SUBSCRIPTION SERVICES AGREEMENT
This Subscription Services Agreement (“Agreement”) sets forth the terms under which Motorola Solutions, Inc. (“Motorola”) will provide the legal entity that electronically accepts the terms in this Agreement (“Customer”) a subscription to access the applicable services on this site. This subscription service is available to enterprise customers only and is not available for use by individual consumers.
IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY AND IF CUSTOMER DOES AGREE TO THE TERMS SET FORTH IN THE AGREEMENT, CLICK THE “ACCEPT” BUTTON BELOW. UPON CLICKING THE “ACCEPT” BUTTON OR WHEN CUSTOMER DOWNLOADS OR USES ANY PART OF THE SOFTWARE OR SERVICES, (i) CUSTOMER REPRESENTS AND WARRANTS THAT IT HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT; AND (ii) CUSTOMER IS CONSENTING TO BE BOUND BY, AND IS BECOMING A PARTY TO, THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THE TERMS, NO USE IS PERMITTED AND NO LICENSE IS GRANTED TO ANY PART OF THE MOTOROLA SUBSCRIPTION SERVICES OR RELATED SOFTWARE. IF CUSTOMER DOES NOT ACCEPT THESE TERMS, CLICK THE "DO NOT ACCEPT" BUTTON.
Motorola and Customer may be referred to individually as a “Party” and collectively as the “Parties.” For good and valuable consideration, the parties agree as follows:
Section 1 DEFINITIONS
Capitalized terms used in this Agreement have the meanings set forth below. Any reference to the purchase or sale of software or other Intellectual Property shall mean the sale or purchase of a license or sublicense to use such software or Intellectual Property in accordance with this Agreement.
“Administrator” means Customer's designated system administrator who receives administrative logins for the Services and issues access rights to Customer's Users.
“Confidential Information” means any information that is disclosed in written, graphic, verbal, or machine-recognizable form, and is marked, designated, or identified at the time of disclosure as being confidential or its equivalent; or if the information is in verbal form, it is identified as confidential at the time of disclosure and is confirmed in writing within thirty (30) days of the disclosure. Confidential Information does not include any information that: is or becomes publicly known through no wrongful act of the receiving Party; is already known to the receiving Party without restriction when it is disclosed; is or becomes, rightfully and without breach of this Agreement, in the receiving Party’s possession without any obligation restricting disclosure; is independently developed by the receiving Party without breach of this Agreement; or is explicitly approved for release by written authorization of the disclosing Party.
“Subscription Fee(s)” means the subscription fees for the Services, Deliverables, and other fees set forth on the site. Subscription Fees excludes any applicable sales, use or similar taxes, and any required hardware.
“Customer Data” means data provided by Customer to Motorola hereunder to be processed and used in connection with the Services. Customer Data does not include data provided by third parties and passed on to Motorola.
“Deliverables” means all written information (such as reports, analytics, Solution Data, specifications, designs, plans, drawings, or other technical or business information) that Motorola prepares for Customer in the performance of the Services and is obligated to provide to Customer pursuant to the Documentation.
“Documentation” means the technical materials provided by Motorola to Customer in hard copy or electronic form, including those posted on this site, describing the use and operation of the Solution and Software, including any technical manuals, but excluding any sales, advertising or marketing materials or proposals.
“Effective Date” means that date upon which Customer or Customer’s representative clicks acceptance to the terms of this Agreement.
“Force Majeure” which means an event, circumstance, or act that is beyond a Party’s reasonable control, such as an act of God, an act of the public enemy, an act of a government entity, strikes, other labor disturbances, supplier performance, hurricanes, earthquakes, fires, floods, epidemics, embargoes, war, riots, or any other similar cause.
“Licensed Product” means 1) Software, whether hosted, downloaded, or installed at Customer's site, 2) Documentation; 3) associated user interfaces; 4) help resources; and 5) any related technology or other services made available by the Solution.
“Proprietary Rights” means the patents, patent applications, inventions, copyrights, trade secrets, trademarks, trade names, mask works, know-how, ideas and concepts, moral rights, processes, methodologies, tools, techniques, and other intellectual property rights.
“Services” means those subscription services to be provided by Motorola to Customer under this Agreement, the nature and scope of which are more fully described on this site and in Documentation associated with the Services.
“Software” means the Motorola owned or licensed off the shelf software programs delivered as part of the Licensed Products used to provide the Services, including all bug fixes, updates and upgrades.
“Solution” means collectively, the Software, servers and/or any other hardware or equipment operated by Motorola and used in conjunction with the Services. In some instances, as determined by Motorola, Solution may include components purchased from and/or operated by an authorized Motorola sales agent.
