HomeMy WebLinkAboutCONTRACT WITH MOTOROLA SOLUTIONS, INC., TO IMPLEMENT AN INTERVIEW ROOM RECORDING AND DIGITAL EVIDENCE MANAGEMENT SYSTEM FOR THE RICHMOND COUNTY SHERIFF'S OFFICE SUBSCRIPTION SERVICES AGREEMENT
Motorola Solutions, Inc., a Delaware corporation ("Motorola"), having a place of business as 500 West
Monroe Street, Chicago, Illinois 60661, and Augusta, Georgia, a political subdivision of the State of
Georgia ("Customer"), with its place of business at 535 Telfair Street, Augusta, Georgia 30901, enter into
this Subscription Services Agreement ("Agreement") pursuant to which Customer will purchase and
Motorola will sell a subscription to access the subscription services described below. Motorola and
Customer may be referred to individually as a "Party" and collectively as the"Parties."
For good and valuable consideration, the parties agree as follows:
1. ATTACHMENTS
1.1 EXHIBITS. The exhibits listed below are exhibits related to the provision of subscription
services. These exhibits are incorporated herein and made a part of this Agreement in reference to RFP
18-231.
Exhibit I "Addendum- Digital Evidence Management Solution"
Exhibit II "Addendum- Equipment Sale Addendum"
Exhibit III Motorola's Proposal to RFP 18-231 dated July 17, 2018, and updated pricing dated
October 4, 2018
1.2 To the extent there is a conflict among the terms and conditions of this Agreement and the terms
and conditions of the applicable Exhibits, the Agreement takes precedence. The Exhibits take
precedence with respect to the technical and scope of work details. To the extent that there is a conflict
among the Exhibits, Exhibit III, Motorola's Proposal to RFP 18-231 shall take precedence.
2. DEFINITIONS
Capitalized terms used in this Agreement have the meanings set forth below. Any reference to the
purchase or sale of software or other Intellectual Property shall mean the sale or purchase of a license or
sublicense to use such software or Intellectual Property in accordance with this Agreement.
"Administrator" means Customer's designated system administrator who receives administrative logins for
the Subscription Services and issues access rights to Customer's Users.
"Anonymized" means having been stripped of any personal or correlating information revealing original
source or uniquely identifying a person or entity.
"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.
"Customer Data" means Native Data provided by Customer to Motorola hereunder to be processed and
used in connection with the Subscription Services. Customer Data does not include data provided by third
parties and passed on to Motorola.
"Days" mean calendar days.
"Deliverables" means all written information (such as reports, analytics, Solution Data, specifications,
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designs, plans, drawings, or other technical or business information) that Motorola prepares for Customer
in the performance of the Services and is obligated to provide to Customer pursuant to the applicable
Statement of Work. The Deliverables, if any, are more fully described in the Statement of Work.
"Documentation" means the technical materials provided by Motorola to Customer in hard copy or
electronic form describing the use and operation of the Solution and Software, including any technical
manuals, but excluding any sales, advertising or marketing materials or proposals.
"Effective Date" means the date of the last signature on this Agreement, unless access to the
Subscription Service occurs later, in which case, the Effective Date will be the date when Customer first
has access to the Subscription Services.
"Feedback" means comments or information, in oral or written form, given to Motorola by Customer, in
connection with or relating to the Solution and Subscription Services.
"Force Majeure" which means an event, circumstance, or act that is beyond a Party's reasonable control,
such as an act of God, an act of the public enemy, an act of a government entity, strikes, other labor
disturbances, supplier performance, hurricanes, earthquakes, fires, floods, epidemics, embargoes, war,
riots, or any other similar cause.
"Licensed Product" means 1) Software, whether hosted or installed at Customer's site, 2) Documentation;
3) associated user interfaces; 4) help resources; and 5) any related technology or other services made
available by the Solution.
"Native Data" means data that is created solely by Customer or its agents.
"Proprietary Rights" means the patents, patent applications, inventions, copyrights, trade secrets,
trademarks, trade names, mask works, know-how, ideas and concepts, moral rights, processes,
methodologies, tools, techniques, and other intellectual property rights.
"Software" means the Motorola owned or licensed off the shelf software programs delivered as part of the
Licensed Products used to provide the Subscription Services, including all bug fixes, updates and
upgrades.
"Solution" means collectively, the Software, servers and any other hardware or equipment operated by
Motorola and used in conjunction with the Subscription Services.
"Solution Data" means Customer Data that is transformed, altered, processed, aggregated, correlated or
operated on by Motorola, its vendors or other data sources and data that has been manipulated or
retrieved using Motorola know-how to produce value-added content that is made available to Customer
with the Solution and Subscription Services.
"Statement of Work" If included, the Statement of Work ("SOW") describes the Subscription Services,
Deliverables (if any), Licensed Products and Solution that Motorola will provide to Customer under this
Agreement, and the other work-related responsibilities that the parties owe to each other. The Statement
of Work may contain a performance schedule.
"Subscription Services" means those subscription services to be provided by Motorola to Customer under
this Agreement, the nature and scope of which are more fully described in the Documentation, proposal,
SOW, or other Solution materials provided by Motorola, as applicable.
"Users" means Customer's authorized employees or other individuals authorized to utilize the
Subscription Services on behalf of Customer and who will be provided access to the Subscription
Services by virtue of a password or equivalent security mechanism implemented by Customer.
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3. SCOPE
3.1 Subscription Services. Motorola will provide to Customer the Subscription Services and
Deliverables (if any). As part of the Subscription Services, Motorola will allow Customer to use the
Solution described in the Statement of Work, Documentation, Motorola's Quote dated October 3, 2018, or
other Solution materials provided by Motorola ("Exhibit(s)"), as applicable. Some Subscription Services
will also be subject to additional terms unique to that specific Subscription Service. Such additional terms
will be set forth in an Addendum. In the event of a conflict between an Addendum and the body of the
Agreement, the Addendum will govern resolution of the conflict. However, the order of precedence
described above in Section 1.2 shall remained unchanged. Motorola and Customer will perform their
respective responsibilities as described in this Agreement and any applicable Exhibits.
3.2 Changes. Customer may request changes to the Services. If Motorola agrees to a requested
change, the change must be confirmed in writing and signed by authorized representatives of both
Parties. A reasonable price adjustment will be made if any change affects the time of performance or the
cost to perform the Services. Neither Party is obligated to perform requested changes unless both
Parties execute a written change order.
3.3 Non-solicitation. During the Term of this Agreement and for twelve (12) months thereafter,
Customer will not actively solicit the employment of any Motorola personnel who is involved directly with
providing any of the Services under this Agreement. If this provision is found to be overly broad under
applicable law, it will be modified as necessary to conform to applicable law.
4. TERM
4.1 Term. Unless a different Term is set forth in an applicable Addendum or the Exhibits, the Term of
this Agreement begins on the Effective Date and shall continue for a period of five (5), one (1) year terms,
not to exceed a total five (5) years. This Agreement shall automatically renew annually on the anniversary
of the expiration of each one (1) year term, unless either Party: (a) notifies the other of its intention to not
renew the Agreement (in whole or part) at least thirty (30) days before the expiration of the Term; (b)
requests an alternate term; or (3) terminates in accordance with the termination section of this
Agreement, including non-payment of fees for the renewal period by the anniversary date.
4.2 Renewals. The terms and conditions of this Agreement will govern any renewal periods.
5. CUSTOMER OBLIGATIONS. Customer will fulfill all of its obligations in this Agreement, including
applicable addendums and all Exhibits in a timely and accurate manner. Failure to do so may prevent
Motorola from performing its responsibilities.
5.1 Access. To enable Motorola to perform the Subscription Services, Customer will provide to
Motorola reasonable access to relevant Customer information, personnel, systems, and office space
when Motorola's employees are working on Customer's premises, and other general assistance. Further,
if any equipment is installed or stored at Customer's location in order to provide the Subscription
Services, Customer will provide, at no charge, a non-hazardous environment with adequate shelter, heat,
light, power, security, and full and free access to the equipment.
5.2 Customer Information. If the Documentation, Statement of Work, proposal, or other related
documents contain assumptions that affect the Subscription Services or Deliverables, Customer will verify
that they are accurate and complete. Any information that Customer provides to Motorola concerning the
Subscription Services or Deliverables will be accurate and complete in all material respects. Customer
will make timely decisions and obtain any required management and third party approvals or consents
that are reasonably necessary for Motorola to perform the Subscription Services and its other duties
under this Agreement. Unless the Statement of Work states the contrary, Motorola may rely upon and is
not required to evaluate, confirm, reject, modify, or provide advice concerning any assumptions and
Customer-provided information, decisions and approvals described in this paragraph.
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5.3 Risk of Loss. If any portion of the Solution resides on Customer premises or is under Customer's
control in any way, Customer shall at all times exercise reasonable care in using and maintaining the
Solution in accordance with Motorola's instructions for proper use and care. Risk of loss to any equipment
in Customer's possession will reside with Customer until removed by Motorola or its agent or returned by
Customer, to the extent that loss is not due to equipment deficiency(ies). Customer will be responsible for
replacement costs of lost or damaged equipment, to the extent that the equipment is not deficient and
normal wear and tear excluded.
5.4 Equipment Title. Unless Customer is purchasing equipment pursuant to the terms in the
Addendum entitled "Equipment Purchase" and unless stated differently in this Agreement or in the
Incorporated Documents, title to any equipment provided to Customer in connection with the Subscription
Services remains vested in Motorola at all times. Any sale of equipment pursuant to this Agreement will
be governed by the terms and conditions set forth in the Equipment Purchase Addendum.
5.5 Enable Users. Customer will properly enable its Users to use the Subscription Services, including
providing instructions for use, labeling, required notices, and accommodation pursuant to applicable laws,
rules, and regulations. Unless otherwise agreed in the Incorporated Documents, Customer will train its
Users on proper operation of the Solution and Licensed Products. Customer agrees to require Users to
acknowledge and accept the limitations and conditions of use of the Licensed Products in this Agreement
prior to allowing Users to access or use Subscription Services.
6. Subscription Fees.
6.1 Recurring Fees. Unless stated differently in an applicable addendum, Incorporated Documents
or otherwise arranged in writing with Motorola, Services will be provided in exchange for annual pre-paid
Subscription Fees. Motorola will submit an invoice for the first year of subscription fees on the Effective
Date. On each anniversary of the Effective Date, Motorola will issue an invoice for the annual subscription
fees for the following year.
6.2 Start Up Fees. Start up fees apply to certain Subscription Services. If the Subscription Service
includes start up fees, Motorola will submit an invoice for the start up fees on the Effective Date.
6.3 Fee Change. Motorola reserves the right to change the subscription fees at the end of each
Subscription Services Term. Except for any payment that is due on the Effective Date, Customer will
make payments to Motorola within thirty (30) days after the date of each invoice. Motorola reserves the
right to terminate Service for non-payment of fees.
6.4 No Price Guarantee. Notwithstanding any language to the contrary, the pricing and fees
associated with this Agreement will not be subject to any most favored pricing commitment or other
similar low price guarantees.
