SCANDIT END CUSTOMER TERMS AND CONDITIONS FOR SOFTWARE

Last updated: July 20, 2022

Introduction

These Scandit End Customer Terms and conditions for Software (the “Terms”), together with its appendices and the applicable Order (the “Agreement”), governs Customer’s use of the Software.

1. Structure

The Agreement comprises the following sections:

Structure
Trials
Terms for Software
Generally Applicable Terms
Representations, Warranties and Disclaimers
Definitions
Usage Data

2. Trials

2.1 Term
If Customer registers on Onfleet website or via the Onfleet App for a trial period or otherwise enters into an Order for a trial, Onfleet will give Customer access to one or more of the Software in accordance with Subsection 2.2, for the duration specified by Onfleet in the relevant Order.
2.2 Additional Terms and Conditions
2.2.1 Trial/Pilot of Software:
Subject to the terms of the Agreement, Onfleet grants Customer a limited, non-exclusive, nontransferable, non-sub-licensable license to the Software during the applicable trial period, and solely for the purposes of trial usage.
2.3 DURING THE RELEVANT TRIAL PERIOD, THE SOFTWARE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND AND THE WARRANTY PROVIDED IN SECTION 5.2 SHALL NOT APPLY. DURING THE ANY TEST PERIOD AND ONFLEET DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY AND ALL LIABILITY FOR THE SOFTWARE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

3. Terms for Software

3.1 Software
3.1.1 License for the Software:
Subject to the terms of the Agreement and payment of the relevant fees, Onfleet grants Customer a limited, non-exclusive, non-sublicensable, non-transferable license for the Territory during the applicable Order term and in accordance with the Scope to use the Software as integrated into Onfleet App.
3.1.2 Customer’s Responsibilities relating to the Software:
Customer shall use the Software only in accordance with the Documentation and applicable laws and government regulations.
3.2 Reporting Requirements
In the event there is an absence of reliable information to verify Customer’s Customer shall, upon Onfleet’s request or at the request of Scandit, no more than 2 times per year, provide Onfleet within 30 working days of Onfleet’s or Scandit’s request an original report (and in Onfleet’s or Scandit’s reasonable opinion, verifiable report, for example from a mobile device management system), listing the number of Active Devices per Platform for each of Onfleet App(s) used in combination with the Software, covering at least the 12 (twelve) month period prior to such request, including a description and screenshots of the scan screen of Onfleet App.

