Item No.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: OFFICE OF THE CITY MANAGER
BY: DAN HURLOCK, FIRE CHIEF
DATE: SEPTEMBER 10, 2024
SUBJECT: APPROVAL OF SERVICE RENEWAL AGREEMENT BETWEEN
MOTOROLA SOLUTIONS AND THE CITY OF DOWNEY FOR
MAINTENANCE AND UPGRADES TO THE FIRE COMMUNICATIONS
NETWORK
EXECUTIVE SUMMARY
The City Council will consider approving Motorola Solutions' four-year contract renewal to provide service and upgrades for the Downey Fire Communications Center’s emergency dispatch radio consoles. The fire department radio system requires hardware and software connections to Motorola’s regional core processor in Glendale, CA. Regular maintenance includes software patches, network support, and system monitoring.
System upgrades, including dispatch consul hardware replacement, are included in this agreement. Regular maintenance and upgrades for the radio network are essential to ensure emergency dispatch services and current cybersecurity.
RECOMMENDATION
That the City Council:
Approve the service agreement with Motorola Solutions for service and upgrades to the fire department emergency dispatch radio network hardware and software for a four-year term beginning on July 1, 2024, for a total contract amount of $181,532.
BACKGROUND
In 2018, the Downey Fire Department upgraded its legacy emergency radio network. This radio system upgrade used available Measure S funding to address the fire department’s aging radio network. The new emergency radio network is a computer-based internet protocol (IP) system. The radio network design utilizes four remote radio consoles in the fire dispatch center connected to a common Motorola Solutions radio network core processor in Glendale, CA. The core processor is shared with other dispatch centers that utilize the same radio network design.
When the Fire Department installed its new radio network 2018, the Fire Department also entered into service upgrade agreement with Motorola Solutions to ensure proper
MOTOROLA SOLUTIONS RADIO SERVICE UPGRADE AGREEMENT
SEPTEMBER 10, 2024
PAGE 2
radio consoles. The service upgrade agreement was for six-year term and ended on June 30, 2024.
ANALYSIS
The proposed agreement (Attachment A) continues services and upgrades for hardware and software in the DFCC and contributes to the overall system core processor maintenance. The new four-year contract renews the services and upgrade agreement through June 30, 2028.
Additionally, security updates via remote service management access are necessary as part of the security patching process. The conditions of providing remote virtual private network (VPN) access to the core processor and remote dispatch consoles are covered in the attached cyber addendum (Attachment B).
CITY COUNCIL PRIORITIES
Efficiency & Adaptability
Quality of Life, Safety & Infrastructure
FISCAL IMPACT
Approval of the recommended action will result in an expenditure of $43,195 from the General Fund, Fire Department Account No. 10-2640-700. The amount was included as part of the adopted FY 2024-2025 Operating Budget. As a result, there is sufficient funding available for the recommended action.
Future budgets will be adjusted via the City’s annual budget approval process to correspond with subsequent years’ expenses associated with this agreement, which includes:
● FY2025-2026: $44,607
● FY2026-2027: $46,088
● FY2027-2028: $47,643
ATTACHMENTS
Attachment A: Motorola Solutions Radio Service Upgrade Agreement Attachment B: Motorola Cyber Addendum
(D MOTors OLA SOLUTIONS
SERVICE AGREEMENT
500 W Monroe Street
Chicago, IL. 60661
(888) 325-9336
Quote Number : QUOTE-2548111
Contract Number: USC000129874
Contract Modifier: R03-MAR-24 10:21 :28
Date:03/030024
Company Name: DOWNEY FIRE DEPT Required P.O. :
PO # :Attn
Billing Address: 12222 PARAMOUNT BLVD Customer # :1035852830 Cityf Statel ZiP: DOWNEY , CA, 90242
Bill to Tag # :
Customer Contact: Dan Hurlock
Contract Start Date :01-Jul-2024
Contract End Date :30-Jun-2028
Phone: 562-9CH-7300
Payment Cycle :ANNUALLY
Service Description
ASTRO SUA ll UO IMPLEMENTATION SERVICES
RELEASE IMPLEMENTATION TRAINING
RELEASE IMPACT TRAINING
SYSTEM UPGRADE AGREEMENT II
ASTRO SUA II FIELD IMPLEMENTATN SVC
ASTRO SYSTEM ADVANCED PLUS PACKAGE
$0.00
$0.00
$0.00
$57,915.48
$5,053.86
$1 18,562.99
SVC02SVC0344A
SVC02SVC0343A
SVC04SVC0169A
SVC02SVC0433A
LSVOISOI I09A
Subtotal - Recurring SeI $3,781
Subtotal - OnoTime Event S
THIS SERVICE AMOUNT IS SUBJECT TO STATE AND LOCAL TAXING JURISDICTIONS WHERE APPLICABLE. TO BE VERIFIED BY MOTOROLA
SPECIAL INSTRUCTIONS:
First year $43,194.89
Second year $44.606.54
Third Year $46,088.04
Fourth Year $47,642'86
Advanced Plus Services
– DISPATCH
– NETWORK MONITORING
– ONSITE SYS SUPPORT-STD
– PREVENTIVE MAINTENANCE
– REMOTE SUS MGT
– REPAIR AND RETURN
– SECURITY UPDATE SERVICE
– SYSTEM TECH SUPPORT
q) MOTors OLA SOLUTIONS
SERVICE AGREEMENT
500 W Monroe Street
Chicago, IL. 60661
(888) 325-9336
Quote Number : QUOTE-2548111
Contract Number: USC000129874
Contract Modifier: R03-MAR-24 10:21 :28
I have received Applicable Statements of Work which describe the Services and cybersecurity services provided on this Agreement. M6torola's Terms and Conditions, includina the Cvbersecuritv Online Terms Acknowledgement, are attachBd hereto and incorporate the Cyber Addendum (available at https://www.motorolasol.utions.com/ep us/ manaqed-support-serviceg/cybersecurity.html) by refer8nce. By sigjiiIElggJgWg>m@sufese terms an=dimRg-foTeTh-H[sFNFc–BmnfB Service Agreement.