“Solution Data” means raw data that is transformed, altered, processed, aggregated, correlated or operated on by Motorola, its vendors or other data sources and data that has been manipulated or retrieved using Motorola know-how to produce value-added content to data consumers, including customers or citizens which is made available to Customer with the Solution and Services.
“Users” means Customer's authorized employees or other individuals authorized to utilize the Services on behalf of Customer and who will be provided access to the Services by virtue of a password or equivalent security mechanism.
Section 2 SCOPE OF AGREEMENT; TERM
2.1 Motorola will provide to Customer the Services and Deliverables (if any). As part of the Services, Motorola will allow Customer to use the Solution described on this site or in the Documentation. Motorola and Customer will perform their respective responsibilities as described in this Agreement. Customer will use Services only for its internal business purposes and will not use Services for the benefit of any outside person or entity without the express written permission of Motorola.
2.2 To enable Motorola to perform the Services, Customer will provide to Motorola reasonable access to relevant Customer information, personnel, systems, and other general assistance. Further, if any portion of the Solution is provided or operated by an authorized Motorola sales agent, Customer will ensure a non-hazardous environment with adequate shelter, heat, light, power, security, and full and free access to any portion of the Solution installed or stored at Customer’s location.
2.3 Any information that Customer provides to Motorola concerning the Services or Deliverables will be accurate and complete in all material respects. Customer will make timely decisions and obtain any required management and third party approvals or consents that are reasonably necessary for Motorola to perform the Services and its other duties under this Agreement. Motorola may rely upon and is not required to evaluate, confirm, reject, modify, or provide advice concerning any assumptions and Customer-provided information, decisions and approvals described in this paragraph. Compliance with the foregoing will impact Motorola’s ability to provide the Services and may result in termination of the Agreement.
2.4 Customer shall at all times exercise reasonable care in using and maintaining the Solution in accordance with Motorola’s instructions for proper use and care.
2.5 Customer will also properly enable its Users to use the Services, including providing term and instructions for use, labeling, required notices, and accommodation pursuant to applicable laws, rules, and regulations. Customer will train its Users on proper operation of the Solution and Licensed Products. By using the Service, Customer agrees to and accepts on behalf of all its Users the limitations and conditions of use of the Licensed Products in this Agreement, prior to allowing Users to access or use the Services. Customer will inform Users of this required compliance.
2.6 If, as a result of the Services performed under this Agreement, Motorola recommends that Customer purchase products or other services, nothing in this Agreement precludes Motorola from participating in a competitive opportunity or otherwise offering or selling the recommended products or other services to Customer. Customer represents that this paragraph does not violate its procurement or other laws, regulations, or policies.
2.7 Customer may request changes to the Services. If Motorola agrees to a requested change, the change must be confirmed in writing and signed by authorized representatives of both parties. A reasonable price adjustment will be made if any change affects the time of performance or the cost to perform the Services.
2.8 TERM. The Term of this Agreement begins on the the date of acceptance of this Agreement and continues each month until termination by either Party in accordance with Section 9.
Section 3 PAYMENT
3.1 Unless otherwise arranged in writing with Motorola, Services will be provided in exchange for monthly, pre-paid Subscription Fees, as listed on this site. Motorola will bill the credit card provided by Customer on the Effective Date and monthly thereafter until termination of the Agreement. Motorola will terminate Service for any non-payment of fees, including failure of credit card transaction. For reference, the Federal Tax Identification Number for Motorola is 36-1115800.
3.2 If Customer terminates the Agreement, no refund of fees will be issued.
3.3 Any services performed by Motorola outside the scope of this Agreement at the direction of Customer will be considered to be additional Services which are subject to additional charges. Any agreement to perform additional Services will be reflected in a separate written Agreement or an amendment to this Agreement.
Section 4 ACCEPTANCE; FORCE MAJEURE
4.1 The Licensed Products will be deemed accepted upon the delivery of usernames and passwords to Customer. If usernames and passwords have been issued to Customer prior to the Effective Date, the Licensed Products will be deemed accepted on the Effective Date.
4.2 Neither Party will be liable for its non-performance or delayed performance if caused by a Force Majeure. Each Party will notify the other in writing if it becomes aware of any Force Majeure that will significantly delay performance. The notifying Party will give the notice promptly (but in no event later than fifteen (15) days) after it discovers the Force Majeure.
Section 5 CONFIDENTIAL INFORMATION AND PROPRIETARY RIGHTS
5.1. CONFIDENTIAL INFORMATION.
5.1.1. During the term of this Agreement, the parties may provide each other with Confidential Information. Licensed Products, and all Deliverables will be deemed to be Motorola’s Confidential Information. Each Party will: maintain the confidentiality of the other Party’s Confidential Information and not disclose it to any third party, except as authorized by the disclosing Party in writing or as required by a court of competent jurisdiction; restrict disclosure of the Confidential Information to its employees who have a “need to know” and not copy or reproduce the Confidential Information; take necessary and appropriate precautions to guard the confidentiality of the Confidential Information, including informing its employees who handle the Confidential Information that it is confidential and is not to be disclosed to others, but those precautions will be at least the same degree of care that the receiving Party applies to its own confidential information and will not be less than reasonable care; and use the Confidential Information only in furtherance of the performance of this Agreement or pursuant to the license granted immediately below.
