrees to provide, copies of written and electronic materials bearing the Logo for purposes of verifying their quality and compliance with Zebra’s guidelines and the terms of this Agreement. Member is responsible to check the Zebra.com web site for most current Logo use guidelines prior to the use thereof.   Zebra will provide such guidelines to Member upon request.













    SCHEDULE C Zebra AppGallery Developer Program Policies ZAG-DPPZebra Technologies Corporation (“Zebra”) requires all developers submitting software applications to the Zebra AppGallery (“ZAG”) to adhere to this policy.  Any violation of the ZAG-DPP will result in your software application being removed from the ZAG.   Zebra will not allow the following types of material to be included in the ZAG:Illegal Activities- You may not conduct, engage in or promote unlawful activities on the ZAG, such as the sale of property you do not own or the sale of prescription drugs without a prescription. Harassment & Violence - Software applications may not contain materials that threaten, harass or bully other users. Pictures or depictions of violence are not permitted.Personal and Confidential Information- Zebra does not allow unauthorized publishing or disclosure of individual's private and/or confidential information, such as credit card numbers, government identification numbers, driver's and other license numbers, non-public contacts, or any other information that is not publicly accessible. Deceptive Behavior- You may not represent yourself to be someone else, nor represent that your software application is authorized by or produced by another person or entity if that is not true. Software applications must not contain any false or misleading information. You may not divert users or provide links to any other site that mimics or passes itself off as another software application or service. Software applications must not appear confusingly similar to existing products or interfaces. Objectionable Content- Zebra does not allow content that is crude, offensive or defamatory or targets or advocates against groups of people based on their race, religion, ethnic origin, disability, gender, age, veteran status, or sexual orientation/gender identity. Infringement- Software applications may not infringe the intellectual property rights of others, (including patent, trademark, trade secret, copyright, and other proprietary rights), or encourage or induce infringement of intellectual property rights.   Software applications that use protected third party material require authorization which must be provided upon request.Gambling- Zebra does not allow content or services that facilitate online gambling, including but not limited to, online casinos, sports betting and lotteries, or games of skill that offer prizes of cash or other value. Sexually Explicit Material- Software applications that contain or promote pornography and/or child sexual abuse are prohibited; this includes sexually explicit or erotic content, icons, titles, or descriptions. Dangerous Software Applications- Zebra does not allow content or software applications that harm, interfere with the operation of, or access in an unauthorized manner any networks, servers, or other infrastructure. Viruses – You may not transmit or link to viruses, worms, defects, Trojan horses, malware, or any other items that may introduce security vulnerabilities to or harm user devices, software applications, or personal data. Spyware- Zebra does not allow software applications that collect information (such as the user's location or behavior) without the user's knowledge (spyware). Malware - Malicious scripts and password phishing scams are prohibited on the ZAG, as are software applications that cause users to unknowingly download or install software applications from sources outside of the ZAG. Network Usage- Software applications must not create unpredictable network usage that has an adverse impact on a user's service charges or a carrier network. Software applications also may not knowingly violate a carrier’s terms of service for allowed usage or any Zebra terms of service. System Interference- All changes to the user’s device, including replacing or reordering the default settings on the device outside of the software application must require user consent. Software applications must not encourage, incentivize, or mislead users into removing or disabling third-party software applications except as part of a security service provided by the software application.Content Download - All software applications that include the ability to download content from a third party source will require authorization from the third party site.Developer Conduct.  To keep the user experience positive, Developers should not:

    • post repetitive content.
    • use irrelevant, misleading, or excessive keywords in software applications descriptions, titles, or metadata.
    • attempt to change the placement of any software application in the ZAG, or manipulate any product ratings or reviews by unauthorized means such as fraudulent installs, paid or fake reviews or ratings, or by offering incentives to rate products.
    • submit a software application created by an automated tool or wizard service on behalf of other persons.
    • post a software application that will drive affiliate traffic to a third party website or provide a webview of a website not owned or administered by the developer (unless you have permission from the website owner/administrator to do so).
    • send SMS, email, or other messages on behalf of the user without providing the user with the ability to confirm content and intended recipient.

    Promotion-Software applications published on the ZAG may not directly or indirectly engage in or benefit from:

    • Promotion through deceptive ads on websites, software applications or other properties, including simulated system, service, or software application notifications or alerts.
    • Promotion or install tactics that cause redirection to the ZAG or the download of the software application without informed user action.
    • Unsolicited promotion via SMS services.

    It is your responsibility to ensure that no ad network or affiliate uses such methods to direct users to pages that make your software application available for download.

    Advertising Policy- Under no circumstances shall you submit any software application with any ads including whether it is implemented in or bundled with software applications.

     

     



    ©2015 ZIH Corp. All product names and numbers are Zebra

    trademarks, and Zebra and the Zebra head graphic are

    registered trademarks of ZIH Corp. All rights reserved. All other trademarks are the property of their respective owners.