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HomeMy WebLinkAboutprintrak product agreementPrintrak Product Agreement Motorola, Inc., a Delaware corporation. through its Commercial, Government, and Industrial Solutions Sector, North America Group ("Motorola" or "Seller")/Printrak International Incorporated, a Motorola company ("Printrak" or "Seller"), having a place of business st- and , ("Customer"), having a place of business at , enter into this Products Agreement ("Agreement"), pursuant to which Customer will purchase and Seller will sell the Products, as described below. Seller and Customer may be referred to individually as "party" and collectively as "parties." For good and valuable consideration, the parties agree as follows: Section 1 EXHIBITS The Exhibits listed below are incorporated into and made a part of this Agreement. In interpreting this Agreement and resolving any ambiguities, the main body of this Agreement will take precedence over the Exhibits and any inconsistency between the Exhibits will be resolved in the order in which they are listed below. Exhibit A Motorola "Software License Agreement" Exhibit 8 "Technical and Implementation Documents" S-I "List of Products" dated B-2 "Statement of Work" dated Section 2 DEFINITIONS Capitalized terms used in this Agreement shall have the following meanings: "Contract Price" means the price for the Products, exclusive of any applicable sales or similar taxes and freight charges. "Effective Date" means that date upon which the last party to sign this Agreement has executed the Agreement. "Equipment" means the hardware listed in the List of Products. "Infringement Claim" means a claim that the Equipment manufactured by Motorola or the Motorola Software infringes a United States patent or copyright. "Motorola" means Motorola, Inc., a Delaware corporation. "Motorola Software" means Software that Motorola or Printrak owns. "Non -Motorola Software" means Software that a party other than Motorola or Printrak owns. "Printrak" means Printrak International Incorporated. a Motorola company. "Products" mean the Equipment and Software provided by Seller under this Agreement. "Proprietary Rights" means the patents, patent applications, inventions, copyrights, trade secrets, trademarks, trade names, mask works, know-how, and other intellectual property rights in and to the Equipment and Software, including those created or produced by Motorola or Printrak under this Agreement and any corrections, bug fixes, enhancements, updates or modifications to or derivative works from the Software whether made by Motorola, Printrak, or another party. "Software" means the Motorola and Non -Motorola Software in object code format that is furnished with the Products and which may be listed on the List of Products. "Specifications" means the design, form, functionality. or performance requirements described in the Technical and Implementation Documents and any published descriptions of the Products. Section 3 SCOPE OF AGREEMENT AND TERN 3.1. SCOPE OF WORK. Seller will provide, ship. and install (if applicable) the Products, and perform its other contractual responsibilities, all in accordance with this Agreement. Customer will perform its contractual responsibilities in accordance with this Agreement. 3.2. CHANGE ORDERS. Either party,may request changes within the general scope of this Agreement. Neither 'party is obligated to perform requested changes unless both parties execute a written change order. 3.3. TERM. Unless otherwise terminated in accordance with the provisions of this Agreement or extended by mutual agreement of the parties, the term of this Agreement shall begin on the Effective Date and shall continue until the expiration of the warranty periodor three (3) years from the Effective Date, whichever occurs last. 3.4. ADDITIONAL EQUIPMENT, SOFTWARE, OR SERVICES. During the Term of this Agreement, Customer may order additional Equipment. Software. or services provided they are then available, Each order must refer to this Agreement and must specify the pricing and delivery terms. The applicable provisions of this Agreement (except for pricing, delivery, and payment terms) will govern the purchase and sale of the additional Equipment, Software, or services. Payment is due within twenty (20) days after the invoice date, and Seller will send Customer an invoice as the additional Equipment is shipped, Software is licensed, or services are performed. 3.5. MAINTENANCE SERVICE. This Agreement does not cover maintenance or support of the Products except as provided under the warranty. If Customer wishes to purchase maintenance or support, Seller 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 for the Customer's intended use under this 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 Seller 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. Seller makes no representations or warranties of any kiad regarding Non -Motorola Software. 