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HomeMy WebLinkAboutMOTOROLA 800 MHZ USER AGREEMENT 800 MHZ USER AGREEMENT THIS 800 MHZ USER AGREEMENT including all Attachments 'hereto (the "User Agreement") effective Januarv 6. 2009. (the "Effective Date") is entered into by and between Motorola, Inc. ("Motorola"), a Delaware corporation, which provides management services for a cost sharing, wide-area 800 MHz trunked voice radio system throughout portions of South Carolina and Georgia (the "Wide-Area Network") comprised of facilities authorized by Federal Communications Commission ("FCC") licenses held by Licensees (hereinafter defined); County of Augusta-Richmond ("User"), a body politic, which will utilize the Wide-Area Network; and SCANA Communications, Inc. ("SCI"), a South Carolina corporation; State of South Carolina, a body politic; County of Lexington, South Carolina, a body politic; County of Spartanburg, South Carolina, a body politic; County of Charleston, South Carolina, a body politic; County of Jasper, South Carolina, a body politic; County of Richland, South Carolina, a body politic; Augusta/Richmond, Georgia, a body politic; South Carolina Electric and Gas Company, a South Carolina corporation (collectively, "Licensees"), which hold the licenses on the Wide-Area Network which User will utilize. This User Agreement is subject to acceptance by Motorola. No additions or subtractions by User to this User Agreement are acceptable unless and until expressly agreed upon by Motorola. WHEREAS, Motorola is the manager of the Wide-Area 800MHz Trunked Voice radio system and according to certain standards set forth in an agreement between Motorola and the State of South Carolina (the "State Contract"); and User currently takes service from the Wide-Area Network's North Augusta (Site #6), Augusta (Site #5), Blythe (Site #7) and McBean (Site #25) sites pursuant to a prior agreement ("Prior Agreement"); and WHEREAS, Licensees have appointed Motorola as Licensees' agent collectively and individually, for purposes of entering into this User Agreement to govern use of Licensees' radio stations in accordance with the requirements of Section 90.179( d) of the FCC's rules; and WHEREAS, User desires service on the Wide-Area Network pursuant to the terms of this User Agreement; and WHEREAS, by separate agreement, User may contribute User's own licenses to the Wide-Area Network and contract with Motorola for management services. NOW, THEREFORE, in consideration of the foregoing and the mutual promises herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Motorola and User hereby abolish and nullify any portion of the Prior Agreement that pertains to the services received on the Wide-Area Network and covenant and agree as follows: 1. ACCEPTANCE This document, including any attachments, is an offer by User, which will become a contract when accepted in writing by an authorized employee of Motorola. The banking, negotiation or other use of any payment by Motorola shall not constitute an acceptance hereof by Motorola. It is agreed that service will be provided only on the terms and conditions herein. Neither Motorola nor the Licensees shall be bound by the terms and conditions in User's purchase order or elsewhere unless expressly agreed to in writing. Acceptance of services hereunder shall constitute an acceptance of these terms and conditions. 2. SERVICES AND USER FEES 2.1 User has requested, and Motorola agrees to provide, the services detailed on Attachment A. User and Motorola understand and agree that User shall load on the system the radios specified in Attachment A pursuant to the schedule set forth in that attachment (User may load the specified radios onto the Wide-Area Network in advance of the schedule with prior coordination with Motorola). 