HomeMy WebLinkAboutAG 97-219 - MOTOROLA
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MOTOROLA
MOTOROLA MASTER RADIO SERVICE
SOFTWARE LICENSE AGREEMENT
<CI MotOlola 1993, 1994
This Master Radio Service Software License Agreement ("License Agreement") is made and
entered into by and between Motorola, Inc. ("Motorola") and the Licensee named below
("Licensee"). In accordance with the following terms and conditions, Motorola agrees to grant to
Licensee and Licensee agrees to obtain and accept from Motorola, a limited license for Motorola's
Radio Service object code software, including Motorola Programming software and other object
code software and documentation that is made by or for Motorola and which is available from
Motorola under this License Agreement, including any supplement, or any update to any such
item of software delivered to the Licensee from Motorola under the terms of this License
Agreement, including any other standard object code software, documentation and materials
provided by Motorola to Licensee in connection with Radio Service Software (the "Software").
Motorola and Licensee agree that as long as this Agreement remains effective, Motorola
may, from time to time, make available to the Licensee (e.g., via Motorola's Software Subscription
Service), additional items of Software under this License Agreement. The Licensee's use of all
such software licensed under this Agreement, unless there is executed between Motorola and
Licensee a separate agreement specifically licensing a particular item of software, shall be
subject to the terms and conditions of this License Agreement, and Motorola may supply such
items of Software to Licensee, subject to the terms and conditions of this License Agreement.
1. Definitions. The terms "radio" or "radios" means only the specific model or models, as
applicable, of Motorola manufactured two-way radio(s) listed in the then current Motorola
Americas Parts Division Price Book or other applicable Motorola two-way radio product price
book as being authorized by Motorola for repair by an item of Software also listed in the
applicable Motorola two-way radio price book.
The term "repairs" means only those corrective actions (which may include the alteration
of Archive Files or Edited Archive Files) which allow a radio to function in accordance with
Motorola's published specifications and radio product identification labeling in effect for that
radio at the time the radio was initially distributed from Motorola. "Repairs" specifically excludes
any alteration to a radio using the Software which does not comply with this License Agreement
or any federal, state or local laws, rules or regulations that apply to the distribution or use of a
radio.
The term "Archive Files" means (i) computer files or computer source code or object code
records of programming information or data used in combination with any such records that are
stored in radios, by reading such programming information from radios using the Software; or
(ii) any of the information items identified in (i) above that are obtained or otherwise read from
a radio, whether or not such information obtained from or read from a radio is stored or saved in
any memory device or media, as either a file, record, table, or other listing.
The term "Edited Archive Files" means Archive Files that have been edited using the
Software.
2, Effective Date of License.
which will become effective
This License Agreement is an offer to license by Licensee,
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(A) after the Licensee has signed this License Agreement and returned it to Motorola, at the
address below; and
6880362A62-F
MOTOROLA &ER RADIO SERVICE SOFTWARE LICEa AGREEMENT
(B) the earlier occurrence of either (i) Motorola has acknowledged to Licensee its
acceptance of this License Agreement in writing; or (ii) Motorola ships to the Licensee, at
the address below, an item or items of Software ordered by the Licensee pursuant to this
License Agreement.
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The banking, negotiation or other use of any payment provision. if any. shall not constitute an
acceptance of the License Agreement by Motorola.
3. License. Subject to all the terms, conditions and limitations of this License Agreement.
Motorola hereby grants to Licensee a personal, non-exclusive, nontransferable. limited license to
use the Software but only as set forth below and solely at the location(s) listed by Licensee on
Appendix A (which Appendix is attached to this License Agreement and incorporated by
reference into it).
Licensee agrees that its use of the Software at the locations listed on Appendix A shall be limited
to:
-making repairs to a radio;
-creating Archive Files and Edited Archive Files using only the editing capabilities built into
the Software as the Software was licensed to Licensee by Motorola;
.editing Archive Files and Edited Archive Files using only the editing capabilities built into
the Software as the Software was licensed to Licensee by Motorola; and
-loading Archive Files and Edited Archive Files into radios.
The license granted hereunder is site specific.