3.8. SUBSTITUTIONS. At no additional cost to Customer, Seller reserves the right to substitute any Equipment. Software, or services to be provided by Seller, but only if the substitute meets the Specifications and is of equivalent or better quality and value to the Customer. Any such substitution will be reflected in a change order. Section 4 PERFORMANCE SCHEDULE If this Agreement includes the performance of services, the Statement of Work will describe the performance schedule. Section 5 PAYMENT OF CONTRACT PRICE 5.1. . CONTRACT PRICE. Unless otherwise set forth in a Payment Schedule attached as Exhibit C. the Contract Price in U.S. dollars is S , and Seller will submit to Customer invoices for Products when they are shipped and for services. if applicable, when they are performed. Customer will make payments to Seller within twenty (20) days after the date of each invoice. Customer will make payments when due in the form of a check, cashier's check. or wire transfer drawn on a U.S. financial institution. 5.2. OVERDUE INVOICES. Overdue invoices will bear simple interest at the rate of ten percent (10%) per annum, unless such rate exceeds the maximum allowed by law, in which case it will be reduced to the maximum allowable rate. 5.3. FREIGHT, TITLE, AND RISK OF LOSS. All freight charges will be pre -paid by Seller and added to the invoices, Title and risk of loss to the Equipment will pass to Customer upon shipment, except that title to Software will not pass to Customer at any time. Seller will pack and ship all Equipment in accordance with good commercial practices. Section 6 SITES AND SITE CONDITIONS 6.1. ACCESS TO SITES. If Seller 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 as reasonably requested by Seller so that it may perform its contractual duties. G.Z. SITE CONDITIONS. If Seller 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 specifically states to the contrary, Customer will ensure that these work sites will have (i) adequate physical space for the installation. use and maintenance of the Products; (ii) adequate air conditioning and other environmental conditions; (iii) adequate electrical power outlets, distribution and equipment for the installation. use and maintenance of the Products; and (iv) adequate telephone or other communication lines for the installation, use and maintenance of the Products. Section 7 ACCEPTANCE Acceptance of the Products wilt occur upon delivery to Customer unless the Statement of Work provides for acceptance verification or testing. in which case acceptance of the Products will occur upon successful completion of the acceptance verification or testing. Notwithstanding the preceding sentence, Customer's use of the Products for their operational purposes will constitute acceptance. Section 8 REPRESENTATIONS AND WARRANTIES 8.1. EQUIPMENT WARRANTY. For one (1) year from the date of shipment, Seller warrants that the Equipment under normal use and service will be free from material defects in materials and workmanship. 8.2. MOTOROLA SOFTWARE WARRANTY. Unless otherwise stated in the Software License Agreement, for bne (l) year from the date of shipment, Seller warrants the Motorola Software in accordance with the terms of the Software License Agreement and the provisions of this Section applicable to the Motorola Software. 8.3. 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; (ii) defects or damage occurring from misuse, accident, liquids, neglect. or acts of God; (iii) defects or damage occurring from testing. maintenance, disassembly. repair, installation, alteration. mcdificationr or adjustment not provided or authorized in writing by Seller; (iv) breakage of or damage to antennas unless caused directly by defects in material or workmanship; (v) defects or damage caused by Customer's failure to comply with all applicable industry and OSHA standards; (vi) Equipment that has had the serial number removed or made illegible; (vii) batteries (because they carry their own separate limited warranty); (viii) freight costs to ship Equipment to the repair depot; (ix) scratches or other cosmetic damage to Equipment surfaces that dues not affect the operation of the Equipment; and (x) normal or customary wear and tear. 8.4. • WARRANTY CLAIMS. Before the expiration of the warranty period. Customer must notify Seller in writing if Equipment or Motorola Software does not conform to these warranties. Upon receipt of such notice. Seller will investigate the warranty claim. If this investigation confirms a valid warranty claim, Seller 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. Such action will be the full extent of Seiler 's liability hereunder. If this investigation indicates the warranty claim is not valid, then Seller may invoice Customer for responding to the claim on a time and materials basis using Seller's 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 Seller. 8.5. ORIGINAL END USER IS COVERED. These express limited warranties are extended by Seller to the original user purchasing the Products for commercial, industrial, or governmental use only, and are not assignable or transferable. 