M
SOFTWARE LICENSE AGREEMENT
1. LICENSE GRANT
In connection with the transfer of possession of the software package
provided with this Agreement, Motorola, (LICENSOR) hereby grants to
possessor (LICENSEE) a non-exclusive license to use the software program(s)
(SOFTWARE) and documentation (DOCUMENTATION) of said software
package with a single-user computer system. LICENSEE may, upon requesting
and receiving written permission of LICENSOR, transfer possession of the
software package including SOFTWARE and DOCUMENTATION and
transfer this license to another party if the other party agrees in writing to
accept the terms and conditions of this agreement
2. OWNERSHIP
LICENSEE is given possession of a program module(s) with the
software package in or on which Software is copied, but title to the
SOFTWARE and DOCUMENTATION, all copies thereof and all rights
therein, including all rights in the patents, copyrights, and trade secrets
applicable thereto, shall remain vested in LICENSOR, regardless of the form
or media in or on which the original and other copies of software and
documentation may subsequently exist. Nothing contained herein shall be
deemed to convey any title or ownership interest in the program module(s),
SOFTWARE or DOCUMENTATION to LICENSEE.
LICENSEE agrees not to disclose, transfer, provide on any form, except
as otherwise provided in this agreement, the software package or any portion
thereof, to any person other than employees of LICENSEE without prior
written consent of LICENSOR, and any such disclosure or transfer shall be
consistent with the use in the single-user computer system.
LICENSEE agrees not to reverse compile or disassemble SOFTWARE.
LICENSEE agrees that it will not in any form, export, re-export, resell,
ship, or divert or cause to be exported, re-exported, resold, shipped, or diverted,
directly or indirectly, the SOFTWARE and DOCUMENTATION or a direct
product thereof to any country for which the United States government or any
agency thereof at the time of export or re-export requires an export license or
other government approval without first obtaining such license or approval.
3. COPYING RIGHTS
LICENSEE may make copy(s) of SOFTWARE and
DOCUMENTATION, required for backup or modification purposes in support
of the use of the SOFTWARE with the single-user computer system, but
LICENSEE must include existing copyright notices on any such copy,
modifications, or portion of SOFTWARE merged into another program. Such
notice(s) may appear in several forms, including machine-readable form, and
LICENSEE agrees to reproduce such notice(s) in each form in which it
appears, to the extent it is physically possible to do so.
4.TRANSFERABILITY
LICENSEE may not transfer SOFTWARE and DOCUMENTATION, or
any copy(s) thereof, in whole or in part, except as expressly provided in this
agreement. If Licensee transfers SOFTWARE and DOCUMENTATION to
another party as expressly provided in this agreement, LICENSEE must at the
same time either transfer all copies whether printed or machine-readable form
to the same party or destroy any copies not transferred; this includes all
modifications and portions of SOFTWARE contained or merged into another
program.
If LICENSEE transfers SOFTWARE and/or DOCUMENTATION or
any copy, modification, or merged portion of SOFTWARE to another party
without written permission of LICENSOR, this license is automatically
terminated.
5. TERM
The term of this license agreement is for as long as LICENSEE uses the
SOFTWARE for its intended purpose. This agreement may be terminated by
LICENSEE upon one month’s prior written notice. LICENSOR may terminate
this agreement if LICENSEE is in default of any of the terms and conditions of
this agreement, and termination is effective if LICENSEE fails to correct such
default within thirty (30) days after written notice thereof by LICENSOR.
Within one month after termination of this agreement, LICENSEE will
certify to LICENSOR in writing that through its best efforts, and to the best of
its knowledge, the original and all copies, in whole or in part, in any form, of
the SOFTWARE and DOCUMENTATION have been destroyed or returned to
LICENSOR.
6. ASSIGNMENT, SUBLICENSE, OR TRANSFER
LICENSEE shall not (by contract, operation of law, or otherwise) assign,
sublicense under or transfer this agreement for any right of interest in this
agreement, or delegate performance of any of its obligations under this
agreement, without the prior written consent of the LICENSOR. Any such
assignment, sublicense, transfer, or delegation without the LICENSOR’s prior
written consent shall be voidable at the LICENSOR’s option.