2.2 User agrees to pay for the services provided, including any optional features, on a non- profit, cost-shared basis in accordance with 47 C.F.R. section 90.179 ofthe FCC's rules. User's service charges are User's pro rata contribution to the operation of the Wide-Area Network based upon User's usage of the Network. These contributions shall cover User's share of the costs of operating the Wide- Area Network (including management fees) as well as the costs of implementing certain system expansions and upgrades. 2.3 User's initial service fees are detailed in Attachment A. Motorola agrees to maintain User's current schedule of fees without increase through November 15,2009, unless this Agreement is terminated prior thereto in accordance with Section 6 of this Agreement. After that date, Motorola may revise User's current schedule of fees set forth in Attachment A by giving User written notice of the amount of increase at least thirty (30) days in advance of the date on which the increased schedule of fees is to become effective. The new fees shall become effective on the date specified in such notice. 2.4 Billing will commence on the first day of the calendar month after service has begun. Any partial month will be prorated. Airtime charges, if any, will be billed at the end of each month. In the event that User does not load additional radios on the system in conformance with the schedule in Attachment A, User nevertheless shall be "responsible for and make contributions to the Wide-Area Network (and any other applicable charges) as if the additional radios were added to the system consistent with the above schedule. 2.5 User understands and agrees that any and all programming of User equipment or other related expenses associated with the service provided to User under this User Agreement shall be the responsibility of and paid for by User. The User understands and agrees to purchase equipment that will operate in the 806 and 821 frequency band and is compatible with the Motorola SmartZone™ equipment operated by Motorola. Any incompatibility of equipment obtained by User shall be at User's sole risk, responsibility and expense. 2 ~ 3. REGULATORY ISSUES 3.1 It shall be the responsibility and obligation of User to seek all approvals including federal, state, county, municipal or other governmental authority having jurisdiction over User in order to enter into this User Agreement. 3.2 User understands that, subject to the approval of the FCC, numerous entities, including, but not limited to, utilities, Public Safety users and Special Emergency users, will utilize the Wide-Area Network. A waiver has been obtained from the FCC, which waives the FCC's eligibility rules to allow Power Radio and Public Safety/Special Emergency eligibles to share certain radio stations as part of the Wide-Area Network. The obligations of Motorola hereunder are contingent upon approval of any additional regulatory action required by the FCC. 3.3 User understands that pursuant to the FCC's rules; only certain entities are qualified to utilize the Wide-Area Network. User represents and warrants that it will meet all FCC eligibility requirements to utilize the Wide-Area Network during the term of this User Agreement. User represents, warrants and covenants on the date hereof and throughout the term of this User Agreement that it is, and will remain, qualified to utilize the Wide-Area Network and that it meets, and will continue to meet, all such FCC eligibility requirements. 3.4 User understands and acknowledges that some or all of the licenses pursuant to which the Wide-Area Network operates are held by the Licensees. The User further understands that the Wide- Area Network will be operated on a shared-usage basis, in accordance with Section 90.179(d) of the FCC's rules. The method of operation of the Wide-Area Network is that Users and others will utilize, . share the costs associated with, and share the capacity of, the Wide-Area Network. Costs will be apportioned as set forth in Section 2 above. User acknowledges that all shared transmitter use must be subject to Licensees' control. 