Licensee understands and agrees that:
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A. Each item of Software obtained by Licensee from Motorola pursuant to this License
Agreement shall only be used by the Licensee at Licensee locations requested by Licensee at
the time Licensee orders an item of Software from Motorola provided that such requested
Licensee location is listed in the then current Appendix A to this License Agreement, and
fulfills the obligations recited at Section 3(0) hereunder.
B. Licensee shall be entitled to make one copy of the Software for each computer owned or
controlled by the Licensee at the location listed on Appendix A at which the item of Software
is used. All copies of the Software shall be irretrievably deleted or removed from all
computers at one Licensee location prior to any use of the Software at any other Licensee
location.
C. Use of an item of Software at one authorized Licensee location shall not include the right
to access or use that item of Software through remote access.
The Software may be used on a portable or lap-top computer at a location not listed in
Appendix A provided that (I) any such use at any such location is a temporary use; (2) that
such use is exclusively by the Licensee or his employees for service to a customer of the
Licensee or for service to equipment owned, controlled, or operated by the Licensee; (3) that
the Software is not transferred from the portable or lap-top computer or copied in any way
onto any storage media or computer; (4) that such location not listed in Appendix A is not a
location from which the Licensee normally or regularly conducts his business.
O. If the Software will be used at more than one location, Licensee shall purchase from
Motorola at least one copy of the Software for each location listed on Appendix A. Use of an
item of Software at one authorized Licensee location precludes use of that item of Software at
any other location unless the Licensee has purchased from Motorola an additional copy of
that item of Software for such other location;
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6880362A62-F
MOTOROLA ðTER RADIO SERVICE SOFTWARE lIC"'~E AGREEMENT
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E. Licensee may only request additional Licensee locations by re-executing a new Appendix
A to this License Agreemenl, wherein each and every Licensee location is idenlified, and by
sending the new executed Appendix A 10 Motorola at the address provided herein for notices;
F. Licensee shall not use the Software, the Archive Files or the Edited Archive Files and
acquires no right under this Agreemenl to modify a radio, the Software, the Archive Files or
the Edited Archive Files in any manner that (i) is determined by either Motorola or any
court of competent jurisdiction of any counlry to be illegal or an unfair deceptive trade
practice in violation of any applicable U.S. federal law, including any law of any state
within the United States, or of any law of any counlry of a Licensee location; or (ii) in the
opinion of counsel to Motorola, constitutes such an illegal, unfair or deceptive act or
practice; or (iii) infringes any of Motorola's intellectual property rights. including
Motorola's paten I rights, Irademark rights, copyrights, and trade secret rights.
4. Charges and Payments. Licensee agrees to pay for each item of Software, a non-
refundable, one-time, lump-sum, per location charge. In the event Licensee elects to obtain
Subscription Services for the Software that Motorola elects to make available to Licensee, if any,
Licensee agrees to pay Motorola's then current charges for those services. Each such charge
shall be due and payable upon receipt of invoice. Service charges at the maximum rate permitted
by applicable law may be invoiced on accounls more than ten (10) days past due and shall be due
and payable upon receipt of invoice.
The license charge for each item of Software will be listed in Motorola's then currenl Americas
Parts Division Price Book or other applicable Motorola two-way radio product price book. Prices
in those price books are subject to change without notice. Each Licensee order for an item of
Software will be billed at the price in effect on the day Motorola accepts that order by
acknowledging that order in writing or the day Motorola ships the item of Software to Licensee.
whichever occurs earlier.
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S. Taxes. Licensee shall pay all sales, use and excise taxes, and any other assessmenls in the
nature of taxes however designated, on the Software or its license or use, on or resulting from the
License Agreement or on any amounl payable or any services furnished under the License
Agreemenl, exclusive of personal property taxes assessed on the Software and taxes based on
Motorola net income, unless Licensee furnishes Motorola with a certificate of exemption from
payment of such taxes which is in a form reasonably acceptable to Motorola.
6. Protection and Security. Title to and ownership of any item of Software delivered
hereunder and any copies made by Licensee in whole or in part shall at all times remain in
Motorola. Licensee expressly acknowledges that the Software is licensed to the Licensee and is
not sold and that the Licensee shall not transfer custody, care, or conlrol of the Software to any
third party.