6.5 Taxes. The Subscription Fees and start up fees do not include any excise, sales, lease, use,
property, or other taxes, assessments or duties, all of which will be paid by Customer, except as exempt
by law. If Motorola is required to pay any of those taxes, it will send an invoice to Customer and
Customer will pay to Motorola the amount of the taxes (including any interest and penalties) within thirty
(30) days after the date of the invoice. Motorola will be solely responsible for reporting taxes on its
income or net worth.
7. ACCEPTANCE; SCHEDULE; FORCE MAJEURE
7.1 Acceptance. The Licensed Products will be deemed accepted upon thirty (30) days post "Go-
Live" provided all system requirements and products have been successfully tested, or arrangements
have been made to complete them at a later date. The demonstration of the delivered solution meeting
all System Requirements is the Vendor's right and responsibility. In the event that arrangements have
been made to complete some of the System Requirements at a later date, this must be with the written
approval of the Customer's Director of Information Technology and the Chief Official of the Customer's
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department or office, whose operations would be impacted by the inability of the Vendor to fully
implement their system.
7.2 Schedule. All Subscription Services will be performed in accordance with the performance
schedule included in the Statement of Work, or if there is no performance schedule, within a commercially
reasonable time period.
7.3 Force Majeure. Neither Party will be liable for its non-performance or delayed performance if
caused by a Force Majeure. Each Party will notify the other in writing if it becomes aware of any Force
Majeure that will significantly delay performance. The notifying Party will give the notice promptly (but in
no event later than fifteen (15) days) after it discovers the Force Majeure. In any such event, the price
and schedule from this Agreement shall be equitably adjusted.
7.4 Temporary Suspension or Delay. To the extent that it does not alter the scope of this
Agreement, Customer may unilaterally order a temporary stopping of work, or delaying of work to be
performed by Motorola under this Agreement.
8. LIMITED LICENSE
8.1 Licensed Products. Use of the Licensed Products by Customer and its Users is strictly limited to
use in connection with the Solution or Subscription Services during the Term. Customer and Users will
refrain from, and will require others to refrain from, doing any of the following with regard to the Software
in the Solution: (i) directly or indirectly, by electronic or other means, copy, modify, or translate the
Software; (ii) directly or indirectly, by electronic or other means, reproduce, reverse engineer, distribute,
sell, publish, commercially exploit, rent, lease, sublicense, assign or otherwise transfer or make available
the Licensed Products or any part thereof to any third party, or otherwise disseminate the Licensed
Product in any manner; (iii) directly or indirectly, by electronic or other means, modify, decompile, or
disassemble the Software or part thereof, or attempt to derive source code from the Software; or (iv)
remove any proprietary notices, labels, or marks on the Software or any part of the Licensed Products.
Motorola Solutions reserves all rights to the Software and other Licensed Products not expressly granted
herein, including without limitation, all right, title and interest in any improvements or derivatives
conceived of or made by Motorola that are based, either in whole or in part, on knowledge gained from
Customer Data. Customer agrees to abide by the copyright laws of the United States and all other
relevant jurisdictions, including without limitation, the copyright laws where Customer uses the Solution.
Customer agrees to immediately cease using the Solution if it fails to comply with this paragraph or any
other part of this Agreement. If Software is subject to a click wrap, end user license agreement or is
otherwise packaged with or subject to a separate end user license, such license will apply to the use of
Software and Licensed Product.
8.2 Proprietary Rights. Regardless of any contrary provision in the Agreement, Motorola or its third
party providers own and retain all of their respective Proprietary Rights in the Software, Solution, and
Licensed Product. Nothing in this Agreement is intended to restrict their Proprietary Rights. All intellectual
property developed, originated, or prepared by Motorola in connection with providing Services to
Customer remain vested exclusively in Motorola, and this Agreement does not grant to Customer any
shared development rights of intellectual property. No custom development work is to be performed under
this Agreement.
9. DATA AND FEEDBACK
9.1 Solution Data. To the extent permitted by law, Motorola, its vendors and licensors are the
exclusive owners of all right, title, and interest, in and to the Solution Data, including all intellectual
property rights therein. Motorola grants Customer a personal, royalty-free, non-exclusive license to: (i)
access, view, use, copy, and store the Solution Data for its internal business purposes and, (ii) when
specifically permitted by the applicable Statement of Work, publish Solution Data on its websites for
viewing by the public.
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9.2 Customer Data. To the extent permitted by law, Customer retains ownership of Customer Data.
Customer grants Motorola and its subcontractors a personal, royalty-free, non-exclusive license to use,
host, cache, store, reproduce, copy, modify combine, analyze, create derivatives from, communicate,
transmit, publish, display, and distribute such Customer Data for the purpose of providing the
Subscription Services to Customer, other Motorola Customers and end users, including without limitation,
the right to use Customer Data for the purpose of developing new or enhanced solutions. In addition to
the rights listed above, Customer grants Motorola a license to sell an Anonymized version of Customer
Data for any purpose.
9.3 Feedback. Any Feedback given by Customer is entirely voluntary and, even if designated as
confidential, will create no confidentiality obligation for Motorola. Motorola is free to use, reproduce,
license or otherwise distribute and exploit the Feedback without any obligation to Customer. Customer
acknowledges that Motorola's receipt of the Feedback does not imply or create recognition by Motorola of
either the novelty or originality of any idea. The parties further agree that all fixes, modifications and
improvement to the Licensed Product or Subscription Service conceived of or made by Motorola that are
based, either in whole or in part, on the Feedback are the exclusive property of Motorola and all right, title
and interest in and to such fixes, modifications or improvements to the Licensed Product or Subscription
Service will vest solely in Motorola.
10 WARRANTY
10.1 "AS IS". THE SOLUTION AND SUBSCRIPTION SERVICES ARE PROVIDED "AS IS".
MOTOROLA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. Customer
acknowledges that the Deliverables may contain recommendations, suggestions or advice from Motorola
to Customer (collectively, "Recommendations"). Motorola makes no warranties concerning those
Recommendations, and Customer alone accepts responsibility for choosing whether and how to
implement the Recommendations and the results to be realized from implementing them.
10.2 Availability and Accuracy. Customer acknowledges that functionality of the Solution as well as
availability and accuracy of Solution Data is dependent on many elements beyond Motorola's control,
including databases managed by Customer or third parties and Customer's existing equipment, software,
and Customer Data. Therefore, Motorola does not guarantee availability or accuracy of data, or any
minimum level of coverage or connectivity. Interruption or interference with the Subscription Services or
Solution may periodically occur. Customer agrees not to represent to any third party that Motorola has
provided such guarantee. However, Motorola will use commercially reasonably efforts to ensure the
availability or accuracy of data that is within its control, or any minimum level of coverage.
10.3 Equipment Sale. Warranty for any equipment sold pursuant to this Agreement will be set forth in
Equipment Purchase Addendum.
11. DISCLAIMERS
11.1 Existing Equipment and Software. If Customer's existing equipment and software is critical to
operation and use of the Subscription Services, Customer is solely responsible for supporting and
maintaining Customer's existing equipment and software. Connection to or interface with Customer's
existing equipment and software may be required to receive Subscription Services. Any failures or
deficiencies of Customer's existing equipment and software may impact the functionality of the Solution
and the Subscription Services to be delivered. Any vulnerabilities or inefficiencies in Customer's system
may also impact the Solution and associated Subscription Services.
11.2 Privacy. Customer bears sole responsibility for compliance with any laws and regulations
regarding tracking; location based services; gathering, storing, processing, transmitting, using or
misusing; or otherwise handling personally identifiable information ("PII"), including information about
Users of the Solution or citizens in the general public. Further, it is Customer's sole responsibility to
comply with any laws or regulations prescribing the measures to be taken in the event of breach of
privacy or accidental disclosure of any PII. Enacting and enforcing any internal privacy policies for the
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protection of PII, including individual disclosure and consent mechanisms, limitations on use of the
information, and commitments with respect to the storage, use, deletion and processing of PII in a
manner that complies with applicable laws and regulations will be Customer's sole responsibility.
Motorola will not evaluate the sufficiency of such policies and disclaims any responsibility or liability for
privacy practices implemented by Customer, or lack thereof. Customer acknowledges and agrees that
Subscription Services and the Solution are not designed to ensure individual privacy. Customer will
inform Users that the Solution may enable visibility to PII, as well as physical location of individuals.
Further, if the Solution or Subscription Services are available to the general public pursuant to this
Agreement, Customer will provide the appropriate privacy notification. Neither Motorola nor Customer
can provide any assurance of individual privacy in connection with the Solution. Further, Customer is
solely responsible for determining whether and how to use data gathered from social media sources for
the purpose of criminal investigations or prosecution. Customer will hold Motorola harmless from any and
all liability, expense, judgment, suit, or cause of action, which may accrue against Motorola for causes of
action for damages related to tracking, location based services, breach of privacy, and the use or misuse
of PII provided that Motorola gives Customer prompt, written notice of any such claim or suit. Motorola
shall cooperate with Customer in its defense or settlement of such claim or suit.
11.3 Social Media. If Customer purchases Subscription Services that utilize social media, Customer
acknowledges and agrees that such Subscription Services are not designed to ensure individual privacy.
In such case, Customer will inform Users that the Solution and Subscription Services may enable visibility
to PII, as well as physical location of individuals. Further, if the Solution or Subscription Services are
available to the general public pursuant to this Agreement, Customer will provide the appropriate privacy
notification. Neither Motorola nor Customer can provide any assurance of individual privacy in connection
with the Solution or Subscription Services utilizing social media. Further, Customer is solely responsible
for determining whether and how to use data gathered from social media sources for the purpose of
criminal investigations or prosecution. Customer will hold Motorola harmless from any and all liability,
expense, judgment, suit, or cause of action, which may accrue against Motorola for causes of action for
damages related to tracking, location based services, breach of privacy, and the use or misuse of PII
provided that Motorola gives Customer prompt, written notice of any such claim or suit. Motorola shall
cooperate with Customer in its defense or settlement of such claim or suit.
11.4 Misuse. Motorola reserves the right to discontinue service at any time without notice to Users
that misuse the Service,jeopardize the Licensed Product or public safety in any way.
12. LIMITATION OF LIABILITY
12.1 Liability Limit. Except for personal injury, death or damage to tangible property, Motorola's total
liability, whether for breach of contract, warranty, negligence, strict liability in tort, indemnification, or
otherwise, will be limited to the damages recoverable under law, but not to exceed the price of the
Equipment, Software, or implementation Services with respect to which losses or damages are claimed.
With respect to all non-implementation Services and unless as otherwise provided under the applicable
Addenda, Motorola's total liability will be limited to the damages recoverable under law not to exceed the
total Subscription Fees paid. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY OF
SUCH LOSSES OR DAMAGES, THEY AGREE THAT MOTOROLA WILL NOT BE LIABLE FOR ANY
COMMERCIAL LOSS, INCONVENIENCE, LOSS OF USE, LOSS TIME, DATA, GOODWILL,
REVENUES, PROFITS OR SAVINGS; OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR
CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT,
THE SALE OR USE OF THE EQUIPMENT OR SOFTWARE, OR THE PERFORMANCE OF SERVICES
BY MOTOROLA PURSUANT TO THIS AGREEMENT. This limitation of liability provision survives the
expiration or termination of the Agreement and applies notwithstanding any contrary provision.
