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Home My WebLink AboutC96-119 Motorola Inc0 C'9611 90ft Communications System Agreement THIS AGREEMENT, made and entered into this stn day of Apri 1 1996, by and between Motorola Inc., a Delaware corporation, hereinafter referred to as "MOTOROLA" or "Seller", and Eagle County, Colorado, hereinafter referred to as "PURCHASER". WITNESSETH: WHEREAS, the PURCHASER desires to purchase a Communications System; and WHEREAS, MOTOROLA desires to sell a Communications System; and THEREFORE, the parties hereby enter into an agreement pursuant to which MOTOROLA shall perform the work and furnish the equipment and services as more fully set forth herein and in the following exhibits, which are either attached hereto or incorporated by reference and hereby made a part of this Agreement: Exhibit A General Provisions dated January, 1987 consisting of seven (7) Opages and nineteen (19) sections. Exhibit B MOTOROLA Software License. Exhibit C MOTOROLA Proposal titled, "Eagle County Emergency Service Agencies Phase 1", including Acceptance Test Plan, Equipment List and Statement of Work which was delivered to the PURCHASER in March 1996. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the parties agree as follows: Section 1 SCOPE OF WORK A. MOTOROLA shall furnish all of the equipment as outlined in Exhibit C, and provide such tools, supplies, labor and supervision necessary for the installation for those items purchased to be installed as detailed in Exhibit C for a Communications System. B. PURCHASER shall in addition to responsibilities described in the Statement of Work included in Exhibit C of this Agreement perform the following coincident with the performance of this Agreement: (1) Provide a designated Project Director. 1 Communications System Agreement (2) Provide ingress and egress to PURCHASER'S facilities and/or sites as requested by MOTOROLA and have such facilities available for installation of the equipment to be installed. (3) Provide adequate telephone lines for the installation and operation of the equipment. (4) Provide adequate AC Power at 117 VAC + 10%, 60 Hz for the installation and operation of the equipment. (5) Provide a designated work area with adequate heat and light, and a secure storage area for equipment delivered to the PURCHASER. The PURCHASER shall be solely liable for loss or damage to equipment prior to, during and following installation when such equipment is on or within PURCHASER'S facilities and/or vehicles. Section 2 SITES This agreement is predicated on the utilization of sites and site configurations, which have been selected either by the PURCHASER or by MOTOROLA as contained in the MOTOROLA proposal. In either situation, should it be determined by either MOTOROLA or PURCHASER during the course of performance on this Agreement that the sites or configuration selected are no longer available or desired, new or replacement sites or configuration will be selected and approved by both MOTOROLA and the PURCHASER. If any price adjustments are necessary as a result of these new or replacement sites, such price adjustments will be added to this Agreement by change order in accordance with Section 4 of the General Provisions. Section 3 SUBSURFACE/STRUCTURAL CONDITIONS This Agreement and the MOTOROLA proposal are predicated upon normal soil conditions defined by E.I.A. standard RS -222 (latest revision). Should MOTOROLA encounter subsurface, structural, and/or latent conditions at any site differing from those, indicated on the specifications, or as used in the preparation of the bid price, the PURCHASER will be given immediate notice of such conditions before they are further disturbed. Thereupon, MOTOROLA and the PURCHASER shall promptly investigate the conditions and, if found to be different, will adjust the plans and/or specifications as may be necessary. Any changes which cause an adjustment in the contract price or in time required for the performance of any part of the contract shall result in a contract modification in accordance with Section 4 of the General Provisions. Section 4 PERIOD OF PERFORMANCE A. MOTOROLA shall complete the work in accordance with the following schedule: (1) Delivery date of equipment I X Communications System Agreement (2) Completion of installation (3) Final Acceptance/Completion of Acceptance Test B. Whenever MOTOROLA knows or reasonably should know that any actual or potential condition due to circumstances beyond its control is delaying or threatens to delay the timely performance of the work, MOTOROLA shall within thirty (30) days give PURCHASER notice thereof and may request an extension of time to perform the work. C. In order to successfully integrate and implement this project, shipments will be made F.O.B. Destination to PURCHASER facilities, local MOTOROLA staging facilities, warehousing facilities, or any combination thereof. It is agreed that this plan is acceptable