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HomeMy WebLinkAboutItem #05 Purchase of Fire Dept. Digital Radiostre C of Good I . co AGENDA ITEM COVER SHEET Meeting Date: January 15, 2013 Item # 5 Contact Name: Contact Number: Fire Chief Pete McNeil 407 - 905 -3140 Reviewed By: Department Director: Pete McNeil City Manager: Robert Frank „� Subject: Purchase of Fire Department Digital Radios Background Summary: The FY 2012/2013 budget provided $31,902 for the purchase of 6 Motorola XTS 5000 digital portable radios, ' XTL 5000 digital mobile radio, and related accessories. These radios are necessary in order to bring the department's radio inventory to the same level as it was prior to the Orange County radio system switching to digital in early 2012. Due to budgetary constraints, only the minimum number of radios needed to maintain normal operations were purchased during FY2011 -12. The addition of the requested radios will equip Reserve Engine -39, as well as provide needed back -up radios and the availability of radios for special events and disasters. Motorola radios must be purchased. Motorola is a sole source provider for these radios and the attached quote, totaling $30,888.85, which reflects the Broward Sheriff's Office contract pricing. Issue: Should the Honorable Mayor and Board of City Commissioners authorize the purchase of 6 Motorola XTS 5000 digital portable radios, 1 XTL 5000 digital mobile radio, and related accessories from Motorola by piggybacking off the Broward Sheriff's Office contract at a total cost of $30,888.85? Recommendations: It is respectfully recommended that the Honorable Mayor and Board of City Commissioner authorize the purchase of 6 Motorola XTS 5000 digital portable radios, 1 XTL 5000 digital mobile radio, and related accessories from Motorola by piggybacking off the Broward Sheriff's Office contract. Attachments: Motorola Quote Broward Sheriff's Office Contract with Motorola Financial Impact: FY 20012/2013 budget provided $31,902 for the purchase of the requested digital radios with $31,492 in Small Equipment (001- 522 -00 -5230) and $410 Operating (001- 522 -00 -5202) Type of Item: (please mark with an `x') Public Hearing Ordinance First Reading Ordinance Second Reading Resolution X Commission Approval Discussion & Direction A Unginal Document/Contract Attached for Execution by City Clerk Original Document/Contract Held by Department for Execution Reviewed by City Attorney Reviewed by Finance Dept. Reviewed by N/A N/A N/A For Clerk's Dept Use: Consent Agenda Public Hearing Regular Agenda 2 dft fo MOTOROLA SOLUTIONS Bill -To: OCOEE FIRE DEPT, CITY OF 125 N BLUFORD AVE OCOEE, FL 34761 United States Attention: Name: Robert LaBrunda Email: RLabrunda @ci.ocoee.fl.us Phone: 407 - 335 -9101 Quote Number: QU0000214333 Effective: 13 DEC 2012 Effective To: I 1 FEB 2013 Sales Contact: Name: Bill McAlpin MR Email: bill.mcalpin @wtecross.com Phone: 4076970469 Request For Quote: 12122012C XTS Contract Number: BROWARD COUNTY SHERIFF'S OFFICE Freight terms: FOB Destination Payment terms: Net 30 Due Item Quantity Nomenclature Description Your price Extended Price 1 6 H18UCF9PW6AN PORTABLE XTS5000 MODEL 113X2 $1,966.40 $11,798.40 KEYPAD DISPLAY 1000 CHANNELS 764- 870MHZ la 6 H885BK ENH: 2 YEAR REPAIR SERVICE $71.40 $428.40 ADVANTAGE Ib 6 Q44AC ADD: RE ANTENNA SWITCH $8.00 $48.00 (NTN8327) Ic 6 Q806BA ADD: SOFTWARE ASTRO DIGITAL $412.00 $2,472.00 CAI OPERATION Id 6 H38BR ADD: SMARTZONE SYSTEM $1,200.00 $7,200.00 SOFTWARE le 6 Q696AB ALT: ANTENNA 1/2 WAVE 7" WHIP $4.00 $24.00 700/800 MHZ (NAF5080) If 6 Q361AK ENH: PROJECT 25 9600 BAUD $240.00 $1,440.00 TRUNKING SOFTWARE Ig 6 G996AC ENH: OVER THE AIR PROVISIONING $80.00 $480.00 1 6 H14AL ENIE ENHANCED PTT ID DISPLAY $60.00 $360.00 1 i 6 Q947AH ENH: RS232, IV &D PACKET $160.00 $960.00 INTERFACE 2 1 M20URS9PWIAN XTL 5000 MOBILE 10-35 WATT, $1,197.60 $1,197.60 764- 87OMHZ 2a I G24AX ENH: 2 YEAR REPAIR SERVICE $102.85 $102.85 ADVANTAGE 2b I W22AS ADD: PALM MICROPHONE $57.60 $57.60 2c I G66AA ADD: DASH MOUNT $100.00 $100.00 2d I G806AT ENH: SOFTWARE ASTRO DIGITAL CAI $412.00 $412.00 OPERATION 2e I W947AL ADD: RS232 & IV &D PACKET DATA $160.00 $160.00 INTERFACE 2f I G442AB ADD: XTL 5000 05 CONTROL HEAD $345.60 $345.60 2g I G444AA ADD: ADD: CONTROL HEAD - - SOFTWARE 2h 1 G51AM ENH: 3600 SMARTZONE OPERATION $1,200.00 $1,200.00 2i 1 G361AE ENH: ASTRO PROJECT 25 TRUNKING $240.00 $240.00 SOFTWARE 2j I G335AT ADD: ANTENNA 1/4 WAVE $11.20 $11.20 764 -870M HZ 2k I B 18CL ADD: AUXILARY SPKR SPECTRA 7.5 $48.00 $48.00 WATT 21 1 G 114AE ENH: ENHANCED DIGITAL ID $60.00 $60.00 DISPLAY 21n I G996AF ENH: PROGRAMMING OVER P25 $80.00 $80.00 3 6 PMMN4038A REMOTE SPEAKER MICROPHONE, $68.15 $408.90 IP57 4 6 NTN1873A CHARGER, IMPRES RAPID RATE, 110V $127.05 $762.30 US PLUG 5 6 NNTN4435B IMPRES NiMH 1800 mAh BATT $82.00 $492.00 (Notes)SPARE BATTERIES Total Quote in USD pRICING IS BASED ON THE BROWARD COUNTY SHERIFF'S CONTRACT #08M -020 $30,888.85 PO Issued to Motorola Solutions Inc. must: >Be a valid Purchase Order (PO) /Contract/Notice to Proceed on Company Letterhead. Note: Purchase Requisitions cannot be accepted >Have a PO Number /Contract Number & Date >Identify "Motorola Solutions Inc." as the Vendor >Have Payment Terms or Contract Number >Be issued in the Legal Entity's Name >Include a Bill -To Address with a Contact Name and Phone Number >Include a Ship -To Address with a Contact Name and Phone Number >Include an Ultimate Address (only if different than the Ship -To) >Be Greater than or Equal to the Value of the Order >Be in a Non - Editable Format >Identify Tax Exemption Status (where applicable) >Include a Signature (as Required) t�rro�e rtc Serlrice wih Itafe�v>rfif DATE: September 25, 2012 12M -215 MEMO TO: William MacDonald, Director, Bureau of Finance & Budget (via email) Victor Marrero, Director, Risk Management (via email) Donna Council, Director, Purchasing Administration (via email) FROM: 4eresa Sands, Senior Legal Counsel ffice of the General Counsel SUBJECT: Executed Contract — Motorola Solutions, Inc.- Master Purchase Agreement Enclosed please find a copy of the agreement between the Broward Sheriff's Office and the following: Agreement Summary Party: BSO and Motorola Solutions, Inc. Purpose: Master Agreement allowing for the purchase of products and related services from Motorola's Government and Enterprise Business Consideration: Varies. Motorola shall provide the Equipment based on the pricing structure outlines in the current version of Motorola's Domestic User Price Book Term: October 1, 2012 — September 30, 2013 Special • BSO reserves the right to terminate this Agreement, without cause, upon Conditions: providing written notice to Motorola. • BSO shall provide Motorola with proof of tax exemption upon execution of this Agreement. • The equipment warranty period is one year from the date of delivery of the equipment Approved by: • Director Rick Carpani, CTD • Jose de Zayas, Comm. Technology Systems Manager, CTD • Irene Costa, Contract Manager, Purchasing Administration TS /ag Enclosures cc: Col. Wiley D. Thompson III, Executive Director, Administration (via email) Jose de Zayas, Comm. Technology Systems Mgr, CTD (via email) Irene Costa, Contract Manager, Purchasing Administration (via email) Lygia Torres, Telecomm. Program Mgr, CTD (via e -mail) Cynthia Burroughs, Administrative Assistant, Administration (via email) Diane MacDonald, Administrative Assistant, Bureau of Finance & Budget (via email) AGREEMENT by and between AL LAMBERTI, AS SHERIFF OF BROWARD COUNTY FLORIDA And MOTOROLA SOLUTIONS, INC. THIS AGREEMENT entered into this day of. -;i ) 2012, by and between AL LAMBERTI, as the Sheriff of Broward County, Florida (hereinafter referred to as "BSO ") and MOTOROLA SOLUTIONS, INC. (hereinafter referred to as "MOTOROLA "). BSO and MOTOROLA may be referred to individually as a "Party" and collectively as the "Parties." For good and valuable consideration, the Parties agree as follows: In consideration of the terms and conditions contained herein, BSO and MOTOROLA covenant and agree as follow: SECTION I SCOPE OF SERVICES This is a Master Purchase Agreement, whereby during the term of this Agreement BSO has the right, but not the duty, to purchase from time to time Products and related services from Motorola's Government and Enterprise business, including parts but excluding Products and services offered by Motorola's Integrated Solutions Division. Pricing for the Products and services will be pursuant to the List of Products and Pricing, Exhibit B. Motorola will provide, ship, and install (if applicable) the Products, and perform the services and its other contractual responsibilities, all in accordance with this Agreement. BSO will perform its contractual responsibilities in accordance with this Agreement. 