Licensee acknowledges that the Software and each copy of Archive Files and Edited
Archive Files conlain valuable Motorola proprietary information and Motorola trade secrets and
that unauthorized dissemination. distribution, modification, reverse engineering, disassembly, or
unauthorized use of the Software, or any unauthorized dissemination, distribution, modification.
reverse engineering, disassembly, or unauthorized use of Archive Files or Edited Archive Files
(including without limitation disassembly or reverse engineering) will cause irreparable harm
to Motorola, and thus Licensee shall NOT disclose, transfer, provide, or otherwise make available
in any form whatsoever the Archive Files, Edited Archive Files, or the Software, the information
lherein, or any portion thereof, to any person or organization, other than Licensee's employees
without the prior written consenl of Motorola.
Licensee expressly acknowledges and admits Motorola's ownership of the copyrights in the
Software, and the validity and enforceability of said copyrights.
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Licensee further agrees to use the Software, the Archive Files. the Edited Archive Files, the
information conlained therein, or any portion thereof only as permitted in this License
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6880362A62-F
MOTOROLA M~_:R RADIO SERVICE SoFTWARE lICEN~ þ,GREEMENT
Agreement. Licensee will take appropriate action, by instruction, agreement or otherwise. with
any persons permitted access to the Software, the Archive Files or the Edited Archive Files so as
to enable it to hold each such item in confidence and otherwise to satisfy its obligalions under the
License Agreement.
Since unauthorized use of the Software, Archive Files or Edited Archive Files
will greatly diminish the value of those items and cause irreparable harm to
Motorola, Licensee also agrees that Motorola, in addition to any other remedies it
may have at law or in equity, shall be entitled to equitable relief to protect against
any such unauthorized use, including without limitation, temporary and
permanent injunctive relief, without the proving of damage by Motorola.
Licensee will provide to Motorola, upon Motorola's request, the actual location of all copies
of the Software.
Licensee shall reproduce and include all copyrigh! and trademark notices, and other
proprietary legends, on all copies in accordance with Motorola's instructions and as otherwise
required by applicable federal and state laws. Licensee acknowledges and agrees that the
existence of any Motorola copyright notice on any item of Software shall not be construed as an
admission or presumption that publication of such item of Software has occurred.
Licensee agrees that any breach of the terms of this Section 6 shall be considered by the
parties hereto to be a substantial and material breach of this Agreement, which breach shall be
grounds for Motorola, in addilion to its other remedies at law or in equity, to immediately and
without prior notice to Licensee terminate this License Agreement, Licensee's license hereunder
for each item of Software, or both.
The terms of this Seclion shall survive the termination of a license and the License
Agreement.
7. Maintenance, Motorola shall not be responsible for field support or field service of
Software under this License Agreement. Any maintenance by Motorola, if available, shall be by
separate agreement on Motorola's then current terms and condilions and at Motorola's then
current prevailing rates for such maintenance.
8. Software Warranty Disclaimer. LICENSEE ACCEPTS THE SOFTWARE LICENSED UNDER THE
LICENSE AGREEMENT "AS IS". MOTOROLA EXTENDS NO WARRANTIES ON THE SOFIW ARE EITHER
EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9. Termination. Any license granted under this License Agreement is effective until
terminated as set forth herein below. This Agreement, the License for each or any of the
Software items, or both, may be terminated by Motorola without cause, and for its convenience.
upon ten (10) days prior written notice to the Licensee.
Licensee may terminate a license for an item of Software at any time by returning to Motorola all
originals and all copies of the Software (including documentation and materials) and by
warranting to Motorola that all copies of an item of Software have either been returned or
irretrievably destroyed.
Motorola may terminate a license for an item of Software or the entire License Agreement if
Licensee fails to comply with any term or condition of this License Agreement (See Section 10,
Default). Upon termination, Licensee agrees to return all copies of the Software to Motorola and
delete from any storage device, all copies of the Software.
This Agreement may be terminated by Motorola immediately, and without notice to the Licensee,
upon the occurrence of any of the following events:
(a) any default as set forth in § 10;
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6880362A62-F
MOTOROLA M~ER RADIO SERVICE SoFTWARE LlCEl'ttAGREEMENT
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(b) Licensee ceases to function as a going concern, declares bankruptcy, or otherwise
becomes insolvent.
