1
[MOTOROLA LOGO]
MOTOROLA MASTER RADIO SERVICE SOFTWARE LICENSE
AGREEMENT
(C) Motorola 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 from Motorola, a limited license for Motorola's Radio Service object
code software, including any supplements, or any updates 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 Worldwide System & Aftermarket Products 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. This License Agreement is an offer to license by
Licensee, which will become effective
(A) after the Licensee has signed this License Agreement and returned
it to Motorola, at the address below; and
(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.
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 within the
United States 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:
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
1
2
--------------------------------------------------------------------------------
MOTOROLA MASTER RADIO SERVICE SOFTWARE LICENSE AGREEMENT
--------------------------------------------------------------------------------
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 of section 3(D) 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 deleted or removed from any computer prior to any use
of the computer at any other 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 or otherwise from any other location.
D. 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 locations unless the Licensee has purchased from Motorola
additional copies for such other locations;
E. Licensee may only request additional Licensee locations by
re-executing a new Appendix A to this License Agreement, wherein each and
every Licensee location is identified;
F. Licensee shall not use the Software, the Archive Files or the Edited
Archive Files and acquires no right under this Agreement to modify a
radio, the Software, the Archive Files or the Edited Archive Files in any
manner that (i) is determined to be illegal or an unfair deceptive trade
practice in violation of any applicable federal, state or local law, rule
or regulation; (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
patent rights, trademark 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 accounts 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
current Worldwide System & Aftermarket Products 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.
5. TAXES. Licensee shall pay all sales, use and excise taxes, and any other
assessments 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 amount
payable or any services furnished under the License Agreement, 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 acknowledges that the Software and each copy of Archive Files
and Edited Archive Files contain 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 agrees
not to disclose, transfer, provide, or otherwise make available in any form
whatsoever the Archive Files, Edited Archive Files, or the Software, the
information therein, or any portion thereof, to any person or organization,
other than Licensee's employees without the prior written consent of Motorola.
Licensee further agrees to use the Software, the Archive files, the
Edited Archive Files, the information contained therein, or any portion thereof
only as permitted in this License 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
obligations 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 will reproduce and include all copyright 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
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 addition to its
other remedies at law or in equity, to immediately and without prior notice to
Licensee
2
3
--------------------------------------------------------------------------------
MOTOROLA MASTER RADIO SERVICE SOFTWARE LICENSE AGREEMENT
--------------------------------------------------------------------------------
terminate this License Agreement, Licensee's license hereunder for each item of
Software, or both.
The terms of this Section 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 conditions 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 SOFTWARE
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 sixty 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). 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 mass 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 Section 10 herein below by the Licensee;
(b) Licensee ceases to function as a going concern, declares
bankruptcy, or otherwise becomes insolvent.
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,
terminate 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.
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 THE ITEM OF SOFTWARE 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 MAY BE
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 or telex if confirmed by such mailing, to the addresses
indicated in the License Agreement. Either party may change its address for the
purpose of formal notice by written notice to the other party.
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 THE SUBJECT MATTER OF THE
LICENSE AGREEMENT.
16. GENERAL TERMS AND CONDITIONS.
THIS AGREEMENT IS DEEMED BY THE PARTIES TO HAVE BEEN ENTERED INTO IN ILLINOIS;
AND THIS AGREEMENT'S INTERPRETATION, CONSTRUCTION AND THE RIGHTS, DUTIES AND
REMEDIES FOR ITS BREACH ARE TO BE DECIDED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF ILLINOIS. No representation or promise relating to and no
3
4
--------------------------------------------------------------------------------
MOTOROLA MASTER RADIO SERVICE SOFTWARE LICENSE AGREEMENT
--------------------------------------------------------------------------------
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.
Motorola and Licensee each consent to jurisdiction over it by such a court.
Licensee recognizes that applicable Federal Communications Act and other
statutes, 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. 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 (1) year after the cause of action has
arisen.
ACCEPTED AND APPROVED BY MOTOROLA AS OF
NOV 08 1994, 19
-------------------- --
MOTOROLA
MOTOROLA, LICENSEE
BY: /s/ XXX XXXXXXXX BY: /s/ XXXXX X. XXXXXX
------------------------------ ------------------------------
(Authorized Signature) (Authorized Signature)
Please type the following: Please type the following:
NAME: Xxx Xxxxxxxx NAME: Xxxxx X. Xxxxxx
----------------------------- -----------------------------
TITLE: V.P. and General Manager TITLE: President
---------------------------- ----------------------------
DATE: NOV 08 1994 DATE: 9/22/94
----------------------------- ----------------------------
Address for Formal Notices: Address for Formal Notices:
Motorola Champion Comm. Services, Inc.
Dealer Support Services ----------------------------------
0000 Xxxx Xxxxxxxxx Xxxx (Company Name)
Room 4330
Xxxxxxxxxx, Xxxxxxxx 00000 1111 Xxxxx #2121
----------------------------------
(Address)
Xxxxxxx, Xx. 00000
----------------------------------
(City, State, Zip)
Attn: Xxxx Xxxxxx
-----------------------------
Customer No.:
---------------------
PLEASE COMPLETE ALL OF THE INFORMATION PERTAINING TO THE LICENSEE AND RETURN
THIS ENTIRE LICENSE TO MOTOROLA AT THE ABOVE ADDRESS.
4
5
APPENDIX A TO MOTOROLA MASTER RADIO SERVICE SOFTWARE AGREEMENT
BETWEEN
MOTOROLA AND
("LICENSEE")
---------------------------------------------
LOCATION 1: Champion Comm. Services, Inc. DATE: 9/22/94
------------------------------ ----------------------------
1111 Xxxxx #2121 ATTN: Xxxxx Xxxxxx
------------------------------ ----------------------------
Xxxxxxx, Xx. 00000 PHONE: (000) 000-0000
------------------------------ ---------------------
LOCATION 2: DATE:
------------------------------ ----------------------------
ATTN:
------------------------------ ----------------------------
PHONE: ( )
------------------------------ ---------------------
LOCATION 3: DATE:
------------------------------ ----------------------------
ATTN:
------------------------------ ----------------------------
PHONE: ( )
------------------------------ ---------------------
LOCATION 4: DATE:
------------------------------ ----------------------------
ATTN:
------------------------------ ----------------------------
PHONE: ( )
------------------------------ ---------------------
ACCEPTED AND APPROVED BY MOTOROLA AS OF
NOV 08 1994, 19
-------------------- --
MOTOROLA
MOTOROLA, LICENSEE
BY: /s/ XXX XXXXXXXX BY: /s/ XXXXX X. XXXXXX
------------------------------ ------------------------------
(Authorized Signature) (Authorized Signature)
Please type the following: Please type the following:
NAME: Xxx Xxxxxxxx NAME: Xxxxx X. Xxxxxx
----------------------------- -----------------------------
TITLE: V.P. and General Manager TITLE: President
---------------------------- ----------------------------
DATE: NOV 08 1994 DATE: 9/22/94
----------------------------- ----------------------------