4. Generally Applicable Terms

4.1 Customer’s Responsibilities.
(a) License to Customer’s Data:
Customer grant Onfleet and Scandit a non-exclusive, worldwide license to store, copy, transmit and display any data or information provided through to Scandit for processing (Customer Data) provided by or for Customer or when using the Software, as necessary for Onfleet to perform. Subject to the limited licenses granted herein, neither Onfleet nor Scandit acquire any right, title or interest from Customer or Customer’s licensors under the Agreement in or to Customer’s Data.
(b) Users:
Customer shall be responsible and liable for compliance with the Agreement and any breach thereof by anyone to whom Customer give access to the Software, including, for example, Customer’s employees, directors, contractors, consultants and/or any consumer end Users.
(c) Affiliates:
Only if and to the extent it is mutually agreed by the parties in the applicable Order or agreement with Onfleet to permit those of Customer’s Affiliates to access and use the Software in accordance with the Agreement and such Order, Customer shall (i) ensure such Affiliates are made aware of and comply with the terms of the Agreement, and the Order, and (ii) shall be responsible and liable for any breach of the Agreement and/or the Order by any such Affiliates.
4.2 Support.
Support for the Software will be provided in accordance with the applicable level of Support purchased by Customer as set out in the applicable Order.
4.3 Future Functionality.
Customers agree that Customer’s order is not dependent on the availability of any new features or future functionality, or dependent on any comments made by Onfleet and/or Scandit (written or oral) regarding Scandit’s plans for future enhancements to the Software.
4.4 Term of Agreement.
The Agreement commences on the Order Date and continues until all Order terms hereunder have been terminated, unless earlier terminated in accordance with Section 4.6.
4.5 Intentionally Omitted.
4.6 Termination.
The Agreement may be terminated by either party immediately upon notice to the other party if the other party (i) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors or analogous event or proceeding in any applicable jurisdiction, or (ii) breaches any of its obligations under the Agreement or any Order in any material respect, which breach is not remedied within thirty (30) days following written notice to the breaching party.
4.7 Refund or Payment upon Termination.
Upon Termination of the Agreement Customer will cease using the Software immediately.
4.8 Implied Licenses.
There are no implied licenses under the terms set forth in the Agreement, and any rights not expressly granted hereunder are reserved by Scandit and Onfleet, its suppliers or licensors. Without limiting the foregoing, Customer shall not sublicense, rent, lease, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble, attempt to derive source code from or otherwise alter the Software or parts thereof.
4.9 Ownership and Reservation of Rights.
All intellectual property rights, title and interest in and to (i) the Software, (ii) the (and all software and materials used for the provision of such ), (iii) the Documentation, (iv) the Specifications, and (v) Scandit’s and its Affiliates Confidential Information, and any updates or modifications thereto, are owned by Scandit, its Affiliates and/or its licensors and shall remain with Scandit, its Affiliates and/or its licensors. Customer shall not take any action inconsistent with the rights granted herein and no rights are granted to Customer except as expressly set forth in the Agreement.
4.10 Suspension.
Notwithstanding Onfleet rights to terminate above and any other rights or remedies available to Onfleet, Onfleet reserves the right to suspend Customer’s access to and use of the Software if Customer is in material breach of the Agreement until such time as the breach is remedied by Customer in accordance with Section 4.6.
4.11 Usage Data and Data Protection.
(a) Usage Data. In Customer’s use of the Software certain data is transmitted to Scandit, as detailed (along with the use purposes) in Section 7 of these Terms (“Usage Data”). Unless required by law, such Usage Data will not be shared with any third party, other than to Scandit, Onfleet and/or its Affiliates and subcontractors as necessary for the provision of the Software hereunder. Customer acknowledge that the Software will continue to transmit the Usage Data to Scandit and/or its Affiliates for as long as the Software is used by Customer or Customer’s Users of Onfleet App.
4.12 Force Majeure.
NEITHER ONFLEET NOR SCANDIT SHALL HAVE ANY LIABILITY TO CUSTOMER UNDER THIS AGREEMENT IF ONFLEET OR SCANDIT IS PREVENTED FROM, OR DELAYED IN, PERFORMING ONFLEET’S OBLIGATIONS UNDER THIS AGREEMENT OR FROM CARRYING ON ONFLEET’S BUSINESS BY A FORCE MAJEURE EVENT.
4.13 Assignment.
Except as permitted herein, neither party may assign the Agreement, in whole or in part, without the prior written consent of the other, not to be unreasonably withheld. Any attempt by either party to assign or transfer the Agreement without the prior written consent of the other will be null and void.
4.14 Entire Agreement.
These Terms together with its Appendices and applicable Order(s) sets out the entire agreement and understanding between Customer and Onfleet relating to its subject matter. Unless otherwise expressly agreed in writing the Agreement applies in place of and prevails over any terms or conditions contained in or referred to in any correspondence or elsewhere or implied by trade custom or course of dealing. Any general terms of business or other terms and conditions of any order or other document issued by Customer in connection with the Agreement shall not be binding on Onfleet unless specifically agreed by Onfleet in writing.
4.15 Surviving Provisions.
The terms which by their nature are intended to survive termination or expiration of the Agreement shall survive any such termination and expiration including, without limitation, the following sections: Sections 4, and 6.
4.16 Third Party Beneficiary.
The parties acknowledge and agree that Scandit is a third party beneficiary of the Agreement and may, in its sole discretion, enforce the terms and conditions of the Agreement directly against Customer.

5. Representations, Warranties and Disclaimers

5.1 Representations.
Each party represents that it has the requisite power and authority to enter into the Agreement and to perform its obligations under it.
5.2 Warranties.
Onfleet warrants that during the applicable Order term (a) the Software will operate materially in accordance with the relevant Specifications, and (b) Onfleet will not materially reduce the functionality or security of the Software.
5.3 Remedy.
Should a breach of a warranty provided in Section 5.2 occur and Customer notify Onfleet within the applicable Order term and provide all the information that may be reasonably necessary to assist Onfleet in resolving the defect or fault, Onfleet will, at Onfleet sole option and expense either repair or replace the affected Software; and if Onfleet cannot reasonably repair or replace the affected Software, then Onfleet will refund Customer any prepaid fees covering the remainder of the Order term, only for the value of the affected Software and terminate Customer’s right and license to use the Software for which Customer has received the refund.
5.4 Exclusions and Disclaimers.
(a) The warranties set out in Section 5.2 shall not apply to the extent the breach is caused by or as a result of (i) Customer’s use of the Software contrary to Onfleet or Scandit’s written instructions or the Documentation, (ii) Customer’s breach of the Agreement, and/or (iii) any modifications or alterations of the Software by any party other than Scandit or its duly authorized contractors or agents.
(b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES AND REMEDIES PROVIDED IN THIS SECTION 5 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, TERMS AND CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR TERMS AND CONDITIONS OF MERCHANTIBILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE OR SATISFACTORY QUALITY AND NON- INFRINGEMENT (EXCEPT AS PROVIDED BELOW), ALL OF WHICH ARE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXPRESSLY DISCLIAMED BY US.
5.5 Safe Usage.
IT IS CUSTOMER’S RESPONSIBILITY TO TAKE WHATEVER STEPS CUSTOMER NEEDS TO ENSURE THAT THE USE OF ONFLEET APP OR CUSTOMER’S USE OF ANY SOFTWARE IS SAFE AND DOES NOT HARM ANYONE IN ANY WAY, KNOWING THAT ONFLEET CANNOT GUARANTEE THAT 100% OF ALL BARCODE READS WILL BE ACCURATE. NOTWITHSTANDING SECTION 5.2, ONFLEET SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR THE CONTENTS OR RESULTS OBTAINED FROM CUSTOMER’S USE OF THE SOFTWARE OR ONFLEET APP.
5.6 No Representations.
CUSTOMER AGREES THAT, IN ENTERING INTO THIS AGREEMENT, CUSTOMER DID NOT RELY ON ANY REPRESENTATIONS (WHETHER WRITTEN OR ORAL) OF ANY KIND OR OF ANY PERSON OTHER THAN THOSE EXPRESSLY SET OUT IN THIS AGREEMENT OR IF CUSTOMER DID RELY ON ANY REPRESENTATIONS, (WHETHER WRITTEN OR ORAL), NOT EXPRESSLY SET OUT IN THIS AGREEMENT, THAT CUSTOMER SHALL HAVE NO REMEDY IN RESPECT OF SUCH REPRESENTATIONS AND (IN EITHER CASE) NEITHER PARTY SHALL HAVE ANY LIABILITY OTHERWISE THAN IN ACCORDANCE WITH THE EXPRESS TERMS OF THIS AGREEMENT.