AUTHORIZED CUSTOMER SIGNATURE TITLE DATE
CUSTOMER (PRINT NAME)
.r (f-L
MOTOROLA REPRE#NTATIVE(#NAtURE)
Joshua Golding
as#1
TITLE
xIa.la.*'I
LTE
21 3-220-3139
PHONEMOTOROLA REPRESENTATIVE(PRINT NAME)
Company Name :
Contract Number :
DOWNEY FIRE DEPT
USCOOOI 29874
Contract Modifier :R03-MAR-24 10:21 :28
Contract Start Date :01 -Jul-2024
Contract End Date :30-Jun-2028
APPROVED AS TO FORM.
,?„,f„aBY:
JOHN M. FUNK
ciPr ATroRNEY
G) MOTOROLA SOLUTIONS
SERVICE AGREEMENT
500 W Monroe Street
Chicago, IL. 60661
(888) 325-9336
Quote Number : QUOTE-2918111
Contract Number: USC000129874
Contract Modifier: R03-MAR-24 10:21 :28
Service Terms and Conditions
Motorola Solutions Inc. ("Motorola") and the customer named in this Agreement ("Customer") hereby agree as follows Section 1. APPUCABILJTY
These Maintenanoe Servioe Terms and Conditions apply to service contracts whereby Motorola will provide to Customer either (1) maintenance, support, or other services under a Motorola Service Agreement, or (2) installation services under a Motorola Installation Agreement.
Section 2. DEFINITIONS AND INTERPRETATION
2.1 “Agreement- means these Maintenance Service Terms and Conditions; the cover page for the Servioe Agreement or the Installation Agreement, as applimble; and any other attachments, all of which are incorporated herein by this reference. In interpreting this Agreement and resolving any ambiguities, these Maintenanoe Servioe Terms and Conditions take precedence over any cover page, and the oover page takes precedenoe over any attachments, unless the cover page or attachment states otherwise.
2.2 "Equipment” means the equipment that is spedfied in the attachments or is subsequently added to this Agreement
2.3 -Servioes- means those installation, maintenance, support, training, and other servioes described in this Agreement.
Section 3. ACCEPTANCE
Customer aooepts these Maintenance Service Terms and Conditions and agrees to pay the prices set forth in the Agreement. This Agreement becomes binding only when acmpted in writing by Motorola. Ttre term of this Agreement begins on the -Start Date” indicated in this Agreement.
Section 4. SCOPE OF SERVICES
4.1 Motorola will provide the Servioes described in this Agreement or in a more detailed statement of work or other document attached to this Agreement At Customer’s request, Motorola may also provide additional services at Motorola’s then-applicable rates for the services,
4.2 if Motorola is providing Services for Equipment, Motorola parts or parts of equal quality will be used; the Equipment will be serviced at levels set forth in the manufacturer’s product manuals; and routine servioe procedures that are presuibed by Motorola will be followed
4.3 if Customer purchases from Motorola additional equipment that becomes part of the same system as the initial Equipment, the additional equipment may be added to this Agreement and will be billed at the applicable rates after the warranty for that additional equipment expires.
4.4 All Equipment must be in good working order on the Start Date or when additional equipment is added to the Agreement. Upon reasonable request by Motorola, Customer will provide a oomplete serial and model number list of the Equipment. Customer must promptly notify Motorola in writing when any Equipment is lost, damaged, stolen or taken out of servioe. Customer’s obligation to pay Sorvioe fees for this Equipment will terminate at the end of the month in which Motorola receives the written notia.
4.5 Customer must specifically identify any Equipment that is labeled intrinsically safe for use in hazardous environments
4.6 if Equipment cannot, in Motorola’s reasonable opinion, be properly or economically serviced for any reason, Motorola may modify the scope of Servims related to that Equipment; remove that Equipment from the Agreement; or inuease the prioe to Service that Equipment.
4.7 Customer must promptly notify Motorola of any Equipment failure. Motorola will respond to Customer’s notification in a manner consistent with the level of Servioe purchased as indicated in this.
Section 5. EXCLUDED SERVICES
5.1 Service excludes the repair or replacement of Equipment that has become defective or damaged from use in other than the normal, customary, intended, and authorized manner; use not in complianm with applimble industry standards; excessive wear and tear; or acddent, liquids, power surges, neglect, acts of God or other foroe majeure events.
5.2 Unless specifimlly included in this Agreement, Service excludes items that are consumed in the normal operation of the Equipment, such as batteries or magnetic tapes.; upgrading or reprogramming Equipment; acassories, belt clips, battery chargers, custom or special products, modified units, or software; and repair or maintenance of any transmission line, antenna, microwave equipment, tower or tower lighting, duplexer. combiner, or multicoupler.
