1. License.

1.1. DTWR hereby grants Licensee a limited, non-transferable, non-exclusive, license (without any right to sublicense) to use Radio Programming Software for RCA Two-Way Radios and any and all updates and upgrades thereto (collectively the “Software”), subject to the terms and conditions of this License Agreement. This grant of license includes the right to use any documentation (in such format) that DTWR determines to make available relating to such Software (any such documentation shall be included within the term Software as used herein).

1.2. Licensee shall be entitled, at no additional charge, to receive two (2) years of updates or upgrades for each Software product purchased in accordance with DTWR’s update/upgrade policies in effect from time to time, but does not otherwise entitle Licensee to receive from DTWR any technical support or assistance. Any such support or other assistance may be obtained under separate agreement with DTWR in accordance with its then current terms, conditions and rates. All decisions with respect to whether and/or when to issue updates/upgrades shall be at the sole discretion of DTWR.

2. Permitted Use.

2.1. Licensee is entitled to use the Software solely for the Licensees internal business purposes at the Authorized Location(s) in connection with Licensees legal use of RCA-Branded Two-Way Radios which are compatible with the Software (Compatible Radios). The Authorized Location(s) is (are) the business location(s) set forth on the attached Appendix A. Authorized Locations may be added upon written notice to DTWR. Licensee may switch Authorized Locations on written notice to DTWR and certification that all copies of the Software at the previous Authorized Location has been irretrievably deleted or removed from all computers or storage media thereat.

2.2. Licensee must not make any copies of the Software without the written permission of DTWR.

2.3. Notwithstanding the foregoing, the Software may be used on a portable or lap-top computer at other than an Authorized Location; provided that (i) use at the other location is temporary; (ii) such use is controlled or operated by Licensee; (iii) the Software remains on the portable or lap-top computer and is not copied in any way onto any storage media or computer; and (iv) the other location is not a location from which the Licensee normally or regularly conducts business.

2.4. Licensee is responsible for all use and/or misuse of the Software, and compliance with the terms of this License Agreement, by its employees and agents.

3. License Fee. Use of the Software is subject to the payment by Licensee, and DTWR’s acceptance, of a one-time license fee per Authorized Location, as set forth in the then-current DTWR Price Book or other applicable DTWR Product Price Books. The license fee is due and payable in accordance with the terms and conditions previously agreed upon by DTWR and Licensee. Licensee shall be responsible for all sales, use and excise taxes with respect to this License Agreement or the Software unless Licensee furnishes DTWR with a certificate of exemption from payment of any such taxes in a form reasonably acceptable to DTWR.

4. Proprietary Rights. DTWR retains title and full ownership rights in and to the Software, including all source code, copyrights, trademarks, patents, and trade secrets embodied therein and all other rights not expressly granted to Licensee hereunder. Licensee has only a limited right to use the Software as set forth herein. Nothing in this License Agreement constitutes a waiver of any of DTWR’s rights under the copyright laws or other proprietary rights laws of the United States or under any other federal, state, or foreign laws. If Licensee attempts to use, copy, or convey the Software in any manner contrary to the terms of this License Agreement, in competition with DTWR or in derogation of DTWR’s proprietary rights, whether such rights are stated herein or otherwise (including deleting, altering or modifying any intellectual property notices or legends that may appear thereon), this License Agreement will be automatically terminated and DTWR shall have all rights and remedies available to it under applicable law, including without limitation, the right to immediate injunctive relief (Licensee hereby acknowledges that other remedies are inadequate).

5. Confidentiality and Restrictions on Use. Licensee acknowledges that the Software constitutes confidential and proprietary information of DTWR. At all times (both during the term of this License Agreement and thereafter) Licensee must hold the Software in the strictest confidence and may not use the Software in any manner or for any purpose other than as permitted herein and shall not disclose the Software to, or allow use by, any person or entity other than employees Licensee. The Software may not be accessed through remote access. LICENSEE MAY NOT RENT, SUBLICENSE, LEASE, OR ASSIGN THE SOFTWARE TO OTHERS, AND LICENSEE MAY NOT ALTER, MODIFY, DECOMPILE, DISASSEMBLE, OR REVERSE ENGINEER THE SOFTWARE. Licensee agrees to keep any passwords which allow access to the Software confidential. Licensee will advise its employees and contractors of the confidential nature of the Software and passwords. Licensee agrees to notify DTWR immediately upon discovery of any unauthorized disclosure or use of the Software and to cooperate with DTWR in every reasonable way to help DTWR regain possession of the Software and/or to prevent further unauthorized use or disclosure of the Software.

