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HomeMy WebLinkAboutC06-149 Co b -Ilfq~ CJ:J-" AGREEMENT BETWEEN THE COUNTY OF EAGLE, COLORADO and HART INTERCIVIC, INC This Agreement is entered into effective the -:2- day of~006, between the County of Eagle, a political subdivision of the State of Colorado (herein referred to as County) and Hart InterCivic, a corporation of the State of Texas (herein referred to as Provider), to provide an Electronic Voting System to County for use by the County Clerk and Recorder to conduct elections. 1. EXHIBITS The following exhibits are included hereto and incorporated by reference herein: Exhibit A: Hart Voting System Master Agreement Exhibit B: Hart Voting System Warranty, Support, and License Agreement 2. RECITALS 1. All Colorado counties are required by the Help America Vote Act of 2002, Public Law I 0 1-252 (herein referred to as HA V A) to have a voting system that is accessible for individuals with disabilities, including non-visual accessibility for the blind and visually impaired in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters. Whereas, counties may satisfy this requirement through the use of at least one direct recording electronic voting system (herein referred to as DRE), equipped for individuals with disabilities, at each polling place. 2. County's objective is to procure and implement a high-quality, efficient and cost- effective system that will deliver accurate, error-free and rapid results for all elections. 3. Provider is certified by the Colorado Department of State and the United States government as required by state and federal laws to provide these products and servIces. 4. Provider represents that it has the necessary resources to provide offered products and services to allow County to successfully conduct election and other contracted for services activities beginning with the August 2006 Primary and November 2006 General election in accordance with this Agreement. 5. County desires to purchase from Provider Electronic Voting System and related finnware, software, products and services as set forth in this Agreement. 3. TERM OF AGREEMENT The term of this Agreement is from the date of execution of this Agreement through unless terminated earlier in accordance with Agreement provisions. By advance written notice to Provider, and acceptance by County of any new terms and costs of future agreements of Provider, County has the right to extend the hardware and software maintenance and support services portions of this Agreement for an additional period or periods not to exceed a total of~ears. ; (Y' ') / 4. EQUIPMENT, SUPPLIES AND SERVICES TO BE PURCHASED 4.1 As used in this Agreement, the term "System" or "Systems" collectively includes all aspects of the Electronic Voting System and related software, products and services to be provided pursuant to this Agreement, including but not limited to all firmware, hardware, equipment, devices, materials, components, specifications and documentation. 4.2 Provider must provide the Systems as stated in this Agreement at the prices set forth in Schedule A of Exhibit A, "Hart Voting System Master Agreement." 4.3 Provider must furnish and deliver the Systems to the County and install the Systems at the site within the County designated by the County. 4.4 Provider grants to the County a license to use all necessary software and other intellectual property for the Systems, as long as the County is in compliance with the terms of the Hart Voting System agreements (Exhibit A and Exhibit B of this Agreement, and is not in default on any required payments under the Hart Voting System agreements. 5. TIME SCHEDULE 5.1 It is critically important to County that all activities be completed on a timely basis. If Provider anticipates possible delays in completing any activity, it must promptly notify County in writing. 6. COMPENSATION AND PAYMENT 6.1 The full price to County for the System is specified in Schedule A of Exhibit A. 6.2 Payment will be as follows: 80% of the Total Purchase Price upon delivery of the HVS hardware. 10% of the Total Purchase Price after completion of County staff training. 10% of the Total Purchase Price after completion of County's first election in 2006 using the Hart Voting System. 6.3 Payment to be made to Provider by County within thirty (30) days of receipt of invoice from Provider. 7. TRANSPORTATION OF EQUIPMENT 7.1 All shipments shall be F.O.B. County's facilities. Provider will select the carrier, unless otherwise requested in advance by County. Provider must ship all items, with insurance and freight prepaid, to the site(s) designated by County. County shall not deem Provider's selection of the carrier as an assumption of additional liability, and the carrier shall not be Provider's agent. 7.2 Provider must notify County when any equipment or other items are shipped to ensure delivery dates that are mutually agreeable. 7.3 Title to the equipment shall pass from Provider to County upon delivery of equipment to County's receiving facility. 8. PROJECT MANAGEMENT 8.1 Provider will provide twelve (12) days of Project Management to County. 