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KODIAK SOFTWARE END USER LICENSE AGREEMENT

This Kodiak Software End User License Agreement (“Agreement”), entered into by Kodiak Networks, Inc., a wholly-owned subsidiary of Motorola Solutions, Inc., with offices at 500 West Monroe Street, Chicago, Illinois 60661 (“Licensor”) and the entity purchasing Products or Services (as defined below) from Licensor (“Licensee”). 

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 USB thumb-drive, CD-ROM, downloadable internet, hardware, or firmware) licensed to Licensee.  The word “Documentation” refers to electronic or printed manuals and accompanying instructional aids licensed to Licensee.  The word “Product” refers to the specific combination of Software and Documentation that Licensee has licensed and which has been provided to Licensee under the terms of this Agreement.

2. Grant of License.  Licensor grants Licensee a personal, non-sublicenseable, nonexclusive, nonassignable, nontransferable license to use the Product 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. Except for the limited license expressly granted herein, Licensor grants no other licenses under this Agreement, express, implied, or by way of laches or estoppel, including no license under any patent or trademark.

3. Conditions of Use.  Any use of the Product outside of the conditions set forth in this Agreement is strictly prohibited and will be deemed a breach of this Agreement.

    3.1 Only Licensee, its employees or agents may use the Product.  Licensee will take all necessary steps to insure that its employees and agents abide by the terms of this Agreement.

    3.2 Licensee will use the Product: (i) only for its internal business purposes; (ii) only as described in the Documentation; and (iii) in strict accordance with this Agreement. In addition, if the Software is provided as part of a hardware product, Licensee will only use the Software as part of such product.

    3.3. Portions of the Product are protected by United States copyright laws, international treaty provisions, and other applicable laws.  Therefore, Licensee must treat the Product like any other copyrighted material (e.g., a book or musical recording) except that Licensee may make one (1) copy of the transportable part of the Software (which typically is supplied on USB thumb-drive, CD-ROM, or downloadable internet), solely for back-up purposes.  If the Documentation is in printed form, it may not be copied.  If the Documentation is in electronic form, Licensee may print out one (1) copy, which then may not be copied.  With regard to the copy made for backup purposes, Licensee agree to reproduce any Licensor copyright notice, and other proprietary legends appearing thereon.  Such copyright notice(s) may appear in any of several forms, including machine-readable form, and Licensee 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  Licensee will not transfer, directly or indirectly, any product, technical data or software to any country for which the United States or any other applicable government requires an export license or other governmental approval without first obtaining such license or approval. By installing or using the Software, Licensee agree to the foregoing, and represent and warrant that Licensee are not located in, under the control of, or are a national or resident of any restricted country.

4. Title Restrictions.  If Licensee transfers possession of any copy of the Product to another party outside of the terms of this agreement, its license is automatically terminated.  Title and copyrights to the Product and any copies made by Licensee remain with Licensor and its licensors.  Licensee will not, and will 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; (iii) remove any proprietary notices, marks, labels, or logos from the Software or Documentation; (iv) rent or transfer all or some of the Software to any other party without Licensor’s prior written consent; or (v) utilize any computer software or hardware which is designed to defeat any copy protection device, should the Product be equipped with such a protection device.  If the Product is provided on multiple types of media (such as USB thumb-drive, CD-ROM, downloadable internet), then Licensee will only use the medium which best meets its specific needs, and will not loan, rent, lease, or transfer the other media contained in the package without Licensor’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.   

5. Confidentiality.  Licensee acknowledge that the Product contains valuable proprietary information and trade secrets and that unauthorized or improper use of the Product will result in irreparable harm to Licensor for which monetary damages would be inadequate and for which Licensor will be entitled to immediate injunctive relief.  Accordingly, Licensee will limit access to the Product to those of its employees and agents who need to use the Product for Licensee’s internal business purposes, and Licensee will take appropriate action with those employees and agents to preserve the confidentiality of the Product, using the same degree of care to avoid unauthorized or improper disclosure as Licensee uses for the protection of its own proprietary software, but in no event less than reasonable care.

Licensee has 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 Licensee; (iii) was given to Licensee free of any obligation to keep it confidential; (iv) is independently developed by Licensee; or (v) is disclosed as required by law, provided that Licensee notify Licensor prior to such disclosure and provide Licensor with a reasonable opportunity to respond.

6. Right to Use Licensor’s Name.  Except as required in Section 3.3 above, Licensee will not, during the term of this Agreement or thereafter, use any trademark of Licensor, or any word or symbol likely to be confused with any Licensor trademark, either alone or in any combination with another word or words.

7. Transfer.  In the case of Software designed to operate on Licensor equipment, Licensee may not transfer the Software to another party except: (i) if Licensee is an end-user, when Licensee is transferring the Software together with the Licensor equipment on which it operates; or (ii) if Licensee a licensed distributor of Licensor, when Licensee is transferring the Software either together with such Licensor equipment or 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 Licensee is a licensed distributor or Licensor, when Licensee is transferring the Software permitted in this Agreement, Licensee agrees to transfer the Software with a license agreement having terms and conditions no less restrictive than those contained in this Agreement.  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 Licensee destroys any copy of the Software Licensee does not transfer to that party.  Licensee may not transfer the Software in violation of any laws, regulations, export controls or economic sanctions imposed by the U.S. Government.