3.5 User understands that Motorola and/or the Licensees can discontinue service, remove one or more licenses from the Wide-Area Network, or take any other steps that they reasonably believe are in the best interests of the Wide-Area Network or is necessary to comply with any federal, state, or local law, order, or directive. Any such action shall not give rise to any claim on the part of User against Motorola or the Licensees. 4. INTERCONNECTION If User wishes to obtain interconnection with the Public Switched Telephone Network, User will so indicate on Attachment A on or prior to the date hereof. User hereby authorizes Motorola or an agent of Motorola to arrange for such interconnection in accordance with the rules and regulations of the FCC and any other applicable regulations. User directs Motorola to provide information regarding usage of such telephone lines by User to any person necessary in order to make interconnection available to User. Motorola reserves the right to regulate and manage the use of telephone interconnection service in order not to degrade dispatch service. User understands and agrees that Motorola has the right to invoke whatever operating restrictions are deemed necessary to ensure that interconnection does not degrade dispatch service. 3 5. INTERCONNECTION CHARGES Users electing to have the telephone interconnection option will be responsible to Motorola for payment of all charges for usage of this option. Charges for interconnection will be billed on either a flat fixed fee or on an air time billing cost basis or a combination of both according to the terms of Attachment A. If User is billed on a per minute basis, User understands and agrees that any access ofthe interconnection option will result in air time usage charges regardless of whether calls are completed. User shall be responsible for its equal portion of basic telephone company service, as well as telephone line charges, local calls and toll calls. 6. AUTOMATIC RENEWAL - TERMINATION This User Agreement will remain in full force and effect for a period of two (2) years from the Effective Date. Unless User notifies Motorola in writing of its intent not to renew this Agreement, at least 180 days prior to any potential Termination Date, this Agreement shall renew automatically ("Automatic Renewal") with the same terms and conditions set forth herein (unless otherwise amended by the parties) for one successive two (2) year term ("Renewal Period") on (i) the Termination Date and/or (ii) the last day of each Renewal Period. Thereafter, this Agreement shall automatically extend for successive one (I) year periods provided that either Motorola or the User may terminate this Agreement upon written notice to the other party one-hundred eighty (180) days prior to the end of any such extension period sent by certified mail to the address indicated herein. At any time, at Motorola's sole option, this User Agreement may be terminated immediately and without notice if the frequency authorization(s) (which may be held by User, Motorola, a Licensee or any other licensee) under which the Wide-Area Network operates is (are) revoked by the FCC. 7. ASSIGNMENT; SUBCONTRACT Neither User nor Motorola may assign its rights or delegate its duties hereunder in whole or in part without the express written consent of the other party hereto, it being agreed that Motorola may subcontract certain of its duties hereunder consistent with past practice or industry custom without the need to obtain User's consent. Notwithstanding the foregoing, User hereby grants its consent to Motorola to assign its rights or delegate its duties hereunder in whole or in part to SCI. 8. ADDITIONAL UNITS If User is not in default, then at any time during the term of this User Agreement or any renewal period hereof, service will be provided for additional units ordered by the User if Motorola determines that such additional service is technically feasible. The amount of contributions required of User will increase accordingly pursuant to the schedule of rates for the Wide-Area Network, as Motorola may amend from time to time. 4 ~. 