to PURCHASER and that MOTOROLA will advise prior to shipment of actual destination and that purchaser will accept shipment, and make payment as required by this Agreement. D. It is also agreed that equipment shipping dates reflected in this agreement or in MOTOROLA proposals are estimates only, and that shipment may be made at any time prior to, or subsequent to these estimated shipping dates. Section 5 ACCEPTANCE CRITERIA A. MOTOROLA has included an Acceptance Test Plan ("ATP") which has been agreed to by both parties either in writing prior to this Agreement or by execution of this Agreement and is a part of Exhibit C to this Agreement. The successful completion of the ATP will be the sole criterion for system acceptance. B. Should the PURCHASER commence use of the system or any sub -system thereof for their intended purposes, other than for the express purposes of training or testing, prior to system acceptance, final payment for said system or sub -system shall be due net thirty (30) days. The warranty or maintenance periods for such equipment put into use, unless warranty or maintenance has already begun, shall be deemed to have commenced concurrently with the use of the equipment for its intended purpose. The use of the equipment for its intended purpose shall be deemed to have occurred when the PURCHASER commences to use and rely primarily on the equipment for its communications. C. Upon notification by MOTOROLA that the system is available for acceptance testing, it is agreed that should the acceptance testing of the system or any O subsystem thereof be delayed for reasons beyond MOTOROLA'S control, that final payment for the subsystem or system shall become due net thirty (30) days and warranty or maintenance shall commence upon notice to PURCHASER by MOTOROLA. Communications System Agreement Section 6 PAYMENT SCHEDULE A. MOTOROLA agrees to sell all of the equipment and perform the services as outlined in the Scope of Work and in Exhibit C, and PURCHASER agrees to buy the aforementioned equipment and services for the sum of one million and five hundred -fifteen thousand and eight hundred -twenty-two dollars ($1,515,822.00) ("Purchase Price"). B. The PURCHASER shall make payments to MOTOROLA as follows: Purchase price is to be financed through a Tax -Exempt Lease ("Lease") through the Motorola Credit Corporation. Such Tax -Exempt Lease is hereby incorporated into this Agreement by this reference. C. In the event of failure or delay by the PURCHASER in providing sites, space, approvals, licenses, or any other PURCHASER obligations required preceding delivery of MOTOROLA equipment, it is agreed that MOTOROLA, at its sole discretion, may ship equipment as planned and that the PURCHASER will accept the equipment and make payment in accordance with the terms of this Agreement. Any additional costs incurred by MOTOROLA for storage of equipment will be invoiced and paid by PURCHASER. Section 7 PROJECT MANAGEMENT A. If the size or complexity of the project warrants, MOTOROLA will assign a Project Manager, who is authorized to exercise technical direction of this project. MOTOROLA, at any time, may designate a new or alternate Project Manager without written notice. B. All matters affecting the terms of this Agreement or the administration thereof shall be referred to MOTOROLA'S cognizant Contract Administrator who shall have authority to negotiate changes in or amendments to this Agreement. Section 8 NOTICE ADDRESSES A. MOTOROLA, INC. 9980 CARROLL CANYON ROAD SAN DIEGO, CA 92131-1186 ATTN: CONTRACTS AND COMPLIANCE DEPARTMENT d X Communications System Agreement B. PURCHASER: EAGLE COUNTY P.O. Box 359 Eagle County, CO 81631 Attn: Sheriff A.J. Johnson Section 9 ORDER OF PRECEDENCE In the event of an inconsistency in this Agreement, the inconsistency shall be resolved in the following order: Exhibit A General Provisions dated January, 1987 consisting of six (6) pages and nineteen (19) sections. Exhibit B MOTOROLA Software License. Exhibit C MOTOROLA Proposal titled, "Eagle County Emergency Service Agencies Phase 1", including Acceptance Test Plan, Equipment List and Statement of Work which was delivered to the PURCHASER in March 1996. Section 10 DISPUTES MOTOROLA and the PURCHASER will attempt to settle any claim or controversy arising out of this Agreement through consultation and negotiation in good faith and a spirit of mutual cooperation. If those attempts fail, then the dispute will be mediated by a mutually acceptable mediator to be chosen by MOTOROLA and the PURCHASER within thirty (30) days after written notice by one of the parties demanding non-binding mediation. Neither one of the parties may unreasonably withhold consent to the selection of a mediator, and MOTOROLA and the PURCHASER will share the cost of the mediation equally. By mutual agreement, however, MOTOROLA and PURCHASER may postpone mediation until both parties have completed some specified but limited