5.1.2. The disclosing Party owns and retains all of its Proprietary Rights in and to its Confidential Information, except the disclosing Party hereby grants to the receiving Party the limited right and license, on a non-exclusive, irrevocable, and royalty-free basis, to use the Confidential Information for any lawful, internal business purpose in the manner and to the extent permitted by this Agreement.
5.2. PRESERVATION OF PROPRIETARY RIGHTS.
Customer acknowledges that the Licensed Products and any associated Documentation, data, and methodologies used in providing Services are proprietary to Motorola or its third party licensors and contain valuable trade secrets. In accordance with this Agreement, Customer and its employees shall treat the Solution and all Proprietary Rights as Confidential Information and will maintain the strictest confidence.
Each Party owns and retains all of its Proprietary Rights that exist on the Effective Date. Motorola owns and retains all Proprietary Rights that are developed, originated, or prepared in connection with providing the Deliverables or Services to Customer, and this Agreement does not grant to Customer any shared development rights. At Motorola’s request and expense, Customer will execute all papers and provide reasonable assistance to Motorola to enable Motorola to establish the Proprietary Rights. Unless otherwise explicitly stated herein, this Agreement does not restrict a Party concerning its own Proprietary Rights and is not a grant (either directly or by implication, estoppel, or otherwise) of a Party’s Proprietary Rights to the other Party.
5.3 Remedies. Because Licensed Products contain valuable trade secrets and proprietary information of Motorola, its vendors and licensors, Customer acknowledges and agrees that any actual or threatened breach of this Section will constitute immediate, irreparable harm to Motorola for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. Notwithstanding anything in this Agreement to the contrary, Motorola reserves the right to obtain injunctive relief and any other appropriate remedies from any court of competent jurisdiction in connection with any actual, alleged, or suspected breach of Section 3, infringement, misappropriation or violation of Motorola’s Property Rights, or the unauthorized use of Motorola’s Confidential Information. Any such action or proceeding may be brought in any court of competent jurisdiction. Except as otherwise expressly provided in this Agreement, the parties' rights and remedies under this Agreement are cumulative.
Section 6 LIMITED LICENSE
6.1 LICENSED PRODUCTS. Use of the Licensed Products by Customer and its Users is strictly limited to use in connection with the Solution or Services during the term of this Agreement. Customer and Users will refrain from, and will require others to refrain from, doing any of the following with regard to the Software in the Solution: (i) directly or indirectly, by electronic or other means, copy, modify, or translate the Software; (ii) directly or indirectly, by electronic or other means, reproduce, reverse engineer, distribute, sell, publish, commercially exploit, rent, lease, sublicense, assign or otherwise transfer or make available the Licensed Products or any part thereof to any third party, or otherwise disseminate the Licensed Product in any manner; (iii) directly or indirectly, by electronic or other means, modify, decompile, or disassemble the Software or part thereof, or attempt to derive source code from the Software; or (iv) remove any proprietary notices, labels, or marks on the Software or any part of the Licensed Products. Motorola Solutions reserves all rights to the Software and other Licensed Products not expressly granted herein. Customer agrees to abide by the copyright laws of the United States and all other relevant jurisdictions, including without limitation, the copyright laws where Customer uses the Solution. Customer agrees to immediately cease using the Solution if it fails to comply with this paragraph or any other part of this Agreement. Customer and its Users must comply with the WAVE End User License Agreement in Exhibit A which is incorporated into this Agreement.
6.2.1 Solution Data. Motorola, its vendors and licensors are the exclusive owners of all right, title, and interest, in and to the Solution Data, including all intellectual property rights therein. Motorola grants Customer a personal, royalty-free, non-exclusive license to: (i) access, view, use, copy, and store the Solution Data for its internal business purposes and, (ii) when specifically permitted in writing by Motorola, publish Solution Data on its websites for viewing by the public.