6. No Warranty. THE SOFTWARE IS LICENSED “AS IS,” WITHOUT WARRANTY OF ANY KIND, AND DTWR SPECIFICALLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES REGARDING THE SOFTWARE, INCLUDING WITHOUT LIMITATION, WARRANTIES THAT IT IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS BORNE BY LICENSEE. SHOULD THE SOFTWARE PROVE DEFECTIVE IN ANY RESPECT, LICENSEE ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. IN ADDITION, ANY SECURITY MECHANISMS IMPLEMENTED BY THE SOFTWARE MAY HAVE INHERENT LIMITATIONS, AND LICENSEE MUST DETERMINE THAT THE SOFTWARE SUFFICIENTLY MEETS LICENSEES REQUIREMENTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS LICENSE AGREEMENT. NO USE OF THE SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER. DTWR HAS NO OBLIGATION TO CORRECT ANY DEFECTS OR ERRORS IN THE SOFTWARE OR, UNLESS A SEPARATE AGREEMENT IS ENTERED INTO BETWEEN DTWR AND LICENSEE, TO PROVIDE ANY SUPPORT OR MAINTENANCE SERVICES THEREFOR. NO EMPLOYEE, AGENT, REPRESENTATIVE OR AFFILIATE OF DTWR HAS ANY AUTHORITY TO BIND DTWR TO ANY ORAL REPRESENTATIONS OR WARRANTY CONCERNING THE SOFTWARE. ANY WRITTEN REPRESENTATION OR WARRANTY NOT EXPRESSLY CONTAINED HEREIN WILL NOT BE ENFORCEABLE.

7. Limitation of Liability. IN NO EVENT WILL DTWR BE LIABLE TO LICENSEE OR ANY OTHER PARTY FOR (i) ANY DIRECT DAMAGES, LOST PROFITS, LOSS OF USE, INTERRUPTION OF BUSINESS, LOSS OF DATA OR ANY OTHER DAMAGE, (ii) ANY CLAIM AGAINST LICENSEE BY ANY THIRD PARTY FOR DAMAGES OF ANY KIND, OR iii) ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT DTWR SHALL HAVE BEEN ADVISED OF OR OTHERWISE MIGHT HAVE ANTICIPATED THE POSSIBILITY OF SUCH DAMAGES. LICENSEE FURTHER ACKNOWLEDGES THAT LICENSEE IS RESPONSIBLE FOR PROCURING ALL EQUIPMENT AND CONNECTIONS NECESSARY FOR LICENSEE’S USE OF THE SOFTWARE (INCLUDING, WITHOUT LIMITATION, ANY RIB BOX AND CABLES) AND THAT LICENSEE IS SOLELY RESPONSIBLE FOR PROTECTING LICENSEE’S DATA AND FOR ENSURING THAT LICENSEE’S DATA IS APPROPRIATELY BACKED UP. WITHOUT LIMITING THE FOREGOING, DTWR’S LIABILITY FOR ANY CLAIM RELATING IN ANY MANNER TO THE SOFTWARE OR THIS LICENSE AGREEMENT, IF ANY, REGARDLESS OF THE TYPE OR NATURE OF THE ACTION, SHALL BE LIMITED TO THE LICENSE FEES (IF ANY) LICENSEE PAID TO DTWR FOR THE PARTICULAR SOFTWARE IN QUESTION. NO ACTION, REGARDLESS OF FORM, RELATING IN ANY MANNER TO THE SOFTWARE OR THIS LICENSE AGREEMENT MAY BE BROUGHT BY LICENSEE MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION HAS ACCRUED. FOR PURPOSES OF THIS SECTION, A CAUSE OF ACTION IS DEEMED TO HAVE ACCRUED WHEN LICENSEE KNEW OR REASONABLY SHOULD HAVE KNOWN ABOUT THE BREACH OR CLAIMED BREACH.

8. Termination.

8.1 DTWR may terminate this License Agreement upon notice in the event of (i) a breach of this License Agreement or of any other agreement between the parties hereto, by Licensee or any of Licensee’s employees or agents, including without limitation, (a) for failure to pay license fees; or (b) for altering, modifying, decompiling, disassembling or reverse engineering the Software (or attempting to do so, or allowing any third party to do so); (ii) any violation of Part 1 of Title 18 of the United States Code (Crimes); or (iii) any use or intended use of the Software or any RCA radio in any manner reasonably determined by DTWR to be violative of any law or harmful or potentially harmful to the public or DTWR legitimate business interests.

