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HomeMy WebLinkAbout23-0921 Starcom21 Motorola SolutionsSTARCOM21 DIGITAL TRUNKED RADIO NETWORK SYSTEM KEY ACCESS APPLICATION AND NON -DISCLOSURE AGREEMENT This STARCOM21 System Key Access Application and Non -Disclosure Agreement ("Agreement") is entered into as of the Effective Date, between Motorola Solutions, Inc. with offices at 2100 Progress Parkway, Schaumburg, lL 60196 ("Motorola") and City of_Elgin with offices at 150 Dexter Street, Elgin, IL 60120 "Applicant"). Motorola and, Applicant may be referred to herein individually as "Party" and collectively as "Parties." Whereas; On September 28, 2001, Motorola and the State of Illinois entered into an agreement for the implementation of a statewide digital trunked. radio network, also known as the STARCOM21 network ("Network"); and Whereas; Motorola, the Network Manager/Owner, is responsible for managing the Network's confidential legacy and/or Advanced System 'Keys and Network talkgroup/fleetmap; for providing the legacy and/or Advanced System Key and talkgrouplfleetmap radio "template files" to .authorized third party service providers and self -maintained Network users to program authorized radios for use on the Network; and for populating and managing the Network's radio database. Only radios authorized by Motorola and the State of Illinois for use on Network will be activated on the !Network and added to the Network's radio database. Motorola's Network manager(s) will be the only personnel authorized to activate and deactivate radios for use on the Network and inclusion in the Network's radio database. Now therefore; for good and valuable consideration, the Parties agree as follows: Section 1 - Definitions "Confidential information" means any information that is disclosed in written, graphic, verbal, or machine - recognizable form, and is marked, designated, or identified at the time of disclosure as being confidential or its equivalent or if the information is :in verbal form,_ it is identified as confidential at the time of disclosure and is confirmed in writing within thirty (30) days of the disclosure. Confidential Information does not include any information that:. is or becomes publicly known through no wrongful act of the receiving Party; is already known to the receiving Party without restriction when it is disclosed; is or becomes, rightfully and without breach of this Agreement, in the receiving Party's possession without any obligation restricting disclosure; is independently developed by the receiving Party without breach of this Agreement; or is explicitly approved for release by written authorization of the disclosing Party. "Effective Date".means that date upon which the last Party executes 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. ASK Application and NDA Motorola Solutions, Inc. Confidential and Proprietary Motorola Solutions, Inc.8/2023 Section 2 - Scope of Work SCOPE OF WORK. Motorola will, provide the Advanced System Key, including any related equipment and documentation, and perform its other contractual responsibilities in accordance with this Agreement. Applicant will perform its contractual responsibilities inaccordance with this. Agreement. Section 3 — Term and Termination Unless terminated in accordance with the provisions of this Agreement or extended by mutual agreement of the Parties, Applicant's right to use the confidential Network legacy and/or Advanced System Key and talkgroup/fleetmap radio template files to program radios for use on the Network will begin on the Effective Date and will continue until June 30, 2032. If. Applicant breaches this Agreement, this Agreement will be terminated immediately upon notice by Motorola. Applicant acknowledges that Motorola has made a considerable investment of resources in the development and safeguarding of its confidential legacy and/or Advanced System Key and talkgroup/fleetmap radio template files and that reasonable and appropriate limitations on Applicant's use of the confidential Network legacy and/or Advanced System Keys and talkgroup/fleetmap radio template files are necessary for Motorola to protect its investment, trade secrets, and Valuable intellectual property rights concerning the confidential Network legacy and/or Advanced System Keys and talkgroup/fleetmap radio template files. Applicant also acknowledges that.its breach of this Agreement will result in irreparable harm to Motorola for which monetary damages would be inadequate. In the event of a breach of this Agreement and in addition to immediate termination of this Agreement, Motorola will be entitled to all available remedies at law or in equity; including immediate injunctive relief and repossession of the confidential Network legacy and/or.Advanced System Key; talkgroup/fleetmap radio template files, radio programming archive files and. associated documentation. Either Party may, upon written notification to the other Party, terminate this agreement at any time with or without cause. Within thirty (30) days of the termination of this Agreement for any reason, Applicant must return to Motorola all copies of the confidential Network legacy and/or Advanced System Key and talkgroup/fleetmap radio template files regardless .of media format; all copies of radio programming archive files associated with the Network regardless of media format; and all associated Network documentation regardless of media format. In addition, Applicant will provide Motorola with a certification, in writing and signed by an authorized representative of Applicant, certifying that Applicant has not distributed and/or retained any materials, regardless of the media format, in any way related to the Network. Section 4— Limitations on Use Use of confidential Network legacy and/or Advanced. System Key and tolkgroup/fleetmap radio template files is limited to programming and