R98-083RESOLUTION NO. R98-~'
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING
AND DIRECTING THE MAYOR AND CITY CLERK TO
EXECUTE A COMMUNICATIONS SYSTEM
AGREEMENT, A SOFTWARE LICENSE AGREEMENT,
AND A SOFTWARE SUBSCRIPTION AGREEMENT
WITH MOTOROLA, INC. FOR THE PURCHASE AND
INSTALLATION OF A WIRELESS MOBILE DATA
SYSTEM; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the wireless mobile data system will complete the link from
the computer-aided dispatch center and the records management system in the
Police department; and
WH£REA$, city staff has studied, investigated and reviewed the
responses to R.F.P. #039-211-98/SP, and has determined that Motorola, Inc.
provides the solution best suited to the needs of the city's police department;
and
WHEREAS, this system will permit police officers to complete reports,
access criminal justice computers, check warrants, conduct vehicle checks, and
transmit data to and from the dispatch center and headquarters, while on the
road; and
WHEREAS, the purchase of this system requires the execution of a
communications system agreement, a software license agreement, and a
software subscription agreement; and
WHEREAS, the purchase is funded through forfeited funds and grant
monies; and
WHEREAS, based on the recommendation of staff, the City Commission
has determined that it is in the best interests of the residents of the City and
public safety to authorize the purchase the Wireless Mobile Data System from
Motorola, Inc.; and
NOW. THEREFORE. BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
Section 1. The City Commission of the City of Boynton Beach, Florida
does hereby authorize and direct the Mayor and City Clerk to execute a
COMMUNICATIONS SYSTI
Motorola, Inc., a Delaware corporation ("Mot(
("Customer") enter into this Communications Sys
as of the last date signed below (the "Effectiv,
purchase and Motorola will provide Customer with
SECTION 1 EXHIBITS
The Exhibits below are hereby incorporated int¢
interpreting this Agreement and resolving any an
will take precedence over the Exhibits and any
resolved in the order in which the Exhibits ap
services which Motorola may provide will be gc
Agreement (Exhibit C).
Exhibit A
Exhibit B
Exhibit C
Motorola software license agreement ('
Motorola system description ("Sysi
("Acceptance Test Plan" or "ATP~, eq~
of work ("Statement of Work"), dated IV
Motorola service agreement ("Service
Exhibit D Motorola Subscription Agreement, if a
SECTION 2 DEFINITIONS
Capitalized terms used in this Agreement and
have the following meanings:
"Communications System" or "System" is the con
including the Equipment and Software describe,
Work, Acceptance Test Plan and Equipment List.
"EqL~ipment" is the equipment specified in the Equi
"Motorola Software" is software whose copyright is
"Non-Motorola Software" is software whose cop3
Motorola.
"Software" includes Motorola and any Non-Motor(
Communications System.
SECTION 3 SCOPE OF AGREEMENT
SCOPE OF WORK: Motorola will assemble
and deliver, install and test the Communicatior
Exhibit B and in eccordance with this Agreeme
as specified in Exhibit B and in accordance witl
:M AGREEMENT
)rola"), and City of Boynton Beach, FL
lem Agreement (the "Agreement"), effective
Date"), pursuant to which Customer will
a Communications System.
I and made a part of this Agreement. In
lbiguities, the main body of this Agreement
inconsistency between the Exhibits will be
pear below, except that any maintenance
vetoed solely by the terms of the Service
Software License Agreement").
em Description"), acceptance test plan
ipment list ("Equipment List"), and statement
arch 5, 1998.
~greement");
)licable.
~t otherwise defined within the Agreement
munications system described in Exhibit B,
in the System Description, Statement of
~ment List. included in Exhibit B.
3wned by Motorola.
right_is owned by a third party other than
lla Software that may be furnished with the
and integrate the Equipment and-Software,
s System at designated sites, as specified in
nt. CustOmei' will perform its responsibilities
this Agreement.