8.2 After initial implementation of the HVS System for the August 2006 Primary Election, Provider must provide sixteen (16) hours of on-site project management. This is in addition to the pre-election, during election and post-election support. County has the right to purchase additional project management services at $1,500.00 per day through April 30, 2007. 9. SYSTEM INST ALLA TION 9.1 Provider must install the Systems as described in this Agreement. Provider must also provide appropriate training to County staff prior to and subsequent to delivery of the Systems as required by this Agreement. 9.2 For the on-site delivery of Provider services and after reasonable advance notice by Provider, County must make all necessary arrangements to provide Provider personnel with sufficient work space and access to install the equipment and software during normal business hours or at such other times as the County and Provider agree. If it becomes necessary to work outside of normal business hours, County must arrange for appropriate access to buildings or resources that Provider personnel may reasonably require. 9.3 The Systems to be delivered shall be new when delivered and in accordance with all specification as stated in this Agreement, and shall be in the same configuration as has already been certified for these Systems by the federal and State of Colorado certifying authorities. 9.4 During the original and any paid extended warranty periods, County has the right to return defective equipment, materials, or other components of the systems to Provider at no cost to County (per Hart's standard warranty terms). Provider has the option to take delivery of these items at County facilities. Items will be either replaced or repaired at Provider's option, and returned to County without charge as soon as reasonably possible and in no event later than fourteen (14) days before an election. 10. ACCEPTANCE TESTING AND SIGNOFF 10.1 Provider will test the Systems, including but not limited to logic and accuracy, at the manufacturer's facility prior to delivery to County. After delivery to County, verification of the System's functions will be done according to the acceptance testing requirements used by Provider. County shall complete acceptance testing for each electronic voting device, and related equipment and software within ten (10) days after receipt of each shipment. County's failure to notify Provider of non-acceptance within such ten-day (IO-day) period shall be deemed acceptance by County. 10.2 County must notify Provider in writing when acceptance testing has been competed. County must identify in writing any functions that have not performed correctly. Provider must repair or replace any unaccepted or defective component within fifteen (15) working days after notification. County must test the corrections within ten (IO) working days of receipt. The failure of County to notify Provider of non-acceptance of replacement or repaired components within such ten (I 0) working day period shall be deemed acceptance by County. 10.3 Provider has the right, upon advance written notice to County, to have its own personnel or representative present to observe or assist with acceptance testing at County's site to assure conformance with established testing procedures. 11. TRAINING 11.1 Provider must provide two (2) days of on-site training for the full system implementation (e.g. operations, testing, acceptance and maintenance of Electronic Voting Systems, and all other ancillary equipment and software.). 11.2 Provider must develop the content of poll worker training with County, and provide three (3) days of on-site "train the trainer" training to County staff and on-site poll worker training through the November 2006 General Election at dates and times mutually agreed upon by the parties. Of the three (3) days, one (1) day must be utilized for on-site poll worker training for the August 2006 Primary. 11.3 If all five (5) days of training are not utilized by County by December 2006, County has the right to use the remaining day(s) in 2007, or to use the total charged for any unused training days as credits toward future purchases or servIces. County also has the right to purchase additional poll worker training services at $1,500.00 per day through November 15,2006. 11.4 Provider will provide the electronic voting systems training to fourteen (14) County staff members, including proprietary software training. 12. MEDIA AND VOTER OUTREACH 12. Provider must provide the level of support as specified in Package A of Provider's standard VEO Package through November 2006, to County to provide communication strategy and support to address the media, voter education and outreach. 12.2 County has the right to purchase additional services at $200.00 per hour through November 2006. 13. SYSTEM DOCUMENT A TION 13.1 Provider must provide to County, federal authorities, and the Colorado Secretary of State all necessary documentation to meet all State of Colorado certification requirements for all software upgrades to the Systems for the term of this Agreement and any subsequent terms agreed to by Provider and County, and for which County has paid all required fees. Provider must provide this documentation as stated in Exhibit F, including, but not limited to, a user guide or training manual, maintenance manual and system documentation relative to software changes. 