HomeMy WebLinkAbout03272A - MOTOROLA LICENSE AGR MO5233 DOCUMENT TRACKING
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Report: One Document Detail October 2, 2007
Condition: Document NumberA3272,
Document# Description Approval Date Expiration Date Closed Date
A3272 Smartnet Communication System 08/04/1993 06/01/2004
Company Name: Motorola Communications '
Address: 1303 East Algonquin Rd.,, Schaumburg, IL 60196 1�0
Phone: (800) 247-2346
Group: INFO SERVICES
Service: In File
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INXV
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Motorola, Inc.
License Agreement
AGREEMENT #3272A
M05233, 8-4-93
License Ageement
LICENSE AGREEMENT
This License Agreement: is between MOTOROLA, INC:., a Delaware
Corporation, by and through its Communication Sector, having an office at 1301 East
Algonquin Road, Schaumburg, Illinois 60196 ("Motorola") and the licensee natrud
below("Licensee").
WHEREAS, Motorola has developed or acquired, or will develop or acquire
Programs (as hereinafter defined)) and/or Programs for incorporation into Motorola
Products;
WHEREAS, when the Licensee purchases, from time to time through various
purchase contracts or otherwise, Programs and/or Programs incorporated into Motorola
Products, the Licensee acquires cr-rtain rights in such Programs and may utilize such
Programs in accordance with this License Agreement; and
WHEREAS, as the time of purchase by Licensee, a Software License Level may
be indicated for each Program or Program contained within a Motorola Product on such
purchase contracts or otherwise.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter expressed, Licensee and.Motorola agree as follows:
SECTION 1 -DEFINITIONS
1.1 'UCENSEE" shall mean the licensee indicated at the end of this
Agreement
1.2 "LICENSED SUBSIDIARIES" shall mean all Subsidiaries of Licensee
that have executed this Al eement or an Addendum hereto agreeing that the
terms and conditions of this Agreement shall apply to such Subsidiary. Upon
becoming a Licensed Subsidiary, such Subsidiary shall be treated for all purposes
as a Licensee hereunder and shall be bound by all of the terms and conditions
hereof.
1.3 "LICENSEE'S PERSONNEL" shall mean any person who is directly
employed by the Licensee.
1.4 `MOTOROLA PRODUCTS" shall mean products designed,
manufactured, acquired and/or sold by Motorola's Communications Sector, as
identified in purchase contracts or as otherwise identified.
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1.5 "PROGRAMS" shall mean object code software for use in conjunction
with Motorola Products or for use within Motorola Products.
1.6 "SUBSIDIARY" shall mean any corporation, company, or"other entity
more than fifty percent (50%) of whose outstanding shares of stock entitled to
vote for the election of directors (other than any shares or stock whose voting
rights are subject to restriction) is owned or controlled by a parry hereto, directly
or indirectly, now or hereafter, but any such company or other entity is a
Subsidiary only so long as such ownership or control exists.
1.7 'TRANSFEREE" shall mean a third parry corporation, company, or other
entity (other than a Licensed Subsidiary) that may acquire rights in certain
Programs having a Level Two Software License through a written agreement
with the License.
SECTION 2 - LICENSE
2.1 LEVEL ONE SOFTWARE LICENSE: Motorola hereby grants to
Licensee a personal, nonexclusive, and nontransferable Level One Software
License for Programs purchased by Licensee which are identified, in writing, as
Level One Software, and for any such Programs that do not have an expressly
written software leveL A Level One Software License shall contain the following
terms and provisions:
2.1.1 Licensee may use such Programs solely for the intended purpose
of the Programs;
2.1.2 Licensee may only use Programs in the United States,in a country
expressly stated in purchase: contracts pertaining to the Programs, or in a country
that is otherwise identified in a written agreement that is signed by a least
Motorola;
2.1.3 Licensee shall not disseminate, disclose, or make available the
Programs, or any parts thereof, in any form to a third party without the express
written consent of Motorola:
2.1.4 Licensee shall not disassemble or reverse engineer the Programs,
or any portion thereof, without the express written consent of Motorola;
2.1-5 Licensee will take appropriate action, by instruction, agreement or
otherwise, with any persons, including Licensee's Personnel, permitted access to
the Programs, such that Licensee satisfies its confidentiality obligations under this
License Agreement;
2.1.6 Licensee shall not make copies of the Programs without the
express written consent of Motorola, except for up to four(4) backup copies;
08/18/93 Page 2 of 10
2.1.7 Title to Programs and any copies thereof, in whole or in part, and
all rights in patents, copyrights, trade secrets, and other intellectual properties of
such Programs are vested in Motorola;
2.1.3 The License shall include all copyright notices, trademark notices,
and other proprietary legends in accordance with MotoroWs instructions on all
copies of the Programs it makes; and
2.1.9 Licensee acknowledges and agrees that the existence of any
copyright notice on any Program shall not be construed as an admission or
presumption that publication of such Program has occurred.