12.2 Additional Disclaimers. MOTOROLA DISCLAIMS ANY AND ALL LIABILITY FOR ANY AND ALL
LOSS OR COSTS OF ANY KIND ASSOCIATED WITH 1) THE INTERRUPTION, INTERFERENCE OR
FAILURE OF CONNECTIVITY, VULNERABILITIES OR SECURITY EVENTS; 2) PERFORMANCE OF
CUSTOMER'S EXISTING EQUIPMENT AND SOFTWARE OR ACCURACY OF CUSTOMER DATA; 3)
IF ANY PORTION OF THE SOLUTION OR LICENSED PRODUCT RESIDES ON CUSTOMER'S
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PREMISES, DISRUPTIONS OF AND/OR DAMAGE TO CUSTOMER'S OR A THIRD PARTY'S
INFORMATION SYSTEMS, EQUIPMENT, AND THE INFORMATION AND DATA, INCLUDING, BUT
NOT LIMITED TO, DENIAL OF ACCESS TO A LEGITIMATE SYSTEM USER, AUTOMATIC
SHUTDOWN OF INFORMATION SYSTEMS CAUSED BY INTRUSION DETECTION SOFTWARE OR
HARDWARE, OR FAILURE OF THE INFORMATION SYSTEM RESULTING FROM THE PROVISION
OR DELIVERY OF THE SERVICE; 4) AVAILABILITY OR ACCURACY OF SOLUTION DATA; 5)
INTERPRETATION, USE OR MISUSE IN ANY WAY OF SOLUTION DATA; 6) IMPLEMENTATION OF
RECOMMENDATIONS PROVIDED IN CONNECTION WITH THE SUBSCRIPTION SERVICES; 7)
TRACKING, AND LOCATION BASED SERVICES, BREACH OF PRIVACY, AND THE USE OR MISUSE
OF PERSONALLY IDENTIFIABLE INFORMATION.
12.3 Essential term. The Parties acknowledge that the prices have been set and this Agreement
entered into in reliance upon these limitations of liability and that all such limitations form an essential
basis of the bargain between the Parties.
13 DEFAULT AND TERMINATION
13.1 Default By a Party. If either Party fails to observe, perform, or comply with a material obligation,
term, covenant, agreement, or condition under this Agreement, the other Party may consider the non-
performing Party to be in default (unless a Force Majeure causes the failure) and may assert a default
claim by giving the non-performing Party a written and detailed notice of default. Except for a default by
Customer for failing to pay any amount when due under this Agreement which must be cured
immediately, the defaulting Party will have thirty (30) calendar days after receipt of the notice of default to
either cure the default or, if the default is not curable within thirty (30) calendar days, provide a written
cure plan. The defaulting Party will begin implementing the cure plan immediately after receipt of notice
by the other Party that it approves the plan. If Customer is the defaulting Party, Motorola may stop work
on the project until it approves the Customer's cure plan. If Motorola is the defaulting Party, Customer
may withhold payment until it approves Motorola's cure plan. Further, if either Party commits any fraud,
misrepresentation, breach of fiduciary duty, willful misconduct, or an intentional breach of any provision of
this Agreement during the course and scope of this Agreement, said Party shall be in default, and said
default shall not be entitled to be cured by the defaulting Party.
13.2 Failure To Cure. If a defaulting Party fails to cure the default as provided above in Section 13.1,
unless otherwise agreed in writing, the non-defaulting Party may terminate any unfulfilled portion of this
Agreement. In the event of a termination for default, the defaulting Party will promptly return to the non-
defaulting Party any of its Confidential Information. If Customer is the non-defaulting Party, terminates
this Agreement as permitted by this Section, and procures the Services through a third party, Customer
may as its exclusive remedy recover from Motorola reasonable costs incurred to procure the Services
(but not additional or out of scope services) less the unpaid portion of the Contract Price. Customer
agrees to mitigate damages and provide Motorola with detailed invoices substantiating the charges. In
the event Customer elects to terminate this Agreement for any reason other than default, Customer shall
pay Motorola for the conforming Equipment and/or Software delivered and all services performed up to
and including the date of termination.
13.3 Termination by Motorola. Motorola may terminate this Agreement only upon the substantial
breach by Customer of a material provision of this Agreement, including failure to pay.
13.4 Termination for Convenience. Upon advance written notice to Motorola, Customer may,
without cause and without prejudice to any other right or remedy of Motorola, elect to terminate this
Agreement. In such case, Motorola shall be paid (without duplication of any items):
a. For completed and conforming work executed in accordance with the terms of this Agreement
prior to the effective date of termination, including fair and reasonable sums for overhead and profit on
such work; or
b. For expenses incurred prior to the effective date of termination in performing services and
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furnishing labor, materials, or equipment as required by this Agreement in connection with uncompleted
work, plus fair and reasonable sums for overhead and profit on such expenses; or
c. For all claims, costs, losses, and damages incurred in settlement of terminated contracts with
subcontractors, suppliers, and others, and for reasonable expenses directly attributable to termination.
13.5 Termination by Either Party. In the event of termination of this Agreement by either party, both
agree to the following:
a. Upon termination or expiration of the Agreement, Customer will return or certify the destruction of
all Confidential Information and Solution Data, together with all Exhibits, together with all copies,
modifications, and merged portions; or
b. Customer shall return the Confidential Information and Solution Data together with all copies,
modifications, and merged portions to Motorola; or
c. Customer may continue to use the Confidential Information and Solution Data with the permission
of Motorola, with no expectation of continued maintenance, support, update, or upgrade.
d. In cases referenced according to items (a) and (b) above, Motorola shall certify in writing that all
proprietary information, data, schema, or documentation belonging to Customer have been returned to
Licensee in a platform-agnostic format accessible to the Licensee.
13.6 No Refund. If a subscription is terminated for any reason prior to the end of the Subscription
Services Term or other subscription period set forth in the Incorporated Documents or otherwise agreed
to in writing by the Parties, no refund or credit will be provided.
13.8 Return of Discount. If Customer is afforded a discount in exchange for a term commitment longer
than one year, early termination will result in an early termination fee, representing a return of the
discount off of list price.
13.9 Connection Terminated. Certain Subscription Services require a connection to Customer
systems to access Customer Data (e.g. predictive or analytic services). Upon termination, connection to
relevant data sources will be disconnected and Motorola will no longer extract any Customer Data.
13.10 Equipment Return. Any equipment provided by Motorola for use with the Subscription Services,
must be returned within thirty (30) days of the date of termination, at Customer's expense. If equipment is
not returned within this time frame, Motorola reserves the right to invoice the Customer for the purchase
price of the unreturned equipment.
13.11 Five Year Term. Motorola provides equipment for use in connection with certain Subscription
Services. Upon expiration and non-renewal of a five (5) year subscription Term, Title to the equipment will
automatically transfer to Customer upon the subscription expiration date.
14. DISPUTES
14.1. Settlement. The parties will attempt to settle any dispute arising from this Agreement (except for
a claim relating to intellectual property or breach of confidentiality) through consultation and a spirit of
mutual cooperation. The dispute will be escalated to appropriate higher-level managers of the parties, if
necessary. If cooperative efforts fail, the dispute will be mediated by a mediator chosen jointly by the
parties within thirty (30) calendar days after notice by one of the parties demanding non-binding
mediation. The parties will not unreasonably withhold consent to the selection of a mediator. Each Party
will bear its own costs of mediation, but the Parties will share the cost of the mediator equally. Each Party
will participate in the mediation in good faith and will be represented at the mediation by a business
executive with authority to settle the Dispute. The Parties may agree to postpone mediation until they
have completed some specified but limited discovery about the dispute, and may replace mediation with
Subscription Services Agreement v.11.8.2018
9
some other form of non-binding alternative dispute resolution ("ADR").
14.2 Litigation. A Party may submit to a court of competent jurisdiction any claim relating to intellectual
property, breach of confidentiality, or any dispute that cannot be resolved between the parties through
negotiation or mediation within two (2) months after the date of the initial demand for non-binding
mediation. Either Party may then submit the Dispute to the Superior Court of Richmond County, Georgia.
Motorola, by executing this Agreement, specifically consents to jurisdiction and venue in Richmond
County and waives any right to contest the jurisdiction and venue in the Superior Court of Richmond
County, Georgia.
Each Party consents to jurisdiction over it by that court. The use of ADR procedures will not be
considered under the doctrine of laches, waiver, or estoppel to affect adversely the rights of either Party.
Either Party may resort to the judicial proceedings described in this section before the expiration of the
two-month ADR period if good faith efforts to resolve the dispute under these procedures have been
unsuccessful; or interim relief from the court is necessary to prevent serious and irreparable injury to the
Party.
15. SECURITY.
15.1 Industry Standard. Motorola will maintain industry standard security measures to protect the
Solution from intrusion, breach, or corruption. During the term of Agreement, if the Solution enables
access to Criminal Justice Information ("CJI"), as defined by the Criminal Justice Information Services
Security Policy ("CJIS"), Motorola will provide and comply with a CJIS Security Addendum. Any additional
Security measure desired by Customer may be available for an additional fee.
15.2 Background checks. Motorola will require its personnel that access CJI to submit to a
background check based on submission of FBI fingerprint cards.
15.3 Customer Security Measures. Customer is independently responsible for establishing and
maintaining its own policies and procedures and for ensuring compliance with CJIS and other security
requirements that are outside the scope of the Subscription Services provided. Customer must establish
and ensure compliance with access control policies and procedures, including password security
measures. Further, Customer must maintain industry standard security and protective data privacy
measures. Motorola disclaims any responsibility or liability whatsoever for the security or preservation of
Customer Data or Solution Data once accessed or viewed by Customer or its representatives. Motorola
further disclaims any responsibility or liability whatsoever that relates to or arise from Customer's failure to
maintain industry standard security and data privacy measures and controls, including but not limited to
lost or stolen passwords. Motorola reserves the right to terminate the Service if Customer's failure to
maintain or comply with industry standard security and control measures negatively impacts the Service,
Solution, or Motorola's own security measures.
15.4 Breach Response Plan. Both parties will maintain and follow a breach response plan consistent
with the standards of their respective industries.
16. CONFIDENTIAL INFORMATION AND PROPRIETARY RIGHTS
16.1. CONFIDENTIAL INFORMATION.
16.1.1. Treatment of Confidential Information. During the term of this Agreement, the Parties may
provide each other with Confidential Information. Licensed Products will be deemed to be Motorola's
Confidential Information. To the extent allowed by law, during the term of this Agreement and for a period
of three (3) years from the expiration or termination of this Agreement, 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
Subscription Services Agreement v.11.8.2018
10
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 those 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 or pursuant to the license granted immediately below.
16.1.2. Ownership of Confidential Information. The disclosing Party owns and retains all of its
Proprietary Rights in and to its Confidential Information, except the disclosing Party hereby grants to the
receiving Party the limited right and license, on a non-exclusive, irrevocable, and royalty-free basis, to use
the Confidential Information for any lawful, internal business purpose in the manner and to the extent
permitted by this Agreement.
16.2. PRESERVATION OF PROPRIETARY RIGHTS.
16.2.1 Proprietary Solution. Customer acknowledges that the Licensed Products and any associated
Documentation, data, and methodologies used in providing Services are proprietary to Motorola or its
third party licensors and contain valuable trade secrets. In accordance with this Agreement, Customer
and its employees shall treat the Solution and all Proprietary Rights as Confidential Information and will
maintain the strictest confidence.