1.1. Products. Pricing for the Products is based upon Motorola's then current calendar year published list Domestic User Price Book ( "DNUP ") less the specified discount percentage. 1.2. Services. BSO may purchase engineering, project management, system technologist, or installation services at the per diem rates shown in the List of Products and Pricing, Exhibit B, (normal eight hour work day, excluding weekends and holidays) with a half -day minimum. Beginning with the first renewal period, these per diem rates will be increased by 3.0% or as otherwise agreed by the Parties. This Agreement does not cover any other type of services, services related to a system sale, or maintenance and support of the Products except as provided under any applicable warranty. If Motorola deems it to be appropriate, it will prepare a statement of work to describe the particular services to be provided, a test plan, or a performance schedule. If BSO wishes to purchase a system or maintenance and support, upon BSO's request, Motorola will provide a proposal that will include a separate Communications System Agreement or Maintenance and Support Agreement, as applicable. 1.3. EXCLUSIVE METHOD FOR PLACING ORDERS. During the term of this Agreement, BSO (and any other Eligible Purchaser) may order Products or the services described above in Sections 1.1 and 1.2, if they are then available for sale by Motorola. Each order must refer to this Agreement as Motorola ref no. 12- 29077/JHJ, v.9 -14 -12 1 Motorola Contract No. 12- 29077/JHJ and must specify the Product by model number, the unit price, the number of units being purchased, and the extended price; concerning services, each order must specify the type of services being purchased. Motorola will make reasonable efforts to deliver the ordered subscriber and accessory Products within six (6) weeks from receipt of order or sooner and to perform the services in a reasonably prompt manner. Motorola will make reasonable efforts to also ship other Products outside of subscribers and accessories within eight (8) weeks. Motorola will make best efforts to ship all orders within the time listed above, however this will be dependent on product availability at time of purchase and the location of ship acceptance. Motorola shalll notify BSO in writing if any orders are delayed for specified reasons. BSO may also track shipping by viewing orders using Motorola Online ( "MOL "). Alternatively, BSO may register with and place orders through Motorola Online ( "MOL "), and this Agreement will be the "Underlying Agreement" for those MOL transactions rather than the MOL On -Line Terms and Conditions of Sale. MOL registration and other information may be found at http:// www. motorola .com /businessandgovernment/ and the MOL telephone number is (800) 814 -0601. The applicable provisions of this Agreement will govern the purchase and sale of the Products and services, notwithstanding any different terms and conditions contained in an order or acknowledgment of an order. 1.4. Exhibits The exhibits listed below are incorporated into and made a part of this Agreement. In interpreting this Agreement and resolving any ambiguities, the main body of this Agreement takes precedence over the exhibits and any inconsistency between the exhibits will be resolved in their listed order. Exhibit A MOTOROLA "Software License Agreement" Exhibit B MOTOROLA'S Memorandum of Insurance Exhibit C Drug Free Workplace Certification by Vendor 1.7. Definitions "Contract Price" means the price for the Products, excluding applicable sales or similar taxes and freight charges. "Effective Date" means that date upon which the last Party executes this Agreement. "Equipment" means the equipment listed in the List of Product s that BSO purchases from MOTOROLA under this Agreement. "Infringement Claim" means a third party claim alleging that the Equipment manufactured by MOTOROLA or the Motorola Software infringes upon the third party's United States patent or copyright. "Motorola Software" means Software that MOTOROLA or its affiliated company owns. "Non- Motorola Software" mean Software that another party owns. Motorola ref no. 12- 29077/JHJ, v.9 -14 -12 2 "Open Source Software" (also called "freeware" or "shareware ") means software with either freely obtainable source code, license for modification, or permission for free distribution. "Products" mean the Equipment and Software provided by MOTOROLA under this Agreement. "Proprietary Rights" means the patents, patent applications, inventions, copyrights, trade secrets, trademarks, trade names, mask works, know -how, and other intellectual property rights in and to the Equipment and Software, including those created or produced by MOTOROLA under this Agreement and any corrections, bug fixes, enhancements, updates or modifications to or derivative works from the Software whether made by Motorola or another party. "Software" means the Motorola Software and Non - Motorola Software in object code format that is furnished with Products. SECTION II MANNER OF PERFOMANCE 2.1 MOTOROLA shall perform all services in a sound and workmanlike manner. All services shall adhere to the utmost professional standards. 2.2 MOTOROLA agrees to perform, at all times faithfully, industriously, and to the best of its ability, experience, and talent, all of the duties that may be required of and from it pursuant to the terms of this Agreement. 2.3 Neither party shall be liable for failure to perform as a result of an event, circumstance, or act of a third party that is beyond a party's reasonable control (e.g., an act of God, and act of the public enemy, an act of a government entity, strikes or other labor disturbances, hurricanes, earthquakes, fires, floods, epidemics, embargoes, war, and riots). SECTION III TERM This Agreement shall commence on October 1, 2012 and remain in full force and effect until September 30, 2013, unless terminated or renewed as provided herein. This Agreement may be renewed upon mutual written agreement of the parties for up to four (4) consecutive one (1) year renewal periods. SECTION IV CONSIDERATION 4.1 MOTOROLA shall provide the Equipment based on the pricing structure as follows: Price Lists; and the Current version of Motorola's Domestic User Price Book at the time an order is placed. Radios and Accessories: 20% X- Series P25 Subscribers; Motorola ref no. 12- 29077/JHJ, v.9 -14 -12 3 25% APX P25 Subscribers; 23% X- Series /APX Accessories; 15% X- Series; 20% APX Conventional Subscribers; 8 %TRBO Subscribers and Accessories; 15% Motorola WARIS Categorized Commercial Subscribers and Accessories; 15% on all other Motorola Manufactured Equipment; 25 %SCADA Equipment; 8% Motorola Drop Ship Equipment; 15% Wireless Broadband /Networking Equipment; 10% Computer Aided Dispatch (CAD); 5% Long Term Evolution (LTE); 15% MVX100; MW810; 7% Video Security; 10% ALPR. 4.2 MOTOROLA shall submit invoices to the BSO detailing the equipment provided and the cost of such equipment. BSO shall have the right to provide written objections to such invoice within seven (7) days of BSO'S receipt of such invoice. If no objection is made within such seven (7) days period, payment shall be made within ten (ten) days thereafter. 4.3 MOTOROLA shall allow other governmental entities and agencies within [Broward County or the State of Florida] to purchase, under the same terms and conditions, the equipment provided for in this Agreement. 