6.2.2 Customer Data. Customer retains ownership of Customer Data. Customer grants Motorola and its subcontractors a personal, royalty-free, perpetual, non-exclusive license to access, use, copy, modify, Customer data for the purpose of providing the Services to Customer, other Motorola Customers and end users. In addition to the rights listed above, Customer grants Motorola a license to sell the anonymous version of Customer Data for any purpose
Section 7 WARRANTY AND DISCLAIMERS
7.1 SERVICE WARRANTY. Services and the Software used to provide the Services will operate in accordance with the Documentation provided by Motorola. Customer’s sole and exclusive remedy for breach of this warranty is re-performance of the Services. OTHER THAN THE FOREGOING, MOTOROLA DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. Customer acknowledges that Deliverables, if any, may contain recommendations, suggestions or advice from Motorola to Customer (collectively, “Recommendations”). Motorola makes no warranties concerning those Recommendations, and Customer alone accepts responsibility for choosing whether and how to implement the Recommendations and the results to be realized from implementing them.
7.2 NO GUARANTEE. Customer acknowledges that functionality of the Solution as well as availability and accuracy of Solution Data is dependent on many elements beyond Motorola’s control, including databases managed by Customer or third parties and Customer’s existing equipment, software, and Customer Data. Therefore, Motorola does not guarantee availability or accuracy of data, or any minimum level of coverage or connectivity. Interruption or interference with the Services or Solution may periodically occur. Customer agrees not to represent to any third party that Motorola has provided such guarantee.
7.3 EXISTING EQUIPMENT AND SOFTWARE. If Customer’s existing equipment and software is critical to operation and use of the Services, Customer is solely responsible for supporting and maintaining Customer’s existing equipment and software. Connection to or interface with Customer’s existing equipment and software may be required to receive Services. Any failures or deficiencies of Customer’s existing equipment and software may impact the functionality of the Solution and the Services to be delivered. Any vulnerabilities or inefficiencies in Customer’s system may also impact the Solution and associated Services.
7.4 PRIVACY. Customer bears sole responsibility for compliance with any laws and regulations regarding tracking; location based services; gathering, storing, processing, transmitting, using or misusing; or otherwise handling personally identifiable information (PII), including information about Users of the Solution or citizens in the general public. Further, it is Customer’s sole responsibility to comply with any laws or regulations prescribing the measures to be taken in the event of breach of privacy or accidental disclosure of any PII. Enacting and enforcing any internal privacy policies for the protection of PII, including individual disclosure and consent mechanisms, limitations on use of the information, and commitments with respect to the storage, use, deletion and processing of PII in a manner that complies with applicable laws and regulations will be Customer’s sole responsibility. Motorola will not evaluate the sufficiency of such policies and disclaims any responsibility or liability for privacy practices implemented by Customer, or lack thereof.
7.5 SOCIAL MEDIA. If Customer purchases Services that utilize social media, Customer acknowledges and agrees that such Services are not designed to ensure individual privacy. In such case, Customer will inform Users that the Solution and Services may enable visibility to PII, as well as physical location of individuals. Further, if the Solution or Services are available to the general public pursuant to this Agreement, Customer will provide the appropriate privacy notification. Neither Motorola nor Customer can provide any assurance of individual privacy in connection with the Solution or Services utilizing social media. Further, Customer is solely responsible for determining whether and how to use data gathered from social media sources for the purpose of criminal investigations or prosecution. Customer will hold Motorola harmless from any and all liability, expense, judgment, suit, or cause of action, which may accrue against Motorola for causes of action for damages related to tracking, location based services, breach of privacy, and the use or misuse of PII provided that Motorola gives Customer prompt, written notice of any such claim or suit. Motorola shall cooperate with Customer in its defense or settlement of such claim or suit.
7.6 Motorola reserves the right to discontinue service at any time without notice to Users that misuse the Service, jeopardize the Licensed Product or public safety in any way.
Section 8 LIMITATION OF LIABILITY
8.1 Except for personal injury or death, Motorola's total liability, whether for breach of contract, warranty, negligence, strict liability in tort, or otherwise, will be limited to the direct damages recoverable under law, but not to exceed the price of twelve (12) months of Service provided under this Agreement. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, THEY AGREE THAT MOTOROLA WILL NOT 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 OR THE PERFORMANCE OF THE SERVICES BY MOTOROLA. This limitation of liability provision survives the expiration or termination of this Agreement and applies notwithstanding any contrary provision. No action for contract breach or otherwise relating to the transactions contemplated by this Agreement may be brought more than one (1) year after the accrual of the cause of action, except for money due upon an open account.
