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END USER LICENSE AGREEMENT
Effective September 07, 2007
Motorola is willing to license its Motorola Expedience Connection Manager and Driver Software (defined as “Products” below) and the accompanying documentation to you only on the condition that you accept all the terms in this License Agreement (“Agreement”).
1. Definitions. In this Agreement, the word “Software” refers to the set of instructions for computers, in executable form and in any media, (which may include diskette, CD-ROM, downloadable internet, hardware, or firmware) licensed to you. The word “Documentation” refers to electronic or printed manuals and accompanying instructional aids licensed to you. The word “Product(s)” refers to the specific combination of Software and Documentation that you have licensed and which has been provided to you under the terms of this Agreement.
2. Grant of License. Motorola, Inc. (“Motorola”) grants you (“Licensee” or “you”) a personal, nonexclusive, nontransferable license to use the Products subject to the Conditions Of Use set forth in Section 3 below and the terms and conditions of this Agreement. Any terms or conditions appearing on the face or reverse side of any purchase order, purchase order acknowledgment or other order document that are different from, or in addition to, the terms of this Agreement will not be binding on the parties, even if payment is accepted. Any violation of this Section 2 and/or Section 3 shall immediately terminate this license grant.
3. Conditions of Use. Any use of the Products outside of the conditions set forth herein is strictly prohibited and will be deemed a breach of this Agreement.
3.1 You shall use the Products (i) only for your personal use; (ii) only as described in the Products; and (iii) in strict accordance with this Agreement.
3.2 The Products may not be transferred to another party without the express written consent of Motorola, regardless of whether or not such transfer is accomplished by physical or electronic means.
3.3 Portions of the Products are protected by United States copyright laws, international treaty provisions, and other applicable laws. Therefore, you must treat the Products like any other copyrighted material (e.g., a book or musical recording) except that you may either: (i) make 1 copy of the transportable part of the Products (which typically is supplied on diskette, CD-ROM, or downloadable internet), solely for back-up purposes; or (ii) copy the transportable part of the Products to a PC hard disk, provided you keep the original solely for back-up purposes. If the Documentation is in printed form, it may not be copied. If the Documentation is in electronic form, you may print out 1 copy, which then may not be copied. With regard to the copy made for backup or archival purposes, you agree to reproduce any Motorola copyright notice, and other proprietary legends appearing thereon. Such copyright notice(s) may appear in any of several forms, including machine-readable form, and you agree to reproduce such notice in each form in which it appears, to the extent it is physically possible to do so. Unauthorized duplication of the Software or Documentation constitutes copyright infringement, and in the United States is punishable in federal court by fine and imprisonment.
3.4 You shall not export, re-export, resell, ship or divert or cause to be exported, re-exported, resold, shipped or diverted, directly or indirectly, the Products under this Agreement.
4. Title; Restrictions. You shall not, and shall not permit others to: (i) modify, translate, decompile, bootleg, reverse engineer, disassemble, or extract the inner workings of the Software or Documentation, (ii) copy the look-and-feel or functionality of the Software or Documentation; (iii) remove any proprietary notices, marks, labels, or logos from the Software or Documentation; (iv) rent or transfer all or some of the Software or Documentation to any other party without Motorola’s prior written consent; or (v) utilize any computer software or hardware which is designed to defeat any copy protection device, should the Products be equipped with such a protection device. If the Products contain Software or Documentation that is provided on multiple types of media (such as diskette, CD-ROM, downloadable internet), then you shall only use the medium which best meets your specific needs, and shall not loan, rent, lease, or transfer the other media contained in the package without Motorola’s written consent. Unauthorized copying of the Software or Documentation, or failure to comply with any of the provisions of this Agreement, will result in automatic termination of this license. Title and copyrights to the Products and any copies made by you remain with Motorola and its licensors.