2.2 LEVEL TWO SOFTWARE LICENSE: Motorola hereby grants to
Licensee a personal, nonexclusive, transferable Level Two Software License for
such Programs purchased 'by Licensee which are identified, in writing as Level
Two Software. A Level Two Software License shall contain the following terms:
2?.1 Licenses may use such Programs solely for the intended purpose of
the Programs and only in the distributed form of the Programs;
2.2.2 Licensee shall not make copies of the Programs except for four (4)
backup copies; however, this restriction does not include records stoned on
electronic or magnetic media that have been created by the Programs and used for
system management purposes;
2.2.3 Licensee shall not modify, adapt, or merge the Programs;
2.2.4 Licensee shall not make the Programs available to a third party
that is not bound by a similar License Agreement and does not have a need to
know;
2.2.5 Licensee may not disassemble, decompile, or otherwise reverse
engineer the Programs;
2.2.6 Licensee shall pay all applicable sales and use taxes or certify its
exemption therefrom;
2.2-7 Licensee shall comply with the export regulations of the Office of
Export Administration for the United States Department of Commerce;
2.2.3 Licensee may transfer such Programs in their entirely to a
Transferee, but only if the Transferee uses the Programs under the same License
terms and provisions as specified herein from Motorola; and
08/18/93 Page 3 of 10
2.2.9 Title to Programs and any copies thereof, in whole or in part, and
all rights in patents, copyrights, trade secrets, and other intellectual properties of
such Programs are vested in Motorola.
2.3 LEVEL THREE SOFTWARE LICENSE Motorola hereby grants to
Licensee a personal, nonexclusive, and nontransferable Level Three Software
License for such Programs purchased by Licensee which are identified, in
writing, as Level Three Software. A Level Three Software License shall contain
the following terms and provisions:
2.3.1 Licensee may use Programs solely for the intended purpose of the
Programs;
2.3.2 Licensee may only use Programs at a site, or sites, expressly stated
in purchase contracts pertaining to the Programs, or at a site, or sites that are
otherwise identified in a written agreement that is signed by Motorola. If a site is
not specified, the Licensee; may use the Programs only at the facility where the
Programs were initially installed;
2.3.3 Licensee shall not disseminate, disclose, or make available the
Programs, or any parts thereof, in any form to a third party without the express
written consent of Motorola;
2.3.4 Licensee shall not disassemble or reverse engineer the Programs,
or any portion thereof, without the express written consent of Motorola;
2.3.5 Licensee will take appropriate action, by instruction, agreement or
otherwise, with any persons, including Licensee's Personnel, permitted access to
the Programs, such that Licensee satisfies its confidentiality obligations under this
License Agreement;
2.3.6 Licensee may make copies of the Programs, but only in sufficient
quantities to service the site, or sites, expressly stated in purchase contracts
pertaining to the Programs or otherwise identified in a written agreement that is
signed by at least Motorola. If a site is not specified, the Licensee may only make
copies of the Programs in sufficient quantities to service the facility where the
Programs were initially installed;
2-3.7 Title to Programs and any copies thereof, in whole or in part, and
all rights in patents, copyrights, trade secrets, and other intellectual properties of
such Programs are vested in Motorola;
2.3.8 The Licensee shall include all copyright notices, trademark
notices, and other proprietary legends in accordance with Motorola's instructions
on all copies of the Programs it makes; and
O9/18/93 Page 4 of 10
2.3.9 Licensee acknowledges and agrees that the existence of any
copyright notice on any program shall not be construed as an admission or
presumption that publication of such Program has occurred.
SECTION 3 - PROVISIONS AND CONDITIONS FOR SOFTWARE
LICENSES
3.1 Licensee agrees to pay for each Program, a one-time, lump-sum, License
fee. Each such License fee shall be due and payable upon receipt of invoice
unless otherwise specified. Service charges at the maximum rate permitted by
applicable law may be invoiced on accounts more that ten (10) days past due and
shall be due and payable upon receipt of invoice for such service charges.