Motorola has no obligations for any transmission medium, such as telephone lines, computer networks, the internet or the woddwide web, or for Equipment malfunction caused by the transmission medium
(D MOTOROLA SOLUTIONS SERVICE AGREEI IENT
500 W Monroe Street
Chicago, IL. 60661
(888) 325-9336
Quote Number : QUOTE-2548111
Contract Number: USC000129874
Contract Modifier: R03-MAR-24 10:21 :28
Section 6. TIME AND PLACE OF SERVICE
Service will be provided at the location specified in this Agreement. VWren Motorola performs service at Customer’s location, Customer will provide Motorola, at no charge. a non+lazardous work environment with adequate shelter. heat, light, and power and with full and free access to the Equipment Waivers of liability from Motorola or its suboontractors will not be imposed as a site across requirement. Customer will provide all information pertaining to the hardware and software elements of any system with which the Equipment is interfacing so that Motorola may perform its Services. Unless otherwise stated in this Agreement. the hours of Service will be 8:30 a.m. to 4:30 p.m., local time, excluding weekends and holidays. Unless otherwise stated in this Agreement, the price for the Services exclude any charges or expenses associated with helicopter or other unusual across requirements; if these charges or expenses are reasonably incurred by Motorola in rendering the Services, Customer agrees to reimburse Motorola for those charges and expenses.
Section 7. CUSTOMER CONTACT
Customer will provide Motorola with designated points of oontact (list of names and phone numbers) that will be available tuenty-four (24) hours per day, seven (7) days per wek, and an esmlation procedure to enable Customer’s personnel to maintain oontact, as needed, with Motorola Section 8. INVOICING AND PAYMENT
8.1 Customer affirms that a purchase order or notice to proceed is not required for the duration of this servioe contract and will appropriate funds each year through the contract end date. Unless attemative payment terms are stated in this Agreement, Motorola will invoice Customer in advance for each paYment period. An other charges will be billed monthly, and Customer must pay each invoice in U.S. dollars within twenty (20) days of the invoice date
8.2 Customer will reimburse Motorola for all property taxes, sales and use taxes, excise taxes, and other taxes or assessments that are levied as a result of Services rendered under this Agreement (except income, profit, and franchise taxes of Motorola) by any governmental entity. The Customer will pay all invoims as reoetved from Motorola. At the time of execution of this Agreement, the Customer will provide all necessary reference information to include on invoioes for payment in accordance with this Agreement
8.3 For multi-year servioe agreements, at the end of the first year of the Agreement and each year thereafte t, a CPI percentage change calculation shall be performed using the U.S.Department of Labor, Consumer Price Index, all Items, Unadjusted Urban Areas (CPI-U). Should the annual inflation rate increase greater than 3% during the previous year. Motorola shall have the right to increase all future maintenanoe prioes by the CPI increase amount exceeding 3%. All items, not seasonally adjusted shall be used as the measure of CPI for this price adjustment. Measurement will take plaoe once the annual average for the new year has been posted by the Bureau of Labor Statistia. For purposes of illustration. if in year 5 the CPI reported an inuease of 8%, Motorola may inaease the Year 6 prioe by 5% (8%-3% base) Section 9. WARRANTY
Motorola warrants that its Services under this Agreement will be free of defects in materials and workmanship for a period of ninety (90) days from the date the wrformanoe of the Services are completed. In the event of a breach of this warranty, Customer’s sole remedy is to require Motorola to rbperform the non40nforming Sewioe or to refund, on a prbrata basis, the fees paid for the non40nforming Servioe. MOTOROLA DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE
Section 10. DEFAULTfTERMINATION
10.1 if either party defaults in the performanoe of this Agreement, the other party will give to the non-performing party a written and detailed notioe of the default. The non-performing party will have thirty (30) days thereafter to provide a written plan to cure the default that is acceptable to the other party and begin implementing the aire plan immediately after plan approval. If the non-performing party fails to provide or implement the aire plan, then the injured party, in addition to any other rights available to it under law, may immediately terminate this Agreement effectjve upon giving a written notice of termination to the defaulting party.
10.2 Any temlination of this Agreement will not relieve either party of obligations previously incurTed pursuant to this Agreement, including payments which may be due and owing at the time of termination. All sums owed by Customer to Motorola wiN become due and payable immediately upon termination of this Agreement. Upon the effective date of termination, Motorola will have no further obligation to provide Services
10.3 if the Customer terminates this Agreement before the end of the Term. for any reason other than Motorola defautt, then the Customer will pay to Motorola an earty termination fee equal to the disoount applied to the last three (3) years of Servioe payments for the original Term.
Section 11. UMITATION OF LIABILITY
Except for personal injury or death, Motorola's total liability, whether for breach of contract, warranty, negligence, strict liability in tort, or otherwise, will be limited to the direct damages recoverable under law, but not to exceed the price of twelve (12) months of Service provided under this Agreement.
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, 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 OR THE PERFORMANCE OF SERVICES BY MOTOROLA PURSUANT TO THIS AGREEMENT. No adion for contrad bread or otherwise relating to the transactions oontemplated by this Agreement may be brought more than one (1) year after the accrual of the cause of action, except for money due upon an open account, This limitation of liability will survive the expiration or termination of this Agreement and applies notwithstanding any contrary provision.