9. COVENANTS OF USER User agrees (a) to observe and abide by all applicable statutes, laws, ordinances, rules and regulations, including but not limited to those of the FCC, and (b) to operate its radios and any related equipment so as not to cause undue interference with any other users using the Wide-Area Network. User recognizes that applicable FCC rules and other statutes, laws, ordinances, rules and regulations may change from time to time and that, accordingly, Motorola in its sole discretion has the right without liability to modify this User Agreement to comply with any such changes. 10. COVERAGE 10.1 System coverage prediction is based on the knowledge of the propagation of radio signals, and the ways in which they. are attenuated as they travel through the atmosphere, over terrain, through trees, around buildings, and around various obstacles. Predicted coverage is dependent on many factors including the following: (I) transmitter power; (2) receiver sensitivity; (3) antenna gains; (4) transmission line loss; (5) antenna height; (6) noise; (7) tree density; (8) buildings; (9) terrain variations; and (10) atmospheric conditions. Coverage is also dependent on User factors including: (1) antenna type and location; (2) radio programming; (3) battery condition of portables; (4) maintenance of the radio and (5) firmware version. 10.2 User acknowledges that one hundred percent (100%) coverage of any area at all times is improbable. Testing and experience with actual field conditions indicate adverse propagation conditions, such as short-term unpredictable meteorological effects and sky wave interference from distant stations, can interrupt service at any time. Such events are beyond the reasonable control of Motorola and the Licensees. Other causes beyond the reasonable control of Motorola and the Licensees include but are not limited to motor ignition and other electrical noise that could be minimized by corrective devices at User's expense. 11. DEFAULT AND REMEDIES 11.1 If User fails to make any payment of any sum due or fails to perform as required by any other provision hereunder, and continues in such failure for fifteen (15) days after written notice has been sent by Motorola to User, the User shall be deemed in default under this User Agreement. 11.2 In the event of default, Motorola has the right, at its option, to immediately terminate this User Agreement, retain all payments made hereunder, deny User any service provided by the radio system or systems identified herein, and impose a separate charge for disconnect and a separate charge for reconnect expenses, each in the same amount stated as the initial activation charge on Attachment A. If disconnect takes place, User may also be subjected to additional costs for reprogramming its equipment. Each and all of the rights and remedies of Motorola hereunder are cumulative to, and not in lieu of, each and every other such right and remedy and every other right and remedy afforded by law and equity. 5 12. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF REMEDIES 12.1 WITH RESPECT TO EQUIPMENT WITHIN THE SCOPE OF THIS USER AGREEMENT, MOTOROLA HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, DIRECT OR INDIRECT, EXPRESS OR IMPLIED, WRITTEN OR ORAL, IN CONNECTION WITH SUCH EQUIPMENT OR SERVICE (WHETHER PURCHASED OR LEASED BY USER FROM MOTOROLA OR ANOTHER), INCLUDING BUT NOT LIMITED TO, ANY AND ALL EXPRESS AND IMPLIED WARRANTIES OF SUITABILITY, DURABILITY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. MOTOROLA TO THE EXTENT PERMITTED BY LAW ASSIGNS TO USER ANY AND ALL MANUFACTURERS' WARRANTIES RELATING TO EQUIPMENT PURCHASED BY USER, IF ANY, AND USER ACKNOWLEDGES RECEIPT OF ANY AND ALL SUCH MANUFACTURERS ' WARRANTIES. 