8.2 MOTOROLA DISCLAIMS ANY AND ALL LIABILITY FOR ANY AND ALL LOSS OR COSTS OF ANY KIND ASSOCIATED WITH 1) THE INTERRUPTION, INTERFERENCE OR FAILURE OF CONNECTIVITY, VULNERABILITIES OR SECURITY EVENTS, WHETHER OR NOT THEY ARE DISCOVERED BY MOTOROLA; 2) PERFORMANCE OF CUSTOMER’S EXISTING EQUIPMENT AND SOFTWARE OR ACCURACY OF CUSTOMER DATA; 3) IF ANY PORTION OF THE SOLUTION OR LICENSED PRODUCT RESIDES ON CUSTOMER’S PREMISES, DISRUPTIONS OF AND/OR DAMAGE TO CUSTOMER’S OR A THIRD PARTY’S INFORMATION SYSTEMS, EQUIPMENT, AND THE INFORMATION AND DATA, INCLUDING BUT NOT LIMITED TO, DENIAL OF ACCESS TO A LEGITIMATE SYSTEM USER, AUTOMATIC SHUTDOWN OF INFORMATION SYSTEMS CAUSED BY INTRUSION DETECTION SOFTWARE OR HARDWARE, OR FAILURE OF THE INFORMATION SYSTEM RESULTING FROM THE PROVISION OR DELIVERY OF THE SERVICE; 4) AVAILABILITY OR ACCURACY OF SOLUTION DATA; 5) INTERPRETATION, USE OR MISUSE IN ANY WAY OF SOLUTION DATA; 6) IMPLEMENTATION OF RECOMMENDATIONS PROVIDED IN CONNECTION WITH THE SERVICES; 7) TRACKING AND LOCATION BASED SERVICES, BREACH OF PRIVACY, AND THE USE OR MISUSE OF PERSONALLY IDENTIFIABLE INFORMATION.
8.3 The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
SECTION 9 TERMINATION
9.1 Customer may terminate this Agreement at any point for its convenience.
9.2 Motorola may terminate this Agreement immediately for non-payment of fees. Motorola may terminate for its convenience with thirty (30) days prior written notice.
9.3 No further subscription fees will be charged for after termination of the subscription. If a subscription is terminated for any reason prior to the end of the subscription expiration period, no refund or credit will be issued.
Section 10 DISPUTES
10.1. SETTLEMENT PREFERRED. The parties will attempt to settle any dispute arising from this Agreement (except for a claim relating to intellectual property or breach of confidentiality) through consultation and a spirit of mutual cooperation. The dispute will be escalated to appropriate higher-level managers of the parties, if necessary. If cooperative efforts fail, the dispute will be mediated by a mediator chosen jointly by the parties within thirty (30) days after notice by one of the parties demanding non-binding mediation. The parties will not unreasonably withhold consent to the selection of a mediator, will share the cost of the mediation equally, may agree to postpone mediation until they have completed some specified but limited discovery about the dispute, and may replace mediation with some other form of non-binding alternative dispute resolution (“ADR”).
10.2. LITIGATION. A Party may submit to a court of competent jurisdiction any claim relating to intellectual property, breach of confidentiality, or any dispute that cannot be resolved between the parties through negotiation or mediation within two (2) months after the date of the initial demand for non-binding mediation. Each Party consents to jurisdiction over it by that court. The use of ADR procedures will not be considered under the doctrine of laches, waiver, or estoppel to affect adversely the rights of either Party. Either Party may resort to the judicial proceedings described in this section before the expiration of the two-month ADR period if good faith efforts to resolve the dispute under these procedures have been unsuccessful; or interim relief from the court is necessary to prevent serious and irreparable injury to the Party.
Section 11 GENERAL
11.1. TAXES. The Subscription Fees do not include any excise, sales, lease, use, property, or other taxes, assessments or duties, all of which will be paid by Customer except as exempt by law. If Motorola is required to pay any of those taxes, such taxes will be added to the Subscription Fees and due in accordance with the payment terms. Motorola will be solely responsible for reporting taxes on its income or net worth.
11.2. ASSIGNABILITY. Neither Party may assign this Agreement without the prior written consent of the other Party (which will not be unreasonably withheld or delayed), except that Motorola may assign this Agreement to any of its affiliates.
11.3. SUBCONTRACTING. Motorola may subcontract any portion of the Services without the prior written consent of Customer.
11.4 WAIVER. Failure or delay by either Party to exercise a right or power will not be a waiver of the right or power. For a waiver of a right or power to be effective, it must be in a writing signed by the waiving Party. An effective waiver of a right or power will 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.
11.5. SEVERABILITY. If a court of competent jurisdiction renders any part of this Agreement invalid or otherwise unenforceable, that part will be severed and the remainder of this Agreement will continue in full force and effect.
11.6. INDEPENDENT CONTRACTORS. Each Party will perform its duties under this Agreement as an independent contractor. The parties and their personnel will not be considered to be employees or agents of the other Party. Nothing in this Agreement will be interpreted as granting either Party the right or authority to make commitments of any kind for the other. This Agreement will not constitute, create, or be interpreted as a joint venture, partnership or formal business organization of any kind.
11.7. HEADINGS AND SECTION REFERENCES. The section headings in 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. This Agreement will be fairly interpreted in accordance with its terms and conditions and not for or against either Party.