G) MOTOROLA SOLUTIONS
SERVICE AGREEI IENT
500 W Monroe Street
Chicago, IL. 60661
(888) 325-9336
Quote Number : QUOTE-2548111
Contract Number: USC000129874
Contract Modifier: R03-MAR-24 10:21 :28
Section 12. EXCLUSIVE TERMS AND CONDITIONS
12.1 This Agreement supersedes all prior and concurrent agreements and understandings between the parties, whether written or oral, related to the Services, and there are no agreements or representations concerning the subject matter of this Agreement except for those expressed herein. The Agreement may not be amended or modified exoept by a written agreement signed by authorized representatives of both parties.
12.2 Customer agrees to referenoe this Agroement on any purchase order issued in furtherance of this Agreement, however, an omission of the referenoe to this Agreement will not afFect its applicability. In no event will either party be bound by any terms contained in a Customer purchase order, acknowledgement, or other writings unless: the purchase order, acknowledgement, or other writing specifically refers to this Agreement; clearty indicate the intention of both parties to override and modify this Agreement; and the purchase order, acknowledgement, or other writing is signed by authorized representatives of both parties.
Section 13. PROPRIETARY INFORMATION; CONFIDENTIAUTY; INTELLECTUAL PROPERTY RIGHTS
13.1 Any information or data in the form of specifimtions, drawings, reprints, technical information or otherwise furnished to Customer under this Agreement will remain Motorola’s property, will be deemed proprietary, will be kept confidential, and will be promptly returned at Motorola’s request Customer may not disclose, without Motorola's written permission or as required by law, any confidential information or data to any person, or use confidential information or data for any purpose other than performing its obligations under this Agreement. The obligations set forth in this Section survive the expiration or termination of this Agreement.
13.2 Unless otherwise agreed in writing, no commercial or technical information disclosed in any manner or at any time by Customer to Motorola will be deemed secret or confidential. Motorola will have no obligation to provide Customer with access to its confidential and proprietary information, including cost and pridng data
I:3.3 This Agreement does not grant directly or by implication, estoppel, or otherwise, any ownership right or license under any Motorola patent, copyright, trade secret, or other intellectual property, including any intellectual property aeated as a result of or related to the Equipment sold or Servioes performed under this Agreement
Section 14. FCC LICENSES AND OTHER AUTHORIZATIONS
Customer is solely responsible for obtaining licenses or other authorizations required by the Federal Communications Commission or any other federal, state, or loml government agency and for complying with all rules and regulations required by governmental agencies. Neither Motorola nor any of its employees is an agent or representative of Customer in any governmental matters Section IS. INTEMTIONALLY OMITTED
Section 16. MATERIALS. TOOLS AND EQUIPMENT
All tools, equipment, dies, gauges, models, drawings or other materials paid for or furnished by Motorola for the purpose of this Agreement will be and remain the sole property of Motorola. Customer will safeguard all such property while it is in Customer’s custody or oontrol, be liable for any loss or damage to this property, and return it to Motorola upon request. This property will be held by Customer for Motorola’s use without charge and may be removed from Customer’s premises by Motorola at any time without restriction, Section 17. GENERAL TERMS
17.1 if any court renders any portion of this Agreement unenforceable, the remaining terms will continue in full force and effect
17.2 This Agreement and the rights and duties of the parties will be interpreted in amonlanoe with the laws of the State in which the Services are performed.
17.3 Failure to exerdse any right will not operate as a waiver of that right, power, or privilege
G) MOTOROLA SOLUTIONS SERVICE AGREEMENT
500 W Monroe Street
Chicago, IL. 60661
(888) 325-9336
Quote Number : QUOTE-2548111
Contract Number: USC000129874
Contract Modifier: R03-MAR-24 10:21 :28
17-4 Neither party is liable for delays or lack of performance resulting from any causes that are beyond that party’s reasonable control, such as strikes, material shortages, or acts of God
17.5 Motorola may subcontract any of the work, but subcontracting will not relieve Motorola of its duties under this Agreement
17.6 Except as provided herein, neither Party may assign this Agreement or any of its rights or obligations hereunder without the prior WTttten consent of the other Party, which consent will not be unreasonably withheld. Any attempted assignment, delegation. or transfer without the nemssary 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,
17.7 INTENTIONALLY OMiTrED
17.8 if Motorola provides Services after the termination or expiration of this Agreement, the terms and conditions in effect at the time of the termination or expiration will apply to those Servioes and Customer agrees to pay for those services on a time and materials basis at Motorola’s then effective hourly rates.
17.9 This Agreement may be executed in one or more counterparts, all of which shall be considered part of the Agreement. The parties may exewte this Agreement in uafting, or by electronic signature, and any such electronic signature shall have the same legal effect as a handwritten signature for the purposes of validity, enformability and admissibility. In addition, an electronic signature, a true and oorrect fawimile oopy or computer image of this Agreement shall be treated as and shall have the same effect as an original signed copy of this document Revised Sept 03, 2022
G) MOTOROLA SOLUTIONS
SERVICE AGREEMENT
500 W Monroe Street Quote Number : QUOTE-2548111
Contract Number: USC000129874
Contract Modifier: R03-MAR-24 10:21 :28Chicago, IL. 60661 (888) 325-9336
Cybersecurity Online Terms Acknowledgement
This Cybersecurity Online Terms Acknowledgement (this “Acknowledgement”) is entered into between Motorola Solutions, Inc. ("Motorola) and the entity set forth iri the signature block below (“CustomeF)
1. Applicability and Self Deletion. This Cybersecurity Online Terms Acknowledgement applies to the extent (Vbersecurtty products and services, including Remote Security Update Service, Sealrtty Update Service, and Managed Detection & Response subscription servims, are purchased by or otherwise provided to Customer, including through bundled or integrated offerings or otherwise.