Contract No. 98-11461/js Page 1 April 24, 1998
SECTION
COMMUNICATIONS SYSTEM AGREEMENT
CHANGE ORDERS: Either party may request changes within the general scope of this
Agreement. If a requested change causes an increase or decrease in the cost of or time
required for the performance of this Agreement, Motorola and Customer will agree to an
equitable adjustment in the Agreement pdce or performance schedule, or both. Motorola is
not obligated to comply with requested changes unicos and until a change order is
executed by both parties.
ADDITIONAL PRODUCTS: For three (3) years after the Effective Date of this Agreement,
Customer may submit purchase orders for additional portable and mobile subscriber
products manufactured by Motorola's Land Mobile Products Sector which are currently
available at the time of order. If Customer and Motorola have agreed to a convention for
processing electronic data interchange ("EDI") transactions, purchase orders may be
transmitted electronically. Each purchase order must specifically refer to this Agreement
and will be an offer by Customer subject to Motorola's acceptance. Except for pdcing and
delivery terms, which must be stated on the purchase order, Customer and Motorola agree
that the applicable terms of the main body of this Agreement will be the only terms and
conditions that govern the purchase and sale of products identified on such purchase
orders. Customer and Motorola agree that payment for all additional products so
purchased will be due within twenty-five (25) days after the date of Motorola's invoice for
the products.
EQUIPMENT MAINTENANCE SERVICE: Customer may purchase maintenance service
for the Communications System pursuant to the terms and conditions cf the Motorola
Service Agreement (Exhibit C).
MOTOROLA SOFTWARE: Any Motorola Software furnished will be licensed to Customer
solely according to the terms and restrictions of the Software License Agreement attached
as Exhibit A. Customer hereby accepts all of the terms and restrictions of the Software
License Agreement.
NON-MOTOROLA SOFTWARE: Any Non-Motorola Software furnished by Motorola will be
subject to the terms and restrictions of its copyright owner.
4 PERFORMANCE SCHEDULE
Motorola and Customer agree to perform their responsibilities in accordance with the following
performance schedule as supplemented by the schedule included in the Statement of Work:
1. Motorola will ship the Equipment to designated Customer site(s) within 12 weeks after the
Effective Date of this Agreement.
2. Motorola will install the Equipment within 4 weeks after the Equipment is delivered to
designated site(s).
3. Motorola and Customer will complete acceptance testing within 3 weeks after installation is
completed.
I Contract No. 98-11461/js Page 2 April 24, 1998
COMMUNICATIONS SYSTEM AGREEMENT
SECTION5 PAYMENT SCHEDULE
The total contract pdce is $262,000.00. Except for the first payment, which is due when
Customer executes this Agreement, Customer agrees to make payments to Motorola Net
twenty-five (25) days from the date of invoice which will be submitted by Motorola
according to the following milestone payment schedule:
25% of the contract value at contract execution;
70% of the contract value upon shipment; and
5% upon acceptance.
B. If the total contract pdce does not include freight charges, all freight, charges will be pre-
paid by Motorola and added to the invoices.
Upon contract execution, the Customer agrees to issue a Purchase Order in the full
amount of the Purchase Pdce. The terms and conditions on the reverse side of
Customer's standard purchase order or orders shall not apply.
SECTION 6 INSTALLATION AND SITE CONDITIONS
In addition to its responsibilities described in the Statement of Work, Customer agrees to
provide a designated .project director, procure any necessary construction permits, building
permits, zoning variances and the like, provide access to the sites identified in the Exhibits
as requested by Motorola, and have such sites available for installation of the Equipment
by Motorola in accordance with the performance schedule and Statement of Work.
If either Motorola or Customer determines during the course of performance of this
Agreement that the sites identified in the Exhibits are no longer available or desired, or, if
subsurface, structural, adverse environmental or latent conditions at any site differ from
those indicated on the specifications in the Exhibits, Motorola and Customer will promptly
investigate the conditions and jointly select replacement sites or adjust the installation
plans and specifications as necessary.