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10. Default. Default shall be considered to include, but not be limited to, any of the following
acts or omissions:
(a) Licensee fails to perform any of its obligations under Section 6, "Protection and
Security"; or
(b) Licensee fails to perform any of its obligations under the License Agreement, and such
failure remains uncured for a period of thirty (30) days after Licensee's receipt of written notice
thereof from Motorola.
11. Remedies. In the event of any default by Licensee, in addition to any other rights and
remedies available to it under law or in equity, Motorola may:
withhold
performance
hereunder;
or,
tcrminate the license for any item of Software at any time; or,
terminate this entire License Agreement; or,
demand and be entitled to the immediate return of all copies of any or all items of Software; or,
repossess, by any appropriate means, with or without notice to the Licensee, all items of
Software.
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In any such event, Motorola's remedies shall be cumulative and there shall be no obligation upon
Motorola to exercise a particular remedy.
12. Limitation of Liability. THE ENTIRE MOTOROLA LIABILITY TO LICENSEE FOR
PERFORMANCE OR NONPERFORMANCE BY MOTOROLA UNDER THE LICENSE AGREEMENT, SHALL BE
LIMITED TO A REFUND BY MOTOROLA OF AN AMOUNT NOT TO EXCEED THE TOTAL LICENSE CHARGE
PAID BY LICENSEE FOR TIlE ITEM OF SOFIW ARE DIRECTLY RELATED TO SUCH CLAIM.
IN NO EVENT SHALL MOTOROLA BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
(INCLUDING WITHOUT LIMITATION LOSS OF USE, TIME OR DATA, INCONVENIENCE, COMMERCIAL
LOSS, LOST PROFITS OR SAVINGS) TO THE FULL EXTENT SUCH MAYBE DISCLAIMED BY LAW EVEN IF
MOTOROLA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY CLAIM AGAINST
LICENSEE BY ANY OTHER PARTY.
13. Assignment. Licensee is prohibited from assigning. transferring or sub-licensing the
Software without the prior written consent of Motorola. Any prohibited assignment, transfer or
sub-license shall be null and void.
Motorola reserves the right to assign the License Agreement, encumber or sell the
Software, or subcontract any of its obligations hereunder, either in whole or in part, without
notice to or the consent of Licensee.
14. Notices. All formal notices, consents and other communications required or permitted
under the License Agreement shall be in writing and shall be sent by registered or certified mail,
postage prepaid and return receipt requested, or transmitted by telegram, facsimile, or telex if
such telegram, facsimile, or telex is confirmed within twenty (20) days of its transmission by
mailing a duplicate copy of said notice, consent, or other communication to the addresses
indicatcd in the License Agreement. Either party may change its address for the purpose of
formal notice by written notice to the other party.
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6880362A62-F
MOTOROLA M~ TER RADIO SERVICE SOFTWARE LlCENO AGREEMENT
15. Entire Agreement. THIS LICENSE AGREEMENT CONSTITUTES THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN MOTOROLA AND LICENSEE, AND SUPERSEDES All ORAL OR
WRITTEN PROPOSALS, PRIOR AGREEMENTS AND OTHER PRIOR COMMUNICATIONS BETWEEN THE
PARTIES, CONCERNING TIlE SUBJECT MATTER OF THE LICENSE AGREEMENT.
16. General Terms and Conditions.
THIS AGREEMENT IS DEEMED BY THE PARTIES TO HA VB BEEN ENTERED INTO IN THE STATE OF
ILLINOIS IN THE UNITED STATES OF AMERICA; AND THIS AGREEMENT'S INTERPRETATION,
CONS1R UCTION AND TIlE RIGHTS. DUTIES AND REMEDIES FOR ITS BREACH ARE TO BE DECIDED IN
ACCORDANCE WITH TIlE LAWS OF THE STATE OF ILLINOIS.
No representation or promise relating to and no amendment of the License Agreement shall be
binding unless it is in writing and signed by both parties.