discovery about the dispute. The parties may also agree to replace mediation with some other form of non-binding alternate dispute resolution procedure ("ADR"). Any dispute which cannot be resolved between the parties through negotiation or mediation within two (2) months of the date of the initial demand for it by one of the parties may then be submitted to a court of competent jurisdiction in Illinois. Both MOTOROLA and PURCHASER consent to jurisdiction over it by such a court. The use of any ADR procedures will not be considered under the doctrine of laches, waiver or estoppel to affect adversely the rights of either party. Nothing shall prevent either of the parties from resorting to the judicial proceedings mentioned in this paragraph if (a) good faith efforts to attempt resolution of the dispute under these procedures have r Communications System Agreement rel been unsuccessful or (b) interim relief from the court is necessary to prevent serious and irreparable injury to one of the parties or others. Section 11 SEVERABILITY If any portion of this Agreement or any exhibits hereto is held to be invalid, such provision shall be considered severable, and the remainder of this Agreement or any provision hereof shall not be affected. Section 12 HEADINGS AND SECTION REFERENCES The headings given to the paragraphs herein are inserted only for convenience and are in no way to be construed as part of this Agreement or as a limitation of the scope of the particular paragraph to which the heading refers. Section 13 FULL AGREEMENT This Agreement and Exhibits hereto constitute the final expression of the agreement of the parties and supersedes all previous agreements and understandings, whether written or oral, relating to the work. This Agreement may not be altered, amended, or modified except by written instrument signed by the duly authorized representatives of both parties. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the last day and year written below. PURCHASER 'La:iez= • Name: gorge A_ Getas (Print - Block Letters) Title: Chairman Board of Corrmissioners (Print - Block Letters) Date: 4-8-96 PURCHASER M Nan* / A. J. Johnson MOTOROLA, INC. By: (Signature) Name: �_\C 1 (Print - Block Letters) Title: (Print - Block Letters) Date: oq Ae /C Title: Sheriff o f Eagle�.nty �_ (Print - Block Letters) Date: 4-8-96 9 EXHIBIT A GENERAL PROVISIONS DATED JANUARY, 1987 MOTOROLA, INC. Section 1 STANDARDS OF WORK MOTOROLA agrees that the performance of work described in this Agreement and pursuant to this Agreement shall be done in a professional manner and shall conform to professional standards. All packaging and packing shall be in accordance with good commercial practice. Section 2 TAXES The prices set forth in the Agreement are exclusive of any amount for Federal, State or Local excise, sales, lease, gross income service, rental, use, property, occupation or similar taxes. If any taxes are determined applicable to this transaction or MOTOROLA is required to pay or bear the burden thereof, the PURCHASER agrees to pay to MOTOROLA the amount of such taxes and any interest or penalty thereon no later than THIRTY (30) DAYS after receipt of an invoice therefor. Section 3 SHIPPING, TITLE AND RISK OF LOSS All sales and deliveries are F.O.B. Destination. MOTOROLA reserves the right to make deliveries in installments and the Agreement shall be severable as to such installments. Title to the equipment shall pass to the PURCHASER upon delivery to the F.O.B. Point. After delivery to the F.O.B. Point, risk of loss and damage to the articles shall be borne by the PURCHASER. The above notwithstanding title to software and any third party supplied software shall not pass upon payment of the license fee therefor or under any circumstances. Section 4 CHANGES IN THE WORK A. The PURCHASER may, at any time, by written order, make changes within the general scope of the work, including but not limited to revisions of, or additions to, portions of the work, or changes in method of shipment or packaging and place of delivery. B. If any order under this Section 4 causes an increase or decrease in the cost of or time required for the performance of any part of the work under this O Agreement, an equitable adjustment shall be made in the Agreement price or delivery schedule, or both, and the Agreement shall be modified in writing accordingly. MOTOROLA is not obligated to comply with any order hereunder Ee Exhibit A unless and until the parties reach agreement as to the aforementioned equitable adjustment and same is reflected as an addendum to this Agreement. Section 5 LIMITATION OF LIABILITY Except for personal injury or death, Motorola's total liability whether for breach of contract, warranty, negligence, strict liability in tort or otherwise, is limited to the price of the particular products sold hereunder with respect to which losses or damages are claimed. The PURCHASER's sole remedy is to request Motorola at