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I - Software Subscription Ex I EXHIBIT I Software Subscription Agreement This Motorola Software Subscription Agreement ("Agreement") is between Motorola, Inc., a Delaware corporation ("Motorola") by and through its Commercial, Government, Industrial Solutions Sector (CGISS) and the City of Miami Beach, a municipal corporation organized under the laws of the State of Florida ("Customer"), and must be fully executed prior to the end of the Equipment's Warranty Period in the Communications System Agreement. Section 1 DEFINITIONS "Core Release" - A new version of Software which adds Features and major enhancements. These new versions are signified by changes to the first digit of the version identifier number (e.g. SmartZone 2.0.3 to SmartZone 3.0). "Enhancement Release" - A superseding issue of Software which adds to, improves, or enhances the performance of Software Features contained in the then currently shipping Software version. These releases are signified by changes to the second digit of the version identifier number (e.g. SmartZone 3.1 to SmartZone 3.2). "Feature" - A Software functionality. "Standard Feature" - An additional Software functionality for components of Customer's system that is available to Customer in the standard Software release. "Optional Feature" - An additional software functionality issued with a Core Release that is available to Customer at additional cost. "Special Product Feature" - Features specially developed for Customer which contain Customer unique functionality. Section 2 SUBSCRIPTION PROGRAM 2.1. During the term of this Agreement, Motorola will provide Customer with the software subscription services described below ("Software Subscription Agreement") for upgrade capable Motorola communications infrastructure equipment that is in the Customer configuration identified in Attachment 1 to this Agreement. 2.2. Non-Motorola software (Le., Software owned by a party other than Motorola) are excluded from the Software Subscription Agreement. If these excluded software products are applicable to your System, they may be covered by a separate maintenance and support agreement. 2.3. Motorola will provide periodic Motorola Software Enhancement Releases applicable to Features currently provided to Customer by Motorola under a Software License Agreement. Customer is responsible for the purchase of additional hardware that is necessary to upgrade to the newly issued Enhancement Release. 2.4. If Customer decides on its own to make an upgrade, Motorola will provide those Standard Features included in a Core Release which apply to Customer's existing System components. The Motorola Software Subscription Agreement. Page 1 of 8 rev. 4/24/03 Customer is responsible for the purchase and license of additional products, hardware, and/or software that are necessary to migrate to the newly issued Core Release. 2.5. Optional Features issued with a Core Release are not provided pursuant to the Software Subscription Agreement but are available to Customer, as a Agreement subscriber, at a discounted price under a separate agreement. The discount available to Customer for voice system Optional Features will be 200/0 off the current Motorola list price. The discount available to Customer for data system Optional Features will be 150/0 off the current Motorola list price. Once an Optional Feature is provided to Customer, Customer will be entitled under this Agreement to all Enhancement Releases for that Optional Feature. 2.6. Not Applicable. 2.7. Motorola will issue to Customer at the below address bulletins announcing Enhancement Releases and Core Releases. If Customer desires to obtain the announced Enhancement Release or Core Release, it must contact its Motorola representative. If needed, Customer should contact its local service provider for installation assistance. Customer Contact for Bulletin Receipt Customer: City of Miami Beach Address: 1100 Washington Avenue, Miami Beach, FL 33139 Attn: Director, Information Technology 2.8. Because Enhancement Releases may include minor performance enhancements, Customer is encouraged to periodically upgrade the Motorola Software operating on its System with the most current Enhancement Release (e.g. SmartZone 3.0.1 to SmartZone 3.0.2). Customer may choose not to install a new software release, however, customer acknowledges that by so choosing, it may limit or eliminate the applicability of future releases to its System. 