11.8. GOVERNING LAW. To the extent permitted by applicable law, this Agreement and the rights and duties of the parties will be governed by and interpreted in accordance with the laws of the State of Illinois, USA.
11.9. FUTURE REGULATORY REQUIREMENTS. The Parties acknowledge and agree that this is an evolving technological area and therefore, laws and regulations regarding Services and use of Solution may change. Changes to existing Services or Solution required to achieve regulatory compliance may be available for an additional fee. Any required changes may also impact the Subscription Fees of additional products and services.
11.10. NOTICES. Notices required under this Agreement to be given by one Party to the other must be in writing and either delivered personally, electronically, or with confirmed delivered to the address provided by the applicable Party.
11.11. COMPLIANCE WITH APPLICABLE LAWS. Each Party will comply with all applicable federal, state, provincial, and local laws, regulations and rules concerning the performance of this Agreement. Further, Customer will comply with all applicable export and import control laws and regulations in its use of the Licensed Products and Services. In particular, Customer will not export or re-export the Licensed Products without Motorola’s' prior written consent, and, if such consent is granted, without Customer first obtaining all required United States or Canadian, as applicable, and foreign government licenses. Customer further agrees to comply with all applicable laws and regulations in providing the Customer Data to Motorola, and Customer warrants and represents to Motorola that Customer has all rights necessary to provide such Customer Data to Motorola for the uses as contemplated hereunder. Customer shall obtain at its expense all necessary licenses, permits and regulatory approvals required by any and all governmental authorities as may from time to time be required in connection with its activities related to this Agreement. To the extent permitted by applicable law, Customer will defend, indemnify, and hold harmless Motorola from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees.
11.12. AUTHORITY TO EXECUTE AGREEMENT. Each Party represents that it has obtained all necessary approvals, consents and authorizations to enter into this Agreement and to perform its duties under this Agreement; the person executing this Agreement on its behalf has the authority to do so; upon execution and delivery of this Agreement by the parties, it is a valid and binding contract, enforceable in accordance with its terms; and the execution, delivery, and performance of this Agreement does not violate any bylaw, charter, regulation, law or any other governing authority of the Party.
11.13. RETURN OF EQUIPMENT. Upon termination of the contract for any reason, Customer shall return all Motorola owned equipment delivered to Customer, if any.
11.14. AUDIT. Motorola reserves the right to monitor and audit use of the Services. Customer will cooperate and will require Users to cooperate with such monitoring or audit.
11.15. SURVIVAL OF TERMS. The following provisions survives the expiration or termination of this Agreement for any reason: if any payment obligations exist, Section 3 (Payment); Section 5 (Confidential Information and Proprietary Rights); Section 8 (Limitation of Liability); Section 9 (Termination); Section 10 (Disputes); and all General provisions in Section 11.
11.16 ENTIRE AGREEMENT. This Agreement, including Exhibits, constitutes the entire agreement of the parties regarding the subject matter of this Agreement and supersedes all previous agreements, proposals, and understandings, whether written or oral, relating to the subject matter. This Agreement may be amended or modified only by a written instrument signed by authorized representatives of both parties. The preprinted terms and conditions found on any Customer purchase order, acknowledgment or other form will not amend or modify this Agreement.
IF THE FOREGOING TERMS AND CONDITIONS ARE ACCEPTABLE TO CUSTOMER, PLEASE INDICATE AGREEMENT AND ACCEPTANCE BY CLICKING BELOW ON THE BUTTON LABELED “ACCEPT”.
END USER LICENSE AGREEMENT
THE ACCOMPANYING SOFTWARE AND DOCUMENTATION (EACH AS DEFINED BELOW) BELONG TO TWISTED PAIR SOLUTIONS, A MOTOROLA SOLUTIONS COMPANY (“LICENSOR”) OR ITS LICENSORS AND ARE SUBJECT TO THIS END USER LICENSE AGREEMENT (“AGREEMENT”). WHEN YOU CLICK THE “ACCEPT” BUTTON OR WHEN YOU OTHERWISE INSTALL OR USE ANY PART OF THE SOFTWARE OR DOCUMENTATION, (i) YOU ARE REPRESENTING AND WARRANTING THAT YOU HAVE THE AUTHORITY TO BIND LICENSEE AND (ii) YOU ARE CONSENTING TO BE BOUND BY, AND BECOMING A PARTY TO, THIS AGREEMENT. IF YOU DO NOT AGREE TO (OR CANNOT COMPLY WITH) ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “CANCEL” BUTTON AND YOU WILL NOT BE AUTHORIZED TO USE OR HAVE ANY LICENSE TO ANY PART OF THE SOFTWARE OR DOCUMENTATION.