12.2 USER ACKNOWLEDGES AND AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY IN CONNECTION WITH ANY DEFECTS IN ANY EQUIPMENT, INCLUDING MANUFACTURE OR DESIGN, SHALL BE AGAINST THE MANUFACTURER OF THE EQUIPMENT UNDER THE MANUFACTURERS' WARRANTIES AND THAT MOTOROLA UNDER THIS USER AGREEMENT SHALL HAVE NO LIABILITY TO USER IN ANY EVENT FOR ANY LOSS, DAMAGE, INJURY, OR EXPENSE OF ANY KIND OR NATURE RELATED DIRECTLY OR INDIRECTLY TO ANY SUCH EQUIPMENT OR SERVICE PROVIDED HEREUNDER. WITHOUT LIMITING THE ABOVE, MOTOROLA UNDER THIS USER AGREEMENT SHALL HAVE NO LIABILITY OR OBLIGATION TO USER, IN EITHER CONTRACT OR TORT, FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND INCURRED BY USER, SUCH AS, BUT NOT LIMITED TO, CLAIMS OR DAMAGES FOR PERSONAL INJURY, .WRONGFUL DEATH, LOSS OF USE, LOSS OF ANTICIPATED PROFITS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ECONOMIC LOSSES OF ANY KIND RELATED TO ANY SUCH EQUIPMENT OR RADIO SERVICE DESCRIBED HEREIN, WHETHER OR NOT CAUSED BY MOTOROLA'S NEGLIGENCE, TO THE FULL EXTENT SAME MAY BE DISCLAIMED BY LAW. ANY REFERENCES TO EQUIPMENT IN THIS PARAGRAPH SHALL BE DEEMED TO APPLY TO ALL EQUIPMENT PURCHASED BY USER OR LEASED BY USER FROM MOTOROLA, IF ANY, OR ANOTHER LESSOR. 13. INTERRUPTION OF SERVICE; FORCE MAJEURE Notwithstanding any other provision of this User Agreement, neither Motorola nor the Licensees shall be liable to User or any other person for any loss or damage, regardless of cause, for interruption or loss of radio service except as described in Section 14 hereof. Motorola and the Licensees do not assume and shall have no liability under this User Agreement for failure to provide, or delay in providing, service due directly or indirectly to causes beyond the control of Motorola and/or the Licensees or their subcontractors, including but not restricted to, acts of God, or governmental entities, or of the public enemy, strikes, or unusually severe weather conditions. In the event of any failure or delay attributable to the fault of Motorola, the Licensees or their subcontractors, User's sole remedy shall be limited as is more fully described in Section 14 below. 6 .. 14. LIMITATIONS OF LIABILITY; INDEMNIFICATION 14.1 USER UNDERSTANDS AND ACKNOWLEDGES THAT (A) ALTERNATIVE MEANS OF COMMUNICATION ARE AVAILABLE TO USER; (B) OCCASIONAL INTERRUPTIONS OR IRREGULARITIES IN THE SERVICE MAY OCCUR; AND (C) ANY POTENTIAL HARM FROM INTERRUPTIONS OR IRREGULARITIES IN THE SERVICE IS SPECULATIVE IN NATURE. THE WIDE-AREA NETWORK CANNOT PROVIDE RADIO SERVICE AT RATES WHICH REFLECT ITS VALUE TO EACH USER, AND NEITHER MOTOROLA NOR LICENSEES ASSUME RESPONSIBILITY OTHER THAN THAT CONTAINED IN THIS USER AGREEMENT. ACCORDINGLY, USER AGREES THAT EXCEPT AS LIMITED BY LAW, MOTOROLA'S AND LICENSEES' SOLE LIABILITY FOR LOSS OR DAMAGE ARISING OUT OF MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS, OR DEFECTS IN THE SERVICE OR TRANSMISSION OF SERVICE PROVIDED BY THE WIDE- AREA NETWORK AND/OR MOTOROLA AND/OR THE LICENSEES OR ANY CARRIER, OR FOR LOSSES OR DAMAGES ARISING OUT OF THE FAILURE OF MOTOROLA OR ANY CARRIER TO MAINTAIN PROPER STANDARDS OR MAINTENANCE AND OPERATION SHALL BE AS FOLLOWS: (i) A CREDIT ALLOWANCE, AS DESCRIBED IN SUBSECTION (14)(a)(iii) BELOW, WILL BE MADE AT USER'S REQUEST IN THE FORM OF A PRO-RATA ADJUSTMENT OF THE FIXED MONTHLY CHARGES BILLED TO USER. FIXED MONTHLY CHARGES ARE THE MONTHLY CHARGES PAID BY USER FOR SERVICE FROM THE WIDE- AREA NETWORK. (ii) SUCH CREDIT ALLOWANCE WILL BE BASED UPON THE PERIOD OF TIME DURING WHICH SUCH MISTAKES, OMISSIONS, DELAYS, ERRORS AND DEFECTS IN THE SERVICE OR ITS TRANSMISSIONS CAUSED INTERRUPTIONS IN THE RENDERING OF THE SERVICE. ANY SUCH PERIOD OF TIME AN INTERRUPTION OCCURS WILL BE MEASURED FROM THE TIME IT IS REPORTED TO OR DETECTED BY MOTOROLA, WHICHEVER OCCURS FIRST. IN THE EVENT USER IS AFFECTED BY SUCH INTERRUPTION FOR A PERIOD OF LESS THAN 48 HOURS, NO SUCH ADJUSTMENT SHALL BE MADE. WHEN AN INTERRUPTION EXCEEDS 48 HOURS, THE LENGTH OF THE INTERRUPTION WILL BE MEASURED IN 24 HOUR (DAY) INTERVALS. A FRACTION OF A DAY CONSISTING OF LESS THAN 12 HOURS WILL NOT BE CREDITED, BUT A PERIOD OF 12 HOURS OR MORE WILL BE CONSIDERED AN ADDITIONAL DAY. (iii) THE CREDIT ALLOWANCE WILL BE COMPUTED BY DIVIDING THE LENGTH OF THE SERVICE INTERRUPTION BY A STANDARD 30 DAY MONTH AND THEN MULTIPLYING THE RESULT