The terms and conditions of the License Agreement shall prevail notwithstanding any variance
with the terms and conditions of any order submitted by Licensee.
Motorola shall not be liable for any failure to perform due to causes beyond its reasonable
control.
No waiver by a party of any breach of any provision of the License Agreement shall constitute a
waiver of any other breach of that or any other provision of the License Agreement.
Any dispute between the parties to this License Agreement which cannot be resolved through
good faith negotiation shall be submitted to a court located in Illinois for resolution. MOiorola and
Licensee each consent to jurisdiction over it by such a court.
Licensee recognizes that applicable U.S. and foreign laws. ordinances, rules and regulations may
change from time to time and that accordingly Motorola in its sole discretion has the right
without liability to modify the License Agreement to comply with such changes.
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In the event that any of the provisions contained in the License Agreement are held to be
unenforceable. the License Agreement shall be construed without such provisions.
No action. regardless of form, arising out of the License Agreement may be brought by Licensee
more than one (I) year after the cause of action has arisen.
In accordance with Part 779 of the United States Export Administration
Regulations, (EAR) no restricted technical data, or the direct product thereof, is
intended or authorized by Motorola to be shipped, either directly or indirectly, to
countries precluded from receiving such data by the U.S. Department of Commerce.
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6880362A62-F
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MOTOROLA M~ ..-,'ER RADIO SERVICE SoFTWARE LlCE~.j AGREEMENT
PLEASE COMPLETE ALL OF THE INFORMATION PERTAINING TO THE LICENSEE. RETURN
THIS ENTIRE LICENSE AND BOTH COPIES OF THE APPENDIX A TO MOTOROLA AT THE
ADDRESS BELOW.
ACCEPTED AND APPROVED BY MOTOROLA AS OF
----, 19_-
MOTOROLA,!~ ~7)~d~
BY:
LICENSEE
BY:
(Authorized Signature)
Please type the following:
NAME:
VIKI RADDEN
DIRECTOR AFTtRMAf¡f\ET f'KDUUCTS
'Dh.,
Please type the following:
NAME: HGI-f'PI SIIJ)pl
TITLE: >ýJfe,.,f /16-"'o-.c¿r.r'
(1/0/17
I ,
TITLE:
~
DATE:
DATE:
Address for Formal Notices:
Address for Formal Notices:
-.-?J/¡--l'L Ii' ~~-<>::!-~7----
(C,°9'~.5~O a.L]-~JdT-~~-&-
(A~J~~~,LW~~_~ð__-2_~~ 3
(City, State, Zip) I
Altn: --It EfIO/ §ApP=.f----
Motorola
Americas Parts Division
1313 East Algonquin Road
Schaumburg, ll1inois 60196
Altn: (See Note Below)
Note:
Inside the U.S:
Altn: Centralized Customer Svc.
Outside the U.S.:
Altn: International Software Dept.
Motorola
Customer No.:
(0062 if J 8'32--
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(Address for Notice MUST BE PROVIDED)
at. ß L. '1
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Revised November II, 1994
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6880362A62-F
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HPPENDIH H to Motorola Master Hadio Seruice Software Hgreement
between
Motorola and
____~!L::'! fec{f!:/A!~+__- ("LlcenseeO)
LOCATION I: 33530 I sf tJo 7 be:> ù fA DATE: II/I> / "17
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réJ.et'"o..flV"" LJA 9ftOo.) ATTN: /kJ,¡/.: 5'..),,;
, PHONE: £.2>J) t;~ 1- '/O?5f
LOCATION 2:
DATE:
ATTN:
PHONE: (
LOCATION 3:
DATE:
ATTN:
PHONE: (
LOCATION 4:
DATE:
ATTN:
PHONE: (
ACCEPTED AND APPROUEO BY MOToROLR RS OF
HOTOROLR, ~~
LI CENSEE
BY:
BY:
(Ruthorized signature)
Please type the following:
TITLE:
DATE:
~¡ryl 2" 1997
NAME: HE~f)1 ~~f)Il/
TITLE: ,y~ft"Joo ~ I1ÞH4(l r'
DATE: '¡~~/q 7 t/
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NRME:
VIKI RADDEN
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68-80362A66-B