4.4 FREIGHT, TITILE, AND RISK OF LOSS. MOTORLA will pre -pay and add all freight charges to the invoices. Title and risk of loss to the Equipment will pass to BSO upon acceptance of the delivery by BSO. Title to Software will not pass to BSO at any time. MOTOROLA will pack and ship all Equipment in accordance with good commercial practices. 4.5 INVOICING AND SHIPPING ADDRESSES_ Invoices will be sent to the BSO at the following address: William MacDonald, Director Bureau of Finance & Budget Broward Sheriff's Office 2601 W. Broward Boulevard Fort Lauderdale, Florida 33311 The county which is the ultimate destination where the Equipment will be delivered to BSO is: Broward County, Florida The Equipment will be shipped to the BSO at the address(es) indicated on the purchase order. BSO may change this information by giving written notice to Motorola. SECTION V Motorola ref no. 12- 29077/JHJ, v.9 -14 -12 4 EXPENSES MOTOROLA shall be fully and solely responsible for any and all expenses incurred by MOTOROLA in the performance of this Agreement, including, but not limited to, cost of supplies, fees, licenses, bonds or its applicable taxes, and all other costs of doing business. MOTOROLA shall not, in any manner, incur indebtedness on behalf of BSO. SECTION VI SOVEREIGN IMMUNITY BSO is entitled to the protections of sovereign immunity as set forth in Florida Statutes Sec. 768.28. Nothing in this Agreement is intended or shall be deemed to waive or modify BSO'S sovereign immunity. SECTION VII SITES AND SITE CONDITIONS 7.1.1. ACCESS TO SITES. If Motorola is providing installation or other services, BSO will provide all necessary construction and building permits, licenses, and the like; and access to the work sites or vehicles as reasonably requested by Motorola so that it may perform its contractual duties. 7.1.2. SITE CONDITIONS. If Motorola is providing installation or other services at BSO's sites, BSO will ensure that these work sites are safe, secure, and in compliance with all applicable industry and OSHA standards. BSO will ensure that these work sites have adequate physical space; air conditioning and other environmental conditions; electrical power outlets, distribution and equipment; and telephone or other communication lines, all for the installation, use and maintenance of the Products. ACCEPTANCE Acceptance of the Products will occur upon delivery to BSO unless a statement of work or acceptance test plan exists and provides for acceptance verification or testing, in which case acceptance of the Products will occur upon successful completion of the acceptance verification or testing. Notwithstanding the preceding sentence, BSO's use of the Products for their operational purposes will constitute acceptance. WARRANTY 7.2.1 EQUIPMENT WARRANTY. From on (1) year from the date of delivery of the Equipment provided by MOTOROLA under this Agreement ( "Warranty Period "), MOTOROLA warrants that the Equipment under normal use and service will be free from material defects in materials and workmanship. 7.2.2 MOTORLA SOFTWARE WARRANTY. MOTOROLA warrants the Motorola Software solely in accordance with the terms of the Software License Agreement and the provisions of this Motorola ref no. 12- 29077/JHJ, v.9 -14 -12 5 Section that are applicable to the Motorola Software. BSO hereby accepts and agrees to abide by all of the terms and restrictions of the Software License Agreement. Any Non - Motorola Software is licensed to BSO in accordance with the standard license, terms, and restrictions of the copyright owner on the Effective Date unless the copyright owner has granted to MOTOROLA the right to sublicense the Non - Motorola Software pursuant to the Software License Agreement, in which case it applies and the copyright owner will have all of Licensor's rights and protections under the Software License Agreement. MOTOROLA makes no representations or warranties of any kind regarding Non - Motorola Software. Non - Motorola Software may include open source software. All open source software is licensed to BSO in accordance with, and BSO agrees to abide by, the provisions of the stands license of the copyright owner and not the Software License Agreement. Upon request by BSO, MOTOROLA will use commercially reasonable efforts to determine whether an open source software will be provided under this Agreement; and if so, identify the open source software and provide to BSO a copy of the applicable standard license (or specify where that license may be found); and provide to BSO a copy of the open source software source code if it is publicly available without charge (although a distribution fee or a charge for related services may be applicable). 7.2.3 SERVICES WARRANTY. During the Warranty Period, Motorola warrants that the services have been performed in a good and workmanlike manner. BSO's exclusive remedy for a breach of this services warranty is, at Motorola's option, to re- perform the services at no cost to the BSO or refund the Contract Price of the services that were not performed in a good and workmanlike manner. 7.2.4 EXCLUSIONS TO THE EQUIPMENT AND MOTOROLA SOFTWARE WARRANTIES. These warranties do not apply to : (i) defects or damage resulting from: use of the Equipment or Motorola Software in other that its normal, customary, and authorized manner; accident, liquids, neglect, or acts of God; testing, modification, or adjustment not provided or authorized in writing by MOTOROLA; BSO'S failure to comply with all applicable industry and OSHA standards, (ii) breakage of or damage to antennas unless caused directly by defects in material or workmanship, (iii) Equipment that has had the serial number removed or made illegible; (iv) batteries (because they carry their own separate limited warranty) or consumables; (v) freight cost to ship Equipment to the repair depot; (vi) scratches or other cosmetic damage to Equipment surfaces that does not affect the operation of the Equipment; and )vii) normal or customary war an tear. 7.2.5 WARRANTY CLAIMS. To assert a warranty claim, BSO must notify MOTOROLA in writing of the claim before the expiration of the Warranty Period. Upon receipt of this notice, MOTOROLA will investigate the warranty claim. If this investigation confirms a valid warranty claim, MOTOROLA will (at its option and at no additional charge to SHERIFF) repair the defective Equipment or Motorola Software, replace it with the same or equivalent product, or refund the price of the defective Equipment or Motorola Software. That action will be the full extent of MOTOROLA'S liability for the warranty claim. If this investigation indicates the warranty claim is not valid, then MOTOROLA may invoice BSO for responding to the claim on a time and materials basis using MOTOROLA'S then current labor rates. Repaired or replaced product is warranted for the balance of the original applicable Warranty Period. All replaced products or parts will become the property of MOTOROLA. Motorola ref no. 12- 29077/JHJ, v.9 -14 -12 6 7.2.6 ORIGINAL END USER IS COVERED. These express limited warranties are extended by MOTOROLA to the original user purchasing the Products for commercial, industrial, or governmental use only, and are not assignable or transferable. 7.2.7 DISCLAIMER OF OTHER WARRANTIES. THESE WARRANTIES ARE THE COMPLETE WARRANTIES FOR THE EQUIPMENT AND MOTOROLA SOFTWARE PROVIDE UNDER THIS AGREEMENT AND ARE GIVEN IN LIEU OF ALL OTHER WARRANITES. MOTOROLA DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRES OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SECTION VIII OPEN -END CONTRACT No guarantee is expressed or implied as to the total quantity of equipment purchased under this Agreement. BSO reserves the right to use other vendors for such services. SECTION IX EMPLOYMENT RESPONSIBILITY 9.1 Any employees utilized by MOTOROLA to fulfill the terms and conditions of the Agreement shall be deemed employees of MOTOROLA, not the BSO. 9.2 Accordingly, MOTOROLA shall be responsible for assuming the cost of contributions to pension funds, insurance premiums, workers compensation funds (Chapter 440, FSA), or other recognized employee benefits. 