BY USER'S FIXED MONTHLY CHARGES FOR EACH RADIO SET TO WHICH SERVICE WAS INTERRUPTED. IN NO CASE WILL THE CREDIT EXCEED THE FIXED MONTHLY CHARGES. (iv) A CREDIT ALLOWANCE WILL NOT BE GIVEN FOR MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS OR DEFECTS, OR CURTAILMENTS IN THE SERVICE CAUSED BY THE NEGLIGENCE OR WILLFUL ACT OF USER OR OTHER PARTIES 7 .. OR MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS, OR DEFECTS CAUSED BY FAILURE OF EQUIPMENT OR SERVICE NOT PROVIDED BY MOTOROLA. (v) THE SERVICE FURNISHED BY MOTOROLA, IN ADDITION TO THE LIMITATIONS SET FORTH PRECEDING, IS ALSO SUBJECT TO THE FOLLOWING LIMITATION: THE LIABILITY OF MOTOROLA FOR LOSS OR DAMAGES ARISING OUT OF MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS OR DEFECTS IN THE SERVICE, ITS TRANSMISSION OR FAILURES OR DEFECTS IN FACILITIES OF THE UNDERLYING CARRIER, OCCURRING IN THE COURSE OF FURNISHING SERVICE AND NOT CAUSED BY THE NEGLIGENCE OF THE AUTHORIZED USER, OR THE UNDERLYING CARRIER IN FAILING TO MAINTAIN PROPER STANDARDS OF MAINTENANCE AND OPERATION AND TO EXERCISE REASONABLE SUPERVISION, SHALL IN NO EVENT EXCEED AN AMOUNT EQUIVALENT TO THE PROPORTIONATE FIXED MONTHLY CHARGE TO THE AUTHORIZED USER FOR SERVICE DURING THE PERIOD OF TIME IN WHICH SUCH MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS, OR DEFECTS IN SERVICE, ITS TRANSMISSION OR FAILURES OR DEFECTS IN FACILITIES FURNISHED BY MOTOROLA OR THE UNDERLYING CARRIER OCCURRED. 14.2 Neither Motorola nor the Licensees shall in any event be liable for service or equipment interruptions or delays in transmission, errors or defects in service or equipment when caused by acts of God, fire, war, riots, government authorities, default of supplier or other causes beyond their or any carrier's control. 14.3 User acknowledges that the radio service provided hereunder uses radio channels to transmit voice and data communications and that the service may not be completely private. Neither Motorola nor the Licensee shall be liable to User for any claims, loss, damages or cost which may result from lack of privacy on the system. 14.4 User hereby agrees to indemnify and hold Motorola and the Licensees harmless against claims for libel, slander, infringement or copyright from the material, in any form, transmitted over the radio system by User or those using User's equipment; against claims for infringement of patents arising from, combining or using apparatus or systems of the User with the facilities of Motorola and/or the Licensees or any carrier; and against all other claims arising out of any act or omission of User in connection with the facilities or service provided by Motorola and/or the Licensees. 14.5 Neither Motorola nor the Licensees are liable for any damage, accident, injury or the like occasioned by the use of the radio service or the presence of equipment, including 800 MHz radio handsets and other devices, facsimile units, and ancillary equipment of User and/or Motorola and/or the Licensees, except as provided herein. 14.6 Neither Motorola nor the Licensees are liable for any defacement or damage to User's motor vehicle(s) or any personal or real property resulting from the presence of 800 MHz radio and ancillary equipment. 8 14.7 THE LIABILITY OF MOTOROLA AND THE LICENSEES IN CONNECTION WITH THE SERVICE PROVIDED IS SUBJECT TO THE FOREGOING LIMITATIONS AND MOTOROLA AND THE LICENSEES MAKE NO WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, AS TO THE PROVISION OF SUCH SERVICE. User agrees to release, defend, indemnify and hold harmless Motorola and the Licensees, as well as their officers and employees, to the full extent permitted by law from and against any and all claims, damages, liabilities and expenses, including, legal and attorney fees, of any nature arising directly or indirectly out of this User Agreement including, without limitation, claims for personal injury or wrongful death to User or other users of the equipment, products or services provided by Motorola and/or the Licensees or used in conjunction with such equipment, products or services and arising out of the manufacture, purchase, operation, conditions, maintenance, installation, return or use of the equipment or Service arising by operation of law, whether the claim is based in whole or in part on negligent acts or omissions of Motorola,. and/or their Licensees, or their agents or employees. 