8.6. DISCLAIMER OF OTHER WARRANTIES. THESE WARRANTIES ARE THE COMPLETE WARRANTIES FOR THE EQUIPMENT AND MOTOROLA SOFTWARE PROVIDED UNDER THIS AGREEMENT AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. SELLER DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Section 9 DELAYS Neither party will be liable for its non-performance or delayed performance if caused by a "Force Majeure" which means an event, circumstance, or act of a third party 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 or other labor disturbances, hurricanes, earthquakes, tires, floods, epidemics, embargoes, war, riots, or any other similar cause. Each party will notify the other if it becomes aware of any Force Majeure that will significantly delay performance. The notifying party will give such notice promptly (but in no event later than fifteen days) after it discovers the Force Majeure. If a Force Majeure occurs, the parties will execute a change order to extend the performance schedule for a time period that is reasonable under the circumstances. Section 10DISPUTES 10.1. SETTLEMENT PREFERRED. Seller and Customer will attempt to settle any claim or controversy arising from this Agreement (except for a claim relating to intellectual property) through consultation and negotiation in good faith 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 Seller and Customer within thirty days after notice by one of the parties demanding non -binding mediation, Seller and Customer will not unreasonably withhold Consent to the selection of a mediator. and they will share the cost of the mediation equally. The parties may postpone mediation until they have completed some specified but limited discovery about the dispute. The parties may also replace mediation with some other form of non -binding alternative dispute resolution ("ADR"). 10.2. LITIGATION. Any claim relating to intellectual property and 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 shall then be submitted by either party to a court of competent jurisdiction' in the state in which the Products are delivered. Each party consents to jurisdiction over it by such a court. The use of ADR procedures will not be considered under the doctrine of Caches, waiver, or estoppel to affect adversely the rights of either party. Section 11 DEFAULT AND TERMINATION If a party fails to perform or otherwise breaches a material obligation under this Agreement, the other party may consider the non -performing party to be in default, unless a Force Majeure causes such failure. if the performing party asserts a default, it will give the non -performing party written and detailed notice of the default; and the non -performing party will have thirty (30) days thereafter either to dispute the assertion or provide a written plan to cure the default that is acceptable to the performing party. If the non -performing party provides a cure plan, it will begin implementing the cure plan immediately after receipt of the performing party's approval of the plan. If the non- performing party fails to cure the default. the performing party may terminate any unfulfilled portion of this Agreement and recover damages as permitted by law and this Agreement. Section 12PATENT AND COPYRIGHT INFRINGEMENT INDEMNIFICATION 12.1. Seller will defend at its expense any suit brought against Customer to the extent that it is based on an Infringement Claim, and Seller will indemnify Customer for those costs and damages finally awarded against Customer for an Infringement Claim. Seller's duties to defend and indemnify are conditioned upon: (i) Customer promptly notifying Seller in writing of Motorola Confidential -Proprietary such Infringement Claim: (ii) Seller having sole control of the defense of such suit and all negotiations for its settlement or compromise; (iii) Customer providing to Seiler cooperation and, if requested by Seller, reasonable assistance in the defense of the Infringement Claim. 12.2. If an Infringement Claim occurs, or in Seller's opinion is likely to occur. Seller may at its option and expense procure for Customer the right to continue using the Equipment or Motorola Software, replace or modify it so that it becomes non -infringing while providing functionally equivalent performance, or grant Customer a credit for such Equipment or Motorola Software as depreciated and accept its return. The depreciation amount will be calculated based upon generally accepted accounting standards for such Equipment and Software. 12,3. Seller will have no duty to defend or indemnify for any Infringement Claim that is based upon (i) the combination of the. Equipment or Motorola Software with any software, apparatus or device not furnished by Seller; (ii) the use of ancillary equipment or software not furnished by Seller and that is attached to or used in connection with the Equipment or Motorola Software; (iii) any Equipment that is not Seller's design or formula: (iv) a modification of the Motorola Software by a party other than Seller; or (v) the failure by Customer to install an enhancement release to the Motorola Software that is intended to correct the claimed infringement. The foregoing states the entire liability of Seller with respect to infringement of patents and copyrights by the Equipment and Motorola Software or any parts thereof. Section 13 LIMITATION OF LIABILITY This limitation of liability provision shall apply notwithstanding any contrary provision in this Agreement. Except for personal injury or death, Seller's total liability, whether for breach of contract, warranty, negligence, strict liability in tort, indemnification, or otherwise, will be limited to the direct damages recoverable under law, but not to exceed the price of the Equipment. Software, or services with respect to which losses or damages are claimed. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, THEY AGREE THAT SELLER WILL NOT BE LIABLE FOR ANY COMMERCIAL LOSS; INCONVENIENCE: LOSS OF USE, TIME. DATA, GOOD WILL, 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 SELLER PURSUANT TO THIS AGREEMENT. This limitation of liability will survive the expiration or termination of this Agreement. No action for breach of this Agreement or otherwise relating to the transactions contemplated by this Agreement may be brought more than one (I) year after the accrual of such cause of action, except for money due upon an open account. Section 14CONFIDENTIALITY AND PROPRIETARY RIGHTS 14.1. CONFIDENTIAL INFORMATION. 14.1,1, During the term of this Agreement, the parties may provide the other with Confidential Information. For the purposes of this Agreement. "Confidential Information" is any information disclosed in written, graphic, verbal, or machine -recognizable form, and is marked, designated, labeled or identified at the time of disclosure as being confidential or its equivalent: or if in verbal forrn is identified as confidential or proprietary at the time of disclosure and confirmed in writing within thirty (30) days of such disclosure. Notwithstanding any other provisions of this Agreement, confidential information shall not include any information that: (i) is or becomes publicly known through no wrongful act of the receiving party; (ii) is already known to the receiving party without restriction when it is disclosed; (iii) is. or subsequently becomes. rightfully and without breach of this Agreement, in the receiving party's possession without any obligation restricting disclosure; (iv) is independently developed by the receiving party without breach of this Agreement; or (v) is explicitly approved for release by written authorization of the disclosing party. 14.1.2. Concerning the Confidential Informmation provided to it by the other party, each party will: (1) maintain the confidentiality of such 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; (ii) restrict disclosure of Canfideotial Information to its employees who have a "need to know" and not copy or reproduce such Confidential Information; (iii) take accessary and appropriate precautions to guard the confidentiality of Confidential Information. including informing its employees who handle such Confidential Information that it is confidential and not to be disclosed to others, but such precautions shall be at least the same degree of care that the receiving party applies to its own confidential information and shall not be less than reasonable care; and (iv) use such Confidential Information only in furtherance of the performance of this Agreement. Confidential information is and shall at all times remain the property of the disclosing party, and no grant of any proprietary rights in the Confidential Information is hereby given or intended, including any express or implied license, other than the limited right of the recipient to use the Confidential Information in the manner and to the extent permitted by this ' Agreement. • 14.2. PRESERVATION OP PROPRIETARY RIGHTS. 14.2.1. Motorola and Printrak. as applicable. each owns and retains all of its Proprietary Rights in the Equipment and Software. The third party. manufacturer of any Equipment and the copyright owner of any Non - Motorola Software own and retain all of their Proprietary Rights in the Equipment and Software. Nothing in this Agreement is intended to restrict the Proprietary Rights of Motorola, Printrak, any copyright owner of Non - Motorola Software, or any third party manufacturer of Equipment. All intellectual property developed, originated, or prepared by Motorola or Printrak in connection with providing to Customer the Equipment, Software, or related services remain vested exclusively in Motorola or Printrak, and this Agreement does not grant to Customer any shared development rights of intellectual property. This Agreement does not involve any Software that is a "work made for hire." 14.2.2. Except as explicitly provided in the Software License Agreement, nothing in this Agreement will be deemed to grant, either directly, or by implication, estoppel, or otherwise; any right, title or interest in the Proprietary Rights of Motorola or Printrak. Concerning both the Motorola Software and the Non -Motorola Software, Customer agrees not to modify. disassemble, peel components, decompile, otherwise reverse engineer or attempt to