If Customer and Motorola determine that any change in sites, site availability, installation
plans or specifications will require an adjustment in the contract price or in the time
required for the performance of this Agreement, the parties will agree to an equitable
adjustment in the price or performance schedule, or both, and this Agreement will be
modified in accordance with Section 3. B of this Agreement.
D. This Agreement is predicated upon normal soil conditions as defined by the version of
E.I.A. standard RS-222 in effect on the Effective Date of this Agreement.
I Contract No. 98-11461/js
Page 3 April 24, 1998
COMMUNICATIONS SYSTEM AGREEMENT
SECTION 7 TRAINING
Because there are costs associated with preparing a training program, if training is
included in this Agreement, Customer agrees to notify Motorola immediately if a date
change for a scheduled training program is required. A training program may not be
rescheduled by Customer less than thirty (30) days pdor to its scheduled start date without
charge.
SECTION 8 SYSTEM ACCEPTANCE
Motorola will test the Communications System in accordance with the Acceptance Test
Plan. System acceptance shall occur upon the successful completion of such testing
("System Acceptance") at which time both parties shall promptly execute a certificate of
system acceptance. If the Acceptance Test Plan includes separate tests for individual
subsystems, both parties shall promptly execute certificates of subsystem acceptance
upon the successful completion of testing of such subsystems. Minor omissions or
variances in performance which do not materially affect the operation of the
Communications System as a whole will not postpone System Acceptance. Customer and
Motorola will jointly prepare a list of such omissions and variances which Motorola will
correct according to an agreed upon schedule.
Motorola agrees to notify Customer when the Communications System is ready for
acceptance testing. Motorola and Customer agree to commence acceptance testing within
fourteen (14)days after receiving such notification. If testing is delayed for reasons within
the control of Customer or its contractors, agents and consultants for more than fourteen
(14) days after notification, final payment will be due within forty-five (45) days after such
notification and the Warranty Pedod will commence immediately.
Motorola may, but is not obligated to, issue written authorization for Customer's use of the
Communications System or its subsystem(s) for limited training or testing purposes, pdor to
the completion of testing by Motorola. Any use of the Communications System without
pdor written authorization by Motorola shall constitute System Acceptance.
SECTION 9 WARRANTY
Overview: Motorola's warranty is designed to provide the appropriate level of warranty
coverage for the Communications System dudng the vadous phases of its implementation
and use. Under the System Functionality Warranty, Motorola provides assurances that the
Communications System will perform in accordance with the specifications included in
Exhibit B. Upon System Acceptance the System Functionality Warranty expires.
Immediately thereafter, the Equipment and Motorola Software is warranted for a pedod of
one (1) year after System Acceptance, but in no event longer than eighteen (18) months
after the Equipment is shipped from Motorola (~Warranty Pedod~). Unless otherwise
specified in writing, the warranty pedod for non-Motorola manufactured Equipment will be
as specified by its manufacturer.
System Functionality Warranty. Motorola warrants that the Communications System will
perform in accordance with the Motorola performance specifications included in Exhibit B.
System Acceptance will constitute full compliance with and fulfillment of the System
Functionality Warranty.
I contract No. 98-11461/js
Page 4 April 24, 1998 I
SEC
SEC
TION
COMMUNICATIONS SYSTEM AGREEMENT
Equipment Warranty. The Equipment is warranted to be free from defects in materials and
workmanship throughout the Warranty Pedod. Motorola, at its option and expense, will
repair or replace defective Equipment, or refund the purchase pdce thereof, and such
action on the part of Motorola shall be the full extent of Motorola's liability hereunder.
The Equipment Warranty does not cover Software defects, Equipment defects caused by
any equipment, software, products, elements or components not supplied by Motorola
under this Agreement, nor does it cover Equipment that has been subject to misuse,
accident, neglect, damage, or unauthorized alterations or repairs. Unless expressly
provided for by separate written agreement executed by both parties, the Equipment
Warranty does not cover processing date data from, into, and between the twentieth and
twenty-first centuries. Batteries are excluded but carry their own separate limited warranty.
Motorola Software Warranty: Motorola Software is warranted in accordance with the terms
of the Software License Agreement attached as Exhibit A.