8.2 In addition, DTWR may terminate this License Agreement upon notice to Licensee in the event of (i) Licensee’s assignment of its business for the benefit of creditors; (ii) the filing of a petition by Licensee under Title 11 of the United States Code (Bankruptcy) or any similar statute, or the filing of such a petition against Licensee which is not discharged or stayed within sixty (60) calendar days; (iii) the appointment of a receiver or similar officer to take charge of Licensee’s property; or (iv) any other act indicative of bankruptcy or insolvency. DTWR shall not be liable for compensation, reimbursement of investments or expenses, lost profits or goodwill or for any kinds of damages because of any termination of this License Agreement.

8.3 Licensee may terminate this License Agreement at any time upon notice to DTWR. If Licensee terminates this License Agreement after Licensee has paid the licensee fee, Licensee will forfeit such licensee fee.

8.4 Upon any termination of this License Agreement, Licensee must immediately cease all use of the Software, and Licensee shall immediately return the original copy of the Software delivered by DTWR to Licensee, and destroy and/or erase from all computer memory all copies of the Software made by Licensee (other than, if applicable, copies lawfully installed on Compatible Radios sold to Licensee’s customers), and, upon request of DTWR, Licensee shall certify to DTWR in writing that Licensee has done so. The provisions of this License Agreement which require or contemplate performance after the termination of this License Agreement shall be enforceable notwithstanding said termination, and without limiting the foregoing, Sections 4, 5, 6, 7 and 9 shall survive any termination of this License Agreement.

9. United States and Foreign Export Controls. Licensee acknowledges that the Software is subject to U.S. export control laws and regulations. Licensee may not use the Software except in strict compliance with applicable U.S. and foreign export control laws and regulations. In the event of a conflict between U.S. and foreign export control laws and regulations, Licensee agrees that U.S. export control laws and regulations shall prevail.

10. Governing Law. This License Agreement and the relationship between the parties hereto shall be governed by the laws of the State of California, without regard to conflicts of law principles. Any dispute between the parties related to this License Agreement shall be submitted to a state or federal court located in Los Angeles County, California. Each party irrevocably waives to the fullest extent permitted by applicable law (i) any objection it may have to the laying of venue in the applicable court referred to above; and (ii) any claim that any such action or proceeding has been brought in an inconvenient forum.

11. General Provisions.

11.1. This License Agreement constitutes the complete and exclusive statement of the agreement between Licensee and DTWR regarding the license to the Software and it supersedes any prior agreement regarding such subject matter. Licensee acknowledges that Licensee has not relied upon any statement, representation or warranty other than those which might be specifically set forth in this License Agreement.

11.2. If any provision in this License Agreement should be held illegal or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this License Agreement if no such modification is possible, and the other provisions of this License Agreement shall remain in full force and effect.

11.3. A waiver by either party of any term or condition of this License Agreement or of any breach hereof must be in writing to be effective, and a waiver in any one instance shall not waive such term or condition or any subsequent breach thereof in any other instance. All of DTWR remedies hereunder or in law or equity shall be cumulative and the application of a particular remedy shall not preclude the later application of a different remedy.

11.4. The terms and provisions of this License Agreement will inure to the benefit of DTWR’ successors and assigns. Licensee may not assign this License Agreement or the rights or obligations herein, without the prior written consent of DTWR, which may be granted or withheld in its discretion.

11.5. All formal notices, consents and other communications required or permitted under this License Agreement (collectively, Notices) must be in writing and shall be (i) delivered personally (not necessarily at any Licensee address); (ii) sent by registered or certified mail, postage prepaid, return receipt requested; (iii) sent by overnight air courier service; or (iv) sent by facsimile provided that (a) a copy of the Notice is also sent via regular mail; (b) the facsimile is sent during business hours of a business day of the recipient; and (c) the sender receives a machine-generated confirmation of successful transmission. Any such Notice (other than one delivered personally) shall be addressed as follows or to such other address as a party may notify the other in accordance with this Section 11:

If to Discount Two-Way Radio Corporation

Discount Two-Way Radio Corporation
North American Distributor, RCA Communications Systems
555 W Victoria Street, Compton CA 90220
Attn: Software Administrator
Phone: (310) 224-5100
Fax: (310) 224-5101