IF YOU ARE DEEMED TO HAVE ORDERED THE SOFTWARE AND/OR DOCUMENTATION, LICENSOR’S ACCEPTANCE IS EXPRESSLY CONDITIONAL ON ASSENT TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER BY LICENSOR, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
1. Definitions. The following underlined terms shall have the following meanings:
1.1 “Competitive Products” shall mean any product that supports the same or similar functionality as the Software.
1.2 “Documentation” means any Licensor documentation that may be provided to you with the Software, including with any upgrade or update to the Software. Any particular Documentation applies only to the Software with which it is provided and for which it was prepared.
1.3 “Licensee” or “you” means the person or entity obtaining the Software and Documentation and made a party to this Agreement.
1.4 “Object Code” means any compiled, assembled or machine-executable version of the Software, or any part thereof.
1.5 “Software” means this computer program accompanying this Agreement, in Object Code form only, together with upgrades and updates that are made generally available by Licensor, and includes certain third-party software, which may only be used in conjunction with Licensor’s Software, and which third parties shall be the direct and intended third-party beneficiaries of this Agreement.
1.6 “Source Code” means the human readable form of the Software.
2. License Grant. Subject to all the terms and conditions of this Agreement, Licensor hereby grants to you a nonexclusive, non-sublicenseable, non-assignable right and license, under Licensor’s intellectual property rights in the Software and Documentation, to use the Software and Documentation, only in accordance with any applicable Documentation, on the levels of servers and as to the number of client access licenses for which you have purchased a license.
3. Ownership. As between the parties, Licensor (or its licensors) retains title to and ownership of and all proprietary rights with respect to the Software and Documentation and all copies and portions thereof. The license grant hereunder does not constitute a sale of the Software or Documentation or any portion or copy of them, and except as expressly provided herein, you do not acquire any intellectual property or other proprietary rights in or related thereto.
4. Protection Requirements.
4.1 Legends and Notices. You shall not remove from the Software or Documentation or modify any product identification, copyright notices or other notices that appear on the Software or Documentation.
4.2 Copies. You shall not copy, in whole or in part, the Software or Documentation or modify for any purpose whatsoever without the express written consent of Licensor, except for one copy solely for backup purposes. You must reproduce and include any product identification and notices referred to in Section 4.1 on any copies and any associated media.
4.3 Certain Restrictions. You shall not (and shall not allow any third party to): (i) decompile, disassemble, translate, bootleg or otherwise reverse engineer or attempt to reconstruct or discover any Source Code or underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Software, or of any files contained in or generated using the Software, by any means whatsoever; (ii) provide, lease, lend, use for timesharing, outsourcing or hosting or service bureau purposes or otherwise use or allow others to use the Software to or for the benefit of third parties, (iii) modify, incorporate into or with other software or create a derivative work of any part of the Software; or (v) create or disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software.
4.4 Competitive Products. You shall not develop, market or sell any Competitive Product based on or derived in any way from the Software, Documentation or from the benefits of know-how resulting from access to or work with Licensor’s Confidential Information. The term “benefits of know how” means information in non-tangible form which may be retained by persons who have had access to the Confidential Information, including ideas, concepts, know how or techniques contained therein.
4.5 Confidentiality. You acknowledge that the Software constitutes valuable proprietary information and includes Licensor’s trade secrets and copyrights, and you will preserve the confidentiality of the Software in the same manner that you protect your own confidential information and, in any event, with at least reasonable and prudent care.
4.6 Publicly Available Software. The Software contains or is provided with components subject to the terms and conditions of “open source” software licenses (“Open Source Software”). Open Source Software may be identified in the Documentation, or Licensor shall provide a list of the Open Source Software for a particular version of the Software to you upon your written request. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering. You agree to comply with the terms and conditions set forth in the licenses applicable to such Open Source Software.
5.1 Warranty. Licensor hereby warrants that, during the Warranty Period, the unmodified Software, when used in accordance with the associated Documentation, will materially conform to the technical specifications set forth in the Documentation applicable to such Software. The “Warranty Period” begins on the date Licensor makes the Software available for electronic download by you and ends ninety days later. This limited warranty is void if Software failure has resulted from modification, accident, abuse, misuse or misapplication of the Software or other conduct or conditions outside the control of Licensor. Your sole remedy for any breach of this limited warranty shall be, at Licensor’s sole discretion, either (i) return of the price paid by you for the defective Software or (ii) repair or replacement by Licensor of the defective Software. The warranty set forth in this Section 5.1 will terminate upon any termination of the license granted hereunder.