THE EXPRESS WARRANTIES CONTAINED IN THIS SECTION OF THIS AGREEMENT
ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHICH
ARE SPECIFICALLY EXCLUDED INCLUDING, WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10 FCC LICENSES AND AUTHORIZATIONS
Customer agrees to obtain all Federal Communications Commission ("FCC") licenses and
authorizations required for installation and use of the Communications System pdor to the
scheduled installation of the Equipment. Although Motorola may assist in the preparation of
license applications, in no event will Motorola or any of its employees be an agent or
representative of Customer in FCC matters. Customer is solely responsible for obtaining all
FCC licenses and for complying with FCC rules.
nON
A.
11 DELAYS
Successful project implementation will require cooperation and fairness between the
parties. Because it is impractical to provide for every contingency which may arise during
the course of performance of this Agreement, the parties agree to notify the other if they
become aware that any condition will significantly delay performance. The parties will
agree to reasonable extensions of the project schedule by executing a written change
order.
Under no circumstances will either party be resPOnsible for delays or lack of performance
resulting from events beyond the reasonable control of that party ("Excusable Delays").
Such events include, but are not limited to, acts of God, weather conditions, COmpliance
with laws and regulations (excluding Customer's failure to properly and timely apply for all
required FCC licenses), governmental action, bid protests, fire, stdkes, lock-outs, and other
labor disruptions, material shortages, dots, acts of war, and an Excusable Delay of a
Motorola subcontractor.
I Contract No. 98-11461/js
Page 5 April 24, 1998
COMMUNICATIONS SYSTEM AGREEMENT
SECTION
Customer will make the sites available to Motorola when scheduled and Customer will not
otherwise unreasonably delay or prevent Motorola's performance of its responsibilities. If
Customer delays Motorola's performance of its responsibilities, Motorola's performance
schedule will be extended, Customer will make the milestone payments specified in
Section 5 as if no delay occurred, and pay Motorola an equitable amount which reasonably
compensates Motorola for such delays.
12 DEFAULT
If Motorola is wholly respo;~sible for failing to complete delivery, installation or aCCeptance
testing of the Communications System, Customer may consider Motorola to be in default,
unless such failure has been caused by an Excusable Delay. Customer agrees to give
MotOrola wdtten notice of such default. Motorola will have thirty (30) days from the receipt
of such notice to provide a plan of action that is acceptable to Customer to cure the default.
If Motorola fails to cure the default, Customer may terminate any unfulfilled portion of this
Agreement. If Customer completes the Communications System through a third party,
Customer may recover the reasonable costs of completing the Communications System to
a capability not exCeeding that specified in this Agreement, less the unpaid portion of the
Contract Pdce. Customer agrees to use its best efforts to mitigate such costs. Motorola's
liability under this Section 12 is subject to the limitations of Section 15, Limitation of
Liability, of this Agreement.
C. THE REMEDIES PROVIDED IN THIS SECTION OF THE AGREEMENT WILL BE THE
FULL EXTENT OF MOTOROLA'S LIABILITY IN THE EVENT OF DEFAULT.
SECTION 13 INDEMNIFICATION
Motorola's Ne.clli.qence. Motorola agrees to and hereby indemnifies and saves Customer
harmless from all liabilities which may accrue against Customer on account of direct
physical damage to tangible property or personal injury to the extent the damage or injury
is caused by Motorola's negligence or recklessness, or that of its employees,
subcontractors, or agents while on the Customer's premises dudng the delivery,
installation, or testing of the Communi~cations System pursuant to this Agreement
Patent and Copyd.Clht InfdnQement./M°torola will defend, at its expense, any suits against
Customer based upon a claim that ar~f unaltered Equipment directly infringes a U.S. patent
or copyright, and Motorola will pay costs and damages finally awarded against Customer in
any such suit, provided that Motorola lis notified prorrlPtly in writing of any such claim and,
at Motorola's request and expense, is given control of the suit and all assistance requested
by Motorola in defense of the suit. A~ any time Motorola may elect, at its option and at no
expense to Customer, to (a) obtair~ for Customer'-ff~e-dght to continue use of the
Equipment, (b) substitute equivalent .=quipment reasonably acceptable to Customer and
extend this indemnity to the substiluted equipment, or (c) accept the return of the
Equipment and refund the full purcha,~ e pdce for the Equipment, less a reasonable charge
for wear and depreciation. Motorola v ~11 have no liability to Customer for any infringement
or alleged infringement of any patent c r copyright caused by any of Customer's products or
the combination of any Equipment witf any equipment not furnished by Motorola.
