A -Software License "Exhibit A"MOTOROLA SOFTWARE LICENSE AGREEMENT - EXHIBIT A
This Software License Agreement is between Motorola, Inc., a Delaware
corporation ("Motorola"), and the Licensee named below.
Section 1 SCOPE
Licensee may acquire from Motorola's Commercial, Government, and Industrial
Solutions Sector ("CGISS") radio communication products ("Products") that
contain embedded or pre -loaded Motorola software such as in a ROM, PROM, or
EPROM, or other Motorola software provided on media such as a floppy disk,
tape, diskette, or CD-ROM. All such software (including Radio Service Software
and FLASHport® Software) is referred to as "Motorola Software." In addition,
third party software may be included which Motorola does not own but is licensed
to distribute. The terms of this Agreement apply to any such third party software
unless an additional license agreement pertaining to the third party software is
enclosed, in which case the terms of such license apply to said third party
software. This Agreement contains the terms under which Licensee may use
Motorola Software acquired from CGISS.
Section 2 GRANT OF LICENSE
Motorola hereby grants to Licensee a personal, non-exclusive license under
Motorola's applicable proprietary rights to use Motorola Software in accordance
with the terms of this Agreement.
Section 3 LIMITATIONS ON USE
Licensee may use Motorola Software only for Licensee's internal business
purposes and only as described in the Motorola Software or Product
documentation. Any other use of Motorola Software is strictly prohibited and will
be deemed a breach of this Agreement. Licensee may not copy, modify, adapt,
merge with other software, reverse engineer, prepare derivative works of, or
disassemble any Motorola 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 copy of Radio
Service Software for each site at which Licensee uses Radio Service Software;
Licensee may make one additional copy for each computer owned or controlled
by Licensee at each such site. Licensee may temporarily use Radio Service
Software on portable or laptop computers at other sites. Prior to acquiring any
Radio Service Software or upon Motorola's request, Licensee must provide a
written list of all sites where Licensee uses or intends to use Radio Service
Software. Licensee must reproduce all Motorola copyright and trademark notices
on all copies of Motorola Software.
Section 4 TRANSFERS
If Licensee transfers ownership of Products to a third party, Licensee may assign
its rights to use Motorola Software (other than Radio Service Software and
FLASHport® Software) embedded in or furnished for use with those Products
provided that (a) Licensee transfers all copies of such Motorola Software to the
new owner and (b) Motorola receives a transfer form (which Motorola will provide
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MOTOROLA SOFTWARE LICENSE AGREEMENT - EXHIBIT A
upon request) completed and signed by the new owner. Otherwise, Licensee
may not transfer or make available any Motorola Software to any third party.
Section 5 OWNERSHIP AND TITLE
Title to all copies of Motorola Software in any form, including all rights in patents,
copyrights, trade secrets, and other intellectual properties, remains vested
exclusively in Motorola.
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 which monetary
damages would be inadequate. Accordingly, Licensee will limit access to
Motorola Software 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 agents to preserve the
confidentiality of Motorola Software.
Section 7 LIMITED WARRANTY
For the Warranty Period specified in the Communications System Agreement,
Motorola warrants that the Motorola Software, when used properly, will be free
from reproducible defects that eliminates the functionality of a feature critical to
the primary functionality of a system. The primary functionality of a voice
communication system is subscriber -to -subscriber, subscriber -to -dispatcher, and
dispatcher -to- subscriber voice communication. The primary functionality of a
data system is point-to-point data transmission. Motorola does not warrant that
Licensee's use of the Motorola Software or the Products will be uninterrupted or
error -free. Motorola warrants the Software and/or the Products will meet the
terms of the Communications System Agreement. MOTOROLA'S TOTAL
LIABILITY, AND LICENSEE'S SOLE REMEDY, FOR ANY BREACH OF THIS
WARRANTY WILL BE LIMITED TO REPAIR OR REPLACEMENT OF THE
MOTOROLA SOFTWARE OR PAYMENT OF LICENSEE'S DIRECT DAMAGES
UP TO THE AMOUNT PAID TO MOTOROLA FOR THE MOTOROLA
SOFTWARE OR THE INDIVIDUAL PRODUCT IN WHICH THE MOTOROLA
SOFTWARE IS EMBEDDED OR FOR WHICH IT WAS PROVIDED. 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.