9.3 BSO shall not be liable for, and MOTOROLA agrees to indemnity BSO against any liability resulting from personal injury or illness, to MOTOROLA'S employees, agents, or servants during the performance of the services, duties, and responsibilities contemplated herein. SECTION X SUBCONTRACTORS MOTOROLA shall not subcontract its rights or obligations under this Agreement, unless prior written approval is received from the BSO. In the event any additional or different subcontractors are required or requested by BSO, or in the event BSO rejects the use of a particular subcontractor, such rejection must be submitted in writing and be based on just and reasonable cause. Any resultant change in contract price and /or schedule shall be mutually agreed upon. SECTION XI CRIMINAL HISTORY Motorola ref no. 12- 29077/JHJ, v.9 -14 -12 7 11.1 MOTOROLA represents that, to the best of its knowledge and belief, its principal owners, partners, corporate officers, and employees do not have any past felony criminal convictions or any pending criminal charges. Such information, if applicable, would be set forth in Motorola's Annual Report and 10K filings. 11.2 BSO reserves the right to approve or reject, for any reason, MOTOROLA'S staff assigned to this project at any time. MOTOROLA'S employees on premises may be subject to a criminal background check prior at the BSO'S expense, prior to providing services pursuant to this Agreement. SECTION XII INDEPENDENT CONTRACTOR 12.1 MOTOROLA has the right to provide services to others or hold itself out to the public as available to engage in agreements with others. 12.2 MOTOROLA shall at all times be an independent contractor under this agreement, rather than an employee, agents, or representative to BSO, and no act, action, or omission to act by MOTOROLA shall in any way obligate or bind BSO. SECTION XIII PAYMENT OF TAXES BSO shall provide MOTOROLA with proof of tax exemption upon execution of this Agreement. Notwithstanding anything to the contrary herein, MOTOROLA shall not be liable for payment of any taxes that are levied against BSO as a result of the purchase, ownership, or use of the Products. SECTION XIV TERMINATION 14.1 In the event that either party is in breach of any of terms and conditions of this Agreement, the non - breaching party shall provide written notice of such breach. The breaching party shall have ten (10) days from receipt of such notice to cure any breach under this Agreement. In the event the breaching party fails to cure such breach within the ten (10) day period, the non - breaching party reserves the right to immediately terminate this Agreement for cause. 14.2 BSO reserves the right to terminate this Agreement, without cause, upon providing the MOTOROLA with written notice of such termination. BSO agrees to pay MOTOROLA for all Equipment shipped and services rendered prior to the notice of termination. SECTION XV Motorola ref no. 12- 29077/JHJ, v.9 -14 -12 8 CIVIL RIGHTS REQUIREMENTS 15.1 MOTOROLA shall comply with all applicable sections of the Americans with Disabilities Act. 15.2 MOTOROLA shall not discriminate on the basis of race, age, color, gender, or national origin. 15.3 MOTOROLA agrees that compliance with this Section constitutes a condition to the Agreement, and that it is binding up MOTOROLA, its successors, transferees, and assignees for the period during which services are provided. MOTOROLA further assures that all subcontractors are not in violation of the terms of the Section. SECTION XVI CONFIDENTIALITY 16.1 MOTOROLA shall not at any time, in any manner, either directly or indirectly, communicate to any person, firm, corporation or other entity any information of any kind concerning any matter affecting or relating to the business of BSO, including, but not limited to, its manner of operation, its plans, computer systems, processes or other data of any kind, nature or description. 16.2 "Confidential Information" means all information consistent with the fulfillment of this Agreement that is (i) disclosed under this Agreement in oral, written, graphic, machine recognizable, and /or sample form, being clearly designated, labeled or marked as confidential or its equivalent or (ii) obtained by examination, testing or analysis of any hardware, software or any component part thereof provided by discloser to recipient. The nature and existence of this Agreement are considered Confidential Information. Confidential Information, that is disclosed orally must be identified as confidential at the time of disclosure and confirmed by the discloser by submitting a written document to the recipient within thirty (30) days after such disclosure. The written document must contain a summary of the Confidential Information disclosed with enough specificity for identification purpose and must be labeled or marked as confidential or its equivalent. 16.3. Confidentiality Obligation. Each party is a disclosing party ( "Discloser ") and a receiving party ( "Recipient ") under this Agreement. During the term of this Agreement and for a period of three (3) years from the date of expiration or termination of this Agreement, recipient will (i) not disclose Confidential Information to any third party; (ii) restrict disclosure of Confidential Information to only those employees (including, but not limited to, employees of any wholly owned subsidiary, a parent company, any other wholly owned subsidiaries of the same parent company), agents or consultants who must be directly involved with the Confidential Information for the purpose and who are bound by confidentiality terms substantially similar to those in this Agreement; (iii) not reverse engineer, de- compile or disassemble any Confidential Information; (iv) use the same degree of care as for its own information of like importance, but at least use reasonable care, in safeguarding against disclosure of Confidential Information; (v) promptly notify discloser upon discovery of any unauthorized use or disclosure of the Confidential Information and take reasonable steps to regain possession of the Confidential Information and prevent further unauthorized actions or other breach of this Agreement; and (vi) only use the Confidential Information as needed to fulfill this Agreement. Motorola ref no. 12- 29077/JHJ, v.9 -14 -12 16.4. Required Disclosure. If a recipient is required to disclose Confidential Information pursuant to applicable law, statute, or regulation, or court order, the recipient will give to the discloser prompt written notice of the request and a reasonable opportunity to object to such disclosure and seek a protective order or appropriate remedy. If, in the absence of a protective order, the recipient determines, upon the advice of counsel, that it is required to disclose such information, it may disclose only Confidential Information specifically required and only to the extent required to do so. 16.5. Confidential Exceptions. Recipient is not obligated to maintain as confidential, Confidential Information that recipient can demonstrate by documentation (i) is now available or becomes available to the public without breach of this Agreement; (ii) is explicitly approved for release by written authorization of discloser; (iii) is lawfully obtained from a third party or parties without a duty of confidentiality; (iv) is known to the recipient prior to such disclosure; or (v) is independently developed by recipient without the use of any discloser's Confidential Information or any breach of this Agreement. 16.6. Ownership and Retention. All Confidential Information remains the property of the discloser and will not be copied or reproduced without the express written permission of the discloser, except for copies that are absolutely necessary in order to fulfill this Agreement. Within ten (10) days of receipt of discloser's written request, recipient will return all Confidential Information to discloser along with all copies and portions thereof, or certify in writing that all such Confidential Information has been destroyed. However, recipient may retain one (1) archival copy of the Confidential Information that it may use only in case of a dispute concerning this Agreement. No license, express or implied, in the Confidential Information is granted other than to use the Confidential Information in the manner and to the extent authorized by this Agreement. The discloser warrants that it is authorized to disclose any Confidential Information it discloses pursuant to this Agreement. 