BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SERVICE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.
IF YOU ARE USING ANY SERVICE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO.
This Zebra Terms of Service (“Agreement”) is entered into by and between Zebra Technologies International LLC. (“Zebra”) and the entity or person placing an order for or accessing the Service (“Customer” or “You”). This Agreement consists of the terms and conditions set forth below and any attachments, addenda or exhibits referenced in the Agreement, and any Online Order Forms and SOWs (as defined below) that reference this Agreement. Unless otherwise specified in writing by Zebra, all Services are performed/rendered/hosted in the United States of America.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Online Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
Purchase from Consumer of Customer Data: If a Provider (defined below) purchases any services from a Consumer (defined below), Provider’s and Consumer’s use of the Service will be governed by this Agreement, except that Provider must separately grant Consumer permission to access Customer Data.
Modifications to this Agreement: From time to time, Zebra may modify this Agreement. Unless otherwise specified by Zebra, changes become effective for Customer upon renewal of the then-current Subscription Term (as defined below) or entry into a new Online Order Form after the updated version of this Agreement goes into effect. Zebra will use reasonable efforts to notify Customer of the changes through communications via Customer’s Account (as defined below), email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Online Order Form, and in any event continued use of any Service after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.
1.1. “Account” means Customer’s account in the Savanna Service in which Customer as Provider stores Customer Data and provides access to such Customer Data and Customer as Consumer accesses or uses Customer Data.
1.2. “Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of more than fifty percent (50%) of the voting equity securities or other equivalent voting interests of an entity.
1.3. “Confidential Information” shall mean all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. All Customer Data will be deemed Confidential Information of Customer without any marking or further designation. All Zebra IP and the terms and conditions of this Agreement will be deemed Confidential Information of Zebra without any marking or further designation. Confidential Information shall not include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party without the use of such information.
1.4. “Consumer” means a party accessing or using Customer Data, such as an ISV.
1.5. “Customer” means a Provider of Customer Data or a Consumer of Customer Data.
1.6. “Customer Data” means any data or data files of any type that are uploaded by or on behalf of Customer to the Service for storage in a data repository or to be used in a service algorithm.
1.7. “Data Protection Claims” means with respect to each party, any claims arising from the other party’s breach of Section 3.3 (Customer Obligations), or breach of Sections 3.4 (Data Privacy), or 5 (Confidentiality), where such breach results in the unauthorized disclosure of Customer Data.
1.8. “Disclosing Party” is defined in Section 5 (Confidential Information).
1.9. “Documentation” means Zebra’s technical documentation and usage guides for the Savanna Service.
1.10. “Excluded Claims” means (a) Customer’s breach of Section 2.5 (General Restrictions); (b) Customer’s breach of its obligations in Section 5 (Confidential Information) (but excluding obligations and/or claims relating to Customer Data); and (c) Customer’s express obligations under Section 11 (Indemnification).
1.11. “Feedback” is defined in Section 4.1 (Zebra IP).
1.12. “Fees” means the fees payable by Customer for the Service, as set forth in an Online Order Form.
1.13. “GDPR Addendum” means the GDPR Addendum located at https://www.zebra.com/us/en/about-zebra/company-information/legal/gdpr… on the Effective Date of this Agreement.
1.14. “Independent Software Vendor” or “ISV” means a Consumer that consumes Customer Data and provides a service to Customer and/or Zebra through the use of the Service.
1.15. “Online Order Form” means Zebra’s online ordering document completed by Customer which specifies the Service being provided by Zebra.
1.16. “Provider” means a Customer that provides its Customer Data to the Service.
1.18. “Receiving Party” is defined in Section 5 (Confidentiality).
1.19. “Retrieval Right” is defined in Section 7.3 (Effect of Termination; Customer Data Retrieval).
1.20. “Sample Data” means any data (including from third-party sources) provided or made available to Customer by Zebra solely for Customer’s internal testing, evaluation, and other non-productive use of the Service during the Subscription Term.
1.21. “Service” means a Zebra data service offering made generally available and ordered by Customer as set forth in an Online Order Form.
1.22. “Service Data” means query logs, and any data (other than Customer Data) relating to the operation, support and/or about Customer’s use of the Service.
1.23. “Software as a Service” or “SaaS” is software that is accessible through a website made available to Customer by Zebra.
1.24. “SOW” means a statement of work or Online Order Form (as applicable) referencing this Agreement and executed by both parties describing the work to be performed, Fees and any applicable milestones, dependencies and other technical specifications or related information for Service ordered pursuant to Section 10 (Technical Services).
1.25. “Subscription Term” means the set term designated on an Online Order Form.
