Release 10.5
Release Notes and User Guide Supplement
FCC Draft, November 2010
Page
43
ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, THE ABOVE LIMITATIONS MAY
NOT APPLY TO YOU.
Limitation of Remedies and Damages.
Regardless of whether any remedy set forth herein fails of its
essential purpose, IN NO EVENT SHALL MOTOROLA OR ANY OF THE LICENSORS, DIRECTORS,
OFFICERS, EMPLOYEES OR AFFILIATES OF THE FOREGOING BE LIABLE TO YOU FOR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR SIMILAR DAMAGES WHATSOEVER
(including, without limitation, damages for loss of business profits, business interruption, loss of business
information and the like), whether foreseeable or unforeseeable, arising out of the use or inability to use the
Software or accompanying written materials, regardless of the basis of the claim and even if Motorola or a
Motorola representative has been advised of the possibility of such damage. Motorola's liability to you for
direct damages for any cause whatsoever, regardless of the basis of the form of the action, will be limited to
the price paid for the Software that caused the damages. THIS LIMITATION WILL NOT APPLY IN CASE
OF PERSONAL INJURY ONLY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES
SUCH LIABILITY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE
LIMITATION MAY NOT APPLY TO YOU.
Maintenance and Support.
Motorola shall not be responsible for maintenance or support of the software.
By accepting the license granted under this agreement, you agree that Motorola will be under no obligation
to provide any support, maintenance or service in connection with the Software or any application developed
by you. Any maintenance and support of the Related Product will be provided under the terms of the
agreement for the Related Product.
Transfer.
In the case of software designed to operate on Motorola equipment, you may not transfer the
Software to another party except: (1) if you are an end-user, when you are transferring the Software together
with the Motorola equipment on which it operates; or 2) if you are a Motorola licensed distributor, when you
are transferring the Software either together with such Motorola equipment or are transferring the Software
as a licensed duly paid for upgrade, update, patch, new release, enhancement or replacement of a prior
version of the Software. If you are a Motorola licensed distributor, when you are transferring the Software as
permitted herein, you agree to transfer the Software with a license agreement having terms and conditions
no less restrictive than those contained herein. You may transfer all other Software, not otherwise having an
agreed restriction on transfer, to another party. However, all such transfers of Software are strictly subject to
the conditions precedent that the other party agrees to accept the terms and conditions of this License, and
you destroy any copy of the Software you do not transfer to that party. You may not sublicense or otherwise
transfer, rent or lease the Software without our written consent. You may not transfer the Software in
violation of any laws, regulations, export controls or economic sanctions imposed by the US Government.
Right to Audit.
Motorola shall have the right to audit annually, upon reasonable advance notice and during
normal business hours, your records and accounts to determine compliance with the terms of this
Agreement.
Export Controls.
You specifically acknowledge that the software may be subject to United States and other
country export control laws. You shall comply strictly with all requirements of all applicable export control
laws and regulations with respect to all such software and materials.
US Government Users.
If you are a US Government user, then the Software is provided with
"RESTRICTED RIGHTS" as set forth in subparagraphs (c)(1) and (2) of the Commercial Computer
Software-Restricted Rights clause at FAR 52 227-19 or subparagraph (c)(1)(ii) of the Rights in Technical
Data and Computer Software clause at DFARS 252.227-7013, as applicable.
Disputes
.
You and Motorola hereby agree that any dispute, controversy or claim, except for any dispute,
controversy or claim involving intellectual property, prior to initiation of any formal legal process, will be
submitted for non-binding mediation, prior to initiation of any formal legal process. Cost of mediation will be
shared equally. Nothing in this Section will prevent either party from resorting to judicial proceedings, if (i)
good faith efforts to resolve the dispute under these procedures have been unsuccessful, (ii) the dispute,
claim or controversy involves intellectual property, or (iii) interim relief from a court is necessary to prevent
serious and irreparable injury to that party or to others.
General.
Illinois law governs this license. The terms of this license are supplemental to any written
agreement executed by both parties regarding this subject and the Software Motorola is to license you under
it, and supersedes all previous oral or written communications between us regarding the subject except for