Motorola's option to either refund the purchase price, repair or replace product(s) that are not as warranted. IN NO EVENT WILL MOTOROLA BE LIABLE FOR ANY LOSS OF USE, LOSS OF TIME, INCONVENIENCE, COMMERCIAL LOSS, LOST PROFITS OR SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW. No action shall be brought for any breach of this contract more than one (1) year after the accrual of such cause of action except for money due upon an open account." Section 6 EXCUSABLE DELAYS A. Neither MOTOROLA nor the PURCHASER shall be responsible for delays or lack of performance resulting from acts beyond the reasonable control of the party or parties. Such acts shall include, but not be limited to, acts of God; fire; strikes; material shortages; compliance with laws or regulations; riots; acts of war; or any other conditions beyond the reasonable control of the party or parties. B. Delays as identified herein may cause an impact on the Period of Performance stated in the Agreement. Such delays will be subject to an Agreement addendum as described in Section 4. Section 7 DEFAULT A. If MOTOROLA is wholly responsible for failure to make delivery or complete installation under the agreement, the PURCHASER may consider MOTOROLA to be in default, unless such failure has been caused by the conditions set forth in Section 6 of these General Provisions. B. The PURCHASER shall give MOTOROLA written notice of such default and MOTOROLA shall have THIRTY (30) DAYS to provide a plan of action to cure said default. If MOTOROLA fails to cure said default, the PURCHASER may terminate any unfulfilled portion of this Agreement or complete the system through a third party. In the event the PURCHASER completes the system through a third party, MOTOROLA shall be responsible for an amount in excess of the Agreement price, not to exceed the value of the terminated portion, incurred by the PURCHASER in completing the system to a capability not 12 Exhibit A O exceeding that specified in the Agreement. IN THE EVENT OF DEFAULT, MOTOROLA SHALL NOT BE LIABLE FOR ANY INCIDENTAL, LIQUIDATED, SPECIAL OR CONSEQUENTIAL DAMAGES. Section 8 DELAYS BY PURCHASER If the PURCHASER is responsible for delays which cause the installation and acceptance of this system as defined in the Agreement, to be rescheduled beyond the Period of Performance set forth in the Agreement, the PURCHASER shall be liable for actual costs incurred by MOTOROLA resulting from these delays. Such charges may include, but are not limited to, additional Engineering; rescheduling charges; storage charges; maintenance charges; and transportation charges. The PURCHASER shall have the option to attempt to minimize actual costs incurred by storing and transporting equipment at its own expense. MOTOROLA reserves the right to modify payment terms in the event of such delays. Section 9 LICENSES/AUTHORIZATION The PURCHASER is solely responsible for obtaining any licenses or other O authorizations required by the Federal Communications Commission and for complying with FCC rules. Neither MOTOROLA nor any of its employees is an agent or representative of the PURCHASER in FCC matters or otherwise. MOTOROLA, however, may assist in the preparation of the license application at no charge to the PURCHASER. PURCHASER acknowledges that project implementation is predicated on receipt of proper FCC licensing. Section 10 INDEMNIFICATION MOTOROLA agrees to and hereby indemnifies and saves PURCHASER harmless from all liabilities, judgments, costs, damages and expenses which may accrue against, be charged to, or recovered from the PURCHASER by reason of or on account of damage to the property of the PURCHASER or the property of, injury to, or death of any person, when such damage or injury is caused by MOTOROLA'S sole negligence or that of its employees, subcontractors, or agents while on the premises of the PURCHASER during the delivery and installation of the communications equipment. IN NO EVENT WILL MOTOROLA BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES. Section 11 EQUIPMENT COMPATIBILITY MOTOROLA agrees that the equipment, will perform in accordance with the specifications and representations stated in MOTOROLA'S Proposal and Equipment List included in this Agreement. This Agreement does not extend to the performance of the equipment as a part of a larger system generally nor specifically to equipment in combination with products, elements or components not supplied by MOTOROLA. Exhibit A Section 12 WARRANTIES A. MOTOROLA represents and warrants that all products, software, and items delivered under this Agreement conform in design, materials and workmanship to the appropriate MOTOROLA Technical Specifications. MOTOROLA further warrants that their products, software, and other items will interact according to the specifications contained in the Motorola Statement of Work and Equipment List. Successful completion of the ATP shall constitute full compliance with and