1.26. “Support Policy” means the Zebra Support Policy located at https://developer.savanna.zebra.com/sla describing Zebra’s current support policies and service level offerings.
1.27. “Taxes” means taxes, levies, duties or similar governmental assessments of any nature, including, for example, any sales, use, digital service, GST, value-added, stamp duty, withholding, income or similar taxes, whether domestic or foreign, or assessed by any jurisdiction.
1.28. “Third Party Applications” means separate services or applications (and other consulting services related thereto), provided by a party other than Zebra that can be used in connection with the Service.
1.29. “User means the persons designated and granted access to the Customer Data by Customer.
1.30. “Zebra IP” is defined in Section 4.1 (Zebra IP).
2. USE OF SERVICE
2.1. Service Provision and Access; SaaS. Zebra will make the Service available to Customer for the Subscription Term solely for use by Customer and its Users in accordance with the terms and conditions of this Agreement, the Documentation, and the Online Order Form. Customer may permit its respective contractors and Affiliates to serve as Users provided that any use of the Service by each such contractor or Affiliate is solely for the benefit of Customer or such Affiliate. Customer shall be responsible for each User’s compliance with this Agreement. To the extent use of a Service requires Customer to access software through a website, Zebra grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during the Subscription Term to access and use the website internally in connection with Customer’s, ISV’s and respective Affiliates use of the Service, subject to the terms and conditions of this Agreement and the Documentation.
2.2. Affiliates. Customer Affiliates may purchase services from Zebra directly by entering into an Online Order Form with Zebra referencing this Agreement. By such Affiliate entering into an Online Order Form hereunder, the Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto and for purposes of such Online Order Form, shall also be deemed “Customer” hereunder. Unless stated otherwise on an Online Order Form, Customer and its Affiliates who sign Online Order Forms under this Agreement shall be deemed to be jointly liable for a breach of this Agreement.
2.3. Sample Data; Third Party Applications. Zebra may make Sample Data available for Customer. Customer acknowledges that Sample Data is example data only, which may not be complete, current, or accurate. Customer will not (and will not permit any third party to) copy or export any Sample Data and agrees that Zebra may delete or require Customer to cease using Sample Data at any time upon advance notice. Zebra may also provide URL links within the Service to third party websites facilitating Customer’s procurement of Third Party Applications, at Customer’s sole discretion. Notwithstanding the foregoing, any procurement or use of Third Party Applications are solely between Customer and the applicable third party.
2.4. Customer-Controlled Data Sharing Functionality.
2.4.1. Generally. The Service includes the capability for Customer, at its option and in its sole discretion, to share Customer Data with other Customer-designated customers, and to access or use the Customer Data, as further described in the Documentation. The Customer sharing the Customer Data is a “Provider,” and the Customer accessing or using shared Customer Data is a “Consumer.”
2.4.2. When Customer is Provider. Provider may, at its option and in its sole discretion, grant Consumer access to designated sets of Provider's Customer Data as further described in the Documentation. Provider acknowledges and agrees that: (a) Consumers will have the access designated by Provider (including to view, download, and query the Customer Data) and that it is Provider's sole responsibility to evaluate any risks related to its sharing of Customer Data with Consumers; and (b) Zebra has no control over, and will have no liability for, any acts or omissions of any Consumer with respect to Provider's sharing of Customer Data. At all times Provider remains responsible for its Customer Data as set forth in the Agreement.
2.4.3. When Customer is Consumer. By accessing or using Provider’s data, Consumer acknowledges that (a) Zebra has no liability for such data or Consumer’s use of such data, (b) Zebra may collect information about Consumer’s use of and access to the Service and to Provider’s data (including identifying Consumer in connection with such information) and share it with Provider.
2.5. Restrictions. Customer will not (and will not permit any third party to): (a) sell, rent, lease, license, distribute, provide access to, sublicense, or otherwise make available the Service to a third party (except as expressly set forth in Section 2.1 with respect to contractors and Affiliates) or in a service bureau or outsourcing offering; (b) use any Service to provide, or incorporate any Service into, any general purpose data warehousing service for the benefit of a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Service, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Zebra); or (d) remove or obscure any proprietary or other notices contained in the Service.
3. CUSTOMER DATA
3.1. Rights in Customer Data. As between the parties, Customer or its licensors retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of the operation of the Service as provided to Zebra. Subject to the terms of this Agreement, Customer hereby grants to Zebra a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and display the Customer Data solely to the extent necessary to provide the Service to Customer, or to prevent or address service or technical problems under this Agreement, or as may be required by law.