16.2.2. Ownership. Each Party owns and retains all of its Proprietary Rights that exist on the Effective
Date. Motorola owns and retains all Proprietary Rights that are developed, originated, or prepared in
connection with providing the Deliverables or Services to Customer, and this Agreement does not grant to
Customer any shared development rights. At Motorola's request and expense, Customer will execute all
papers and provide reasonable assistance to Motorola to enable Motorola to establish the Proprietary
Rights. Unless otherwise explicitly stated herein, this Agreement does not restrict a Party concerning its
own Proprietary Rights and is not a grant (either directly or by implication, estoppel, or otherwise) of a
Party's Proprietary Rights to the other Party.
16.3 Remedies. Because Licensed Products contain valuable trade secrets and proprietary
information of Motorola, its vendors and licensors, Customer acknowledges and agrees that any actual or
threatened breach of this Section will constitute immediate, irreparable harm to Motorola for which
monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy
for such breach. Notwithstanding anything in this Agreement to the contrary, Motorola reserves the right
to obtain injunctive relief and any other appropriate remedies from any court of competent jurisdiction in
connection with any actual, alleged, or suspected breach of Section 4, infringement, misappropriation or
violation of Motorola's Property Rights, or the unauthorized use of Motorola's Confidential Information.
Any such action or proceeding may be brought in any court of competent jurisdiction. Except as otherwise
expressly provided in this Agreement, the parties' rights and remedies under this Agreement are
cumulative.
17. GENERAL
17.1 Future Regulatory Requirements. The Parties acknowledge and agree that this is an evolving
technological area and therefore, laws and regulations regarding Subscription Services and use of the
Solution may change. Changes to existing Subscription Services or Solution required to achieve
regulatory compliance may be available for an additional fee. Any required changes may also impact the
Fees for services.
17.2 Compliance with Applicable Laws. Each Party will comply with all applicable federal, state, and
local laws, regulations and rules concerning the performance of this Agreement. Further, Customer will
comply with all applicable export and import control laws and regulations in its use of the Licensed
Products and Subscription Services. In particular, Customer will not export or re-export the Licensed
Products without Motorola's' prior written consent, and, if such consent is granted, without Customer first
obtaining all required United States and foreign government licenses. Customer further agrees to comply
with all applicable laws and regulations in providing the Customer Data to Motorola, and Customer
Subscription Services Agreement v.11.8.2018
11
warrants and represents to Motorola that Customer has all rights necessary to provide such Customer
Data to Motorola for the uses as contemplated hereunder. Customer shall obtain at its expense all
necessary licenses, permits and regulatory approvals required by any and all governmental authorities as
may from time to time be required in connection with its activities related to this Agreement. To the extent
permitted by applicable law, Customer will defend, indemnify, and hold harmless Motorola from and
against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or
employees. To the extent permitted by applicable law, Motorola will defend, indemnify, and hold
harmless Customer from and against any violation of applicable laws or regulations by Motorola or any of
its agents, officers, directors, or employees.
17.3 Indemnification. Motorola will indemnify and hold Customer, its employees, and its agents, who
are users of the Solution and/or equipment related to this Agreement, harmless from any and all liability,
expense, judgment, suit, cause of action, or demand for personal injury, death, or direct damage to
tangible property which may accrue against Customer to the extent it is caused by the negligence of
Motorola, its subcontractors, or their employees or agents, while performing their duties under this
Agreement, and if Customer gives Motorola prompt, written notice of any claim or suit. Customer will
cooperate with Motorola in its defense or settlement of the claim or suit. This Section sets forth the full
extent of Motorola's general indemnification of Customer from liabilities that are in any way related to
Motorola's performance under this Agreement.
17.4 Performance and Payment Bond. Motorola shall secure a performance and payment bond
("Bond") within ten (10) Business Days after execution of this Agreement in the face amount of the total
contract price (100% of the bid price). The Bond amount shall cover the total amount of services to be
provided under this Agreement through the Warranty Period. In the event that Augusta desires to renew
or extend the term of the performance bond, Augusta shall be responsible for any additional bond
premiums and any renewal thereof shall be subject to underwriting or surety approval.
17.5 Liquidated Damages. Motorola agrees to pay as liquidated damages to Customer the sum of
$100 per day for each consecutive calendar day for failure to complete its performance beyond the
expiration of the Completion Time, except for authorized extensions of time by Customer, Customer
delays or events of force majeure. Any liquidated damages assessed may not cumulatively exceed 2% of
the Contract Price. This Section is independent of Section 13.1 — Default of Party. The Parties agree
that this provision for liquidated damages are not intended to operate as penalties for breach of contract.
The liquidated damages set forth above are not intended to compensate Customer for any damages
other than inconvenience and loss of use or delay in services.
17.6 Audit. Motorola reserves the right to monitor and audit use of the Subscription Services.
Customer will cooperate and will require Users to cooperate with such monitoring or audit.
17.7 Georgia Prompt Pay Act Not Applicable. The terms of this Agreement supersede any and all
provisions of the Georgia Prompt Pay Act.
17.8 Georgia Open Records Act. Motorola acknowledges that this Agreement and certain
documentation may be subject to the Georgia Open Records Act(O.C.G.A. § 50-18-70, et seq.). Motorola
shall cooperate fully in responding to such requests and shall make all records, not exempt, available for
inspection and copying as required by law. Motorola shall clearly mark any information provided to
Customer which Motorola contends is Proprietary Information. Motorola shall notify Customer immediately
of any Open Records request arising out of this Agreement and shall provide to Customer a copy of any
response to the same.
17.9 RFP Compliance. This Agreement will operate in accordance with Augusta, GA RFP (the RFP to
which the Vendor's proposal applies) and the Vendor response to said RFP. In case of conflict between
the original RFP and this Agreement, this Agreement shall supersede all previous or contemporaneous
negotiations, commitments and writings with respect to matters set forth herein. It may only be modified in
writing and must be signed by authorized representatives of both parties.
Subscription Services Agreement v.11.8.2018
12
17.10 Insurance Requirements. Motorola shall, at all times that this Agreement is in effect, cause to be
maintained in force and effect an insurance policy(s) that will ensure and indemnify the Customer against
liability or financial loss resulting from injuries occurring to persons or property or occurring as a result of
any negligent error, act, or omission of Motorola in the performance of work during the term of this
Agreement.
Motorola shall provide, at all times that this Agreement is in effect, Insurance with limits of:
(a) Commercial General Liability
Coverage Limit
General Aggregate Products $2,000,000.00
Liability/Completed
Oper. Aggregate $1,000,000.00
Each Occurrence $1,000,000.00
Personal &Advertising Injury $1,000,000.00
If Commercial General Liability or other form with a general aggregate limit is used, the general
aggregate limit shall be twice the required occurrence limit.
(b)Workers' Compensation and Employer's Liability
Coverage Limit
Workers' Compensation Statutory Employer's $ 500,000.00
Liability Each Accident
Per Employee - Disease $ 500,000.00
Annual Aggregate- Disease $ 500,000.00
(c)Automobile Liability
Coverage Limit
Bodily Injury and Property Damage $1,000,000.00
Combined -Occurrence
Uninsured/Underinsured Motorist- $1,000,000.00
Occurrence
This Policy must provide coverage for all owned, non-owned, and hired autos.
(d)Technology E&O per claim $1,000,000.00
Aggregate $2,000,000.00
17.11 Assignability. Except as provided herein, neither Party may assign this Agreement or any of its
rights or obligations hereunder without the prior written consent of the other Party, which consent will not
be unreasonably withheld. Any attempted assignment, delegation, or transfer without the necessary
consent will be void. Notwithstanding the foregoing, Motorola may assign this Agreement to any of its
affiliates or its right to receive payment without the prior consent of Customer. In addition, in the event
Motorola separates one or more of its businesses (each a "Separated Business"), whether by way of a
sale, establishment of a joint venture, spin-off or otherwise (each a "Separation Event"), Motorola may,
without the prior written consent of the other Party and at no additional cost to Motorola, assign this
Agreement such that it will continue to benefit the Separated Business and its affiliates (and Motorola and
its affiliates, to the extent applicable) following the Separation Event. Motorola may subcontract any of
the work, but subcontracting will not relieve Motorola of its duties under this Agreement.
17.12 Subcontracting. Motorola may subcontract any portion of the Subscription Services without prior
notice or consent of Customer.
17.13 Waiver. Failure or delay by either Party to exercise a right or power will not be a waiver of the
right or power. For a waiver of a right or power to be effective, it must be in a writing signed by the
waiving Party. An effective waiver of a right or power will not be construed as either a future or continuing
Subscription Services Agreement v.11.8.2018
13
waiver of that same right or power, or the waiver of any other right or power.
17.14 Severability. If a court of competent jurisdiction renders any part of this Agreement invalid or
otherwise unenforceable, that part will be severed and the remainder of this Agreement will continue in
full force and effect.
17.15 Independent Contractors. Each Party will perform its duties under this Agreement as an
independent contractor. The parties and their personnel will not be considered to be employees or
agents of the other Party. Nothing in this Agreement will be interpreted as granting either Party the right
or authority to make commitments of any kind for the other. This Agreement will not constitute, create, or
be interpreted as a joint venture, partnership or formal business organization of any kind.
17.16 Headings. 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
the heading refers. This Agreement will be fairly interpreted in accordance with its terms and conditions
and not for or against either Party.
17.17 Governing Law. This Agreement and the rights and duties of the parties will be governed by and
interpreted in accordance with the laws of the State of Georgia.
17.18 Modification. Motorola acknowledges that this Agreement and any changes to it by
amendment, modification, change order or other similar document may have required or may require the
legislative authorization of the Augusta, Georgia Board of Commissioners and approval of the Mayor.
Under Georgia law, Motorola is deemed to possess knowledge concerning Augusta, Georgia's ability to
assume contractual obligations and the consequences of Motorola's provision of goods or services to
Augusta, Georgia under an unauthorized contract, amendment, modification, change order or other
similar document, including the possibility that Motorola may be precluded from recovering payment for
such unauthorized goods or services. Accordingly, Motorola agrees that if it provides goods or services to
Augusta, Georgia under an agreement that has not received proper legislative authorization or if Motorola
provides goods or services to Augusta, Georgia in excess of the any contractually authorized goods or
services, as required by Augusta, Georgia's Charter and Code, Augusta, Georgia may withhold payment
for any unauthorized goods or services provided by Motorola. Motorola assumes all risk of non-payment
for the provision of any unauthorized goods or services to Augusta, Georgia, and it waives all claims to
payment or to other remedies for the provision of any unauthorized goods or services to Augusta,
Georgia, however characterized, including, without limitation, all remedies at law or equity; unless the
person who executes a change order or amendment on behalf of Augusta, Georgia ("Authorized
Signatory")represents that all legislative approvals were given and that the Authorized Signatory is duly
authorized to bind Augusta, Georgia. This acknowledgement shall be a mandatory provision in all
Augusta, Georgia contracts for goods and services, except revenue producing contracts.
17.19 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 provided by the other Party by certified mail,
return receipt requested and postage prepaid (or by a recognized courier service, such as Federal
Express, UPS, or DHL), or by facsimile with correct answerback received, and will be effective upon
receipt.