3.2 The License fee for each Program will be listed in Motorola
Communications Sector's current Price Book, current addendum to such Price
Book, or other tangible form. License fees in the Price Book are subject to
change without notice. Orders for each Program will be billed at the License fee
in effect on the day Licensee's order is entered.
3.3 Licensee shall pay all sales, use and excise taxes, and any other
assessments in the nature of taxes,however designated:
3.3.1 on each Program or its License or use;
3.3.2 resulting from this License Agreement; or
3.3.3 on any amount payable for any services furnished under this
License Agreement, exclusive of personal property taxes assessed on the Program
and taxes based on Motorola's 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.
3.4 Licensee shall not assign or transfer this License Agreement or sublicense
any Program purchased under this License Agreement without the prior written
consent of Motorola. Any prohibited assignment, transfer or sublicense shall be
null and void.
3.5 Motorola reserves the right to assign this License Agreement, encumber or
sell any Program, or subcontract any of its obligations hereunder, either in whole
or in part, without notice to or the consent of licensee.
3.6 Motorola shall not be responsible for support or field service of any
Program under this License Agreement Any maintenance by Motorola, if
available, shall be by separate agreement on Motorola's ten current terms and
conditions and at Motorola's then current prevailing rates for such maintenance.
08/18/93 Page 5 of 10
SECTION 4-TERM OF LICENSE AGREEMENT
4.1 This License Agreement shall have a term of ten (10) years and shall be
applicable to all Programs and/or Programs contained within Motorola Products
that are purchased, or otherwise acquired, by Licensee, or Transferee, during the
term of this License Agreement
4.2 This License Agreement may be terminated prior to the expiration of the
ten year term for the reasons set forth in Section 6. For premature termination,
the procedures specified in Section 6 must be followed
SECTION 5 - CONFIDEN ITA =
5.1 Licensee shall keep each Program confidential and shall not use any
Program for any purpose other than its intended purpose.
5.2 Licensee shall restrict access to each Program to Licensee's Personnel who
have a need to know.
5.3 Licensee shall not disclose or disseminate Programs, or any parts thereof,
to any third party during the term of this License Agreement and for a period of
ten years after the termination of this License Agreement, without the express
written consent of Motorola
5.4 The obligations of this Section 5 shall survive the expiration, termination,
or cancellation of this License Agreement for any cause.
5.5 The obligations of this Section 5 shall not apply to information that:
5.5.1 Is or becomes publicly known through no wrongful act on the part of
Licensee;
5.5.2 Is already known to Licensee at the time of disclosure;
5.5.3 Is rightfully received by Licensee from a third party without breach of this
License Agreement; or
5.5.4 Is explicitly approved for public release by written authorization of
Motorola.
SECTION 6- TERMINATION
6.1 If either party commits a material breach of any of its obligations set forth
herein, in a purchase contract for Programs, or other agreement regarding
08/18N3 Page 6 of 10
• i
Programs, the other party may give written notice of termination to the breaching
party. The written notice of termination shall specify the material broach and
must specify whether the entire License Agreement is being terminated or
whether the License Agreement is being terminated with respect to a particular
Program, or particular Programs. Upon receipt of the written notice of
termination, the breaching parry shall have sixty (60) days to cure the material
breach. In the event that the material breach is not cured during the sixty (60)
days, the License Agreement is terminated as specified in the written notice of
termination.
6.2 The termination set forth in Section 6.1 shall not be exclusive of any other
remedies or means of redness to which the non-breaching party may be lawfully
entitled
6.3 Upon termination of this License Agreement or termination of this
License Agreement for any particular Program(s), Licensee shall promptly
forward to Motorola, or to Motorola s designee, all copies of Programs for which
this License Agreement is terminated.
SECTION 7 -WARRANTY
7.1 For the first one (1) year following its initial shipment, Motorola warrants
that, when properly used, its Programs will be free from reproducible defects that
cause a material variance from its published specification. However, Motorola
does not warrant that Program operation will be uninterrupted or error-free, that
each defect will be corrected, or that any Program operation will be uninterrupted
or error-free, that each defect will be corrected, or that any Program will meet
Licensee's particular requirements.