maintaining radios that have been authorized for use on the Network by the Network Manager. Any other use of the confidential Network legacy and/or Advanced System Key and talkgroup/fleetmap radio template files is strictly prohibited under the terms of this Agreement. Section 5 —Audit Motorola and the State of Illinois reserve the right to audit, at any time during normal business hours, Applicant's records related to its use of confidential Network legacy and/or Advanced System Key, talkgroup/fleetmap radio template files; radio programming archive files and all computers used by Applicant to program authorized radios onto the Network to ensure compliance this agreement. Section 6 - Ownership, Title and Key Replacement Confidential' Network legacy and/or Advanced System Key and talkgroup/fleetmap radio template files disclosed under this Agreement are the exclusive property of Motorola. Title to1he confidential Network legacy and/or Advanced.System Key and talkgroup/fleetmap radio template files will not pass to Applicant at any time:and remains vested exclusively in. Motorola. Motorola owns and retains all of its proprietaryrights in any form concerning the confidential Network legacy and/or Advanced System Key and talkgroup/fleetmap radio template files including all rights in patents, patent applications, ASK Application and NDA Motorola Solutions, Inc. Confidential and Proprietary Motorola Solutions, IncV2023 2 inventions; copyrights; trade secrets, trademarks; trade names, and other intellectual properties. Nothing in thisAgreementis intended to restrict the proprietary rights of Motorola or to grant by implication or estoppel any proprietary rights. All.intellectual property developed, originated; or prepared by Motorola in connection with providing to Applicant confidential Network legacy and/or Advanced System Key and talkgroup/fleetmap radio template files remain vested exclusively in Licensor, and this Agreement does not grant to Licensee any shared development rights of intellectual property. If Applicant 'loses the Advanced System Key for any reason, it will be responsible for a $500.00 key replacement': fee. Section 7 Transfer Applicant will not transfer the confidential Network legacy and/or the Advanced System Key, talkgrouplfleetmap radio template files, radio programming archive files and/or associated documentation to any third party without Motorola's. prior written consent, which consent may be withheld in Motorola's reasonable discretion and which may be conditioned upon the transferee paying all applicable fees and agreeing to be bound by this Agreement. Section 8 - Disclaimer of Warranties. DISCLAIMER OF WARRANTIES. The confidential Network legacy and/or Advanced System Key and talkgrouplfleetmap radio templates are provided to Applicant under this Agreement are provided "AS IS." Motorola makes no representations or warranties with respect to the confidential legacy and/or Advanced System Key and talkgrouplfleetmap radio template files. MOTOROLA DISCLAIMS ALL WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR. PURPOSE. Section 9 - Indemnification Applicant will defend, indemnify and hold Motorola harmless from and against any and all loss, claim, or damage of any kind, including but not limited to any liability, expense, judgment, suit, cause of action, or demand.which may accrue against Motorola to the extent it is. caused. by the acts or omissions of Applicant, or their employees, agents,. representatives, or subcontractors. Section 90 — Confidential Information and Proprietary Rights CONFIDENTIAL INFORMATION. During the term of this Agreement, the Parties may provide each other with Confidential Information. Each Party will: maintain the confidentiality of the other Party's Confidential Information and not disclose it to any third party, except as authorized by the disclosing. Party in writing or as required by a court of competent jurisdiction; restrict disclosure of the Confidential. Information to its employees who have a "need to know' and not copy or reproduce the Confidential information; take necessary and appropriate precautions to guard the confidentiality of the. Confidential Information, including informing its employees who handle the, Confidential Information that it is confidential and is not to be. disclosed to others, but these precautions will be at least the .same degree of care that the receiving Party applies to its own confidential information and will not be less than reasonable care; and use the Confidential Information only in furtherance of the performance of this Agreement. Confidential Information is and will at all times remain the property of the disclosing Party, and no grant of any proprietary rights in the Confidential Information is given or intended, including any express or implied license, other than the limited right of the recipient to use the Confidential Information in the manner and to the extent permitted by this Agreement. For purposes of this provision; the Network legacy and/or Advanced System Key and talkgrouplfleetmap radio template files constitute Motorola Confidential information. If a Party is required to, disclose Confidential Information pursuant to applicable law, statute, or regulation, or court order, the Party from whom disclosure is sought will give to the other Party 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 Party from whom disclosure is sought 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 compelled to do so. .ASK Application and NDA Motorola Solutions, Inc. Confidential and Proprietary Motorola Solutions, Inc.8/2023 3 All Motorola .Confidential Information remains the property of Motorola and will not be copied or reproduced without the express written .permission of Motorola. Within ten (10) days of receipt of Motorola's written request, the Applicant will return all Motorola's Confidential Information to