I contract No. 98-11461/js
Page 6 April 24, 1998
COMMUNICATIONS SYSTEM AGREEMENT
Motorola's indemnification of Customer under this Section 13 will be the full extent of
Motorola's indemnification of Customer from liabilities that are in any way related to
Motorola's performance under this Agreement.
SECTION 14 DISPUTES
Motorola and Customer will attempt 'to settle any claim or controversy arising from this
Agreement through consultation and negotiation in good faith and a spidt of mutual
cooperation. If those attempts fail, the dispute will be mediated by a mediator chosen
jointly by Motorola and Customer within thirty days after notice by one of the parties
demanding non-binding mediation. Neither party may unreasonably withhold consent to
the selection of a mediator, and Motorola and Customer will share the cost of the mediation
equally. The parties may postpone mediation until they have completed some specified
but limited discovery about the dispute. The parties may also replace mediation with some
other form of non-binding alternate dispute resolution ("ADR") procedure.
Any dispute that cannot be resolved between the parties through negotiation or mediation
within two months after the date of the initial demand for non-binding mediation may then
be submitted by either party to a coud of competent jurisdiction in the State in which the
CommuniCations System is installed. Each party consents to jurisdiction over it 'by such a
court. The use of any ADR procedures will not be considered under the doctdne of laches,
waiver, or estoppel, to affect adversely the rights of either party. Either party may resort to
the judicial proceedings described in this paragraph prior to the expiration of the two-month
ADR pedod if (a) good faith efforts to attempt resolution of the dispute under these
procedures have been unsuccessful or (b) interim relief from the court is necessary to
prevent sedous and irreparable injury to such party or any of its affiliates, agents,
employees, customers, suppliers, or subcontractors.
SECTION 1,5 LIMITATION OF LIABILITY
Notwithstanding any other provision to this Agreement, except for personal injury or death,
Motorola's total liability, whether for breach of contract, warranty, negligence, strict liability in
tort, indemnification, or otherwise, will be limited to the direct damages recoverable under law,
but not to exceed the price of the Equipment or services with respect to which losses 'or
damages are claimed. IN NO EVENT WILL MOTOROLA BE LIABLE FOR ANY LOSS OF
USE, LOSS OF TIME, INCONVENIENCE, COMMERCIAL LOSS, LOST PROFITS OR
SAVINGS, OR OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN ANY
WAY RELATED TO OR ARISING FROM THIS AGF~EEMENT, THE SALE OR USE OF THE
EQUIPMENT, OR THE PERFORMANCE OF SERVICES BY MOTOROLA PURSUANT TO
THIS AGREEMENT. This Section 15, Limitation of Liability, will survive the expiration or
termination of this Agreement. No action for a breach of this Agreement or otherwise relating
to the transactions contemplated by this Agreement may be brought more than one' year after
the accrual of such cause of action except for money due upon an open account.
SECTION 16 GENERAL
TITLE AND RISK OF LOSS: Title to the Equipment will pass to Customer upon shipment
of the Equipment to the facilities designated by Customer, except that title to Software will
not pass to Customer at any time. Risk of loss will pass to Customer upon delivery of the
Equipment to the facilities designated by Customer.