NOTE: This Acknowledqemeilt is sjIf deleUnq if not applicable uider this Soction 1.
2. Online Terms Acknowledqement. The Parties acknowledge and agree that the terms of the Cyber Subscription Renewals and Integrations Acn aOailable at UD_,'r'\vww.motorolasolutions.com/cyber-renewals-integrations are incorporated in and form part of the Parties; agreement as it relates to any cvbersec) cmsmToFbialidedntaiiarmly–s-ijning the signature block below, Customer @nifiest hat it has read and agrees to the provisions sdt forth and linked on-line in this Acknowledgement. To the bxtetlt Cust6mer is unable to access the above referenced online terms foI any reason, Customer may request a paper copy from Motorola, T-he signatory to this Acknowledgement represents and warrants that he or she has the requisite authorRy to bind Customer to this Acknowledgement and referenced online terms
3. Entire Agreement. This Acknowledgement supplements any and all applicable and existing agreements and supersedes any contrary terms as it relates to CtI e of cybersecurity-products ind servioes. 'This Ackn'ohledgement and reTerineed terms consfRute the entiie agreeFnent of the parties regan$ng the subject matter hereof and as set out in the referenced terms, and supersedes all previous agreements, proposals, ahd understandings, whether Written oF oral, relating to this subject matter.
4. Execution and Amendments. This Acknowtedgement may be executed in multiple counterparts, and will have the same legal foroe and effect as if the Palgle document. The Parties May sign in writing or b+ electronic- signature. An electronic signattire, fauimile copy, or computer image of a signature, will be treated, and will have the same dffecit as an oriainal iignature, and-will have the same effeat, as an original sigh6d copy of this dodlment. Tbis Acknowledgement may be amended or modified only by a Written iilstrument signed by authorized representatives at both Parties.
The Parties hereby enter into this Acknowledgement as of the last signature date below.
Revised Sept 03, 2022
1 Cyber Addendum
Motorola Solutions Inc. ("Motorola") and the customer named in the Agreement to which this Cyber Addendum (the “Addendum”) is attached ("Customer") hereby agree as follows:
Section 1. APPLICABILITY
1.1 This Addendum sets out terms applicable to Customer’s purchase of cyber security services that are in addition to, and that may in some respects amend or supersede, terms in the Agreement pertaining to (i) Remote Security Update Service, Security Update Service, and Managed Detection & Response subscription services, among other subscription services (“Subscription Services”),(ii) professional services (“Professional Services”), and/or (iii) retainer services (i.e., professional services when expressly purchased as a block of pre -paid hours for use, subject to expiration, within a specified period across certain offered service categories (“Retainer Services”) (all collectively herein, “Services”).
Section 2. ADDITIONAL DEFINITIONS AND INTERPRETATION
2.1. “Customer Contact Data” has the meaning given to it in the DPA.
2.2 “Customer Data” has the meaning given to it in the DPA.
2.3 “Data Processing Addendum” or “DPA” means the Motorola Data Processing Addendum l applicable to processing of Customer Data for US customers, as updated, supplemented, or superseded from time to time. The DPA is attached to this Addendum and is incorporated into and made a part of this Addendum and the Agreement for all purposes pertaining to the contents of the DPA. Where terms or provisions in this Addendum or the Agreement conflict with terms or provisions of the DPA, the terms or provisions of the DPA will control with respect t o the contents of the DPA
2.4 “Feedback” means comments or information, in oral or written form, given to Motorola by Customer or Authorized Users, including their end users, in connection with or relating to the Services. Any Feedback provided by Customer is entirely voluntary. Motorola may us e, reproduce, license, and otherwise distribute and exploit the Feedback without any obligation or payment to Customer or Authorized Users. Customer represents and warrants that it has obtained all necessary rights and consents to grant Motorola the foregoing rights.
2.5 “Motorola Data” has the meaning given to it in the DPA.
2.6 “Process” or “Processing” has the meaning given to it in the DPA.
2.7 “Service Use Data has the meaning given to it in the DPA.
2.8 “Statement(s) of Work” or “SOW(s)” as used in this Addendum means a statement of work, ordering document, accepted proposal, or other agreed upon engagement document issued under or subject to this Addendum.
Mutually agreed upon SOWs may be attached hereto as Exhibit(s) , and/or are respectively incorporated by reference, each of which will be governed by the terms and conditions of this Addendum. Statements of Work may set out certain “Deliverables,” which include all written information (such as reports, specifications, 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 under a SOW and this Addendum. The Deliverables, if any, are more fully described in the Statements of Work.
2.9 “Third-Party Data” has the meaning given to it in the DPA.