Motorola along with all copies and portions thereof, or certify in writing that all such Confidential Information has been destroyed. No license, express or implied, in Motorola's Confidential Information is granted other than to use the Confidential Information in the manner and to the extent authorized by this. Agreement. Motorola makes no other representation or warranty of any kind with respect to the Confidential Information. PRESERVATION OF MOTOROLA'S PROPRIETARY RIGHTS. Motorola owns and retains all of their Proprietary Rights in the Network talkgroup/fleetmap radio templates and legacy and/or Advanced System Keys and associated documentation and nothing in this Agreement is intended to restrict Motorola's Proprietary Rights. All intellectual property developed; originated; or prepared by Motorola in.connection with providing to .Applicant the confidential :Network legacy.and/or Advanced System Key and tatkgroup/fleetmap radio template files remain vested exclusively in Motorola, and this Agreement does not grant to Applicant any shared development rights of intellectual property. Except as explicitly provided in this Agreement, Motorola does not grant to Applicant, either directly or by implication, estoppel, or otherwise, any right, title or interest in Motorola's Proprietary Rights. Applicant 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, distribute, sublicense, sell or export the confidential Network legacy and/or Advanced System Key, talkgroup/fleetmap radio templates or radio programming archives or permit or encourage any third party to do so_ Section 11'— General NOTICES. Notices required under this Agreement to be given by one Party to the other must be in writing and either personally delivered or sent to the address shown below by certified mail, return receipt requested and postage prepaid (or by a recognized courier service, such as Federal Express, UPS, or NHL), or by facsimile with correct answerback.received, and will be effective upon receipt: .Motorola Solutions, Inc. Attn: City of Elgin Attn: Police Chief 15.1 Douglas Ave Elgin; IL 60120 With a copy to: City of Elgin Attn: Corporation Counsel 150 Dexter Ct Elgin, IL 60120 COMPLIANCE WITH LAWS. The Parties will comply with all applicable laws and regulations, including export laws and regulations of the United States. Applicant will not, without the prior authorization of Motorola and the appropriate governmentalauthority 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 will be a material breach. of this Agreement, permitting immediate termination by Motorola. 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 Software, without prior notice.to or consent of Applicant.. GOVERNING LAW. This Agreement will be governed by the laws of the State of Illinois. WAIVER. Failure or delay by.either Party to exercise a right or power under this Agreement will not be a waiver of the right or power. For a waives of a right or power to be effective, it must be in a writing signed by the ASK Application -and NDA Motorola Solutions, Inc. Confidential and Proprietary Motorola Solutions, Inc.$/2023 4 waiving_Party. An effective waiver of.a right or power will not be construed as either a future or continuing waiver of that same right or power,. or the waiver of any other right.or power. SEVERABILITY. If a court of competent jurisdiction renders any part of this Agreement invalid or unenforceable, that part will be severed and the remainder of this Agreement will continue in full force and effect. HEADINGS AND SECTIONREFERENCES. The section headings in this Agreement are inserted only for convenience and are not to be: construed as part of this Agreement or as a limitation of the scope of the particular section to which theheadingrefers. This Agreement will be fairly interpreted in accordance with its terms and conditions and not for or against either Party. ENTIRE AGREEMENT. This Agreement, including all Exhibits, constitutes the entire agreement of the Parties regarding the subject matter of the Agreement and supersedes all ,previous agreements, proposals, and understandings, whether written or oral, relating to this subject matter. This Agreement may be amended or modified only by a written instrument signed by authorized representatives of both Parties. The preprinted terms and conditions found on any purchase order, acknowledgment or other form will not be considered an amendment or modification. of this Agreement, even if a representative of each Party signs that document. AUTHORITY TO EXECUTE AGREEMENT. Each Party represents that it has obtained all necessary approvals, consents and authorizations to enter into this Agreement and to perform its duties under this Agreement; the person executing this Agreement on its behalf has the authority to do so; upon.execution and delivery of this Agreement by the Parties, it is a valid and binding contract, enforceable in accordance with its terms; and the execution, delivery, and performance of this Agreement does not violate any bylaw, charter, regulation, law or any other governing authority of the Party. SURVIVAL OF TERMS. The following provisions will survive the expiration or termination of this Agreement for any reason: Section 1 (Exhibits) and all Exhibits thereto; Section 2 (Definitions); Section 4 (Term and Termination); Section 5 (Limitations on Use); Section 6 (Audit); Section 7 (Ownership and Title); Section 9 (Disclaimer of Warranties); Section 10 (Indemnification); Section 12 (Confidential Information and Proprietary Rights); and all of this Section 13 (General). IN WITNESS WHEREOF, the parties have. executed this Agreement as of the Effective Date. Motorola Solutions, Inc. By: (Signature of authorized representative) Printed Name: Title: Date Witness Printed Name: Date Date ASK Application. and NDA Motorola Solutions, Inc. Confidential and Proprietary Motorola Solutions, Inc.8/2023