2.9. Because the Software Subscription Agreement includes Enhancement Releases for only the currently shipping software version and those prior versions that Motorola may be supporting during the term of the Agreement, Customer is encouraged to migrate the Motorola Software operating on its Communications System to the most current Core Release (e.g. SmartZone 2.0.3 to SmartZone 3.0). If Customer's system is not maintained to a currently supported software version, all Core Releases and Enhancement Releases may not be compatible with Customer's existing System. Additional hardware, Motorola Software, and engineered modifications may be required if Customer desires to migrate to a particular Core Release or Enhancement Release. Such additional hardware, Motorola Software and engineering are not included as part of the Software Subscription Agreement and may be provided pursuant to a separate agreement. If the size and complexity of Customer's System warrants, Motorola may provide consultation services to determine the technological, operational and financial impact of installing a particular Core Release or Enhancement Release on the System, pursuant to a separate agreement. Section 3 FEES AND PAYMENT Attachment 1 contains the annual SSA fees and payment terms. The fees listed are based upon Customer's current Motorola equipment configuration as indicated in Attachment 1. Customer must promptly notify Motorola of any change in this configuration and Motorola will calculate revised fees (effective at the beginning of the next subscription year) based on the new configuration. Motorola will refund to Customer any amounts previously paid for SSA fees that are reduced due to a new Motorola Software Subscription Agreement. Page 2 of 8 rev. 4/24/03 configuration. If the SSA fees are increased due to a new configuration, Customer will pay any additional amounts within forty-five (45) days after receipt of an invoice from Motorola. Section 4 TERM AND TERMINATION 4.1. The term of this Agreement is indicated in Attachment 1 and shall terminate at the expiration of that term unless extended by mutual agreement of the parties. 4.2. The Customer may terminate this Agreement at any time, without penalty and without liability, prior to the expiration of its term by providing written notice of such termination to Motorola. Such termination will be effective at the next annual anniversary date following Motorola's receipt of the written notice. Motorola will refund to Customer any pre-paid Software Subscription Agreement fees for the terminated period. 4.3. After the ten-year Serviceability Period in Exhibit B of the Communications System Agreement, the term of this Agreement will automatically terminate if, at its annual anniversary date, the software version in Customer's then current configuration is no longer supported by Motorola or if Motorola discontinues the Software Subscription Agreement or replaces software subscription services, in which case Motorola will refund to Customer any pre-paid Software Subscription Agreement fees or apply such on a pro-rata basis to the replacement services at the Customer's discretion for the terminated period. Section 5 TAXES Customer is responsible for all taxes due as a result of this Agreement, if any, other than taxes based on Motorola's income; if Customer is a tax-exempt entity, upon execution of this Agreement, Customer must provide Motorola with tax exemption certificates from the appropriate tax authorities. Section 6 EXCLUDED SERVICES The SSA does not include repair or replacement of hardware or software defects not corrected by the Enhancement Releases and Core Releases nor does it include repair or replacement of defects resulting from any nonstandard or improper use or conditions or from unauthorized installation of Motorola software. Section 7 OWNERSHIP AND USE OF SOFTWARE All rights and title to Motorola software furnished to Customer under this Agreement remains vested exclusively in Motorola. Customer's use of such Motorola software is subject to the terms of the Motorola software license agreement executed by Customer or, if no such agreement has been executed, Motorola's standard software license terms apply, which will be sent to Customer upon written request. Section 8 DEFAULT Motorola at any time may suspend subscription services or terminate this Agreement if (a) Customer fails to pay any fees within forty-five (45) days after such fees are due, (b) Customer fails to correct a breach of this Agreement within thirty (30) days after notice from Motorola of such breach, (c) Customer's right to use Motorola software under a Motorola software license agreement expires or is terminated, or (d) Customer replaces its Motorola communication system Motorola Software Subscription Agreement. Page 3 of 8 rev. 4/24/03 with a non-Motorola communication system. Upon such termination, any unpaid SSA fees will become immediately due and payable due up to the date of termination. Section 9 LIMITATION OF LIABILITY EXCEPT FOR PERSONAL INJURY OR DEATH, MOTOROLA'S TOTAL LIABILITY ARISING FROM THIS AGREEMENT WILL BE LIMITED TO THE