Section 3. LICENSE, DATA AND SERVICE CONDITIONS
3.1 Delivery of Cyber Services
3.1.1 All Professional Services will be performed in accordance with the performance schedule included in a SOW. Delivery of hours purchased as Retainer Services is at the onset of the applicable retainer period. Hours purchased as Retainer Services expire and are forfeited if not used within the Retainer period, subject to terms of use, expiration and extension, if any, as set out in the applicable SOW or ordering document. Professional Services described in a SOW will be deemed complete upon Motorola’s performance of such Services or, if applicable, upon
2 exhaustion or expiration of the Retainer Services hours, whichever occurs first.
3.1.2 Subscription Services. Delivery of Subscription Services will occur upon Customer’s receipt of credentials required for access to the Subscription Services or upon Motorola otherwise providing access to the Subscription Services platform.
3.1.3 To the extent Customer purchases equipment from Motorola (“Supplied Equipment''), title and risk of loss to the Supplied Equipment will pass to Customer upon installation (if applicable) or shipment by Motorola.
Customer will take all necessary actions, reimburse freight or delivery charges, provide or obtain access and other rights needed and take other requested actions necessary for Motorola to efficiently perform its contractual duties. To the extent Supplied Equipment is purchased on an installment basis, any early termination of the installment period will cause the outstanding balance to become immediately due.
3.2 Motorola may use or provide Customer with access to software, tools, enhancements, updates, data, derivative works, and other materials which Motorola has developed or licensed from third parties (collectively, “Motorola Materials”). The Services, Motorola Data, Third-Party Data, and related documentation, are considered Motorola Materials. Notwithstanding the use of such materials in Services or Deliverables, the Motorola Materials are the property of Motorola or its licensors, and Motorola or its licensors retain all right, title and interest in and to the Deliverables and the Motorola Materials. Motorola grants Customer and Authorized Users a limited, non-transferable, non-sublicensable, and non-exclusive license to use the Services and associated Deliverables solely for Customer’s internal business purposes.
3.2.1 Motorola may use, engage, resell, or otherwise interface with third-party software, hardware or services providers (such as, for example, third-party end point detection and response providers) and other sub-processors, who in turn may engage additional sub-processors to process personal data and other Customer Data. Customer agrees that such third-party software or services providers, sub-processors or their respective sub-processors may process and use personal and other Customer Data in accordance with and subject to their own respective licenses or terms and in accordance with applicable law. Customer authorizes and will provide and obtain all required notices and consents, if any, and comply with other applicable legal requirements, if any, with respect to such collection and use of personal data and other Customer Data by Motorola, and its subcontractors, sub-processors and/or third-party software, hardware or services providers.
3.2.2 In addition to terms set forth in this Addendum, certain components of the Subscription Services and the Motorola Materials may be governed by one or more third-party End User License Agreements (“EULA”), which include terms governing third-party software licensed to Motorola (“Licensed Software”), such as open source software, included in the Subscription Services and/or the Motorola Materials. Customer will comply, and ensure its Authorized Users comply, with such additional license agreements. EULAs for the Licensed Software are linked through the proposal to which this Addendum is attached.
3.3 To the extent Customer is permitted to access, use, or integrate Customer or third-party software, services, content, or data that is not provided by Motorola (collectively, “Non-Motorola Content”) with or through the Services, or will use equipment or software not provided by Motorola, which may be required for use of the Services (“Customer-Provided Equipment”), Customer will obtain and continuously maintain all rights and licenses necessary for Motorola to efficiently perform all contemplated Services under this Addendum and will assume responsibility for operation and integration of such content and equipment.
3.4 Ownership of Customer Data. Customer retains all right, title and interest, including intellectual property rights, if any, in and to Customer Data. Motorola acquires no rights to Customer Data except those rights granted under this Addendum including the right to Process and use the Customer Data as set forth in the DPA. The Parties agree that with regard to the Processing of personal information that may be part of Customer Data, Customer is the controller and Motorola is the processor, and Motorola may engage sub-processors pursuant to the provisions of the DPA.
3.5 Motorola Use of Customer Data. Notwithstanding any provision to the contrary in this Adde ndum or any related agreement, and except as may be provided to the contrary in the DPA, and in addition to other uses and rights set out herein, Customer understands and agrees that Motorola may obtain, use and/or create and use, anonymized, aggregated and/or generalized Customer Data, such as data relating to actual and potential security threats and vulnerabilities, for its lawful business purposes, including improving its services and sharing and leveraging such information for the benefit of Customer, other customers, and other interested parties.
3.6 Authorized Users. Customer will ensure its employees and Authorized Users comply with the terms of this
3 Addendum and will be liable for all acts and omissions of its employees and Authorized Users. Customer is responsible for the secure management of Authorized Users’ names, passwords and login credentials for access to products and Services. “Authorized Users” are Customer’s employees, full-time contractors engaged for the purpose of supporting the products and Services that are not competitors of Motorola or its affiliates, and the entities (if any) specified in a SOW or otherwise approved by Motorola in writing (email from an authorized Motorola signatory accepted), which may include affiliates or other Customer agencies.
3.7 Beta or Proof of Concept Services. If Motorola makes any beta version of its Services (“Beta Service”) available to Customer, or provides Customer a trial period or proof of concept period (or other demonstration) of the Services at reduced or no charge (“Proof of Concept” or “POC Service”), Customer may choose to use such Beta or POC Service at its own discretion, provided, however, that Customer will use the Beta or POC Service solely for purposes of Customer’s evaluation of such Beta or POC Service, and for no other purpose. Customer acknowledges and agrees that all Beta or POC Services are offered “as -is” and without any representations or warranties or other commitments or protections from Motorola. Motorola will determine the duration of the evaluation period for any Beta or POC Service, in its sole discretion, and Motorola may discontinue any Beta or POC Service at any time. Customer acknowledges that Beta Services, by their nature, have not been fully tested and may contain defects or deficiencies.