13.2 Provider must amend all documentation to indicate changes in hardware and software made after the system is certified ready to use and all documentation shall be delivered to County. 14. SOFTWARE LICENSE AND MAINTENANCE 14.1 General software support will consist of assisting County in the design and production of elections, including pre-election and post-election testing. 14.2 Provider grants to County a non-exclusive right to use the system's proprietary software provided by Provider in relation to the HVS and related ancillary products. 14.3 From April 2006 through April 2007, the annual fee for license and maintenance is $9,600.00. 14.4 Beginning May 1, 2007, the annual license and maintenance fee is subject to an annual price increase limited to 5 per cent or CPI, whichever is greater. This price increase per year limitation is for five (5) years, through May 1,2012. 14.5 The annual license and maintenance fee includes upgrades to the software furnished by Provider under this Agreement at no additional cost, but County has discretion whether to implement upgrades. If all upgrades are not implemented, future support and costs may be effected. Provider must ensure that software upgrades are in compliance with federal certifying authority and Colorado Secretary of State Certification. County is responsible for testing these upgrades to ensure compliance with County's requirements. 14.6 Software support will be provided as defined in Exhibit B, Hart Voting System Warranty, Support, and License Agreement. 15. ORIGINAL WARRANTY 15.1 The warranty period to which this section 15 applies is defined in Exhibit B. 15.2 Provider warrants that the System's equipment and products will operate materially in accordance with the specifications set forth in Exhibit B of this Agreement and are free of defects in materials or workmanship. 15.3 Provider warrants that the system will conform to all applicable federal, state and local statutes, codes, ordinances, resolutions and other rules and regulations, as the same exist on the date of this Agreement, and will be fit for the sole purpose of properly conducting all federal, state, and local government elections. 16. EXTENDED WARRANTY 16.1 Provider will provide an extended warranty, as stated in Schedule A of Exhibit A, for the Hart Voting System at the price set forth in that Schedule A. 16.2 County has the right to purchase this extended warranty for the Hart Electronic Voting System. 17. GUARANTEE OF SUPPORT Provider must provide County with extended warranty and support for the equipment and software at THE Provider's standard fee through 2009. Thereafter, Provider must provide extended warranty and support for the equipment and software for up to ten (IO) years from the effective date of this Agreement, also at the Provider's standard fee each year, provided County continues uninterrupted payment for the extended warranty and support during any period (extended warranty pricing is in effect for the first five (5) years of this Agreement). 18. INSURANCE Provider will provide County with certificates of its insurance coverages. If Provider fails to maintain any of the insurance coverage listed, the County has the right to declare Provider in breach. The insurance requirements do not relieve Provider of its responsibilities as otherwise stated in this Agreement or applicable law. 19. USE OF SUBCONTRACTORS Provider may use subcontractors for work to be completed under this Agreement. 20. OTHER PROVIDER RESPONSIBILITIES In addition to its other responsibilities stated in this Agreement, Provider must: 20.1 Provide the contracted services for the 2006 Primary and General Elections. 20.2 Be responsible for the professional quality, technical accuracy, timely completion, and coordination of all services as required by this Agreement and its Exhibits. 20.3 Provider must provide all services in accordance with applicable federal, State and local laws, rules and regulations, and in a manner consistent with generally accepted professional and technical standards of the election industry except as otherwise stated in this Agreement. 20.4 Provide all new (not reconditioned) equipment and products that confonn to applicable federal, State, local laws, rules, and regulations. Replacement parts or equipment may be reconditioned, at the discretion of the Provider. 20.5 Assign a Project Manager. County has the right to approve in advance in writing all Provider staff assigned at any time to this project, which approval shall not be unreasonably withheld or delayed. Provider's Project Manager must successfully manage the proper performance of Provider's obligations as stated in this Agreement. Except in emergency circumstances, Provider must not reassign or replace assigned staff without County's prior written consent, which will not be unreasonably withheld or delayed. Provider must replace any staff member with an equally qualified person satisfactory to County. County is not responsible for any costs associated with changes in Provider staff. 20.6 Cooperate with County in performing this Agreement; and be available for consultation with County at reasonable times as requested by County after reasonable advance notice, and in compliance with the agreed upon support requirements as specified in Exhibit A. Once the professional services defined in Exhibit A have been consumed, Hart will charge County at Hart's then prevailing billing rate. 20.7 Cooperate with County's periodic review of Provider's performance. County may report its comments to Provider in writing as needed. County's review or comments (written or otherwise) will not relieve Provider of its obligations as stated in this Agreement. 