16.4 PRESERVATION OF PROPRIETATY RIGHTS. MOTOROLA, the third party manufacturer of any Equipment, and the copyright owner of any Non - Motorola Software own and retain all of their respective Proprietary Rights in the Equipment and Software, and nothing in this Agreement is intended to restrict their Proprietary Rights. All intellectual property developed, originated, or prepared by MOTOROLA in connection with providing to BSO the Equipment, Software, or related services remain vested exclusively in MOTOROLA, and this Agreement does not grant to BSO any shared development rights of intellectual property. Except as explicitly provide in the Software License Agreement, MOTOROLA does not grant to BSO, either directly or by implication, estoppels, or otherwise, any right, title or interest in MOTOROLA'S Proprietary Rights. BSO will not modify, disassemble, peel components, decompile, otherwise reverse engineer or attempt to reverse engineer, derive source code or create derivative works from, adapt, translate, merge with other software, reproduce, or export the Software, or permit or encourage any third party to do so. The preceding sentence does not apply to open source software which is governed by the standard license of the copyright owner. SECTION XVII INDEMNIFICATION 17.1 GENERAL INDEMNITY BY MOTOROLA. MOTOROLA will indemnify, hold harmless and defend BSO, his officers and employees from any and all liability, expense, judgment, suit, cause of action, or demand from personal injury, death, or direct damage to tangible property which may accrue Motorola ref no. 12- 29077/JHJ, v.9 -14 -12 10 against BSO to the extent it is caused by the negligent acts or omissions or willful misconduct of MOTOROLA, its subcontractors, or their employees or agents. The BSO agrees to give MOTOROLA prompt, written notice of any claim or suit. BSO will cooperate with MOTOROLA in its defense or settlement of the claim or suit. This section sets forth the full extent of MTOROLA'S general indemnification of BSO from liabilities that are in any way related to MTOROLA'S performance under this Agreement. 17.2 INFRINGEMENT CLAIM INDEMNIFICATION. MOTOROLA will defend at is expense any suit brought against BSO to the extent that it is based on an Infringement Claim, and MOTOROLA will indemnify BSO for those costs and damages finally awarded against BSO for an Infringement Claim. MOTOROLA'S duties to defend and indemnify are conditioned upon: BSO promptly notifying MOTOROLA in writing of the Infringement Claim; MOTOROLA having sole control of the defense of the suit and all negotiations for its settlement or compromise; and BSO providing to MOTOROLA cooperation and, if requested by MOTOROLA, reasonable assistance in the defense of the Infringement Claim. If an Infringement Claim occurs, or in MOTOROLA'S opinion is likely to occur, MOTOROLA may at its option and expense, procure for BSO the right to continue using the Equipment or Motorola Software, replace or modify it so that it becomes non - infringing while providing functionally equivalent performance, or grant BSO a credit for the Equipment or Motorola Software as depreciated and accept its return. The depreciation amount will be calculated based upon generally accepted accounting standards for such Equipment and Motorola Software. MOTOROLA will have no duty to defend or indemnify for any Infringement Claim that is based upon the combination of the Equipment or Motorola Software with any software, apparatus or device not furnished by MOTOROLA; the use of ancillary equipment or software not furnished by MOTOROLA and that is attached to or used in connection with the Equipment or Motorola Software; any Equipment that is not MOTOROLA'S deign or formula; a modification of the Motorola Software by a party other than MOTOROLA; or the failure by BSO to install an enhancement release to the Motorola Software that is intended to correct the claimed infringement. The foregoing states the entire liability of MOTOROLA with respect to infringement of patents and copyrights by the Equipment, Motorola Software, and any of their parts. 'ECTION XVIII INSURANCE Throughout the duration of this Agreement and for all applicable statute of limitation periods, MOTOROLA shall maintain in full force and effect the insurance coverages set forth in the attached and incorporated Memorandum of Insurance — Exhibit C. Within thirty (30) day written notice by BSO, MOTOROLA shall provide a Certificate of Insurance Evidencing such coverage. Motorola ref no. 12- 29077/JHJ, v.9 -14 -12 11 SECTION XIX PUBLIC ENTITY CRIMES ACT In accordance with the Public Entity Crimes Act (Section 287.133, Florida Statues), a person or affiliate who has been placed on the convicted vendor list maintained by the State of Florida Department of General Services following a conviction for a public entity crime may not submit a bid on a contract with the BSO, may not be awarded or perform work as a consultant, supplier, or subcontractor, under a contract with BSO, and may not conduct business with BSO for a period of thirty six (36) months from the date of being placed on the convicted vendor list. Violation of this section by MOTOROLA shall result in termination of this Agreement and may cause MOTOROLA'S debarment. SECTION XX DRUG -FREE WORKPLACE MOTOROLA shall provide a drug -free workplace program in accordance with applicable laws and in accordance with the Drug Free Workplace Certification attached as Exhibit "D" and incorporated herein. SECTION XXI ASSIGNMENT This Agreement, or any interest herein, shall not be assigned, transferred or otherwise encumbered by MOTOROLA, under any circumstances, without the prior written consent of BSO, except that MTOROLA may assign this Agreement to any of its affiliates or its right to receive payment without the prior consent of Customer. SECTION XXII NOTICE Any notice hereunder by one party to the other party shall be given in writhing by personal delivery, facsimile, regular mail, commercial express carrier such as Federal Express, UPS, or DHL, or certified mail with proper postage, to the party at the addresses designated in the Agreement. Any notice shall be effective on the date it is received by the addressee. Either party may change its address for notice purposed by giving the other party nice of such change in accordance with this paragraph. Notices shall be addressed as follows: Communications Technology Director Broward Sheriff's Office 2601 W. Broward Boulevard Fort Lauderdale, FL 33312 Motorola ref no. 12- 29077/JHJ, v.9 -14 -12 12 With a copy to: Office of the General Counsel Broward Sheriff's Office 2601 W. Broward Blvd. Fort Lauderdale, FL 33312 MOTOROLA Motorola Solutions, Inc., Law Department 1303 E. Algonquin Road, I1-01, 8`" Floor Schaumburg, IL 60196 Attn.: Judith Jean - Pierre, Commercial Counsel SECTION XXIII AGREEMENT TERMS TO BE EXCLUSIVE This written Agreement contains the sole and entire Agreement between the parties. The parties acknowledge and agree that neither of them has made any representation with respect to the subject matter of this Agreement or any representation inducing its execution and delivery except such representations as are specifically set forth in the writhing, and the parties acknowledge that they have relied on their own judgment in entering into the same. The parties further acknowledge that any statements or representation that may that may have been made by either of them to the other are void and of no effect and that neither of them has relied on such statements or representation in connection with its dealing with the other. SECTION XXIV WAIVER OR MODIFICATION OF AGREEMENT No waiver or modification of this Agreement or of any covenant, condition or limitation contained herein shall be valid unless it is reduced to written form and duly executed by the parties. No evidence of any waiver or modification of the terms herein shall be offered or received in evidence in any proceeding, arbitration, or litigation between the parties arising, in any manner, out of this Agreement, unless such waiver or modification is in writing and duly executed