3.2. Uploads of Customer Data. Customer will be responsible for uploading all Customer Data to the Service and will provide such Customer Data in a format consistent with the requirements set forth in the Documentation. Errors in loading Customer Data into the applicable Service due to defective media, erroneous data or failure to meet such requirements may cause Customer Data to be rejected by the Service and Zebra will have no responsibility for any related impact on Customer’s ability to access or use the Service.
3.3. Customer Obligations.
3.3.1. In General. Customer will ensure that its use of each Service and all Customer Data is at all times compliant with this Agreement, Customer’s privacy policies which shall include appropriate security and access controls, and all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants that Customer has sufficient rights in the Customer Data to grant the rights granted to Zebra in Section 3.1 and that the Customer Data does not violate the privacy or other rights of any third party. Customer is responsible for all Users who access Customer Data.
3.3.2. API-Key, User ID and Password Protection. Customer will require that all permitted Users keep API-key, user ID and password information strictly confidential and not share such information with any unauthorized person. Zebra will have no liability for actions taken using API-keys, Customer’s user IDs and passwords, including any unauthorized use or access caused by misuse or misappropriation of such user IDs and passwords. Customer will be responsible for restricting access by any User who is no longer authorized to access the Service.
4. INTELLECTUAL PROPERTY
4.1. Zebra Intellectual Property. Customer agrees that Zebra or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Service, all Documentation, any Service deliverables, and any and all related and underlying technology and documentation; and any derivative works, modifications, or improvements of any of the foregoing, including any Feedback that may be incorporated (collectively, “Zebra IP”). Except for the express limited rights set forth in this Agreement, no right, title or interest in any Zebra IP is granted to Customer. Further, Customer acknowledges that the Service is offered as an online, hosted solution, and that Customer has no right to obtain a copy of the underlying computer code for any Service. Notwithstanding anything to the contrary herein, Zebra may freely use and incorporate into Zebra’s products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any users of the Service relating to Zebra’s products or services (“Feedback”).
4.2. Service Data. Notwithstanding anything to the contrary in this Agreement, Zebra has the right to collect and use Service Data to develop, improve, support, and operate its products and services during and after the term of this Agreement. This Section does not give Zebra the right to identify Customer as the source of any Service Data without written permission from Customer.
4.3. Marketing. Upon Customer’s written consent, Zebra may use and display Customer’s name, logo, trademarks, and service marks on Zebra’s website and in Zebra’s marketing materials in connection with identifying Customer as a customer of Zebra. Upon Customer’s written request, Zebra will promptly remove any such marks from Zebra’s website and, to the extent commercially feasible, Zebra’s marketing materials. If Zebra requests, Customer agrees to participate in a case study, press release and/or cooperate with Zebra in speaking to the media, and to speak at a future Zebra event.
5. CONFIDENTIALITY. Each party (as “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) to (i) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, 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 not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party shall, to the extent legally permitted, provide Disclosing Party with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
6. FEES AND PAYMENT; TAXES; PAYMENT DISPUTES
6.1. Order. Customer's completion of the Online Order Form constitutes an offer by Customer to purchase credits to the Service identified in the applicable Online Order Form in accordance with the terms of this Agreement. Customer must acknowledge acceptance of the terms of this Agreement.
6.2. Fees and Payment. All Fees and payment terms are as set forth in the applicable Online Order Form. Except as expressly set forth in this Agreement, all payment obligations are non-cancelable and Fees are non-refundable.
6.3. Taxes. Fees do not include Taxes. Customer is responsible for paying all Taxes associated with its purchases hereunder other than taxes based on income, property, or employees of Zebra. Customer agrees that the benefit of the service is received at the address set out in the online order form; such address will define the location for which taxes may be assessed. Customer is responsible for any sales, value-added or other similar taxes imposed by applicable law that Zebra must pay based on the Services Customer ordered. If Zebra has the legal obligation to collect Taxes for which Customer is responsible under this Section, Zebra will invoice Customer and Customer will pay that amount unless Customer provides Zebra with a valid tax exemption certificate authorized by the appropriate taxing authority. If Zebra does not collect the required taxes from Customer but is subsequently required to remit transaction taxes to any taxing authority, Customer will promptly reimburse Zebra for the Transaction Taxes, including any accrued penalty or interest charges if the failure to timely collect and remit was not due to the fault of Zebra.
7. TERM AND TERMINATION
7.1. Term. This Agreement is effective as of the Effective Date and will remain in effect until terminated in accordance with its terms. If there is no SOW, Online Order Form or Retrieval Right currently in effect, either party may terminate this Agreement immediately upon delivery of written notice to the other party. Each Online Order Form will terminate upon expiration of the applicable Subscription Term, unless expressly stated otherwise therein or in this Agreement.