20.8 Comply with all applicable and statutory requirements of agencies that provide HA V A funds, or that may provide other funds in the future, to County for any aspect of the Systems. 20.9 Comply with all applicable federal, state, and local rules, regulations, and laws during the term of this Agreement. 20.10 Maintain records of its operations under this Agreement: These records must be maintained during the term of this Agreement and for a period of three (3) years from termination of this Agreement or until all claims, if any, have been resolved, whichever period is longer, or longer if otherwise required under other provisions of this Agreement. 21. OTHER COUNTY RESPONSIBILITIES In addition to its responsibilities as stated elsewhere in this Agreement, County must: 21.1 Cooperate with Provider in performing this Agreement, and be available for consultation with County at reasonable times as requested by Provider after reasonable advance notice. 21.2 Furnish or make available for examination or use by Provider, after advance notice by Provider, County data (e.g. copies of previously prepared reports, maps, plans, specifications, records, ordinances, codes, or regulations) reasonably necessary for County's performance of this Agreement. Provider must return any original data as provided or requested by County. County must make reasonable efforts to assist Provider in obtaining similar data from third parties. Provider may rely on this data as being accurate. 21.3 Thoroughly test all future upgrades and enhancements before using the Systems in any election. 22. RIGHTS TO SELL 22.1 County has the right to upgrade to new equipment provided by Provider at additional cost. If County exercises this right, County has both of the following rights: 22.2 To sell any or all of the equipment provided under this Agreement ("Legacy Equipment") to any government agency. Provider must identify any potential customers known to Provider for County. 22.3 To transfer to the government agency all of its rights under this Agreement to software licenses and maintenance and support of software, and the Legacy Equipment, if the third party agrees with Provider to implement a voting system on terms (including limitations on rights to software licenses and maintenance and support of software) acceptable to Provider and such third party executes an assumption Agreement and other Agreements as may be required by Provider. 22.4 At any time during the term of this Agreement, at Provider's option, County must use its reasonable best efforts to assist County in selling its Legacy Equipment and achieving fair market, residual value as determined by the marketplace to be applied to the purchase price of any new Provider hardware, firmware, and software. 22.5 The intent of this section is to prevent any impairment of County's ability to realize fair market value for its Legacy Equipment on the used equipment market. County must not unreasonably withhold its consent to a voting system implementation Agreement with the government entity. Provider does not guarantee or represent the value or salability ofthe Legacy Equipment. 23. CHANGES TO AGREEMENT Except as specifically stated in this Agreement, County personnel have no authority to order or direct any changes to this Agreement. Provider must not provide any equipment, services or other items that would cause County to incur additional costs beyond those stated in this Agreement, without the prior written approval of the County Clerk and Recorder of County, or authorized designee. Failure by Provider to secure proper written authorization from County for additional equipment, services or other items beyond those specifically stated in this Agreement may be a waiver by Provider of any claim for additional compensation related to such items; and such items may be deemed to be included in the compensation stated in this Agreement. 24. NON-DISCRIMINATION 24.1 Provider must comply with all applicable Federal, State, and local laws, rules and regulations including County's equal opportunity requirements. Such laws include but are not limited to the following :The federal Help America Vote Act of 2002; Title VII of the Civil Rights Act of 1964 as amended; Americans with Disabilities Act of 1990; The Rehabilitation Act of 1973 (Sections 503 and 504); or any other applicable state or federal law. 24.2 Provider must not discriminate against any subcontractor, employee, or applicant for disability, physical disability, medical condition, political beliefs, organizational affiliations, or marital status in the recruitment, selection for training including apprenticeship, hiring, employment, utilization, promotion, layoff, rates of payor other forms of compensation. 24.3 Provider must not discriminate in provision of services provided under this contract because of age, race, color, national origin, ancestry, religion, sex/gender, sexual orientation, mental disability, physical disability, medical condition, political beliefs, organizational affiliations, or marital status. 