by the parties. SECTION XXV AGREEMENT GOVERNED BY LAW OF STATE OF FLORIDA It is the parties' expressed intent that this Agreement and its performance, as well as, all suits and special proceedings relating to it, be construed in accordance with and pursuant to the laws of the State of Florida. The laws of the State of Florida shall be applicable and shall govern to the exclusion of the law of any other forum, without regard to the jurisdiction in which any legal action or special proceeding may be instituted, commenced or initiated. SECTION XXVI THIRD PARTY BENEFICIARIES Motorola ref no. 12- 29077/JHJ, v.9 -14 -12 13 Neither MOTOROLA nor BSO intends to directly or indirectly benefit a third party by this Agreement. Therefore, the parties agree that there are no third party beneficiaries to this Agreement and that no third party shall be entitled to assert a claim against the parties based upon this Agreement. SECTION XXVII LIMITATION OF LIABILITY Except for personal injury or death, MOTOROLA's total liability, whether for breach of contract, warranty, negligence, strict liability in tort, indemnification, or otherwise, will be limited to the direct damages recoverable under law, but not to exceed the price of the Equipment, Software, or services with respect to which losses or damages are claimed. ALTHOUGH THE PARTIES ACKNOWLEDGE THE PSSIBILITY OF SUCH LOSSES OR DAMAGES, THEY AGREE THAT MOTORLA WILL NOT BE LIABLE FOR ANY COMMERCIAL LOSS; INCONVENIENCE; LOSS OF USE, TIME, DATA, GOOD WILL, REVENUES, PROFITS OR SAVINGS; OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT, THE SALE OR USE OF THE EQUIPMENT OR SOFTWARE, OR THE PERFORMANCE OF SERVICES BY MOTOROLA PURSUANT TO THE AGREEMENT. This limitation of liability provision survives the expiration or termination of the Agreement and applies notwithstanding any contrary provision. No action for contract breach or otherwise relating to the transactions contemplated by the Agreement may be brought more that none (1) year after the accrual of the cause of action, except for money due upon an open account. SECTION XXVIII MISCELLANEOUS 28.1 MOTOROLA shall comply with all the applicable statutes, laws, rules, codes, ordinances, and regulations of any and all federal, state and local political bodies having jurisdiction over the services provided herein. 28.2 In the event either party brings an action against the other to enforce any conditions or covenant of this Agreement; the prevailing party in such action shall be entitled to recover the court costs and reasonable attorneys' fees in the judgment rendered in such action. 28.3 The preparation of this Agreement has been a joint effort of the parties and the resulting document shall not solely as a matter of judicial construction, be construed more severely against one of the parties than the other. 28.4 Venue in any proceeding or action amount the parties arising out of this Agreement shall be in Broward County, Florida. 28.5 In entering this Agreement, the parties represent that they have had a reasonable opportunity to seek and select legal advice and have relied upon the advice of their own legal representative, who is an attorney of their own choice, or have voluntarily chosen not to seek the advice of an attorney. The terms of this Agreement have been completely read and are fully understood and voluntarily accepted by them. Motorola ref no. 12- 29077/JHJ, v.9 -14 -12 14 28.6 The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of the Agreement. All personal pronouns used in the Agreement shall include the other gender, and the singular shall include the plural, and vice versa, unless the context otherwise requires. Terms such as "herein," "hereof," "hereunder," and "hereinafter" refer to this Agreement as a whole and not to any particular sentence, paragraph, or section where they appear, unless the context otherwise requires. Whenever reference is made to a Section or Article of this Agreement, such reference is to the Section or Articles as a whole, including all of the subsections of such Section, unless the reference is made to a particular subsection or subparagraph of such Section or Article. 28.7. SURVIVAL OF TERMS. The following provisions survive the expiration or termination of this Agreement for any reason: Section 7.2.2 (Motorola Software and Non - Motorola Software); if any payment obligations exist, Contract Price, and Invoicing and Payment); Subsection 7.2.7 (Disclaimer of Implied Warranties); Section 27 (Limitation of Liability); Section 28 (Confidentiality and Proprietary Rights); and all of the General terms in this Section 28. IN WITNESS, the parties hereby execute this Agreement on the dates set forth below: MOTOROLA SOLUTIONS, INC. BY ' � A /1/ Date: _09/17112 Mars II Wri ht Title: MSSSI Vice President and Director, Sales AL LAMBERT), AS SHERIFF OF BROWARD COUNTY, FLORIDA By r 0 �7� lfl Date: nel Wiley D. Thompson III Executi 27rector, Department of Administration Approved as to form and legal sufficiency subject to execution by the parties: y: th W. Levine, General Counsel ce of the General Counsel Date: c Motorola r6f no. 12- 29077/JHJ, v.9 -14 -12 15 Exhibit A SOFTWARE LICENSE AGREEMENT This Exhibit A Software License Agreement ( "Agreement ") is between Motorola Solutions, Inc. ( "Motorola "), and the Broward County Sheriff's Office ( "Licensee "). For good and valuable consideration, the parties agree as follows: Section 1 DEFINITIONS 1.1 "Designated Products" means products provided by Motorola to Licensee with which or for which the Software and Documentation is licensed for use. 1.2 "Documentation" means product and software documentation that specifies technical and performance features and capabilities, and the user, operation and training manuals for the Software (including all physical or electronic media upon which such information is provided). 1.3 "Open Source Software" means software with either freely obtainable source code, license for modification, or permission for free distribution. 1.4 "Open Source Software License" means the terms or conditions under which the Open Source Software is licensed. 1.5 "Primary Agreement" means the agreement to which this exhibit is attached. 1.6 "Security Vulnerability" means a flaw or weakness in system security procedures, design, implementation, or internal controls that could be exercised (accidentally triggered or intentionally exploited) and result in a security breach such that data is compromised, manipulated or stolen or the system damaged. 1.7 "Software" (i) means proprietary software in object code format, and adaptations, translations, de- compilations, disassemblies, emulations, or derivative works of such software; (ii) means any modifications, enhancements, new versions and new releases of the software provided by Motorola, and (iii) may contain one or more items of software owned by a third party supplier. The term "Software" does not include any third party software provided under separate license or third party software not licensable under the terms of this Agreement. Section 2 SCOPE Motorola and Licensee enter into this Agreement in connection with Motorola's delivery of certain proprietary Software or products containing embedded or pre - loaded proprietary Software, or both. This Agreement contains the terms and conditions of the license Motorola is providing to Licensee, and Licensee's use of the Software and Documentation. Section 3 GRANT OF LICENSE 3.1. Subject to the provisions of this Agreement and the payment of applicable license fees, Motorola grants to Licensee a personal, limited, non - transferable (except as permitted in Section 7) and non - exclusive license under Motorola's copyrights and Confidential Information (as defined in the Primary Agreement) embodied in the Software to use the Software, in object code form, and the Documentation solely in connection with Licensee's use of the Designated Products. This Agreement does not grant any rights to source code. Motorola ref no. 12- 29077/JHJ, v.9 -14 -12 16 3.2. If the Software licensed under this Agreement contains or is derived from Open Source Software, the terms and conditions governing the use of such Open Source