To Customer: Tameka Allen, IT Director
535 Telfair Street, Bldg 2000
Augusta, GA 30901
T: 706.821.2522
F: 706.821.2530
Copies to: Hardie Davis, Jr., Mayor
535 Telfair Street, Suite 200
Augusta, GA 30901
T: 706.821.1831
Subscription Services Agreement v.11.8.2018
14
To Motorola: Judy Jean-Pierre, Sr. Counsel
Legal, Government Affairs & Corporate Communications
500 West Monroe Street
Chicago, IL 60661
17.20 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.
17.21 E-Verify Compliance. All contractors and subcontractors entering into contracts with Augusta,
Georgia for the physical performance of services shall be required to execute an Affidavit verifying its
compliance with OCGA §13-10-91, stating affirmatively that the individual, firm, or corporation which is
contracting with Augusta, Georgia has registered with and is participating in a federal work authorization
program. All contractors and subcontractors must provide their E-Verify number and must be in
compliance with the electronic verification of work authorized programs operated by the United States
Department of Homeland Security or any equivalent federal work authorization program operated by the
United States Department of Homeland Security to verify information of newly hired employees, pursuant
to the Immigration Reform and Control Act of 1986 (IRCA), P.L. 99-603, in accordance with the
applicability provisions and deadlines established in OCGA §13-10-91 and shall continue to use the
federal authorization program throughout the contract term. All contractors shall further agree that,
should it employ or contract with any subcontractor(s) in connection with the physical performance of
services pursuant to its contract with Augusta, Georgia the contractor will secure from such
subcontractor(s) each subcontractor's E-Verify number as evidence of verification of compliance with
OCGA §13-10-91 on the subcontractor affidavit provided in Rule 300-10-01-.08 or a substantially similar
form. All contractors shall further agree to maintain records of such compliance and provide a copy of
each such verification to Augusta, Georgia at the time the subcontractor(s) is retained to perform such
physical services.
17.22 Conflicts of Interest; Prohibited Interests. Motorola maintains and warrants that it has not
employed or retained any company or person, other than a bona fide employee working solely for
Motorola, to solicit or secure this Agreement. Further, Motorola warrants that it has not paid or agreed to
pay any company or person, other than a bona fide employee working solely for Motorola, any fee,
commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the
award or making of this Agreement. For breach or violation of this warranty, Customer shall have the
right to rescind this Agreement without liability. For the Term of this Agreement, no member, officer or
employee of Customer, during the term of his or her service with Customer, shall have any direct interest
in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
17.23 Local Small Business Language: In accordance with Chapter 10B of the AUGUSTA, GA. CODE,
and to the extent applicable to this Agreement, Motorola expressly agrees to collect and maintain all
records necessary to for Augusta, Georgia to evaluate the effectiveness of its Local Small Business
Opportunity Program and to make such records available to Augusta, Georgia. The requirements of the
Local Small Business Opportunity Program can be found at www.augustaga.gov. In accordance with
AUGUSTA, GA. CODE § 1-10-129(d)(7), for all contracts where a local small business goal has been
established, the contractor is required to provide local small business utilization reports. Motorola shall
report to Augusta, Georgia the total dollars paid to each local small business on each contract, and shall
provide such payment affidavits, regarding payment to subcontractors as may be requested by Augusta,
Georgia. Such documents shall be in the format specified by the Director of minority and small business
opportunities, and shall be submitted at such times as required by Augusta, Georgia. Failure to provide
such reports within the time period specified by Augusta, Georgia shall entitle Augusta, Georgia to
exercise any of the remedies set forth, including but not limited to, withholding payment from the Motorola
and/or collecting liquidated damages. Motorola is not utilizing any small local businesses for this
Agreement.
Subscription Services Agreement v.11.8.2018
15
17.24 Defective Pricing. To the extent that the pricing provided by Motorola is erroneous or defective,
the Parties may, by agreement, correct the pricing errors to reflect the intent of the Parties.
17.25 Prohibition Against Contingent Fees. Motorola warrants that no person or selling agency has
been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a
commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide
established commercial or selling agencies maintained by Motorola for the purpose of securing business
and that Motorola has not received any non-Customer fee related to this Agreement without the prior
written consent of the Customer. For breach or violation of this warranty, the Customer shall have the
right to annul this Agreement without liability or at its discretion to deduct from the Agreement Price of
consideration the full amount of such commission, percentage, brokerage or contingent fee.
17.26 Return of Equipment. Upon termination of the contract for any reason, Customer shall return to
Motorola all equipment delivered to Customer, if any.
17.27. Survival Of Terms. The following provisions survives the expiration or termination of this
Agreement for any reason: if any payment obligations exist, Section 5 (Subscription Fees); Section 12
(Limitation of Liability); Section 13 (Default and Termination); Section 14 (Disputes); Section 16
(Confidential Information and Proprietary Rights);; and all General provisions in Section 17.
17.28. Entire Agreement. This Agreement and any Incorporated Documents or related attachments
constitute the entire agreement of the Parties regarding the subject matter of this 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 Customer
purchase or 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.
In witness whereof, the parties hereto have executed this Agreement as of the Effective Date.
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Subscription Services Agreement v.11.8.2018
17
EXHIBIT I
ADDENDUM
DIGITAL EVIDENCE MANAGEMENT SOLUTION
The following additional terms will apply to Subscription Services from Motorola's Digital Evidence
Management Solution.
If any term in this Exhibit conflicts with a term in the main body of this Agreement, this Exhibit will govern.
1. DATA STORAGE. Motorola will determine, in its sole discretion, the location of the stored
content for CommandCentral Vault Services. All data, replications, and backups will be stored at a
location in the United States for Customers in the United States.
2. DATA RETRIEVAL. CommandCentral Services will leverage different types of storage to optimize
the Subscription Services, as determined in Motorola's sole discretion. For multimedia data, such as
videos, pictures, audio files, Motorola will, in its sole discretion, determine the type of storage medium
used to store the content. The type of storage and medium selected by Motorola will determine the data
retrieval speed. Access to content in archival storage may take up to 8 hours to be viewable.
3. API SUPPORT. Motorola will use commercially reasonable efforts to maintain the Application
Programming Interface ("API") offered as part of the CommandCentral Services during the term of this
Addendum. APIs will evolve and mature over time, requiring changes and updates. Previous versions of
APIs will be supported for a minimum of a 6 month time period after new version is introduced. If support
of the API is no longer a commercially reasonable option, Motorola will provide reasonable advance
notification to Customer. If an API presents a security risk to the Subscription Services or the Solution,
Motorola will discontinue an API without prior warning.
4. SERVICE LEVEL TARGETS.
Commercially reasonable efforts will be made to provide monthly availability of 99.9% with the exception
of maintenance windows. There are many factors beyond Motorola's control that may impact Motorola's
ability to achieve this goal, including but not limited to a Force Majeure.
Additionally, Motorola will strive to meet the response time goals set forth in the table below.
RESPONSE TIME GOALS
r Vii, SE ,.
SEVERITY it } NITI t � SP N E T ME
1 Total System Failure - occurs when the System is Telephone conference
not functioning and there is no workaround; such within 1 Hour of initial
as a Central Server is down or when the workflow voice notification
of an entire agency is not functioning. This level is
meant to represent a major issue that results in an
unusable System, Subsystem, Product, or critical
features. No work around or immediate solution is
available.
Subscription Services Agreement v.11.8.2018
18
2 Critical Failure - Critical process failure occurs Telephone conference
when a crucial element in the System that does not within 3 Business Hours of
prohibit continuance of basic operations is not initial voice notification
functioning and there is usually no suitable work- during normal business
around. Note that this may not be applicable to hours
intermittent problems. This level is meant to
represent a moderate issue that limits a
Customer's normal use of the System, Subsystem,
Product or major non-critical features.
3 Non-Critical Failure - Non-Critical part or Telephone conference
component failure occurs when a System within 6 Business Hours of
component is not functioning, but the System is initial notification during
still useable for its intended purpose, or there is a normal business hours
reasonable workaround. This level is meant to
represent a minor issue that does not preclude use
of the System, Subsystem, Product, or critical
features.
4 Inconvenience - An inconvenience occurs when Telephone conference
System causes a minor disruption in the way tasks within 2 Standard
are performed but does not stop workflow. This Business Days of initial
level is meant to represent very minor issues, such notification
as cosmetic issues, documentation errors, general
usage questions, and product or System Update
requests.
5. MAINTENANCE
Scheduled maintenance of CommandCentral Solutions will be performed periodically. Motorola will make
commercially reasonable efforts to notify customers a week in advance. Unscheduled and emergency
maintenance may be required from time to time. Motorola will make commercially reasonable efforts to
notify customers of unscheduled or emergency maintenance 24 hours in advance.
6. DEVICES. If Customer elects Motorola's service option for Devices, such service option will be
governed by the additional terms and conditions set forth below in this Section.
6.1. For Devices to be eligible for the Device as a Service ("DaaS") offering the Devices must be on
the then current firmware version. The Capture Mobile Camera feature requires the latest version of the
Android or iOS operating system. Additionally, Customer's Wi-Fi network must comply with the
requirements found below, Wi-Fi Network Requirements. If Customer's Wi-Fi network does not comply
with these requirements Customer will be responsible for additional costs that may be incurred related to
bring the Wi-Fi network into compliance.
6.2. Smart Interface Device Refresh: Customers who have chosen a 5-year Term for the DaaS
offering will receive a new version of the Device 30 months from the start of the Term or as soon as a new
version is available. The new version Device must be in the same family as the previously selected
model. The refresh will only include the Device. Any carry holders, batteries or other accessories will not
be refreshed. The Devices being refreshed must be returned to Motorola within 60 days of the refreshed
devices being shipped. The customer will be invoiced for any devices not returned or returned damaged
or nonfunctional. Subject to Motorola's receipt of all applicable fees for the 5-year service offering, on
expiration of the 5-year term title to any covered Devices will pass to Customer.
6.3. If Customer elects a 5-year or greater Term for the DaaS offering, Motorola will provide the
equipment necessary to enable the DaaS. Accessories for the Devices will not be provided and must be
Subscription Services Agreement v.11.8.2018
19
purchased separately, if desired.
6.4. Content will be downloadable at any time through the administrative interface during the Term of
the Agreement. During the Initial Term, Motorola may provide general assistance as Customer learns to
download or store content. After the Initial Term, additional storage term or assistance with downloading
of content may be available for an additional fee.
6.5 Wi-Fi Network Requirements
6.5.1 If any of the below items apply, additional deployment services fees may apply:
Customer's internet is through county/city IT, strict firewall policies, not able to install software on PC's
Customer requires multiple upload locations through different internet providers at each site
Customer has slow internet(<20MBps or higher for 4k video upload)
Customer doesn't have Wi-Fi
Customer doesn't use Google Chrome or uses Google Chrome but has conflicting Chrome extensions
Customer requires multiple upload locations
Customer has multicast disabled on their wireless network
Customer wants to utilize MAC address filtering
6.5.2 The following are not supported:
Wi-Fi AP's do not support 802.11AC
Customer AP does not support DNS-SD, and/or the Apple Bonjour suite
EXHIBIT II
EQUIPMENT SALE ADDENDUM
This Addendum is to the Subscription Service Agreement or other previously executed Agreement
currently in force, as applicable ("Primary Agreement") and provides additional or different terms and
conditions to govern the sale of equipment and related software provided by Motorola. The terms in this
Addendum are integral to and incorporated into the Primary Agreement. To the extent there is a conflict
between the terms and conditions of the Primary Agreement and the terms and conditions of this
Addendum, this Addendum takes precedence, as to the inconsistency only.