5. Confidentiality. You acknowledge that all Products contain valuable proprietary information and trade secrets and that unauthorized or improper use of the Products will result in irreparable harm to Motorola for which monetary damages would be inadequate and for which Motorola will be entitled to immediate injunctive relief. Accordingly, you will limit access to the Products to those of your employees and agents who need to use the Products for your internal business purposes, and you will take appropriate action with those employees and agents to preserve the confidentiality of the Products, using the same degree of care to avoid unauthorized or improper disclosure as you use for the protection of your own proprietary software, but in no event less than reasonable care.
Notwithstanding anything to the contrary herein, you shall have no obligation to preserve the confidentiality of any proprietary information that: (i) was in the public domain at the time of disclosure; (ii) entered the public domain through no fault of yours; (iii) was given to you free of any obligation to keep it confidential; (iv) is independently developed by you; or (v) is disclosed as required by law provided that you notify Motorola prior to such disclosure and provide Motorola with a reasonable opportunity to respond.
6. Right to Use Motorola’s Name. Except as required in Section 3.4 above, you shall not, during the term of this Agreement or thereafter, use any trademark, of Motorola, or any word or symbol likely to be confused with any Motorola trademark, either alone or in any combination with another word or words.
7. Maintenance. Motorola shall not be responsible for maintenance or field service of the Software under this Agreement.
8. Disclaimer. MOTOROLA DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR IN ANY COMMUNICATION WITH YOU. MOTOROLA SPECIFICALLY DISCLAIMS ANY WARRANTY INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILTY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE PRODUCTS ARE PROVIDED “AS IS.” MOTOROLA DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. MOTOROLA MAKES NO WARRANTY WITH RESPECT TO THE CORRECTNESS, ACCURACY, OR RELIABILITY OF THE SOFTWARE AND DOCUMENTATION. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
9. Limitation of Liability. THE TOTAL LIABILITY OF MOTOROLA UNDER THIS AGREEMENT FOR DAMAGES SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE PRODUCTS LICENSED UNDER THIS AGREEMENT. IN NO EVENT WILL MOTOROLA BE LIABLE IN ANY WAY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY NATURE, INCLUDING WITHOUT LIMITATION, LOST BUSINESS PROFITS, OR LIABILITY OR INJURY TO THIRD PERSONS, WHETHER FORESEEABLE OR NOT, REGARDLESS OF WHETHER MOTOROLA HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. Some jurisdictions do not permit limitations of liability for incidental or consequential damages, so the above exclusions may not apply to you.
10. U.S. Government. If you are acquiring the Products on behalf of any unit or agency of the U.S. Government, the following shall apply. Use, duplication, or disclosure of the Products 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 being provided to the Department of Defense. If being provided to the Department of Defense, use, duplication, or disclosure of the Products 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. Software and Documentation may or may not include a Restricted Rights notice, or other notice referring specifically to the terms and conditions of this Agreement. The terms and conditions of this Agreement shall each continue to apply, but only to the extent that such terms and conditions are not inconsistent with the rights provided to you under the aforementioned provisions of the FAR and DFARS, as applicable to the particular procuring agency and procurement transaction.
11. Term of License. Your right to use the Products will terminate immediately without notice upon a breach of this Agreement by you. Otherwise, this Agreement may be terminated by either party upon 30 days prior written notice. You may not sublicense, assign or transfer the license or the Products, except as expressly provided in this Agreement. Any attempt to otherwise sublicense, assign or transfer any of the rights, duties or obligations hereunder is null and void.
12. Governing Law. This Agreement shall 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 Illinois.
13. Assignment. This Agreement may not be assigned or otherwise transferred by you.
14. Survival of Provisions. The parties agree that where the context of any provision indicates an intent that it shall survive the term of this Agreement, then it shall survive.
15. Entire Agreement. This Agreement contains the parties’ entire agreement regarding your use of the Products and may be amended only in writing signed by both parties, except that Motorola may modify this Agreement as necessary to comply with applicable laws and regulations including FCC regulations.
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