25. CONFIDENTIAL INFORMATION 25.1 Provider and County must keep confidential all information, including, without limitation, voter records, obtained in performing this Agreement as required by State, federal or local laws or regulations. 25.2 Information that either party may acquire from the other in conjunction with this Agreement or the products or services provided by Provider hereunder are considered "Confidential Information," if so marked or identified, or if it's confidential nature is reasonably apparent. 25.3 Provider must not use this Confidential Information except to provide services to County, and will not disclose or transfer this Confidential Information to others, except to Provider's employees who reasonably require it for purposes of this Agreement and who agree to maintain its confidentiality. 25.4 County will not disclose Confidential Information of Provider to any third party (except to employees of County having a need to know or where disclosure is required by applicable law, and then on not less than ten (10) days prior written notice to Provider). 25.5 Each party must safeguard all Confidential Information in its possession. However, neither party is prevented from using or disclosing information that: A. The receiving party can demonstrate by written records was known to that party before the date of disclosure hereunder; B. At the time of disclosure was in the public domain; C. Becomes part of the public domain, except by breach of this Agreement; D. Is lawfully disclosed to the receiving party on a non-confidential basis by a third party who is not obligated to any other party to retain the information in confidence; or E. Is used or disclosed with the disclosing party's prior written approval. 25.6 Provider must not improperly disclose any information to County that is the proprietary property of a third party. However, if Provider does so, it must hold County and its contractors harmless and indemnify them against all claims, damages and costs as a result of County's use or disclosure of this third party information in accordance with all procedures stated in this Agreement. 26. NOTICES 26.1 Notices: All notices required by this Agreement will be deemed given when in writing and delivered personally or deposited in the United States mail, postage prepaid, return receipt requested, addressed to the other party at the address set forth below or at such other address as the party may designate in writing in accordance with this section: To Provider: Hart InterCivic, Inc. P.O. Box 80649 Austin, Texas 78708-0649 Attn: Ted Simmonds To County: County Clerk and Recorder P. O. Box 537 Eagle, CO 81631 Attn: Teak Simonton 27. OTHER CONDITIONS 27.1 Governing Law - This Agreement has been executed and delivered in, and will be construed and enforced in accordance with the laws of the State of Colorado. The venue for legal action regarding this Agreement shall be in the County of Eagle, Colorado. 27.2 Assignment: Except as stated in this Agreement, any attempt by a party to assign or otherwise transfer any interest in this Agreement without the prior written consent of the other party is void. Any subsequent owner of the system must fulfill at the obligations of County as stated in this Agreement. 27.3 Employees: County shall not solicit for employment, whether directly or indirectly, employ, engage or contract during the term of this Agreement or within a period of two (2) years thereafter, for work on voting and election matters, any person who is employed or contracted by Provider during the duration of this Agreement. If a person who is employed or contracted by Provider seeks to be employed or contracted by County prior to the expiration of said 2-year period, County shall promptly advise Provider in writing. Contractor agrees that the restrictions set forth in this Agreement are fair and reasonable and are in addition to and not in substitution for any similar restrictions in any other Agreements between the parties. 27.4 Non-Appropriation: If funds are not appropriated in any fiscal year for payments by County under this Agreement, and are not appropriated for the cost of other Systems performing substantially the same function that would replace the Systems hereunder, County has the right to terminate this Agreement without penalty on or before September 30 of such fiscal year by giving thirty (30) days written notice. County administration must make every reasonable effort including, but not limited to, requesting budget funds to be appropriated in order to avoid termination of this Agreement. Upon termination of this Agreement under this section, Provider has the right to recover any and all amounts then due or accrued. 27.5 Limitation on Provider's Liability: Provider's total aggregate liability to County for any loss, damage, costs or expenses under or in connection with the agreement howsoever arising, including without limitation loss, shall not exceed the amount of the monies paid to Provider by County. Damage, costs or expenses caused by breach of contract, negligence, strict liability, breach of statutory or any other duty shall not exceed the total amount of monies paid to Provider by County. 