I Con{ract No. 98-11461/js Page 7 Apdl 24, 1998
COMMUNICATIONS SYSTEM AGREEMENT
B. TAXES: The purchase price does not include any amount for federal, state, or local
excise, sales, lease, service, rental, 'use, property, occupation, or other taxes, all of which
(other than federal, state, and local taxes based on Motorola's income or net worth) will be
paid by Customer except as exempt by law. If Motorola is required to pay or bear the
burden of any such taxes, Motorola will send an invoice to Customer and Customer will pay
to Motorola the amount of such taxes (including any interest and penalties) within thirty
days after the date of the invoice. Customer will be solely responsible for reporting the
Equipment for personal property tax purposes.
C. CONFIDENTIAL INFORMATION: Customer will not disclose any material or information
identified as Motorola proprietary and confidential to third parties without Motorola's prior
written permission, untess Motorola makes such matedal or information public or disclosure
is required by law. If Customer is required by law to disclose such material or information,
Customer will notify Motorola prior to such disclosure.
D. DISCLAIMER OF LICENSE: Except as explicitly provided in the Motorola Software
License Agreement included in Exhibit A, nothing in this Agreement will be deemed to
grant, either directly or by implication, estoppel, or otherwise, any license or right under any
patents, patent applications, copyrights, trade marks, trade secrets or other intellectual
property of Motorola.
E. ASSIGNABILITY: This Agreement may not be assigned by either party without the pdor
consent of the other party except that Motorola may assign this Agreement to any of its
affiliates without the prior consent of Customer.
F WAIVER: Failure or delay by either party to exercise any dght or power under this
Agreement will not operate as a waiver of such dght or power.
G. SEVERABILITY: If any portion of this Agreement is held to be invalid or unenforceable,
that provision will be considered severable and the remainder of this Agreement will remain
in full force and effect as if the invalid provision were not part of this Agreement.
H. HEADINGS AND SECTION REFERENCES: The headings given to the sections of this
Agreement are inserted only for convenience and are not to be construed as part of this
Agreement or as a limitation of the scope of the particular Section to which the heading
refers.
I. ENTIRE AGREEMENT: This Agreement (including the Exhibits) constitutes the entire
agreement of the parties regarding the subject matter of this Agreement and supersedes
all previous agreements and understandings, whether written or oral, relating to such
subject matter. This Agreement may be altered, amended, or modified only by a wdtten
instrument signed by the duly authorized representatives of b~th parties.
J. GOVERNING LAW: This Agreement will be governed by and construed in
accordance with the laws of the State in which the Communications System is initially
installed.
K. NOTICES: Notices authorized or required under this Agreement must be in writing and sent
to the below addresses:
City of Boynton Beach Motorola, Inc.
100 E. Boynton Beach Blvd. 85 Hardstown Rd.
Boynton Beach, FL 33423 Glen Rock, NJ 07452 Attn: Contracts Dept.
I Contract No. 98-11461/js
Page 8 April 24, 1998 !
COMMUNICATIONS SYSTEM AGREEMENT
In witness whereof, the parties have caused
Agreement on the dates set forth below.
CITY OF BOYNTON BEACH, FL
Name:
Title:
Date: ,,,~/~
APPROVED ~T~D
CITY A'f:TCRN Ey
duly
authorized representatives to execute this
MOTOROLA, INC.
By:
Name:
Title:
Date:
Contract No. 98-11461/js
Page 9
April 24, 1998
MOTOROLA SOPTWARE LICENSE AGREEMENT - EXHIBIT A
This Software License Agreement is between Motorola, Inc., a Delaware corporation ("Motorola"), and
City of .Boynton Beach, FL ("Licensee").
SECTION 1 SCOPE
Licensee may acquire from Motorola's Land Mobile Products Sector ("LMPS") radio communication
products ("Products") that contain embedded or pre-loaded Motorola software such as in a ROM,
P.?.OM, or EPROM, or other Motorola software provided on media such as a floppy disk, tape,
~ioS~?_e.,..' o:r_ _C_~D_-_R_O?I;_ AIl..s.u.ch .so ~ft~,a. re (in~cluding .Radio Service Software and FLASHport~
o ~=~] ,~ [~[errea [o as Motorola ~ottware. This Agreement contains the terms under which
Licensee may use Motorola Software acquired from LMPS.