7.2 MOTOROLA'S TOTAL LIABILITY AND LICENSEE'S SOLE
REMEDY FOR ANY WARRANTED PROGRAM SHALL BE LIIv=D TO,
AT MOTOROLA'S OPTION, PROGRAM REPLACEMENT OR THE
PAYMENT OF LICENSEE'S ACTUAL DAMAGES, NOT TO EXCEED THE
SUMS PAID TO MOTOROLA FOR THE MOTOROLA PRODUCT
INCORPORATING THE DEFECTIVE PROGRAM. THIS WARRANTY
EXTENDS ONLY TO THE FIRST LICENSEE; SUBSEQUENT
TRANSFEREES ACCEPT THESE PROGRAMS "AS IS" AND WITHOUT
WARRANTIES OF ANY RIND. THIS WARRANTY REPLACES ALL
OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
SECTION 8 - LIMITATION OF LIABILITY
8.1 The entire Motorola liability to Licensee for damages concerning
performance or nonperformance by Motorola under the License Agreement or in
08/18/93 Page 7 of 10
any way related to the subject matter of the License Agreement, regardless of
whether the claim for such damages is based in contract, tort or otherwise, and
Licensee's sole and exclusive remedy shall be limited to the payment by Motorola
of actual damages not to exceed the total License fee paid by Licensee for the
Program, or Programs that caused the damages or is the subject maitcr of or is
directly related to such claim.
8.2 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 DAMAGE OR FOR
ANY CLAIM AGAINST LICENSEE BY ANY OTHER PARTY.
SECTION 9 -INDEMNIFICATION
If promptly notified in writing, Motorola will defend any suit against
License that claims that U.S. patents, copyrights, or trade secrets of another have
been infringed solely by Motorcla's unaltered Programs and will pay any
associated costs or damages finally awarded. Upon Motorola's request, Licensee
agrees to reasonably assist in any defense and surrender control of the suit to
Motorola. Motorola may elect, at any time, to modify or replace these Programvs
with equivalent non-infringing items, obtain the right to continue using the
Programs. Motorola shall have no liability for infringement that arises from any
modification of Motorola s Programs by Licensee or from Licensee's combination
of Motorola's Programs with another's.
SECTION 10 -GENERAL PROVISIONS
10.1 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.
10.2 All formal notices, consents and other communications required or
permitted under this License Agreement shall be writing and shall be sent in such
a way as to assure receipt by the other parry. Either parry may change its address
for formal notices by written notice to the other parry.
10.3 This License Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
10.4 No representation or promise relating to, and no amendment of, this
License Agreement shall be binding unless it is in writing and signed by both
parries.
08/18/93 Page 8 of 10
10.5 The terms and conditions of this License Agreement shall prevail
notwithstanding any variance with the terms an conditions of any order submitted
by Licensee.
10.6 Motorola shall not be liable for any failure to perform due to causes
beyond its reasonable control-
10.7 No waiver by a party of any breach of any provision of this License
Agreement shall constitute a waiver of any other breach of that or any other
provision of this License Agreement.
10.8 Licensee recognizes that applicable Federal Communications Act and
other stamtes, 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 this License Agreement to comply with such change.
10.9 In the event that any of the provisions contained in this License
Agreement are held to be unenforceable, this License Agreement shall be
construed without such provisions.
10.10 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.
10.11 When, at the time a Program or Program contained within a Motorola
Product is shipped, a Software Level is not indicated in the purchase contract or
otherwise, such Program shall be deemed Level One Software. The Software
Level of a Program may be; amended by a written agreement signed by Motorola.
ACCEPTED AND APPROVED AS OF
,1993.
08/18/93 Page 9 of 10
0 •
MOTOROLA: LICENS
MOTOROLA,INC OF PALM GS,
California
BY: 6 F.L' BY:
(Authorized Signature.) ( n oozed
Signature)
Please type the following: Please type the following.
NAME: Ernie Tate NAME:
TIME: Vice President TITLE
DATE 9/1/93 DATE
Customer It
Address for Formal Notices: Address for Formal Notices:
Motorola,Inc.
1303 East Algonquin Road
Schaumburg,Illinois 60196
Attu: Intellectual Property Department Atn
ATTEST
AF Pii4C i? 91°THE ( 9TY COUNCIL Ciey Clerk 3
APPROVED AS TO FORM:
RUTAN & TUCKER
By-! -mil S)4�L
David ' Aleshire
City Attorney
08/18/93 Page 10 of 10