15. NOTICES All notices, requests, demands, communications or information which are required to be or may be given under or in connection with this Agreement shall be in writing and shall be deemed given when delivered personally or by facsimile copy (with transmission confirmed), or upon receipt (or on the date rejected or returned if not accepted) after dispatch by certified or registered first class mail, postage prepaid, return receipt requested, directed to the Party to whom the same is so given or made at the address or facsimile number of such Party as hereinafter set forth or such other address or facsimile number as the Parties may hereinafter designate: To Motorola, Inc.: Motorola, Inc. Attn: Steve Spencer 4 Harbison Way Columbia, SC 29212 To User: Augusta, Georgia Attn: Deke Copenhaver, Mayor 530 Greene Street Augusta, GA 30901 With additional copy to: Tameka Allen Director Information Technology Dept. 530 Greene Street, Room A-101 Augusta, GA 30901 9 16. WAIVER Failure or delay on the part of any party to exercise any right, remedy, power or privilege hereunder shall not operate as a waiver thereof. A waiver, to be effective, must be in writing and signed by the party making the waiver. A written waiver of a default shall not operate as a waiver of any other default or of the same type default on a future occasion. 17. GENERAL No revision of this User Agreement, including any attachments hereto, shall be valid unless made in writing and signed by an authorized employee of Motorola, as system manager, and an authorized agent of User. This User Agreement constitutes the entire agreement of the parties and shall supersede all prior offers, negotiations and agreements. If any provision of this User Agreement or the application thereof to any person or circumstance shall, at any time or to any extent, be invalid or unenforceable, the remainder of this User Agreement shall not be affected thereby. This User Agreement is exclusively for the benefit of the parties hereto and shall, under no circumstances, be deemed to benefit any other party whatsoever. This User Agreement shall be construed in accordance with and governed by the laws of the State of Georgia. 18. ADDITION OF NEW LICENSEES Each party understands that license holders other than the Licensees may make their licenses available to the Wide-Area Network. The parties agree that such license holders, upon making their licenses available to the Wide-Area Network, shall automatically be included within the term "Licensees" for purposes of this User Agreement. OFFER Made by: OFFER Accepted by: Augusta-Richmond Georgia, a body POlititQ vb1- 0- Print: V-'tv'-':;j.) ~. C ~ rt:: p rlAIlt7- MOTOROLA, INC., a Delaware corporation ~?' Pri~: Marshall Wriqht Title: jVLi4 'f 01- -z, I ~ loPJ Tti~: MSSI Vice President & Director Date: Date: 02/23/09 Address: 53<' aR.€Wf $( 1U1101 Address: L./ I-lflt<..6IS:::JJJ WALl f.k)~"~cA bf:/ 31':JQo( ~LlAn e5/A f<... d'1:J../';}... ~~"\ ~ 10 .. . ATTACHMENT A User and Motorola, Inc. acknowledges that, for purposes of this Agreement, User is receiving radio service to approximately 1,580 radios as of the date of this Agreement. The parties understand and agree that, as of the date of this Agreement, User shall be charged a dispatch rate of $28.50 per month per radio for dispatch services provided to all radios in service as of the date of this Agreement. User understands this dispatch rate is for Analog radio service only. User also understands that any interconnect charges or private call charges are in addition to the dispatch rate. The costs associated with the wireline are $250.00 per wire line/CEB and $50.00 per MUX ID. ~ 11