fulfillment of this warranty. B. Hardware Warranty: MOTOROLA radio communications products are warranted to be free from defects in material and workmanship for a period of TWO (2) YEARS, except for crystal devices, channel elements, high stability oscillators (other than reference oscillators used for frequency synthesis which are warranted for TWO (2) YEARS) and crystal filters, which are warranted for a period of TEN (10) YEARS from the date of shipment. Parts, including crystals and channel elements, will be replaced free of charge for the full warranty period and the labor to replace defective parts will be provided for TWO (2) YEARS from the date of acceptance or upon beneficial use of the respective equipment, whichever is sooner. Thereafter, the PURCHASER must pay for the labor rr involved in repairing the product or replacing the parts at the prevailing rates together with any transportation charges to or from the place where warranty service is provided. This express warranty is extended by MOTOROLA, Inc., 1301 E. Algonquin Road, Schaumburg, Illinois 60196, to the original purchaser only, and only to those purchasing for purpose of leasing or solely for commercial, industrial, or governmental use. C. Software Warranty: The warranty for software, if any, shall be governed by the separate software license agreement set forth in Section 14. D. THE EXPRESS WARRANTIES CONTAINED IN THIS SECTION OF THIS AGREEMENT ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHICH ARE SPECIFICALLY EXCLUDED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL MOTOROLA BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW. E. In the event of a defect, malfunction or failure to conform to specifications established by MOTOROLA, or if appropriate, to specifications accepted by MOTOROLA in writing, during the period shown, MOTOROLA, at its option, will either repair or replace the product or refund the purchase price thereof, and such action on the part of MOTOROLA shall be the full extent of MOTOROLA'S liability hereunder. d Exhibit A This warranty is void if: C (a) the product is used in other than its normal and customary manner; (b) the product has been subject to misuse, accident, neglect or damage; (c) unauthorized alterations or repairs have been made, or unapproved parts used in the equipment. F. This warranty extends only to individual products; batteries are excluded but carry their own separate limited warranty. Because each radio system is unique, MOTOROLA disclaims liability for range, coverage, or operation of the system as a whole under this warranty. Non -MOTOROLA manufactured products are excluded from this warranty, but subject to the warranty provided by their manufacturers, a copy of which will be supplied to the PURCHASER on specific written request. G. In order to obtain performance of this warranty, the PURCHASER must contact its MOTOROLA salesperson or MOTOROLA at the address first above shown attention Quality Assurance Department. Section 13 CONFIDENTIAL INFORMATION MOTOROLA proprietary computer programs will be released in accordance with the Software License provisions set forth elsewhere, if applicable. All other material and information of confidential nature marked MOTOROLA PROPRIETARY and CONFIDENTIAL will be released as necessary under the following conditions: (1) PURCHASER shall exercise reasonable and prudent measures to keep these items in confidence. (2) PURCHASER shall not disclose these items to third parties without prior written permission, unless MOTOROLA makes them public or PURCHASER learns them rightfully from sources independent of MOTOROLA, or it is required by law to be disclosed. (3) MOTOROLA, where necessary, retains the right to prescribe specific security measures for the PURCHASER to follow to maintain the confidentiality. In the event disclosure of such information is necessary, a separate Non -Disclosure Agreement will be required. Exhibit A Section 14 SOFTWARE LICENSE AND WARRANTY MOTOROLA will, in the course of the transaction for the items of equipment identified in the Agreement, deliver to PURCHASER, on a licensed basis, one or more computer programs (Product Program). Delivery of all Product Programs by MOTOROLA and acceptance of same by PURCHASER shall be made only under the terms and conditions as contained in Exhibit B attached hereto and made a part hereof. The terms and conditions of the License Agreement contained in Exhibit B shall survive the completion of the Agreement. Section 15 PATENT INDEMNIFICATION MOTOROLA agrees to defend, at its expense, any suits against PURCHASER based upon a claim that any products furnished hereunder directly infringes a U.S. patent or copyright, and to pay costs and damages finally awarded in any such suit, provided that MOTOROLA is notified promptly in writing and at MOTOROLA'S request and expense is given control of said suit and all requested assistance for defense of same. If the use or