reverse engineer. derive source code or create derivative works from, adapt, translate, merge with other software. reproduce, or export the Software, or permit or encourage any third party to do so. Section 15GENERAL 15.1. TAXES. The Contract Price does not include any amount for federal, state, or local excise, sales, lease, service, rental, use, property. occupation, or other taxes, assessments or duties (other than federal, state, and local taxes based on Seller's income or net worth), all of which will be paid by Customer except as exempt by law. If Seller is required to pay or bear the burden of any such taxes, Seller will send an invoice to Customer and Customer will pay to it the amount of such taxes (including any applicable interest and penalties) within twenty (20) days after the date of the invoice. Customer will be solely responsible for reporting the Equipment for personal property tax purposes. 15.2. ASSIGNABILITY. Neither party may assign this Agreement without the prior written consent of the other party, except that Seller may assign this Agreement to any of its affiliates or its right to receive payment without the prior consent of Customer. Motorola Confidential -Proprietary 15.3. SUBCONTRACTING. Seller may subcontract any portion of the work, but such subcontracting will not relieve it of its duties under this Agreement. 15.4 WAIVER. Failure or delay by either party to exercise any right or power under this Agreement will not operate as a waiver of such right or power. For a waiver of a right or power to be effective, it must be in writing signed by the waiving party. An effective waiver of a right or power shall not be construed as either (i) a future or continuing waiver of that same right or power, or (ii) the waiver of any other right or power. 15.5. SEVERABILITY. If a court of competent jurisdiction renders any provision of this Agreement (or portion of a provision) to be invalid or otherwise unenforceable, that provision or portion of the provision will be severed and the remainder of this Agreement will continue in full force and effect as if the invalid provision or portion of the provision were not part of this Agreement. 15.6. INDEPENDENT CONTRACTORS. Each party shall perform its activities and duties hereunder only as an independent contractor. The parties and their personnel shall not be considered to be an employee or agent of the other party. Nothing in this Agreement shall be interpreted as granting either party the right or authority to make commitments of any kind for the other. This Agreement shall not constitute, create, or in any way be interpreted as a joint venture, partnership or formal business organization of any kind. 15.7. HEADINGS AND SECTION REFERENCES; CONSTRUCTION. 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. 15.8. 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 in which the System is installed. 15.9. ENTIRE AGREEMENT. This Agreement, including all Exhibits, constitutes the entire agreement of the parties regarding the subject matter hereof and supersedes all previous agreements. proposals, and understandings, whether written or oral, relating to such subject matter. This Agreement may be altered, 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 order, acknowledgment or other form will not be considered an amendment or modification of this Agreement, even if a representative of each party signs such document. 15.10. NOTICES. Notices required under this Agreement to be given by one party to the other must be in writing and either delivered in person or sent to the address shown below by certified mail, return receipt requested and postage prepaid (or by a recognized courier service with an asset tracking system, such as Federal Express, UPS, or DHL), or by facsimile with correct answerback received, and shall be effective upon receipt: Customer Seller Attn: Attn: fax: fax: 15.11. 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 or use of the System. 15.12. AUTHORITY TO EXECUTE AGREEMENT. Each party represents to the other that (i) it has obtained all necessary approvals, consents and authorizations to enter into this Agreement and to perform its duties under this Agreement; (ii) the person executing this Agreement on its behalf has the authority to do so; (ili) upon execution and delivery of this Agreement by the parties, it is a valid and binding contract, enforceable in accordance with its terms; and (iv) the execution, delivery, and perfonnance of this Agreement does not violate any bylaw. charter, regulation, law or any other governing authority of the party. 15.13. SURVIVAL OF TERMS. The following provisions shall survive the expiration or termination of this Agreement for any reason: Sections 3.6 and 3.7 (concerning Software licensing); Section 10 (Disputes); Section 13 (Limitation of Liability); 14.1 (Confidential Information); and 14.2 (Preservation of Proprietary Rights). The parties hereby enter into this Agreement as of the Effective Date. Seller Customer By: By: Name: Name Title: Title: Date: Date: Motorola Confidential -Proprietary