Notwithstanding any other provision of this Agreement, to the extent a future paid Service has been agreed upon subject to and contingent on the Customer’s evaluation of a Proof of Concep t Service, Customer may cancel such future paid Service as specified in the SOW or, if not specified, within a reasonable time before the paid Service is initiated.
Section 4. WARRANTY
4.1 CUSTOMER ACKNOWLEDGES, UNDERSTANDS AND AGREES THAT MOTOROLA DOES NOT GUARANTEE OR WARRANT THAT IT WILL DISCOVER ALL OF CUSTOMER’S SECURITY EVENTS (SUCH
EVENTS INCLUDING THE UNAUTHORIZED ACCESS, ACQUISITION, USE, DISCLOSURE, MODIFICATION OR DESTRUCTION OF CUSTOMER DATA), THREATS, OR SYSTEM VULNERABILITIES. MOTOROLA DISCLAIMS
ANY AND ALL RESPONSIBILITY FOR ANY AND ALL LOSS OR COSTS OF ANY KIND ASSOCIATED WITH SECURITY EVENTS, THREATS OR VULNERABILITIES WHETHER OR NOT DISCOVERED BY MOTOROLA.
MOTOROLA DISCLAIMS ANY RESPONSIBILITY FOR CUSTOMER’S USE OR IMPLEMENTATION OF ANY RECOMMENDATIONS PROVIDED IN CONNECTION WITH THE SERVICES. IMPLEMENTATION OF
RECOMMENDATIONS DOES NOT ENSURE OR GUARANTEE THE SECURITY OF THE SYSTEMS AND OPERATIONS EVALUATED. CUSTOMER SHALL BE RESPONSIBLE TO TAKE SUCH ACTIONS NECESSARY TO
MITIGATE RISKS TO ITS OPERATIONS AND PROTECT AND PRESERVE ITS COMPUTER SYSTEMS AND DATA, INCLUDING CREATION OF OPERATIONAL WORKAROUNDS, BACKUPS AND REDUNDANCIES.
4.2. Customer acknowledges, understands and agrees that the Services and products or equipment provided by or used by Motorola to facilitate performance of the Services may impact or disrupt information systems. Except in instances of gross negligence in performing the Services, Motorola disclaims responsibility for costs incurred by Customer in connection with any such disruptions of and/or damage to Customer’s or a third party’s information systems, equipment, voice transmissions, data and Customer Data, including, but not limited to, inadequacies in or failure of Customer’s network, denial of access to a legitimate system user, automatic shut-down of information systems caused by intrusion detection software or hardware, or failure of the information system resulting from the provision or delivery of the Services.
4.3. Motorola warrants that Supplied Equipment, under normal use and service, will be free from material defects in materials and workmanship for one (1) year from the date of shipment, subject to Customer providing written notice to Motorola within that period. AS IT RELATES TO THE SUPPLIED EQUIPMENT, MOTOROLA DISCLAIMS ALL
OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
4.4 Motorola warrants that the Services will be performed in a professional and workmanlike manner and will conform in all material respects to the SOW(s). This warranty will be for a period of ninety (90) days following completion of the Services. If Motorola breaches this warranty, Customer’s sole and exclusive remedy is to require Motorola to re-perform the non-conforming Services or to refund, on a pro- rata basis, the fees paid for the non- conforming Services. OTHER THAN THOSE WARRANTIES SET FORTH IN THIS SECTION 4, MOTOROLA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. Customer acknowledges that the Deliverables for the Subscription Services 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.
4 4.5. Pass-Through Warranties. Notwithstanding any provision of this Addendum or any related agreement to the contrary, Motorola will have no liability for third-party software, hardware or services resold or otherwise provided by Motorola; provided, however, that to the extent offered by third -party software, hardware or services providers and to the extent permitted by law, Motorola will pass through to Customer express warranties provided by such third parties.
Section 5 LIMITATION OF LIABILITY
5.1. DISCLAIMER OF CONSEQUENTIAL DAMAGES. EXCEPT FOR PERSONAL INJURY OR DEATH,
MOTOROLA, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SUBCONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “MOTOROLA PARTIES”)
WILL NOT BE LIABLE IN CONNECTION WITH SERVICES PROVIDED UNDER THIS ADDENDUM (WHETHER UNDER MOTOROLA’S INDEMNITY OBLIGATIONS, A CAUSE OF ACTION FOR BREACH OF CONTRACT, UNDER
TORT THEORY, OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR
CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS OR REVENUES, EVEN IF MOTOROLA HAS
BEEN ADVISED BY CUSTOMER OR ANY THIRD PARTY OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES AND WHETHER OR NOT SUCH DAMAGES OR LOSSES ARE FORESEEABLE.