1. Exhibits
The Exhibits listed below are incorporated into and made a part of this Addendum. In interpreting this
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Addendum and resolving any ambiguities, the main body of this Addendum takes precedence over the
exhibits and any inconsistency between the exhibits will be resolved in their listed order. Documents
included in the proposal and listed below as Exhibits are incorporated by this reference.
Exhibit A Motorola "Software License Agreement"
Exhibit III Motorola "Proposal/Quote dated July 17, 2018, and updated pricing dated October 4,
2018" or"Payment Schedule", as applicable.
2. DEFINITIONS
All capitalized terms not otherwise defined herein shall have the same meaning as defined in the Primary
Agreement.
2.1. "Product Price" means the price for the equipment and related Software and installation or related
services, excluding applicable sales or similar taxes and freight charges.
2.2. "Effective Date" means that date upon which the last Party executes the Primary Agreement or,
the date on which the last Party executes the Addendum, whichever is later.
2.3. "Equipment" means the equipment listed in the Equipment List that Customer purchases from
Motorola pursuant to this Addendum.
2.4 "Infringement Claim" means a third party claim alleging that the Equipment manufactured by
Motorola or the Motorola Software directly infringes a United States patent or copyright.
2.5. "Motorola Software" means Software that Motorola or its affiliated company owns.
2.6. "Non-Motorola Software" means Software that another party owns.
2.7. "Open Source Software" (also called "freeware" or "shareware") software with either freely
obtainable source code, license for modification, or permission for free distribution.
2.8. "Products" mean the Equipment and Software sold by Motorola under this Addendum.
2.9. "Proprietary Rights" means the patents, patent applications, inventions, copyrights, trade secrets,
trademarks, trade names, mask works, know-how, ideas and concepts, moral rights, processes,
methodologies, tools, techniques, and other intellectual property rights in and to the Equipment and
Software, including those created or produced by Motorola under this Addendum and any corrections,
bug fixes, enhancements, updates or modifications to or derivative works from the Software whether
made by Motorola or another party.
2.10. "Software" means the Motorola Software and Non-Motorola Software in object code format that is
furnished with the Equipment.
2.11. "Specifications" means the functionality and performance requirements that are described in the
Proposal/Quote or Technical and Implementation Documents (as applicable).
2.12 "Warranty Period" means one (1) year from the date of shipment of the Products.
Notwithstanding, if a third party manufacturer offers a longer warranty period, such warranty will be
passed through to Customer.
3. SCOPE AND TERM
3.1. SCOPE OF WORK. Motorola will provide and install (if applicable) the Products, and perform its
other contractual responsibilities, all in accordance with this Addendum. Any reference to "Subscription
Services" in the Primary Agreement shall mean Product as applicable in this Addendum.
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3.2. CHANGE ORDERS. Either Party may request changes within the general scope of this
Addendum. Neither Party is obligated to perform requested changes unless both Parties execute a
written change order.
3.3. TERM. Unless terminated in accordance with other provisions of the Primary Agreement or
extended by mutual agreement of the Parties, the term of this Addendum begins on the Effective Date
and continues until the expiration of the Warranty Period or three (3) years from the Effective Date,
whichever occurs last.
3.4. ADDITIONAL EQUIPMENT OR SOFTWARE. During the Term of this Addendum, Customer may
order additional Equipment or Software if it is then available. Each order must refer to the Primary
Agreement and Addendum and must specify the pricing and delivery terms. Notwithstanding any
additional or contrary terms in the order, the applicable provisions of this Addendum (except for pricing,
delivery, and payment terms) will govern the purchase and sale of the additional Equipment or Software.
Payment is due within thirty (30) days after the invoice date, and Motorola will send Customer an invoice
as the additional Equipment is shipped or Software is licensed. Alternatively, Customer may register
with and place orders through Motorola Online ("MOL"), and this Addendum will be the "Underlying
Agreement" for those MOL transactions rather than the MOL On-Line Terms and Conditions of Sale.
MOL registration and other information may be found at https://businessonline.motorolasolutions.com
and the MOL telephone number is (800) 814-0601.
3.5. MAINTENANCE SERVICE. This Addendum does not cover maintenance or support of the
Products except as provided under the warranty. If Customer wishes to purchase maintenance or
support, Motorola will provide a separate maintenance and support proposal upon request.
3.6. MOTOROLA SOFTWARE. Any Motorola Software, including subsequent releases, is licensed to
Customer solely in accordance with the Software License Agreement. Customer hereby accepts and
agrees to abide by all of the terms and restrictions of the Software License Agreement.
3.7. NON-MOTOROLA SOFTWARE. Any Non-Motorola Software is licensed to Customer in
accordance with the standard license, terms, and restrictions of the copyright owner on the Effective Date
unless the copyright owner has granted to Motorola the right to sublicense the Non-Motorola Software
pursuant to the Software License Agreement, in which case it applies and the copyright owner will have
all of Licensor's rights and protections under the Software License Agreement. Motorola makes no
representations or warranties of any kind regarding Non-Motorola Software. Non-Motorola Software may
include Open Source Software. Upon request by Customer, Motorola will use commercially reasonable
efforts to determine whether any Open Source Software will be provided under this Agreement; and if so,
identify the Open Source Software and provide to Customer a copy of the applicable standard license (or
specify where that license may be found); and provide to Customer a copy of the Open Source Software
source code if it is publicly available without charge (although a distribution fee or a charge for related
services may be applicable).
3.8 SUBSTITUTIONS. At no additional cost to Customer, Motorola may substitute any Equipment,
Software, or services to be provided by Motorola, if the substitute meets or exceeds the Specifications
and is of equivalent or better quality to the Customer. Any substitution will be reflected in a change order.
Section 4 ACCEPTANCE, PERFORMANCE SCHEDULE AND DELAYS
4.1 Acceptance of the Products will occur upon thirty (30) days post "Go-Live" provided all system
requirements have been successfully tested, or arrangements have been made to complete them at a
later date. The demonstration of the delivered solution meeting all System Requirements is the Vendor's
right and responsibility. In the event that arrangements have been made to complete some of the System
Requirements at a later date, this must be with the written approval of the Customer's Director of
Information Technology and the Chief Official of the Customer's department or office, whose operations
would be impacted by the inability of the Vendor to fully implement their system..
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4.2 If this Addendum includes the performance of services relating to the Product, the proposal/quote
or Statement of Work will describe the performance schedule, or if there is no performance schedule,
within a reasonable period of time.
Section 5 CONTRACT PRICE, PAYMENT, AND INVOICING
5.1. PRODUCT PRICE. The Product Price in U.S. dollars is set forth in Exhibit III and is due and
payable upon Acceptance.
5.2. INVOICING AND PAYMENT. Motorola will submit invoices to Customer for Products and for
installation or related services when they are performed. Customer will make payments to Motorola
within thirty (30) days after the date of each invoice. Customer will make payments when due in the form
of a wire transfer, check, or cashier's check from a U.S. financial institution. Overdue invoices will bear
simple interest at the maximum allowable rate. For Customer's reference, the Federal Tax Identification
Number for Motorola Solutions, Inc. is 36-1115800
5.3 FREIGHT, TITLE, AND RISK OF LOSS. Motorola will pre-pay and add all freight charges to the
invoices. Title and risk of loss to the Equipment will pass to Customer upon receipt of shipment. Title to
Software will not pass to Customer at any time. Motorola will pack and ship all Equipment in accordance
with good commercial practices.
Section 6 SITES AND SITE CONDITIONS
6.1. ACCESS TO SITES. If Motorola is providing installation or other services, Customer will provide
all necessary construction and building permits, licenses, and the like; and access to the work sites or
vehicles identified in the Technical and Implementation Documents as reasonably requested by Motorola
so that it may perform its contractual duties.
6.2. SITE CONDITIONS. If Motorola is providing installation or other services at Customer's sites,
Customer will ensure that these work sites be safe, secure, and in compliance with all applicable industry
and OSHA standards. To the extent applicable and unless the Statement of Work states to the contrary,
Customer will ensure that these work sites have adequate: physical space, air conditioning and other
environmental conditions; adequate and appropriate electrical power outlets, distribution, equipment and
connections; and adequate telephone or other communication lines (including modem access and
adequate interfacing networking capabilities), all for the installation, use and maintenance of the
Products.
Section 7 REPRESENTATIONS AND WARRANTIES
7.1. EQUIPMENT WARRANTY. During the Warranty Period, Motorola warrants that the Equipment
under normal use and service will be free from material defects in materials and workmanship. If
Acceptance is delayed beyond six (6) months after shipment of the Products by events or causes within
Customer's control, this warranty expires eighteen (18) months after the shipment of the Products.
7.2. MOTOROLA SOFTWARE WARRANTY. Unless otherwise stated in the Software License
Agreement, during the Warranty Period, Motorola warrants the Motorola Software in accordance with the
terms of the Software License Agreement and the provisions of this Section that are applicable to the
Motorola Software. TO THE EXTENT, IF ANY, THAT THERE IS A SEPARATE LICENSE AGREEMENT
PACKAGED WITH, OR PROVIDED ELECTRONICALLY WITH, A PARTICULAR PRODUCT THAT
BECOMES EFFECTIVE ON AN ACT OF ACCEPTANCE BY THE END USER, THEN THAT
AGREEMENT SUPERSEDES THIS SOFTWARE LICENSE AGREEMENT AS TO THE END USER OF
EACH SUCH PRODUCT. If Acceptance is delayed beyond six (6) months after shipment of the Software
by events or causes within Customer's control, this warranty expires eighteen (18) months after the
shipment of the Software.
7.3. EXCLUSIONS TO EQUIPMENT AND MOTOROLA SOFTWARE WARRANTIES. These
warranties do not apply to: (i) defects or damage resulting from: use of the Equipment or Motorola
Software in other than its normal, customary, and authorized manner; accident, liquids, neglect, or acts of
Subscription Services Agreement v.11.8.2018
23
God; testing, maintenance, disassembly, repair, installation, alteration, modification, or adjustment not
provided or authorized in writing by Motorola; Customer's failure to comply with all applicable industry and
OSHA standards; (ii) breakage of or damage to antennas unless caused directly by defects in material or
workmanship; (iii) Equipment that has had the serial number removed or made illegible; (iv) batteries
(because they carry their own separate limited warranty) or consumables; (v) freight costs to ship
Equipment to the repair depot; (vi) scratches or other cosmetic damage to Equipment surfaces that does
not affect the operation of the Equipment; and (vii) normal or customary wear and tear.
7.4. WARRANTY CLAIMS. To assert a warranty claim, Customer must notify Motorola in writing of
the claim before the expiration of the Warranty Period. Upon receipt of this notice, Motorola will
investigate the warranty claim. If this investigation confirms a valid warranty claim, Motorola will (at its
option and at no additional charge to Customer) repair the defective Equipment or Motorola Software,
replace it with the same or equivalent product, or refund the price of the defective Equipment or Motorola
Software. That action will be the full extent of Motorola's liability for the warranty claim. If this
investigation indicates the warranty claim is not valid, then Motorola may invoice Customer for responding
to the claim on a time and materials basis using Motorola's then current labor rates. Repaired or replaced
product is warranted for the balance of the original applicable Warranty Period. All replaced products or
parts will become the property of Motorola.