Software are in the Open Source Software Licenses of the copyright owner and not this Agreement. If there is a conflict between the terms and conditions of this Agreement and the terms and conditions of the Open Source Software Licenses governing Licensee's use of the Open Source Software, the terms and conditions of the license grant of the applicable Open Source Software Licenses will take precedence over the license grants in this Agreement. If requested by Licensee, Motorola will use commercially reasonable efforts to: (i) determine whether any Open Source Software is provided under this Agreement; (ii) identify the Open Source Software and provide Licensee a copy of the applicable Open Source Software License (or specify where that license may be found); and, (iii) provide Licensee a copy of the Open Source Software source code, without charge, if it is publicly available (although distribution fees may be applicable). Section 4 LIMITATIONS ON USE 4.1. Licensee may use the Software only for Licensee's internal business purposes and only in accordance with the Documentation. Any other use of the Software is strictly prohibited. Without limiting the general nature of these restrictions, Licensee will not make the Software available for use by third parties on a "time sharing," "application service provider," or "service bureau" basis or for any other similar commercial rental or sharing arrangement. 4.2. Licensee will not, and will not allow or enable any third party to: (i) reverse engineer, disassemble, peel components, decompile, reprogram or otherwise reduce the Software or any portion to a human perceptible form or otherwise attempt to recreate the source code; (ii) modify, adapt, create derivative works of, or merge the Software; (iii) copy, reproduce, distribute, lend, or lease the Software or Documentation to any third party, grant any sublicense or other rights in the Software or Documentation to any third party, or take any action that would cause the Software or Documentation to be placed in the public domain; (iv) remove, or in any way alter or obscure, any copyright notice or other notice of Motorola's proprietary rights; (v) provide, copy, transmit, disclose, divulge or make the Software or Documentation available to, or permit the use of the Software by any third party or on any machine except as expressly authorized by this Agreement; or (vi) use, or permit the use of, the Software in a manner that would result in the production of a copy of the Software solely by activating a machine containing the Software. Licensee may make one copy of Software to be used solely for archival, back -up, or disaster recovery purposes; provided that Licensee may not operate that copy of the Software at the same time as the original Software is being operated. Licensee may make as many copies of the Documentation as it may reasonably require for the internal use of the Software. 4.3. Unless otherwise authorized by Motorola in writing, Licensee will not, and will not enable or allow any third party to: (i) install a licensed copy of the Software on more than one unit of a Designated Product; or (ii) copy onto or transfer Software installed in one unit of a Designated Product onto one other device. Licensee may temporarily transfer Software installed on a Designated Product to another device if the Designated Product is inoperable or malfunctioning, if Licensee provides written notice to Motorola of the temporary transfer and identifies the device on which the Software is transferred. Temporary transfer of the Software to another device must be discontinued when the original Designated Product is returned to operation and the Software must be removed from the other device. Licensee must provide prompt written notice to Motorola at the time temporary transfer is discontinued. 4.4. When using Motorola's Radio Service Software ( "RSS "), Licensee must purchase a separate license for each location at which Licensee uses RSS. Licensee's use of RSS at a licensed location does not entitle Licensee to use or access RSS remotely. Licensee may make one copy of RSS for each licensed location. Motorola ref no. 12- 29077/JHJ, v.9 -14 -12 17 Licensee shall provide Motorola with a list of all locations at which Licensee uses or intends to use RSS upon Motorola's request. 4.5. Licensee will maintain, during the term of this Agreement and for a period of two years thereafter, accurate records relating to this license grant to verify compliance with this Agreement. Motorola or an independent third party ( "Auditor ") may inspect Licensee's premises, books and records, upon reasonable prior notice to Licensee, during Licensee's normal business hours and subject to Licensee's facility and security regulations. Motorola is responsible for the payment of all expenses and costs of the Auditor. Any information obtained by Motorola and the Auditor will be kept in strict confidence by Motorola and the Auditor and used solely for the purpose of verifying Licensee's compliance with the terms of this Agreement. Section 5 OWNERSHIP AND TITLE Motorola, its licensors, and its suppliers retain all of their proprietary rights in any form in and to the Software and Documentation, including, but not limited to, all rights in patents, patent applications, inventions, copyrights, trademarks, trade secrets, trade names, and other proprietary rights in or relating to the Software and Documentation (including any corrections, bug fixes, enhancements, updates, modifications, adaptations, translations, de- compilations, disassemblies, emulations to or derivative works from the Software or Documentation, whether made by Motorola or another party, or any improvements that result from Motorola's processes or, provision of information services). No rights are granted to Licensee under this Agreement by implication, estoppel or otherwise, except for those rights which are expressly granted to Licensee in this Agreement. All intellectual property developed, originated, or prepared by Motorola in connection with providing the Software, Designated Products, Documentation or related services, remains vested exclusively in Motorola, and Licensee will not have any shared development or other intellectual property rights. Section 6 LIMITED WARRANTY; DISCLAIMER OF WARRANTY 6.1. The commencement date and the term of the Software warranty will be a period of ninety (90) days from Motorola's shipment of the Software (the "Warranty Period "). If Licensee is not in breach of any of its obligations under this Agreement, Motorola warrants that the unmodified Software, when used properly and in accordance with the Documentation and this Agreement, will be free from a reproducible defect that eliminates the functionality or successful operation of a feature critical to the primary functionality or successful operation of the Software. Whether a defect occurs will be determined by Motorola solely with reference to the Documentation. Motorola does not warrant that Licensee's use of the Software or the Designated Products will be uninterrupted, error -free, completely free of Security Vulnerabilities, or that the Software or the Designated Products will meet Licensee's particular requirements. Motorola makes no representations or warranties with respect to any third party software included in the Software. 