5.2. DIRECT DAMAGES. EXCEPT FOR PERSONAL INJURY OR DEATH, THE TOTAL AGGREGATE LIABILITY
OF THE MOTOROLA PARTIES, WHETHER BASED ON A CLA IM IN CONTRACT OR IN TORT, LAW OR EQUITY,
RELATING TO OR ARISING OUT OF THIS ADDENDUM OR ANY RELATED OR UNDERLYING AGREEMENT, WILL
NOT EXCEED THE FEES SET FORTH IN THE APPLICABLE SOW OR PRICING FOR THE SERVICES UNDER WHICH THE CLAIM AROSE. NOTWITHSTANDING THE FOREGOING, FOR ANY SUBSCRIPTION SERVICES, PROFESSIONAL SERVICES, OR FOR ANY RECURRING SERVICES, THE MOTOROLA PARTIES’ TOTAL
LIABILITY FOR ALL CLAIMS RELATED TO SUCH PRODUCT OR SERVICES IN THE AGGREGATE WILL NOT
EXCEED THE TOTAL FEES PAID FOR THE SERVICES TO WHICH THE CLAIM IS RELATED DURING THE CONSECUTIVE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT FROM WHICH THE FIRST CLAIM AROSE. FOR AVOIDANCE OF DOUBT, THE LIMITATIONS IN THIS SECTION 5.2 APPLY IN THE
AGGREGATE TO INDEMNIFICATION OBLIGAT IONS ARISING OUT OF THIS ADDENDUM OR ANY RELATED AGREEMENTS.
5.3. ADDITIONAL EXCLUSIONS. NOTWITHSTANDING ANY OTHER PROVISION OF THIS ADDENDUM, THE
PRIMARY AGREEMENT OR ANY RELATED AGREEMENT, MOTOROLA WILL HAVE NO LIABILITY FOR DAMAGES
ARISING OUT OF (A) CUSTOMER DATA, INCLUDING ITS TRANSMISSION TO MOTOROLA, OR ANY OTHER DATA AVAILABLE THROUGH THE PRODUCTS OR SERVICES; (B) CUSTOMER-PROVIDED EQUIPMENT, NON-
MOTOROLA CONTENT, THE SITES, OR THIRD-PARTY EQUIPMENT, HARDWARE, SOFTWARE, SERVICES,
DATA, OR OTHER THIRD- PARTY MATERIALS, OR THE COMBINATION OF PRODUCTS AND SERVICES WITH ANY OF THE FOREGOING; (C) LOSS OF DATA OR HACKING, RANSOMWARE, OR OTHER THIRD -PARTY ATTACKS OR DEMANDS; (D) MODIFICATION OF PRODUCTS OR SERVICES BY ANY PERSON OTHER THAN MOTOROLA; (E) RECOMMENDATIONS PROVIDED IN CONNECTION WITH OR BY THE PRODUCTS AND SERVICES; (F) DATA RECOVERY SERVICES OR DATABASE MODIFICATIONS; OR (G) CUSTOMER’S OR ANY AUTHORIZED USER’S BREACH OF THIS ADDENDUM, THE PRIMARY AGREEMENT OR ANY RELATED AGREEMENT OR MISUSE OF THE PRODUCTS AND SERVICES; (H) INTERRUPTION OR FAILURE OF CONNECTIVITY, VULNERABILITIES, OR SECURITY EVENTS; (I) DISRUPTION OF OR DAMAGE TO CUSTOMER’S OR THIRD PARTIES’ SYSTEMS, EQUIPMENT, OR DATA, INCLUDING DENIAL OF ACCESS TO USERS, OR SHUTDOWN OF SYSTEMS CAUSED BY INTRUSION DETECTION SOFTWARE OR HARDWARE; (J) AVAILABILITY OR ACCURACY OF ANY DATA AVAILABLE THROUGH THE SERVICES, OR INTERPRETATION, USE, OR MISUSE THEREOF; (K) TRACKING AND LOCATION-BASED SERVICES; OR (L) BETA SERVICES.
5.4. Voluntary Remedies. Motorola is not obligated to remedy, repair, replace, or refund the purchase price for the disclaimed issues in Section 5.3 – Additional Exclusions, but if Motorola agrees to provide Services to help resolve such issues, Customer will reimburse Motorola for its reasonable time and expenses, including by paying Motorola any fees set forth in this Addendum or separate order for such Services, if applicable.
5.5. Representations and Standards. Except as expressly set out in this Addendum or the applicable Motorola proposal or statement of work relating to the cyber products or services, or applicable portion thereof, Motorola makes no representations as to the compliance of Motorola cyber products and services with any specific standards, specifications or terms. For avoidance of doubt, notwithstanding any related or underlying agreement or terms, conformance with any specific standards, specifications, or requirements, if any, as it relates to cyber products and services is only as expressly set out in the applicable Motorola SOW or proposal describing such cyber products or services or the applicable (i.e., cyber) portion thereof. Customer represents that it is authorized to engage M otorola to
5 perform Services that may involve assessment, evaluation or monitoring of Motorola’s or its affiliate’s services, systems or products.
5.6. Wind Down of Services. In addition to any other termination rights, Motorola may terminate the Services, any SOW or subscription term, in whole or in part, in the event Motorola plans to cease offering the applicable Services to customers.
5.7. Third-Party Beneficiaries. This Addendum is entered into solely between, and may be enforced only by, the Parties. Each Party intends that the Addendum will not benefit, or create any right or cause of action in or on behalf of, any entity other than the Parties. Notwithstanding the foregoing, a licensor or supplier of third-party software, products or services included in the Services will be a direct and intended third-party beneficiary of this Addendum.