8. Support.  This Agreement does not entitle Licensee to any support, upgrades, patches, enhancements or fixes for the Software.

9. Personal Information.  Motorola Solutions Privacy Statement is available at https://www.motorolasolutions.com/en_us/about/privacy-policy.html and will apply to the collection, use, storage, and disclosure of Licensee’s personal information. Licensee acknowledges that Licensee has reviewed and hereby agree to Motorola Solutions Privacy Statement. International transfer of personal data may be required in connection with the use of the Software. If applicable, Licensee hereby expressly consents to the international transfer of his/her personal data.

10. Warranty Disclaimer.  THE PRODUCT IS PROVIDED “AS IS.” LICENSOR DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR IN ANY COMMUNICATION WITH LICENSEE.  LICENSOR AND ANY OF ITS LICENSORS SPECIFICALLY DISCLAIM ANY WARRANTY INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILTY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.  LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED.  LICENSOR 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 Licensee.

11. Limitation of Liability. THE TOTAL LIABILITY OF LICENSOR AND ITS LICENSORS UNDER THIS AGREEMENT FOR DAMAGES WILL NOT EXCEED THE TOTAL AMOUNT PAID BY LICENSEE FOR THE SOFTWARE LICENSED UNDER THIS AGREEMENT.  IN NO EVENT WILL LICENSOR OR ANY OF ITS LICENSORS 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 LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS IN THIS PARAGRAPH WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Some jurisdictions do not permit limitations of liability for incidental or consequential damages, so the above exclusions may not apply to Licensee. 

12. Commercial Computer Software. 

    12.1  This Section 12 only applies to U.S. Government end users.  The Software and Documentation are commercial items as that term is defined at 48 C.F.R. Part 2.101, consisting of “commercial computer software” and “computer software documentation” as such terms are defined in 48 C.F.R. Part 252.227-7014(a)(1) and 48 C.F.R. Part 252.227-7014(a)(5), and used in 48 C.F.R. Part 12.212 and 48 C.F.R. Part 227.7202, as applicable.  Consistent with 48 C.F.R. Part 12.212, 48 C.F.R. Part 252.227-7015, 48 C.F.R. Part 227.7202-1 through 227.7202-4, 48 C.F.R. Part 52.227-19, and other relevant sections of the Code of Federal Regulations, as applicable, the Software and Documentation are distributed and licensed to U.S. Government end users (a) only as commercial items, and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions contained herein. 

    12.2  If Licensee is licensing Software for end use by the United States Government or a United States Government agency, Licensee may transfer such Software license, but only if: (i) Licensee transfers all copies of such Software and Documentation to such United States Government entity or interim transferee, and (ii) Licensee has first obtained from the transferee (if applicable) and ultimate end user an enforceable end user license agreement containing restrictions substantially identical to the ones contained in this Agreement.  Except as stated in the foregoing, Licensee and any transferee(s) authorized by this subsection 12.2 may not otherwise use or transfer or make available any Licensor software to any third party nor permit any party to do so.

13. Term and Termination.  Licensee’s right to use the Product will begin on the date of the last necessary signature to this Agreement, and will continue until terminated as follows.   Licensee’s right to use the Product will terminate immediately without notice upon a breach of this Agreement by Licensee.  Within thirty (30) days after termination of this Agreement, Licensee will certify to Licensor in writing that through Licensee’s best efforts, and to the best of Licensee’s knowledge, the original and all copies, in whole or in part, in any form, of the Software and all related material and Documentation, have been destroyed.   Licensee 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.

14. Governing Law.  This Agreement is governed by the laws of the United States of America to the extent that they apply and otherwise by the internal substantive laws of the State to which the Software is used if Licensee is a sovereign government entity, or the internal substantive laws of the State of Illinois if Licensee is not a sovereign government entity.

15. Assignment.  This Agreement may not be assigned or otherwise transferred by Licensee without Licensor’s prior written consent.

16. Survival of Provisions.  The parties agree that where the context of any provision indicates an intent that it survives the term of this Agreement, then it will survive.

17. Entire Agreement.  This Agreement contains the parties’ entire agreement regarding Licensee’s use of the Product and may be amended only in writing, signed by both parties. The original of this Agreement is written in English, and that version will apply if there is any dispute.

18. Third Party Software.  The Software may contain one or more items of Third-Party Software supplied by other third-party suppliers.  The terms of this Agreement govern Licensee’s use of any Third-Party Software UNLESS A SEPARATE THIRD-PARTY SOFTWARE LICENSE IS INCLUDED, IN WHICH CASE LICENSEE’S USE OF THE THIRD-PARTY SOFTWARE WILL THEN BE GOVERNED BY THE SEPARATE THIRD-PARTY LICENSE.

19. Open Source Software.  The Software may contain one or more items of Open Source or other Publicly Available Software.  For information regarding licenses, acknowledgements, required copyright notices, and other usage terms, reference the Software’s Legal Notices.