SE(
Mot
pm
SE,
Lic~
:TION 2 GRANT OF LICENSE
}rola hereby grants to Licensee a personal, non-exclusive license under Motorola's applicable
~detary dghts to use Motorola Software in accordance with the terms of this Agreement.
:TION 3 LIMITATIONS ON USE
nsee may use Motorola Software only for Licensee's internal business purposes and only as
des(~dbed in the Motorola Software or Product documentation. Any other use of Motorola Software is
stdctJy prohibited and will be deemed a breach of this Agreement. Licensee may not copy, modify,
ada. pt, merge with other software, reverse engineer, prepare derivative works of, or disassemble any
Mot6rola Software for any reason, except that Licensee may make at most two copies of Motorola
SoftWare provided with infrastructure equipment for back-up purpOses. Licensee must purchase a
cop~~ of Radio Service Software for each site at which Licensee uses Radio Service Software;
Lice~lsee may make One additional copy for each computer owned or controlled by Licensee at each
suc site. Licensee may temporarily use Radio Service Software on portable or lap-top computers at
oth~
pro~
Lice~
So~
SEC
If Lie
Moto
furnh
Softy
requ~
avail;
SEC'
Title '
secre
sites. Pdor to acquiring any Radio Service Software or upon Motorola's request, Licensee must
de a written list of all sites where Licensee uses or intends to use Radio Service Software.
isee must reproduce all Motorola copyright and trademark notices on all copies of Motorola
rare.
rlON 4 TRANSFERS
ensee transfers ownership of Products to a third party, Licensee may assign its dghts to use
rola Software (other than Radio Service Software and FLASHport~ Software) embedded in or
~hed for use with those Products provided that (a) Licensee transfers all copies of such Motorola
~are to the new owner and (b) Motorola receives a transfer form (which Motorola will provide upon
;st) completed and signed by the new owner. Otherwise, Licensee may not transfer or make
Ible any Motorola Software to any third party.
'ION 5 OWNERSHIP AND TITLE
:o all copies of Motorola Software in any form, including all dghts in patents, copyrights, trade
ts, and other intellectual properties, remains vested exclusively in Motorola.
I
Contra~ct No. 98-11461/js
Page I April 24, 1998
MOTOROLA SOFTWARE LICENSE AGREEMENT - EXHIBIT A
SECTION 6 CONFIDENTIALITY
Licensee acknowledges that all Motorola Software contains valuable proprietary information and trade
secrets and that unauthorized dissemination, distribution, modification, reverse engineering,
disassembly, or other improper use of Motorola Software will result in irreparable harm to Motorola for
whi(.h monetary damages would be inadequate. Accordingly, Licensee will limit access to Motorola
SofiNare to those of its employees and agents who need to use Motorola Software for Licensee's
internal business purposes, and Licensee will take appropriate action with those employees and
agellts to preserve the confidentiality of Motorola Software.
SEC
TION 7 MAINTENANCE AND SUPPORT
No maintenance or support is provided under this Agreement. Maintenance or support, if
will'be provided Under a Motorola Software Maintenance and Support Agreement. available,
SECTION 8 LIMITED WARRANTy
For lhe first 120 days after initial shipment of Motorola Software, or, if the Motorola Software is
provided pursuant to a Communications System Agreement between Motorola and Licensee for the
Wa~.anty Pedod specified in such Agreement,. Motorola warrants that the Motorola Software, when
used properly, will be free from ~'epr°ducible defects ~hat materially vary from its published
Spec, lfications. Motorola does not warrant that Licensee s use of the Motorola Software or the
ProdFcts will be uninterrupted or error-free or that the Motorola Software or the Products will meet
Licensee's particular requirements. MOTOROLA's TOTAL LIABILITY, AND LICENSEE'S SOLE
REMEDY, FOR ANY BREACH OF THIS WARRANTY WILL BE LIMI~'ED TO, AT MOTOROLA'S
OPTION, REPAIR OR REPLACEMENT OF THE MOTOROLA SOFTWARE. THIS WARRANTY
EXTENDS ONLY TO THE FIRST LICENSEE; SUBSEQUENT TRANSFEREES MUST ACCEPT THE
MOTOROLA SOFTWARE "AS IS" AND WITH NO WARRANTIES OF ANY KIND. MOTOROLA
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
wARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. UNLESS
EXPI:~ESSLY PROVIDED FOR BY SEPARATE WRITTEN AGREEMENT EXECUTED BY BOTH
PAR'
BET~
SEC'
IN N(
EVEr
I'IES, THIS WARRANTY DOES NOT COVER PROCESSING' DATE DATA FROM, INTO, AND
YEEN TH E TWENTIETH AND TWENTY-FI RST CENTURIES.