sale of any such product(s) furnished hereunder is enjoined as a result such suit, MOTOROLA, at its option and at no expense to PURCHASER, shall obtain PURCHASER the right to use or sell said product(s) or shall substitute an equivalent product or products reasonably acceptable to PURCHASER and extend this indemnity thereto or shall accept the return of said product(s) and reimburse PURCHASER the full purchase price therefor, less a reasonable charge for reasonable wear and tear. This indemnity does not extend to any suit based upon any infringement or alleged infringement of any patent or copyright by the combination of any product(s) furnished by MOTOROLA and other elements nor does it extend to any product(s) of PURCHASER'S design or formula. Section 16 DISCLAIMER OF PATENT LICENSE Not` 'ng contained in this Agreement shall be deemed to grant, either directly or by implication, estoppel, or otherwise, any license under any patents or patent applications of MOTOROLA, except that PURCHASER shall have the normal non- exclusive royalty -free license to use that is implied, or otherwise arises by operation of law, in the sale of a product. Section 17 WAIVER Failure or delay on the part of MOTOROLA or PURCHASER to exercise right or power hereunder shall not operate as a waiver thereof. Section 18 GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. A Exhibit A Section 19 ASSIGNABILITY The Agreement may not be assigned by either party hereto other than MOTOROLA may assign this order to one of its Subsidiaries as in the normal course of business. X 101 Exhibit B MOTOROLA END-USER SOFTWARE LICENSE AGREEMENT This Software License Agreement is between Motorola, Inc. ("Motorola"), having an office at 1301 East Algonquin Road, Schaumburg, Illinois 60196, and EAGLE COUNTY, COLORADO ("Licensee") located at 0885 East Chambers Ave., Eagle, Colorado 81631. 1. Scope. Licensee may acquire from Motorola's Land Mobile Products Sector ("LMPS") radio communication products ("Products") that contain embedded or pre- loaded Motorola software such as in a ROM, PROM, or EPROM, or other Motorola software provided on media such as a floppy disk, tape, diskette, or CD-ROM. All such software (including Radio Service Software and FLASHport® Software) is referred to as "Motorola Software." This Agreement contains the terms under which Licensee may use Motorola Software acquired from LMPS. 2. Grant of License. Motorola hereby grants to Licensee a personal, non-exclusive license under Motorola's applicable proprietary rights to use Motorola Software in accordance with the terms of this Agreement. 3. Limitations on Use. Licensee may use Motorola Software only for Licensee's _ internal business purposes and only as described in the Motorola Software or Product documentation. Any other use of Motorola Software is strictly prohibited and will be deemed a breach of this Agreement. Licensee may not copy, modify, adapt, merge with other software, reverse engineer, or disassemble any Motorola Software for any reason, except that Licensee may make at most two copies of Motorola Software provided with infrastructure equipment for back-up purposes. Licensee must purchase a copy of Radio Service Software for each site at which Licensee uses Radio Service Software; Licensee may make one additional copy for each computer owned or controlled by Licensee at each such site. Licensee may temporarily use Radio Service Software on portable or lap -top computers at other sites. Prior to acquiring any Radio Service Software or upon Motorola's request, Licensee must provide a written list of all sites where Licensee uses or intends to use Radio Service Software. Licensee must reproduce all Motorola copyright and trademark notices on all copies of Motorola Software. 4. Transfers. If Licensee transfers ownership of Products to a third party, Licensee may assign its rights to use Motorola Software (other than Radio Service Software and FLASHport® Software) embedded in or furnished for use with those Products provided that (a) Licensee transfers all copies of such Motorola Software to the new owner and (b) Motorola receives a transfer form (which Motorola will provide upon request) completed and signed by the new owner. Otherwise, Licensee may not transfer or make available any Motorola Software to any third party. Exhibit B 0 5. Ownership and Title. Title to all copies of Motorola Software in any form, including all rights in patents, copyrights, trade secrets, and other intellectual properties, remains vested exclusively in Motorola. 6. Confidentiality. Licensee acknowledges that all Motorola Software contains valuable proprietary information and trade secrets and that unauthorized dissemination, distribution, modification, reverse engineering, disassembly, or other improper use of Motorola Software will result in irreparable harm to Motorola for which monetary damages would be inadequate. Accordingly, Licensee will limit access to Motorola Software to those of its employees and agents who need to use Motorola Software for Licensee's internal business purposes, and Licensee will take appropriate action with those employees and agents to preserve the confidentiality of Motorola Software. 