5.2 Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SOFTWARE, RELATED SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS”. TO THE EXTENT PERMITTED BY APPLICABLE LAW. LICENSOR, FOR ITSELF AND ON BEHALF OF ITS SUPPLIERS, EXCLUDES ALL TERMS, CONDITIONS AND WARRANTIES, BE THEY EXPRESS OR IMPLIED BY LAW, STATUTE, COURSE OF DEALING, USAGE OR TRADE PRACTICE OR OTHERWISE. SPECIFICALLY, AND WITHOUT LIMITATION, ON ITS OWN BEHALF AND THAT OF ITS SUPPLIERS, LICENSOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY AND ANY WARRANTIES RELATING TO NON-INTERRUPTION OF USE OR FREEDOM FROM ERRORS, VIRUSES OR BUGS. NO PERSON IS AUTHORIZED TO MAKE ANY WARRANTY OR REPRESENTATION ON BEHALF OF LICENSOR CONCERNING THE SOFTWARE OR DOCUMENTATION. TO THE EXTENT AN IMPLIED TERM, CONDITION OR WARRANTY CANNOT BE EXCLUDED OR DISCLAIMED, THEN IT IS LIMITED IN DURATION TO THE WARRANTY PERIOD.
6. Maintenance. Licensor is not responsible for maintenance and support under this Agreement.
7. Term, Termination and Survival. The license granted hereunder is effective until terminated. The license granted hereunder will terminate automatically if you fail to cure any material breach of this Agreement within 30 days of receiving notice of such breach from Licensor or the Partner (or immediately upon notice in the case of a breach of Section 4 (Protection of Software). Upon termination, you shall immediately cease all use of the Software and Documentation and return or destroy all copies of the Software and Documentation and all portions thereof and, at Licensor’s request, so certify to Licensor. Except for the license granted hereunder and except as otherwise expressly provided herein, the terms of this Agreement shall survive any termination of the license granted hereunder. Termination is not an exclusive remedy and all other remedies will be available whether or not the license granted hereunder is terminated.
8. Limitation of Remedies and Damages. LICENSOR SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE OR OTHERWISE), STRICT LIABILITY OR OTHER THEORY (i) FOR INTERRUPTION OF USE, OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (ii) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR (iii) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. LICENSOR’S LICENSORS SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE OR OTHERWISE), STRICT LIABILITY OR OTHER THEORY WHATSOEVER. LICENSOR’S AGGREGATE LIABILITY FOR ALL CLAIMS, ACTIONS AND/OR OMISSIONS ARISING FROM OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF FEES PAID BY YOU TO LICENSOR IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM ARISES. THESE LIMITATIONS WILL APPLY EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
9. Government Matters.
9.1 Export. You shall comply with all applicable import and export laws, restrictions, and regulations of any United States or foreign agency or authority. You will not import or export or re-export, or allow the import or export or re-export of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any such laws, restrictions or regulations.
9.2 Government Procurement. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all software and accompanying documentation provided in connection with this Agreement are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement. You will ensure that each copy used or possessed by or for the government is labeled to reflect the foregoing.
10.1 Governing Law; Venue for Disputes. This Agreement shall be governed in all respects by the laws of the state of Washington and the United States, without regard to the choice of law rules thereof. Application of the U.N. Convention on Contracts for the International Sale of Goods is expressly excluded. The sole jurisdiction and venue for actions relating to the subject matter hereof shall be the state and US federal courts located in King County, Washington. Both parties consent to the jurisdiction of such courts and agree that process may be served in the manner provided by applicable Washington state or United State federal law.
10.2 Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover its reasonable costs and attorneys’ fees.
10.3 Equitable Remedies. The parties agree that a material breach of this Agreement adversely affecting Licensor’s proprietary rights in the Software or Documentation would cause irreparable injury to Licensor for which monetary damages would not be an adequate remedy and that Licensor shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law.
10.4 Waivers; Amendments. No delay, omission, or failure to exercise any right or remedy provided herein shall be deemed to be a waiver thereof or an acquiescence in the event giving rise to such right or remedy, but every such right or remedy may be exercised, from time to time as may be deemed expedient by the party exercising such remedy or right. Any waivers or amendments shall be effective only if made in writing by non-preprinted agreements and signed by a representative of the respective parties authorized to bind the parties.
10.5 Invalidity. In the event that any provision of this Agreement is unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law.
10.6 Assignment. Neither this Agreement nor any rights granted herein may be assigned or transferred by you, whether voluntarily or by operation of law, without the express written permission of Licensor, and any attempt to do so shall be null and void. This Agreement or any rights or obligations hereunder may be assigned by Licensor without your consent.
10.7 Relationship of Parties. Nothing herein shall be deemed to create an employer-employee relationship between Licensor and you, nor any agency, joint venture or partnership relationship between the parties. Neither party shall have the right to bind the other to any obligation, nor have the right to incur any liability on behalf of the other.
10.8 Entire Agreement. This Agreement is the complete and exclusive agreement between the parties with regard to the subject matter hereof and supersedes any and all prior discussions, negotiations and memoranda related hereto.