I'ION 9 LIMITATION OF LIABILITY
EVENT WILL MOTOROLA BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES
IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE~.
SECTION 10 TERM AND TERMINATION
/
Licensee's dght to use Motorola Software will begin when Licensee sends a duly executed copy of
this ,~greement to Motorola, and either (a) Motorola returns a fully executed Agreement to Licensee or
(b) ~torola. . ships Motorola Software or a Product containing MotOrola Software to Licensee, and will
con ~ue in perpetuity unless terminated as follows. Licensee's dght to use Motorola Software will
terr rate without notice upon a breach of this Agreement by Licensee. In addition, if Motorola
rea: nably believes that Licensee intends to breach this Agreement with respect to Radio Service
Sol are or FLASHport~) Software, Motorola may, by notice to Licensee, terminate Licensee's dght to
use s.ich Motorola Software. Upon termination, Motorola will be entitled to immediate injunctive relief
witho~t proving damages and, unless Licensee is a sovereign government entity, Motorola will have
i Contract No. 98-11461/js
Page 2 April 24, 1998
MOTOROLA SOFTWARE LICENSE AGREEMENT - EXHIBIT A
the dght to repossess all Radio Service Software and FLASHport~ Software in Licensee's
possession. Within thirty days after termination of Licensee's dght to use any Motorola Software,
Licensee must certify in wdting to Motorola that all copies of such Motorola Software have been
retumed to Motorola or destroyed.
SECTION 11 NOTICES
All r~otices, consents, and waivers permitted or required under this Agreement will be deemed given
upop receipt and must be delivered in wdting to th~ addresses at the top of this Agreement and, if to
Motorola, t~ the LMPS Technical Assets Manager, Room 2305. Change of address must be in wdting
to the other party.
SECTION 12 GENERAL
A. COPYRIGHT NOTICES: The existence of a copyright notice on Motorola Software will not be
construed as an admission or presumption that public disclosure of Motorola Software or any trade
secrets associated with Motorola Software has occurred.
B. NON-MOTOROLA SOFTWARE: Motorola may provide non-Motorola software to Licensee
under the terms of separate license agreements with the owners of such software. Licensee will
abide by the terms of these licenses.
C. CAUSES OF ACTION: Licensee must bdng any action under this Agreement within one year
after the cause of action adses.
D. WAIVERS: No waiver of a dght or remedy of a party will constitute a waiver of'another dght or
remedy of that party.
E. ASSIGNMENTS: Motorola may assign any of its dghts or subcontract any of its obligations
under this Agreement, or encumber or sell any of its dghts in any Motorola Software, without pdor
notice to or consent of Licensee.
F. ENTIRE AGREEMENT AND AMENDMENT: This Agreement contains the parties' entire
agreement regarding Licensee's use of Motorola Software and may be amended only in a writing
signed by both parties, except that Motorola may modify this Agreement as necessary to comply with
appliCable laws and regulations including FCC regulations.
G. GOVERNING LAW: This Agreement will be govemed by the laws of the'United States of
Amedca to the extent that they apply and otherwise by the laws of the State of Illinois.
In w~tness whereof, the parties haVe caused
Agreement on the dates se{ forth below.
City qf Boynton Be[ach,
Name: ~~'~
Title:
duly authorized representatives to execute this
Motorola, Inc.
By:
Name:
Title:
Date:
Page 3 April 24, 1998