7. Maintenance and Support. No maintenance or support is provided under this Agreement. Maintenance or support, if available, will be provided under a Motorola Software Maintenance and Support Agreement. 8. Limited Warranty. For the first 120 days after initial shipment of Motorola Software, Motorola warrants that the Motorola Software, when used properly, will be free from reproducible defects that materially vary from its published specifications. Motorola Odoes not warrant that Licensee's use of the Motorola Software or the Products will be uninterrupted or error -free or that the Motorola Software or the Products will meet Licensee's particular requirements. MOTOROLA'S TOTAL LIABILITY, AND LICENSEE'S SOLE REMEDY, FOR ANY BREACH OF THIS WARRANTY WILL BE LIMITED TO, AT MOTOROLA'S OPTION, REPAIR OR REPLACEMENT OF THE MOTOROLA SOFTWARE OR PAYMENT OF LICENSEE'S ACTUAL DAMAGES UP TO THE AMOUNT PAID TO MOTOROLA FOR THE MOTOROLA SOFTWARE OR THE INDIVIDUAL PRODUCT IN WHICH THE MOTOROLA SOFTWARE IS EMBEDDED OR FOR WHICH IT WAS PROVIDED. THIS WARRANTY EXTENDS ONLY TO THE FIRST LICENSEE; SUBSEQUENT TRANSFEREES MUST ACCEPT THE MOTOROLA SOFTWARE "AS IS" AND WITH NO WARRANTIES OF ANY KIND. MOTOROLA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 9. Limitation of Liability. IN NO EVENT WILL MOTOROLA BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 10. Term and Termination. Licensee's right to use Motorola Software will begin when Licensee sends a duly executed copy of this Agreement to Motorola, and either (a) Motorola returns a fully executed Agreement to Licensee or (b) Motorola ships Motorola Software or a Product containing Motorola Software to Licensee, and will continue in perpetuity unless terminated as follows. Licensee's right to use Motorola Software will terminate without notice upon a breach of this Agreement by Licensee. In addition, if 2 Exhibit B O Motorola reasonably believes that Licensee intends to breach this Agreement with respect to Radio Service Software or FLASHport® Software, Motorola may, by notice to Licensee, terminate Licensee's right to use such Motorola Software. Upon termination, Motorola will be entitled to immediate injunctive relief without proving damages and, unless Licensee is a sovereign government entity, Motorola will have the right to repossess all Radio Service Software and FLASHport® Software in Licensee's possession. Within thirty days after termination of Licensee's right to use any Motorola Software, Licensee must certify in writing to Motorola that all copies of such Motorola Software have been returned to Motorola or destroyed. 11. Notices. All notices, consents, and waivers permitted or required under this Agreement will be deemed given upon receipt and must be delivered in writing to the addresses at the top of this Agreement and, if to Motorola, to the LMPS Technical Assets Manager, Room 2305. Change of address must be in writing to the other party. 12. General Copyright Notices. The existence of a copyright notice on Motorola Software will not be construed as an admission or presumption that public disclosure of Motorola Software or any trade secrets associated with Motorola Software has occurred. Non -Motorola Software. Motorola may provide non -Motorola software to Licensee under the terms of separate license agreements with the owners of such software. Licensee will abide by the terms of these licenses. Causes of Action. Licensee must bring any action under this Agreement within one year after the cause of action arises except that warranty claims must be brought within the 120 -day warranty period. Waivers. No waiver of a right or remedy of a party will constitute a waiver of another right or remedy of that party. Assignments. Motorola may assign any of its rights or subcontract any of its obligations under this Agreement, or encumber or sell any of its rights in any Motorola Software, without prior notice to or consent of Licensee. Entire Agreement and Amendment. This Agreement contains the parties' entire agreement regarding Licensee's use of Motorola Software and may be amended only in a writing signed by both parties, except that Motorola may modify this Agreement as necessary to comply with applicable laws and regulations including FCC regulations. 3 Exhibit B Governing Law. This Agreement will be governed by the laws of the United States of America to the extent that they apply and otherwise by the laws of the State of Colorado. LICENSEE By; L . Name: George A. Gates Title: Chairman of Eagle County Com 'rs. Date: 04/08/96 LICENSEE By: v Nam J. Johnson Title: Sheriff Date: �-` 04/08/96 MOTOROLA, INC. By; c"� r 4 Name: _--ezq -- Title: Title: c - Date: D �4 8 C4 So 4