6.2 Motorola's sole obligation to Licensee and Licensee's exclusive remedy under this warranty is to use reasonable efforts to remedy any material Software defect covered by this warranty. These efforts will involve either replacing the media or attempting to correct significant, demonstrable program or documentation errors or Security Vulnerabilities. If Motorola cannot correct the defect within a reasonable time, then at Motorola's option, Motorola will replace the defective Software with functionally - equivalent Software, license to Licensee substitute Software which will accomplish the same objective, or terminate the license and refund the Licensee's paid license fee. 6.3. Warranty claims are described in the Primary Agreement. Motorola ref no. 12- 29077/JHJ, v.9 -14 -12 18 6.4. The express warranties set forth in this Section 6 are in lieu of, and Motorola disclaims, any and all other warranties (express or implied, oral or written) with respect to the Software or Documentation, including, without limitation, any and all implied warranties of condition, title, non - infringement, merchantability, or fitness for a particular purpose or use by Licensee (whether or not Motorola knows, has reason to know, has been advised, or is otherwise aware of any such purpose or use), whether arising by law, by reason of custom or usage of trade, or by course of dealing. In addition, Motorola disclaims any warranty to any person other than Licensee with respect to the Software or Documentation. Section 7 TRANSFERS Licensee will not transfer the Software or Documentation to any third party without Motorola's prior written consent. Motorola's consent may be withheld at its discretion and may be conditioned upon transferee paying all applicable license fees and agreeing to be bound by this Agreement. If the Designated Products are Motorola's radio products and Licensee transfers ownership of the Motorola radio products to a third party, Licensee may assign its right to use the Software (other than RSS and Motorola's FLASHport® software) which is embedded in or furnished for use with the radio products and the related Documentation; provided that Licensee transfers all copies of the Software and Documentation to the transferee, and Licensee and the transferee sign a transfer form to be provided by Motorola upon request, obligating the transferee to be bound by this Agreement. Section 8 TERM AND TERMINATION 8.1 Licensee's right to use the Software and Documentation will begin when the Primary Agreement is signed by both parties and will continue for the life of the Designated Products with which or for which the Software and Documentation have been provided by Motorola, unless Licensee breaches this Agreement, in which case this Agreement and Licensee's right to use the Software and Documentation may be terminated immediately upon notice by Motorola. 8.2 Within thirty (30) days after termination of this Agreement, Licensee must certify in writing to Motorola that all copies of the Software have been removed or deleted from the Designated Products and that all copies of the Software and Documentation have been returned to Motorola or destroyed by Licensee and are no longer in use by Licensee. 8.3 Licensee acknowledges that Motorola made a considerable investment of resources in the development, marketing, and distribution of the Software and Documentation and that Licensee's breach of this Agreement will result in irreparable harm to Motorola for which monetary damages would be inadequate. If Licensee breaches this Agreement, Motorola may terminate this Agreement and be entitled to all available remedies at law or in equity (including immediate injunctive relief and repossession of all non - embedded Software and associated Documentation unless Licensee is a Federal agency of the United States Government). Section 9 UNITED STATES GOVERNMENT LICENSING PROVISIONS This Section applies if Licensee is the United States Government or a United States Government agency. Licensee's use, duplication or disclosure of the Software and Documentation under Motorola's copyrights or trade secret rights is subject to the restrictions set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software- Restricted Rights clause at FAR 52.227 -19 (JUNE 1987), if applicable, unless they are being provided to the Department of Defense. If the Software and Documentation are being provided to the Department of Defense, Licensee's use, duplication, or disclosure of the Software and Documentation is subject to the restricted rights set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227 -7013 (OCT 1988), if applicable. The Software and Documentation may or may not include a Restricted Rights notice, or other notice referring to this Agreement. The provisions of this Agreement will continue to apply, Motorola ref no. 12.29077/JHJ, v.9 -14 -12 19 but only to the extent that they are consistent with the rights provided to the Licensee under the provisions of the FAR or DFARS mentioned above, as applicable to the particular procuring agency and procurement transaction. Section 10 CONFIDENTIALITY Licensee acknowledges that the Software and Documentation contain Motorola's valuable proprietary and Confidential Information and are Motorola's trade secrets, and that the provisions in the Primary Agreement concerning Confidential Information apply. Section 11 LIMITATION OF LIABILITY The Limitation of Liability provision is described in the Primary Agreement. Section 12 NOTICES Notices are described in the Primary Agreement. Section 13 GENERAL 13.1. COPYRIGHT NOTICES. The existence of a copyright notice on the Software will not be construed as an admission or presumption of publication of the Software or public disclosure of any trade secrets associated with the Software. 13.2. COMPLIANCE WITH LAWS. Licensee acknowledges that the Software is subject to the laws and regulations of the United States and Licensee will comply with all applicable laws and regulations, including export laws and regulations of the United States. Licensee will not, without the prior authorization of Motorola and the appropriate governmental authority of the United States, in any form export or re- export, sell or resell, ship or reship, or divert, through direct or indirect means, any item or technical data or direct or indirect products sold or otherwise furnished to any person within any territory for which the United States Government or any of its agencies at the time of the action, requires an export license or other governmental approval. Violation of this provision is a material breach of this Agreement. 13.3. ASSIGNMENTS AND SUBCONTRACTING. Motorola may assign its rights or subcontract its obligations under this Agreement, or encumber or sell its rights in any Software, without prior notice to or consent of Licensee. 13.4. GOVERNING LAW. This Agreement is governed by the laws of the United States to the extent that they apply and otherwise by the internal substantive laws of the State to which the Software is shipped if Licensee is a sovereign government entity, or the internal substantive laws of the State of Illinois if Licensee is not a sovereign government entity. The terms of the U.N. Convention on Contracts for the International Sale of Goods do not apply. In the event that the Uniform Computer Information Transaction Act, any version of this Act, or a substantially similar law (collectively "UCITA ") becomes applicable to a party's performance under this Agreement, UCITA does not govern any aspect of this Agreement or any license granted under this Agreement, or any of the parties' rights or obligations under this Agreement. The governing law will be that in effect prior to the applicability of UCITA. 13.5. THIRD PARTY BENEFICIARIES. This Agreement is entered into solely for the benefit of Motorola and Licensee. No third party has the right to make any claim or assert any right under this Agreement, and no third party is deemed a beneficiary of this Agreement. Notwithstanding the foregoing, any licensor or supplier of third party software included in the Software will be a direct and intended third party beneficiary of this Agreement. Motorola ref no. 12- 29077/JHJ, v.9 -14 -12 20 13.6. SURVIVAL. Sections 4, 5, 6.3, 7, 8, 9, 10, 11 and 13 survive the termination of this Agreement. 13.7. ORDER OF PRECEDENCE. In the event of inconsistencies between this Exhibit and the Primary Agreement, the parties agree that this Exhibit prevails, only with respect to the specific subject matter of this Exhibit, and not the Primary Agreement or any other exhibit as it applies to any other subject matter. 13.8 SECURITY. Motorola uses reasonable means in the design and writing of its own Software and the acquisition of third party Software to limit Security Vulnerabilities. While no software can be guaranteed to be free from Security Vulnerabilities, if a Security Vulnerability is discovered, Motorola will take the steps set forth in Section 6 of this Agreement. Motorola ref no. 12- 29077/JHJ, v.9 -14 -12 21