Section 8 LIMITATION OF LIABILITY
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MOTOROLA SOFTWARE LICENSE AGREEMENT - EXHIBIT A
EXCEPT FOR PERSONAL INJURY OR DEATH, IN NO EVENT WILL
MOTOROLA BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES
UNDER THIS AGREEMENT.
Section 9 TERM AND TERMINATION
Licensee's right to use Motorola Software will begin when Licensee sends a duly
executed copy of this Agreement to Motorola, and either (a) Motorola returns a
fully executed Agreement to Licensee or (b) Motorola ships Motorola Software or
a Product containing Motorola Software to Licensee, and will continue in
perpetuity unless terminated as follows. Licensee's right to use Motorola
Software will terminate without notice upon a breach of this Agreement by
Licensee; provided, however, that Motorola will not physically disable or
otherwise interfere with the use of any Motorola Software necessary to operate
Licensee's Communication System, without giving notice of and twenty-four
hours to cure the breach. In addition, if Licensee breaches this Agreement with
respect to Radio Service Software or FLASHport® Software, Motorola may, by
notice to Licensee, terminate Licensee's right to use such Motorola Software.
Upon termination, Motorola will be entitled to seek immediate injunctive relief
without proving damages and, unless Licensee is a sovereign government entity,
Motorola will have the right to repossess all Radio Service Software and
FLASHport® Software in Licensee's possession. Within thirty days after
termination of Licensee's right to use any Motorola Software, Licensee must
certify in writing to Motorola that all copies of such Motorola Software in
Licensee's possession have been returned to Motorola or destroyed.
Section 10 NOTICES
All notices, consents, and waivers permitted or required under this Agreement
will be deemed given upon receipt and must be delivered in writing to the below
addresses. Change of address must be in writing to the other party.
CUSTOME
Attn:
Address 1:
City, St, Zip:
City of Miami Beach
IT Director
1100 Washington Ave.
Miami Beach, FL 33139
Section 11 GENERAL
MOTOROLA, INC.
Attn: Contracts & Compliance
789 International Parkway, Rm.
Sunrise, FL 33325
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. WAIVERS. No waiver of a right or remedy of a party will constitute a waiver
of another right or remedy of that party.
C. ASSIGNMENTS. Motorola may assign any of its rights or subcontract any of
its obligations under this Agreement, or encumber or sell any of its rights in
any Motorola Software, without prior notice to or consent of Licensee.
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MOTOROLA SOFTWARE LICENSE AGREEMENT - EXHIBIT A
D. 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.
E. GOVERNING LAW. This Agreement will be governed by the laws of the
United States of America to the extent that they apply and otherwise by the
laws of the State of Florida. Any controversies or legal problems arising out
of this Agreement and any action involving the enforcement or interpretation
of any rights hereunder shall be submitted to the jurisdiction of the State
Courts of the Eleventh Judicial Circuit of Miami -Dade County, Florida, the
venue sites. By entering into this Agreement, Motorola and Licensee hereby
expressly waive any rights either party may have to a trial by jury of any civil
litigation related to, or arising out of this Agreement.
In witness whereof, the parties have caused duly authorized representatives to execute
this Agreement on the dates set forth below.
Customer: Motorola, Inc.
By: zoeeei X.- By: "/
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Name: Guts' /e. Ate/A, T2 Name: Mark F. Moon
Title: Vi 6 -F -119A- f n- Title: Vice President and General Manager,
Southern Division
Date: ,}-p/L! L 34 1 2-oo3 Date: May 1, 2003
ATTEST : Y%(,)).u.z. (- fait cL -
C I TS C t.. N 1-1G_
CONTRACTS DEPT.
APPROVAL
APPROVED AS TO
FORM & LANGUAGE
EXECUTION
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