7.2. Termination for Cause. Either party may terminate this Agreement (including all related Online Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay Fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party and is not dismissed within 60 days. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise. For any termination of this Agreement by Customer for cause in accordance with Section 7.2(a), Customer shall be entitled to a credit of any unused Fees Customer has pre-paid for the Service purchased hereunder.
7.3. Effect of Termination; Customer Data Retrieval. Upon written notice to Zebra, Customer will have up to thirty (30) calendar days from termination or expiration of this Agreement to access the Service solely to the extent necessary to retrieve Customer Data (“Retrieval Right”). If Customer exercises its Retrieval Right, this Agreement and the applicable Online Order Form shall continue in full force and effect for the duration of the Retrieval Right. Zebra shall have no further obligation to make Customer Data available after termination of this Agreement and shall thereafter promptly delete Customer Data. After the Retrieval Right period, Customer will have no further access to Customer Data and shall cease use of and access to the Service (including any related Zebra IP) and delete all copies of Documentation, any Service passwords or access codes, and any other Zebra Confidential Information in its possession.
7.4. Survival. The following Sections will survive any expiration or termination of this Agreement: 1.5 (General Restrictions), 4 (Intellectual Property), 5 (Confidentiality), 6.1 (Fees and Payment), 6.2 (Taxes), 7 (Term and Termination), 8.2 (Warranty Disclaimer), 11 (Indemnification), 12 (Limitation of Remedies and Damages), 13 (General Terms), and 14 (Definitions).
7.5. Suspension of Service. In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, Zebra reserves the right to suspend provision of services; (a) if Customer is thirty (30) days or more overdue on a payment, (b) if Zebra deems such suspension necessary as a result of Customer’s breach of Sections 2.5 (General Restrictions) or 3.3 (Customer Obligations), (c) if Zebra reasonably determines suspension is necessary to avoid material harm to Zebra or its other customers, including if the Service is experiencing denial of service attacks, mail flooding, or other attacks or disruptions outside of Zebra’s control, or (d) as required by law or at the request of governmental entities.
8.1. Service Warranty. Zebra warrants that each Service will operate in substantial conformity with the applicable Documentation. In the event of a breach of this warranty, Zebra will use commercially reasonable efforts to correct the reported nonconformity, at no charge to Customer, or if Zebra determines such remedy to be impracticable, either party may terminate the applicable Online Order Form and Customer will receive a credit of any unused Fees Customer has pre-paid for the Service purchased thereunder. The foregoing shall be Customer’s sole and exclusive remedy for any breach of the warranty set forth in this Section. This warranty will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the nonconformity, or (ii) if the error was caused by misuse, unauthorized modifications, or third-party hardware, software, or services.
8.2. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH SERVICE, THE CLIENT SOFTWARE, SAMPLE DATA, AND ALL TECHNICAL SERVICES ARE PROVIDED “AS IS” AND ZEBRA MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. ZEBRA DOES NOT WARRANT THAT THE USE OF ANY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES ZEBRA WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. ZEBRA SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO THIRD-PARTY HOSTING PROVIDERS WITH WHOM CUSTOMER SEPARATELY CONTRACTS. ZEBRA DOES NOT MAKE ANY WARRANTIES AND SHALL HAVE NO OBLIGATIONS WITH RESPECT TO THIRD PARTY APPLICATIONS. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
9. SUPPORT AND AVAILABILITY. During a Subscription Term, Zebra will provide Customer the level of support and service levels for the Service specified in the applicable Online Order Form, in accordance with the Support Policy, which is incorporated herein by this reference.
10. TECHNICAL SERVICES. Zebra will provide the Technical Services purchased, if any. The scope of Technical Services will be as set forth in a SOW. Customer may use anything delivered as part of the Technical Services in support of authorized use of the Service and subject to the terms regarding Customer’s rights to use the Service set forth in Section 1 (Use of Service) and the applicable SOW, but Zebra will retain all right, title and interest in and to any such work product, code (including SQL queries) and deliverables and any derivative, enhancement or modification thereof created by or on behalf of Zebra.