7. WARRANTY AND MAINTENANCE
LICENSOR warrants that under normal use, SOFTWARE shall perform
the functions specified in its DOCUMENTATION. If SOFTWARE does not
conform to its DOCUMENTATION such that its functional performance is
significantly affected and LICENSOR is notified promptly, in writing, within
ninety (90) days from the date of shipment of the software package,
LICENSOR will correct such nonconformance by repair, or at its option, make
available a replacement program module(s) providing there is no misuse of the
nonconforming program module(s).
If LICENSOR or its distributor is unable to deliver a replacement
module(s) having SOFTWARE which conforms substantially to its
DOCUMENTATION, LICENSOR may terminate this license by
providing a refund to LICENSEE upon LICENSEE’s return of such program
modules, except as provided in Section 3 above, any modification in
SOFTWARE by LICENSEE or third parties shall void this warranty.
LICENSOR does not represent or warrant that the SOFTWARE or
DOCUMENTATION furnished hereunder is free of infringement of any of the
third parties, copyrights, trade secrets, or other intellectual property rights.
LICENSOR shall not be responsible for maintenance or field service of
the program module(s) and SOFTWARE under this agreement.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU
OF ALL OTHER WARRANTIES WHETHER STATUTORY, EXPRESS OR
IMPLIED (INCLUDING ALL WARRANTIES OF MERCHANTABLILITY
AND FITNESS FOR A PARTICULAR PURPOSE AND ALL
WARRANTIES ARISING FROM COURSE OR DEALING OR USAGE OF
TRADE) WITH RESPECT TO THE PROGRAM MODULE(S),
SOFTWARE, OR DOCUMENTATION FURNISHED BY LICENSOR
UNDER THIS AGREEMENT OR ANY USE OF SUCH SOFTWARE OR
DOCUMENTATION BY THE LICENSEE.
The remedies provided above are the LICENSEE’s exclusive remedies
for any failure of LICENSOR to meet its warranty obligations. Actions by
LICENSOR in the manner provided above shall constitute complete fulfillment
of all the warranty liabilities of LICENSOR whether the claims of the
LICENSEE are based on contract, in tort (including negligence and strict
liability, or otherwise with respect to or arising out of the program module(s),
SOFTWARE or DOCUMENTATION furnished hereunder.
8. LIMITATION OF LIABILITY
LICENSOR, its subcontractors and suppliers of any tier, shall not be
liable in contract, in tort (including negligence and strict liability), or otherwise
for damages or loss of other property or equipment, loss of profits or revenue,
loss of use of equipment or power system, cost of capital, cost of purchased or
replacement power or temporary equipment (including additional expenses
incurred in using existing facilities), claims of customers of the LICENSEE, or
for any special, indirect incidental or consequential damages whatsoever. The
remedies of the LICENSEE set forth herein are exclusive where so stated and
the total cumulative liability of the LICENSOR with respect to this agreement,
or anything done in connection therewith, whether in contract, in tort
(including negligence and strict liability) or otherwise, shall not exceed the
price of the product in which such liability is based.
9. NOTICE
All notices in connection with this agreement shall be in writing and
shall be given by certified mail, return receipt requested, at the following
address:
Motorola, Inc., 1313 E. Algonquin Rd., Schaumburg, IL 60196-1081,
ATTENTION: Group Patent Counsel.
10. GOVERNING LAW
This agreement shall be governed and interpreted by the laws of the state
of Illinois.
11. AGREEMENT
LICENSEE ACKNOWLEDGES THAT THIS AGREEMENT HAS
BEEN READ AND UNDERSTOOD AND AGREES TO BE BOUND BY
ITS TERMS AND CONDITIONS. LICENSEE FURTHER AGREES THAT
THIS AGREEMENT CONSTITUTES THE ENTIRE UNDERSTANDING
OF LICENSEE AND LICENSOR WITH RESPECT TO THE SUBJECT
MATTER HEREOF AND COMPLETELY SUPERCEDES ANY PRIOR
UNDERSTANDINGS, EITHER ORAL OR WRITTEN. ANY
MODIFICATION OF THIS AGREEMENT SHALL BE MADE ONLY BY
MUTUAL AGREEMENT AND EVIDENCED BY WRITTEN
AMMENDMENT SIGNED BY BOTH LICENSOR AND LICENSEE.