7.5. ORIGINAL END USER IS COVERED. These express limited warranties are extended by
Motorola to the original user purchasing the Products for commercial, industrial, or governmental use
only, and are not assignable or transferable.
7.6. DISCLAIMER OF OTHER WARRANTIES. THESE WARRANTIES ARE THE COMPLETE
WARRANTIES FOR THE EQUIPMENT AND MOTOROLA SOFTWARE PROVIDED UNDER THIS
ADDENDUM AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. MOTOROLA DISCLAIMS ALL
OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Section 8 INDEMNIFICATION
8.1. GENERAL INDEMNITY BY MOTOROLA. Motorola will indemnify and hold Customer, its
employees, and its agents who are users of the Equipment, harmless from any and all liability, expense,
judgment, suit, cause of action, or demand for personal injury, death, or direct damage to tangible
property which may accrue against Customer to the extent it is caused by the negligence of Motorola, its
subcontractors, or their employees or agents, while performing their duties under this Addendum, if
Customer gives Motorola prompt, written notice of any claim or suit. Customer will cooperate with
Motorola in its defense or settlement of the claim or suit. This section sets forth the full extent of
Motorola's general indemnification of Customer from liabilities that are in any way related to Motorola's
performance under this Addendum.
8.2. PATENT AND COPYRIGHT INFRINGEMENT INDEMNIFICATION
8.2.1. Motorola will defend at its expense any suit brought against Customer to the extent it is based on
a third-party claim alleging that the Equipment manufactured by Motorola or the Motorola Software
("Motorola Product") directly infringes a United States patent or copyright ("Infringement Claim").
Motorola's duties to defend and indemnify are conditioned upon: Customer promptly notifying Motorola in
writing of the Infringement Claim; Motorola having sole control of the defense of the suit and all
negotiations for its settlement or compromise; and Customer providing to Motorola cooperation and, if
requested by Motorola, reasonable assistance in the defense of the Infringement Claim. In addition to
Motorola's obligation to defend, and subject to the same conditions, Motorola will pay all damages finally
awarded against Customer by a court of competent jurisdiction for an Infringement Claim or agreed to, in
writing, by Motorola in settlement of an Infringement Claim.
8.2.2. If an Infringement Claim occurs, or in Motorola's opinion is likely to occur, Motorola may at its
option and expense: (a) procure for Customer the right to continue using the Motorola Product; (b)
replace or modify the Motorola Product so that it becomes non-infringing while providing functionally
equivalent performance; or (c) accept the return of the Motorola Product and grant Customer a credit for
the Motorola Product, less a reasonable charge for depreciation. The depreciation amount will be
calculated based upon generally accepted accounting standards.
Subscription Services Agreement v.11.8.2018
24
8.2.3. Motorola will have no duty to defend or indemnify for any Infringement Claim that is based upon:
(a) the combination of the Motorola Product with any software, apparatus or device not furnished by
Motorola; (b) the use of ancillary equipment or software not furnished by Motorola and that is attached to
or used in connection with the Motorola Product; (c) Motorola Product designed or manufactured in
accordance with Customer's designs, specifications, guidelines or instructions, if the alleged infringement
would not have occurred without such designs, specifications, guidelines or instructions; (d) a
modification of the Motorola Product by a party other than Motorola; (e) use of the Motorola Product in a
manner for which the Motorola Product was not designed or that is inconsistent with the terms of this
Addendum; or (f) the failure by Customer to install an enhancement release to the Motorola Software that
is intended to correct the claimed infringement. In no event will Motorola's liability resulting from its
indemnity obligation to Customer extend in any way to royalties payable on a per use basis or the
Customer's revenues, or any royalty basis other than a reasonable royalty based upon revenue derived
by Motorola from Customer from sales or license of the infringing Motorola Product.
8.2.4. This Section 12 provides Customer's sole and exclusive remedies and Motorola's entire liability in
the event of an Infringement Claim. Customer has no right to recover and Motorola has no obligation to
provide any other or further remedies, whether under another provision of this Addendum or any other
legal theory or principle, in connection with an Infringement Claim. In addition, the rights and remedies
provided in this Section 10 are subject to and limited by the restrictions set forth in Section 9.
Section 9 LIMITATION OF LIABILITY
Except for personal injury, death or damage to tangible property, Motorola's total liability, whether for
breach of contract, warranty, negligence, strict liability in tort, indemnification, or otherwise, will be limited
to the damages recoverable under law, but not to exceed the price of the Equipment, Software, or
implementation Services with respect to which losses or damages are claimed. With respect to all non-
implementation Services and unless as otherwise provided under the applicable Addenda, Motorola's
total liability will be limited to the damages recoverable under law not to exceed the total Product Price.
ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY OF SUCH LOSSES OR DAMAGES,
THEY AGREE THAT MOTOROLA WILL NOT BE LIABLE FOR ANY COMMERCIAL LOSS,
INCONVENIENCE, LOSS OF USE, LOSS TIME, DATA, GOODWILL, REVENUES, PROFITS OR
SAVINGS; OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN ANY
WAY RELATED TO OR ARISING FROM THIS AGREEMENT, THE SALE OR USE OF THE
EQUIPMENT OR SOFTWARE, OR THE PERFORMANCE OF SERVICES BY MOTOROLA PURSUANT
TO THIS AGREEMENT. This limitation of liability provision survives the expiration or termination of the
Agreement and applies notwithstanding any contrary provision.
Section 10 GENERAL
10.1. TAXES. The Contract Price does not include excise, sales, lease, use, property, or other taxes,
assessments or duties, all of which will be paid by Customer except as exempt by law. If Motorola is
required to pay any of these taxes, Motorola will send an invoice to Customer and Customer will pay to
Motorola the amount of the taxes (including any interest and penalties) within thirty (30) days after the
date of the invoice. Customer will be solely responsible for reporting the Equipment for personal property
tax purposes, and Motorola will be solely responsible for reporting taxes on its income or net worth.
10.2 MISCELLANEOUS. This addendum may be executed in multiple counterparts, and shall have
the same legal force and effect as if the Parties had executed it as a single document. The Parties may
sign in writing, or by electronic signature, including by email. An electronic signature, or a facsimile copy
or computer image, such as a PDF or tiff image, of a signature, shall be treated as and shall have the
same effect as an original signature. In addition, an electronic signature, a true and correct facsimile
copy or computer image of this Addendum shall be treated as and shall have the same effect as an
original signed copy of this document.
10.3 ORDER OF PRECEDENCE. In the event of inconsistencies between this Exhibit I and the
Subscription Services Agreement v.11.8.2018
25
Primary Agreement, the Parties agree that this Exhibit I prevails, only with respect to the specific subject
matter of this Exhibit I, and not the Primary Agreement or any other exhibit as it applies to any other
subject matter.
10.4 AUTHORITY TO EXECUTE ADDENDUM. Each Party represents that it has obtained all
necessary approvals, consents and authorizations to enter into this Addendum and to perform its duties
under this Addendum; the person executing this Addendum on its behalf has the authority to do so; upon
execution and delivery of this Addendum by the Parties, it is a valid and binding contract, enforceable in
accordance with its terms; and the execution, delivery, and performance of this Addendum does not
violate any bylaw, charter, regulation, law or any other governing authority of the Party.
The Parties hereby enter into this Addendum as of the Effective Date.
Motorola Solutions, Inc. Augusta, Georgia� rg
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Subscription Services Agreement v.11.8.2018
26
EXHIBIT A
MOTOROLA SOFTWARE LICENSE AGREEMENT
This Exhibit A Motorola Software License Agreement ("Agreement") is between Motorola Solutions, Inc.
("Motorola") and Augusta, Georgia ("Licensee"). For good and valuable consideration, the parties agree
as follows:
Section 1 DEFINITIONS
1.1 "Designated Products" means products provided by Motorola to Licensee with which or for which
the Software and Documentation is licensed for use.
1.2 "Documentation" means product and software documentation that specifies technical and
performance features and capabilities, and the user, operation and training manuals for the Software
(including all physical or electronic media upon which such information is provided).
1.3 "Open Source Software" means software with either freely obtainable source code, license for
modification, or permission for free distribution.
1.4 "Open Source Software License" means the terms or conditions under which the Open Source
Software is licensed.
1.5 "Primary Agreement" means the Addendum to which this exhibit is attached.
1.6 "Security Vulnerability" means a flaw or weakness in system security procedures, design,
implementation, or internal controls that could be exercised (accidentally triggered or intentionally
exploited) and result in a security breach such that data is compromised, manipulated or stolen or the
system damaged.
1.7 "Software" (i) means proprietary software in object code format, and adaptations, translations, de-
compilations, disassemblies, emulations, or derivative works of such software; (ii) means any
modifications, enhancements, new versions and new releases of the software provided by Motorola; and
(iii) may contain one or more items of software owned by a third party supplier. The term "Software" does
not include any third party software provided under separate license or third party software not licensable
under the terms of this Agreement.
Section 2 SCOPE
Motorola and Licensee enter into this Agreement in connection with Motorola's delivery of certain
proprietary software or products containing embedded or pre-loaded proprietary software, or both. This
Agreement contains the terms and conditions of the license Motorola is providing to Licensee, and
Licensee's use of the proprietary software and affiliated documentation.
Section 3 GRANT OF LICENSE
3.1. Subject to the provisions of this Agreement and the payment of applicable license fees, Motorola
grants to Licensee a personal, limited, non-transferable (except as permitted in Section 7) and non-
exclusive license under Motorola's copyrights and Confidential Information (as defined in the Primary
Agreement) embodied in the Software to use the Software, in object code form, and the Documentation
solely in connection with Licensee's use of the Designated Products. This Agreement does not grant any
rights to source code.
3.2. If the Software licensed under this Agreement contains or is derived from Open Source Software,
the terms and conditions governing the use of such Open Source Software are in the Open Source
Software Licenses of the copyright owner and not this Agreement. If there is a conflict between the terms
Subscription Services Agreement v.11.8.2018
27
and conditions of this Agreement and the terms and conditions of the Open Source Software Licenses
governing Licensee's use of the Open Source Software, the terms and conditions of the license grant of
the applicable Open Source Software Licenses will take precedence over the license grants in this
Agreement. If requested by Licensee, Motorola will use commercially reasonable efforts to: (i) determine
whether any Open Source Software is provided under this Agreement; and (ii) identify the Open Source
Software (or specify where that license may be found).
Section 4 LIMITATIONS ON USE
4.1. Licensee may use the Software only for Licensee's internal business purposes and only in
accordance with the Documentation. Any other use of the Software is strictly prohibited. Without limiting
the general nature of these restrictions, Licensee will not make the Software available for use by third
parties on a "time sharing," "application service provider," or "service bureau" basis or for any other
similar commercial rental or sharing arrangement.