11.1. Indemnification by Zebra. Zebra will defend Customer from and against any claim by a third party alleging that any Service, when used as authorized under this Agreement, infringes a U.S. patent, copyright, or trademark and will indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by Zebra (including reasonable attorneys’ fees) resulting from such claim. If Customer’s use of the Service is (or in Zebra’s opinion is likely to be) enjoined, if required by settlement or if Zebra determines such actions are reasonably necessary to avoid material liability, Zebra may, in its sole discretion, either: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using the Service; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement and credit to Customer the Fees paid by Customer for the Service that were prepaid but not used by Customer. The foregoing indemnification obligation of Zebra will not apply to the extent the applicable claim is attributable to: (1) the modification of the Service by any party other than Zebra or based on Customer’s specifications or requirements; (2) the combination of the Service with products or processes licensed or procured from a party other than Zebra; (3) any unauthorized use of the Service; or (4) any action arising as a result of Customer Data, or any deliverables or components not provided by Zebra. This Section sets forth Zebra’s sole liability and Customer’s sole and exclusive remedy with respect to any claim of intellectual property infringement.
11.2. Indemnification by Customer. Customer will defend Zebra from and against any claim by a third party arising from or relating to any Customer Data or any product or service offered by Customer in connection with or related to the Service or any use of the Service in violation of the terms of this Agreement or any applicable laws, and Customer will indemnify and hold harmless Zebra from and against any damages and costs awarded against Zebra or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim or resulting from any Taxes including penalties and interest for which Zebra was not liable for or was not promptly notified of by Customer.
11.3. Indemnification Procedures. In the event of a potential indemnity obligation under this Section 11, the indemnified party will: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under this Section 11 shall not relieve the indemnifying party of its obligations under this Section 11, however the indemnifying party shall not be liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this Section. The indemnifying party may not settle any claim in any matter that would require obligation on the part of the indemnified party (other than payment or ceasing to use infringing materials), or any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Further, any indemnification obligation under this Section 11 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.
12. LIMITATION OF REMEDIES AND DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT FOR “EXCLUDED CLAIMS”, NEITHER PARTY NOR ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, COSTS OF DELAY, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT FOR “EXCLUDED CLAIMS”, AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EACH PARTY’S AND ITS AFFILIATES’ ENTIRE LIABILITY TO THE OTHER PARTY OR ITS AFFILIATES (FOR DAMAGES OR LIABILITY OF ANY TYPE), SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID (OR WITH RESPECT TO CLAIMS FOR FEES DUE, PAYABLE) BY CUSTOMER TO ZEBRA ATTRIBUTABLE TO THE PRIOR 12 MONTHS UNDER THE APPLICABLE ORDER FORM (“GENERAL LIABILITY CAP”). NOTWITHSTANDING THE FOREGOING, IN THE CASE OF “DATA PROTECTION CLAIMS” THE TOTAL RESPECTIVE AGGREGATE LIABILITY OF EACH PARTY UNDER THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF THE “GENERAL LIABILITY CAP” AND ONE HUNDRED THOUSAND U.S. DOLLARS ($100,000.00). THE PARTIES AGREE THAT THE WAIVERS AND LIMITATIONS SPECIFIED IN THIS SECTION 12 WILL SURVIVE AND APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
13. GENERAL TERMS
13.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities. Each party shall promptly provide notice of any such assignment. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void.
13.2. Severability; Interpretation. If a court of competent jurisdiction holds any provision of this Agreement to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect. Section headings are inserted for convenience only and shall not affect the construction of the agreement.
13.3. Dispute Resolution; Governing Law; Jurisdiction and Venue. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it shall provide written notice to the other party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the parties which are allegedly being breached). Within thirty (30) days after such notice, knowledgeable executives of the parties shall hold at least one meeting (in person or by video or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section shall not apply to claims subject to indemnification under Section 11 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information. This Agreement will be governed by the laws of the State of Illinois and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof will be the state and federal courts located in Cook or Lake counties, Illinois and both parties hereby submit to the personal jurisdiction of such courts.
13.4. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth in this Agreement or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee: (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch; (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; or (iv) if given by email, immediately upon receipt, but notices related to termination of this Agreement or any claims (including without limitation breach, warranty or indemnity) may not be given via email except as expressly permitted in this Agreement or in an Online Order Form. Email notifications to Zebra shall be to SavannaPartnerTeam@zebra.com.
13.5. Amendments; Waivers. No supplement, modification, or amendment of this Agreement will be binding on the parties. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Online Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void, notwithstanding any language to the contrary therein, whether signed before or after acceptance of this Agreement.
13.6. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Zebra may change and update any Service (in which case Zebra may update the applicable Documentation accordingly), subject to the warranty in Section 8.1 (Service Warranty).
13.7. Third Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
13.8. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) if the delay or failure results from any cause beyond such party’s reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
13.9. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
13.10. Export Control. Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer will not (and will not permit any third parties to) access or use any Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to any Service any information that is controlled under the U.S. International Traffic in Arms Regulations.
13.11. Federal Government End Use Provisions. Zebra provides the Service, including all related software and, to the extent applicable the Zebra IP, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Zebra to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.