AGGREGATE AMOUNT OF SSA FEES PAID TO MOTOROLA BY CUSTOMER. NEITHER MOTOROLA NOR CUSTOMER WILL BE LIABLE FOR ANY COMMERCIAL LOSS; INCONVENIENCE; LOSS OF USE, TIME, DATA, GOODWILL, REVENUES, PROFITS, OR SAVINGS; OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon the City's liability as set forth in Section 768.28, Florida Statutes. Section 10 GENERAL 10.1. NOTICES: Notices required under this Agreement to be given by one party to the other must be in writing and either delivered in person or sent to the address shown below by certified mail, return receipt requested and postage prepaid (or by a recognized courier service), or by facsimile with correct answerback received, and shall be effective upon receipt. Customer Attn: Director, Information Technology 1100 Washington Avenue Miami Beach, FL 33139 Motorola, Inc., Southern Division Attn: Divisior=rContract Manager 789 International Parkway Sunrise, FL 33325 10.2. FORCE MAJEURE: Neither party will be liable for its non-performance or delayed performance if caused by an event, circumstance, or act of a third party that is beyond such party's reasonable control. 1 0.3. WAIVERS: Failure or delay by either party to exercise any right or power under this Agreement will not operate as a waiver of such right or power. For a waiver to be effective, it must be in writing signed by the waiving party. An effective waiver of a right or power shall not be construed as either a future or continuing waiver of that same right or power, or the waiver of any other right or power. 10.4. ASSIGNMENTS: Customer may not assign any of its rights under this Agreement without Motorola's prior consent. 10.5. ENTIRE AGREEMENT AND AMENDMENT: This Agreement, including Exhibit A, constitutes the entire agreement of the parties regarding the SSA and may be amended only by a written instrument signed by authorized representatives of both parties. 10.6. GOVERNING LAW. This Agreement shall be interpreted and construed in accordance with and governed 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 Motorola Software Subscription Agreement. Page 4 of 8 rev. 4/24/03 of Miami-Dade County, Florida, the venue sites, and shall be governed by the laws of the State of Florida. By entering into this Agreement, Motorola and Customer 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. Customer Motorola, Inc. By: By: Name: Name: Robert C. Wartmann Title: Title: MCEI Vice President, Sales Date: Date: APPROVED NJ TO FORM a LANGUAGE a FOR EXECUTION ~~~ Y~;l;~ Motorola Software Subscription Agreement. Page 5 of 8 rev. 4/24/03 ATTACHMENT To Software Subscription Agreement 1 Motorola Software Subscription Agreement.1/1/02rev. SYSTEM CONFIGURATION Choose and complete only ONE of the sections below: I. Data T AC System SSA Number of Network Controllers in Operation Number of Data Subscriber Devices in Operation (Forte, VRM, etc.) IP Messaging for DataTAC (Yes / No) RNC Redundancy for DataTAC (Yes / No) Network Management for DataTAC (Yes / No) Mobility Management for DataTAC (Yes / No) Security Services for DataTAC (Yes / No) II. SmartZone System SSA Number of Sites (in addition to the Prime Site) Number of Repeaters in Operation Number of Subscribers in Operation (Mobiles and Portables) OmniLink Operation (Yes / No) Digital Operation (Yes / No) Integrated Voice and Data (Yes / No) III. SmartNet System SSA (Single Site or Simulcast) Number of Remote Sites (in addition to the Prime Site) Number of Repeaters in Operation Number of Subscribers in Operation (Mobiles and Portables) Digital Operation (Yes / No) Integrated Voice and Data (Yes / No) IV. Conventional System SSA Number of Repeaters in Operation Number of Subscribers In Operation (Mobiles and Portables) Digital Operation (Yes / No) Integrated Voice and Data (Yes / No) V. Console Only SSA (not required if System SSA is purchased) Motorola Software Subscription Agreement.1/1/02rev. Number of Operator Positions Number of Channels VI. Centralink 2000 USA SSA TERM Beginning of Term (choose one only) Expiration of existing Subscription Period (renewal) Immediately upon execution of Software Subscription Agreement Other (please specify date) Length of Term (number of years: 1, 2, 3, 4, or 5) SSA PROGRAM FEES Annual Fees (before discount) System SSA Fee Console Only SSA Fee CENTRALlNK 2000 SSA Fee SP Coverage Quote Total Annual Fee (before discount) Multi-Year Discount Level (choose the discount corresponding to the length of term) o 1 Yrs. 00/0 o 2 Yrs. 00/0 o 3 Yrs. 50/0 o 4 Yrs. 50/0 o 5 Yrs. 100/0 Total Annual Fee (after discount) Total Fees during Term Chosen Payment Methods (check only one): (A) Payment of total Fees due upon execution of SSA (B) Payment of Annual Fee due upon first day of each subscription year (C) Other (specify) Motorola Software Subscription Agreement.1/1/02rev.