6. Definitions

Any capitalized terms not otherwise defined in the Agreement shall have the meanings set forth below or in the Order:

Active Device: a unique combination of a device and one associated application (e.g. Onfleet App) on which the Software was initialized at least once in any given month during the 12month period following the Start Date of the relevant Order term or any subsequent 12-month period.
Affiliate(s): an entity that directly or indirectly controls, is controlled by, or is under common control with, a party to the Agreement. For the purposes of the foregoing, “control” means the ownership of (i) greater than fifty per cent of the voting power to elect directors of the entity, or (ii) greater than fifty per cent of the ownership interest in the entity.
Agreement: these Terms (as defined in the first paragraph above) and the respective Order.
Documentation: Scandit’s online User manuals, tutorials, documentation and help and training materials found at https://docs.scandit.com/barcode-scanner-sdk.html
Force Majeure Event: acts, events, omissions or accidents beyond Onfleet’s reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, pandemic, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, act of terror, Internet service provider failure or delay, denial of service attack, fire, flood or storm.
Installation Identifier: a unique identifier for each installation of Onfleet App or a Software Application.
Maintenance Release: a release of the Software, which provides compatibility updates and maintenance and updates to special features that have been explicitly licensed in the Order.
Order: an Order entered into between Customer and Onfleet detailing the Software as integrated into or used in combination with Onfleet App that Customer has ordered and are to be provided hereunder, the applicable Scope, Order term and the fees Customer will pay and any additional terms.
Onfleet App: our application as specified in the Order that is developed by Onfleet and licensed to Customer which embeds the Software.
Platform: the applicable mobile platform(s) upon which the Software may be used as identified in Scope, such as iOS and Android.
Public App Store: the public Google Play Store, Apple iTunes Store, Windows Phone Store or the Amazon Appstore.
Scandit: means, as applicable, (i) Scandit Inc. with address at 711 Atlantic Avenue, Boston, MA 02111, USA, if Customer are located in the USA, or (ii) Scandit AG, with address at Hardturmstrasse 181, 8005 Zürich, Switzerland, if Customer are located anywhere other than the USA, and “Scandit group companies” means Scandit and its Affiliates.
Scope: the limits, within which the Software, as applicable may be accessed and used, including, without limitation, the permitted number of Active Devices, type of Users, operating Platform, use cases and applications, as specified in these Terms and the Order.
Software: the Scandit software owned by Scandit and/or its licensors that is integrated into Onfleet App that Customer have been given access to as part of Onfleet App for a test period or which you have ordered for production use as part of Onfleet App which is sublicensed to Customer hereunder in consideration of the payment by Customer to Onfleet according to the Agreement and the applicable Order(s). Software includes Maintenance Releases, if provided by Scandit through the Support.
Specifications: the specifications of the Software as set out at https://ssl.scandit.com/terms/specifications.pdf
Territory: the geography where Customer may use the Software as specified in the Order.
Usage Data: has the meaning given in Section 4.13(a).
Users: means the permitted Users of Onfleet App as set out in the Scope (which may, for example, be employees or consumers).
Onfleet: the Reseller entity End Customer is contracting with as identified in the relevant Order.
Customer: the contracting person or entity using the Onfleet App.

7. Usage Data

The following types of data are collected on Software up to one time per month for debugging, statistical analysis, performance monitoring and improvements, and/or license compliance purposes:

Installation Identifier – an identifier that identifies the individual installation of the Software or Onfleet App that integrates the Software Component on a particular device.
License Key Identifier – an identifier that uniquely identifies the license key used by the Software Application or Onfleet App that integrates the Software Component.
IP address – the communication address that is used for data transmission purposes.
Device model – the model name that identifies the device type on which the Software Application or Onfleet App that integrates the Software Component is used.
Application identifier – the identifier that is used to identify the Software Application or Onfleet App that integrates the Software Component.
Version and use of Scandit product – the version number of the Software used and the scan count.
Operating system and version – the operating system name and its version of the device on which the Software Application or Onfleet App that integrates the Software Component is used.

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