4.2. Licensee will not, and will not allow or enable any third party to: (i) reverse engineer,
disassemble, peel components, decompile, reprogram or otherwise reduce the Software or any portion to
a human perceptible form or otherwise attempt to recreate the source code; (ii) modify, adapt, create
derivative works of, or merge the Software; (iii) copy, reproduce, distribute, lend, or lease the Software or
Documentation to any third party, grant any sublicense or other rights in the Software or Documentation
to any third party, or take any action that would cause the Software or Documentation to be placed in the
public domain; (iv) remove, or in any way alter or obscure, any copyright notice or other notice of
Motorola's proprietary rights; (v) provide, copy, transmit, disclose, divulge or make the Software or
Documentation available to, or permit the use of the Software by any third party or on any machine
except as expressly authorized by this Agreement; or (vi) use, or permit the use of, the Software in a
manner that would result in the production of a copy of the Software solely by activating a machine
containing the Software. Licensee may make one copy of Software to be used solely for archival, back-
up, or disaster recovery purposes; provided that Licensee may not operate that copy of the Software at
the same time as the original Software is being operated. Licensee may make as many copies of the
Documentation as it may reasonably require for the internal use of the Software.
4.3. Unless otherwise authorized by Motorola in writing, Licensee will not, and will not enable or allow
any third party to: (i) install a licensed copy of the Software on more than one unit of a Designated
Product; or(ii) copy onto or transfer Software installed in one unit of a Designated Product onto one other
device. Licensee may temporarily transfer Software installed on a Designated Product to another device
if the Designated Product is inoperable or malfunctioning, if Licensee provides written notice to Motorola
of the temporary transfer and identifies the device on which the Software is transferred. Temporary
transfer of the Software to another device must be discontinued when the original Designated Product is
returned to operation and the Software must be removed from the other device. Licensee must provide
prompt written notice to Motorola at the time temporary transfer is discontinued.
4.4 Licensee will maintain, during the term of this Agreement and for a period of two years thereafter,
accurate records relating to this license grant to verify compliance with this Agreement. Motorola or an
independent third party ("Auditor") may inspect Licensee's premises, books and records, upon reasonable
prior notice to Licensee, during Licensee's normal business hours and subject to Licensee's facility and
security regulations. Motorola is responsible for the payment of all expenses and costs of the Auditor.
Any information obtained by Motorola and the Auditor will be kept in strict confidence by Motorola and the
Auditor and used solely for the purpose of verifying Licensee's compliance with the terms of this
Agreement.
Subscription Services Agreement v.11.8.2018
28
Section 5 OWNERSHIP AND TITLE
Motorola, its licensors, and its suppliers retain all of their proprietary rights in any form in and to the
Software and Documentation, including, but not limited to, all rights in patents, patent applications,
inventions, copyrights, trademarks, trade secrets, trade names, and other proprietary rights in or relating
to the Software and Documentation (including any corrections, bug fixes, enhancements, updates,
modifications, adaptations, translations, de-compilations, disassemblies, emulations to or derivative works
from the Software or Documentation, whether made by Motorola or another party, or any improvements
that result from Motorola's processes or, provision of information services). No rights are granted to
Licensee under this Agreement by implication, estoppel or otherwise, except for those rights which are
expressly granted to Licensee in this Agreement. All intellectual property developed, originated, or
prepared by Motorola in connection with providing the Software, Designated Products, Documentation or
related services, remains vested exclusively in Motorola, and Licensee will not have any shared
development or other intellectual property rights.
Section 6 LIMITED WARRANTY; DISCLAIMER OF WARRANTY
6.1. Unless otherwise stated in the Primary Agreement, the commencement date and the term of the
Software warranty will be a period of ninety (90) days from Motorola's shipment of the Software (the
'Warranty Period"). If Licensee is not in breach of any of its obligations under this Agreement, Motorola
warrants that the unmodified Software, when used properly and in accordance with the Documentation
and this Agreement, will be free from a reproducible defect that eliminates the functionality or successful
operation of a feature critical to the primary functionality or successful operation of the Software. Whether
a defect occurs will be determined by Motorola solely with reference to the Documentation. Motorola
does not warrant that Licensee's use of the Software or the Designated Products will be uninterrupted,
error-free, completely free of Security Vulnerabilities, or that the Software or the Designated Products will
meet Licensee's particular requirements. Motorola makes no representations or warranties with respect
to any third party software included in the Software. Notwithstanding, any warranty provided by a
copyright owner in its standard license terms will flow through to Licensee for third party software
provided by Motorola.
6.2 Motorola's sole obligation to Licensee and Licensee's exclusive remedy under this warranty is to
use reasonable efforts to remedy any material Software defect covered by this warranty. These efforts
will involve either replacing the media or attempting to correct significant, demonstrable program or
documentation errors or Security Vulnerabilities. If Motorola cannot correct the defect within a reasonable
time, then at Motorola's option, Motorola will replace the defective Software with functionally-equivalent
Software, license to Licensee substitute Software which will accomplish the same objective, or terminate
the license and refund the Licensee's paid license fee.
6.3. Warranty claims are described in the Primary Agreement.
6.4. The express warranties set forth in this Section 6 are in lieu of, and Motorola disclaims, any and
all other warranties (express or implied, oral or written) with respect to the Software or Documentation,
including, without limitation, any and all implied warranties of condition, title, non-infringement,
merchantability, or fitness for a particular purpose or use by Licensee (whether or not Motorola knows,
has reason to know, has been advised, or is otherwise aware of any such purpose or use), whether
arising by law, by reason of custom or usage of trade, or by course of dealing. In addition, Motorola
disclaims any warranty to any person other than Licensee with respect to the Software or Documentation.
Section 7 TRANSFERS
Licensee will not transfer the Software or Documentation to any third party without Motorola's prior written
consent. Motorola's consent may be withheld at its discretion and may be conditioned upon transferee
paying all applicable license fees and agreeing to be bound by this Agreement. If the Designated
Products are Motorola's radio products and Licensee transfers ownership of the Motorola radio products
to a third party, Licensee may assign its right to use the Software (other than CPS and Motorola's
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29
FLASHport® software) which is embedded in or furnished for use with the radio products and the related
Documentation; provided that Licensee transfers all copies of the Software and Documentation to the
transferee, and Licensee and the transferee sign a transfer form to be provided by Motorola upon
request, obligating the transferee to be bound by this Agreement.
Section 8 TERM AND TERMINATION
8.1 Licensee's right to use the Software and Documentation will begin when the Primary Agreement
is signed by both parties and will continue for the life of the Designated Products with which or for which
the Software and Documentation have been provided by Motorola, unless Licensee breaches this
Agreement, in which case this Agreement and Licensee's right to use the Software and Documentation
may be terminated immediately upon notice by Motorola.
8.2 Within thirty (30) days after termination of this Agreement, Licensee must certify in writing to
Motorola that all copies of the Software have been removed or deleted from the Designated Products and
that all copies of the Software and Documentation have been returned to Motorola or destroyed by
Licensee and are no longer in use by Licensee.
8.3 Licensee acknowledges that Motorola made a considerable investment of resources in the
development, marketing, and distribution of the Software and Documentation and that Licensee's breach
of this Agreement will result in irreparable harm to Motorola for which monetary damages would be
inadequate. If Licensee breaches this Agreement, Motorola may terminate this Agreement and, be
entitled to all available remedies at law or in equity (including immediate injunctive relief and repossession
of all non-embedded Software and associated Documentation unless Licensee is a Federal agency of the
United States Government).
Section 9 COMMERCIAL COMPUTER SOFTWARE
9.1 This Section 9 only applies to U.S. Government end users. The Software, Documentation and
updates 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, Documentation and Updates
are distributed and licensed to U.S. Government end users: (i) only as commercial items, and (ii)with only
those rights as are granted to all other end users pursuant to the terms and conditions contained herein.
9.2 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 9.2 may not otherwise use or transfer or make available any Motorola
software to any third party nor permit any party to do so.
Section 10 CONFIDENTIALITY
Licensee acknowledges that the Software and Documentation contain Motorola's valuable proprietary
and Confidential Information and are Motorola's trade secrets, and that the provisions in the Primary
Agreement concerning Confidential Information apply.
Section 11 LIMITATION OF LIABILITY
The Limitation of Liability provision is described in the Equipment Sale Addendum.
Section 13 GENERAL
13.1. COPYRIGHT NOTICES. The existence of a copyright notice on the Software will not be
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30
construed as an admission or presumption of publication of the Software or public disclosure of any trade
secrets associated with the Software.
13.2. COMPLIANCE WITH LAWS. Licensee acknowledges that the Software is subject to the laws
and regulations of the United States and Licensee will comply with all applicable laws and regulations,
including export laws and regulations of the United States. Licensee will not, without the prior
authorization of Motorola and the appropriate governmental authority 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 is a material breach of this Agreement.
13.3. ASSIGNMENTS AND SUBCONTRACTING. Motorola may assign its rights or subcontract its
obligations under this Agreement, or encumber or sell its rights in any Software, without prior notice to or
consent of Licensee.
13.4. GOVERNING LAW. This Agreement is governed by the laws of the United States to the extent
that they apply and otherwise by the internal substantive laws of the State of Georgia. The terms of the
U.N. Convention on Contracts for the International Sale of Goods do not apply. In the event that the
Uniform Computer Information Transaction Act, any version of this Act, or a substantially similar law
(collectively "UCITA") becomes applicable to a party's performance under this Agreement, UCITA does
not govern any aspect of this Agreement or any license granted under this Agreement, or any of the
parties' rights or obligations under this Agreement. The governing law will be that in effect prior to the
applicability of UCITA.
13.5. THIRD PARTY BENEFICIARIES. This Agreement is entered into solely for the benefit of
Motorola and Licensee. No third party has the right to make any claim or assert any right under this
Agreement, and no third party is deemed a beneficiary of this Agreement. Notwithstanding the foregoing,
any licensor or supplier of third party software included in the Software will be a direct and intended third
party beneficiary of this Agreement.
13.6. SURVIVAL. Sections 4, 5, 6.4, 7, 8, 9, 10, 11 and 13 survive the termination of this Agreement.
13.7. ORDER OF PRECEDENCE. In the event of inconsistencies between this Exhibit and the
Primary Agreement, the Parties agree that this Exhibit prevails, only with respect to the specific subject
matter of this Exhibit, and not the Primary Agreement or any other exhibit as it applies to any other
subject matter. However, any inconsistencies between this Exhibit and Motorola's Proposal to RFP 18-
231, with regard to the specific subject matter, the Parties agree that Motorola's Proposal to RFP 18-231
shall prevail.
13.8 SECURITY. Motorola uses reasonable means in the design and writing of its own Software and
the acquisition of third party Software to limit Security Vulnerabilities. While no software can be
guaranteed to be free from Security Vulnerabilities, if a Security Vulnerability is discovered, Motorola will
take the steps set forth in Section 6 of this Agreement.
The Parties hereby enter into this Addendum as of the Effective Date.
Motorola Solutions, Inc. Augusta, G orgia
By: frit Q�1 ' /l'G�1/4 y: 1' `G , 0
Name: Marshall Wright Name: Hardie Davis, Jr.
Title: MSSSI Vice President Title: Mayor of Augusta, Georgia
Subscription Services Agreement v.11.8.2018
31
Date: _12/03/2018 ••�DDt�:
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EXHIBIT III
MOTOROLA'S PROPOSAL TO RFP 18-231
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