27.6 Entire Agreement: This Agreement, including its attached exhibits, constitutes the entire Agreement between County and Provider relating to the subject matter of this Agreement. It supersedes any oral or written negotiations. This Agreement is modifiable only by a written document signed by both parties. Client acknowledges it has read and understands this Agreement (including all Exhibits) and is entering into this Agreement only on the basis of the terms expressly set forth in this Agreement. There are no oral agreements, representations, or warranties. The Effective Date of this Agreement is ~ -?-' 200~ fYJ,= J~J" V ~!' i,j AGREED AND ACCEPTED: ATTEST: HART INTERCIVIC, INC. '--;J By: 7i:r. , t/ Te Silnmonds Senior Vice President I COO m H A R T i n t rei l/ i c '" HART VOTING SYSTEM MASTER AGREEMENT (SIGNATURE PAGE) This Hal1 Voting System Master Agreement ("Agreement") is entered into by and between Hart InterCivic, Inc., a Texas corporation ("Hart"), and the Board of County Commissioners of the County of Eagle ("Client"), a governmental subdivision of the State of Colorado. This Agreement sets forth the terms under which Client will purchase from Hart the Hart Voting System ("Voting System"). Defined terms used in this Agreement will have the meanings specified in Section 9, Definitions, or as otherwise set forth herein. The following Schedules and Exhibits are attached to this Agreement and made a part hereof: Schedule A Equipment and Pricing Schedule B Hart Proprietary Software Schedule C Non-Hart Software Exhibit A Hart Voting System Warranty, Support, and License Agreement This Agreement is entered into as the result of negotiations between Client and Hart. Client acknowledges it has read and understands this Agreement (including all Schedules and Exhibits) and is entering into this Agreement only on the basis of the terms set forth in this Agreement. There are no oral ~7eements, representations, or warranties. The Effective Date of this Agreement is April l , 2006. Agreed and Accepted: Client Hart Name: Board of County Commissioners of Hart InterCivic, Inc. the County of Eagle, Colorado Address: Eagle County Clerk & Recorder 15500 Wells Port Drive 500 Broadway / P. O. Box 537 Austin, Texas 78728 Eagle, CO 8 I 63 I Attn: Ted Simmonds Attn: Teak J. Simonton Senior Vice President/COO Primary Phone: 970-328-8728 800-223-4278 Facsimile: 970-328-87 I 6 800-83 I - I 485 E-mail: tsimonton@eaglecounty.us d!,@h . Executed By: Name: Peter F. Runyon d Sim onds Title: Chair Senior Vice President/COO This Agreement is not effective until executed by both parties. Page 1 of 15 Eagle County, CO - HVS Agl"eement ATTEST: OF THE COUNTY OF EAGLE, PETER F. RUNYON, Chair ATTEST: Clerk and Recorder APPROVED AS TO CONTENT, APPROaS TO LEG Bruce Baumgartner Walth Mathews County Administrator Deputy County Attorney Date: ((-11-0,& APPROVED AS TO FISCAL CONTENT: Michael Roeper, Director of Finance This Agreement is not effective until executed by both parties. (The rest of this page is intentionally left blank.) Page 2 of 15 Eagle County, CO - HVS Agreement In consideration for the agreements setforth herein, the parties agree asfollows: 1. Purchase of Equipment; License of Software: 1.1 Sale. Hart agrees to sell and Client agrees to purchase the Equipment, subject to the terms and conditions set forth in this Agreement. 1.2 Licenses and Sublicenses. Simultaneously upon entering into this Agreement, Hart and Client will enter into the Hart Voting System Warranty, Support, and License Agreement ("License Agreement") in the form of Exhibit A, the terms of which are incorporated herein by reference. The License Agreement sets forth additional terms applicable to Client's ownership and use of the Hart Voting System Hardware and license of Hart Proprietary Software, including warranty, support of software and hardware, license of software, and other terms. 1.3 Delivery and Installation. Hart will cause the Equipment and Software to be delivered to Client's premises on a date mutually agreed to by Hart and Client. A Hart representative will install the Equipment and Software at the Client's site on a mutually agreed upon date during Hart's normal working hours. If additional labor and rigging or Client-specified customization is required for installation due to Client's special site requirements, Client will pay those costs, including costs to meet union or local law requirements. Client will be deemed to have accepted the Hardware upon completion of Acceptance Testing or ten (10) days after the delivery date of the Hart Voting System Hardware, whichever comes first. 1.4 Training. Hart will provide user-level documentation for the Software and operational training before the first election for which the Software will be used. Hart will provide Client operational training and on-site support at the first election in which the Equipment and Software are used. Charges for additional training or support services will be invoiced to Client at Hart's then-current hourly rates, plus travel, communication, and other expenses. Any additional training or support services will be mutually agreed to by Hart and Client and documented in an amendment to this Agreement. 1.5 User Documentation; Environmental Specifications. Hart will provide to Client one (1) electronic copy of the applicable then-current user documentation and operator's manuals for the Equipment and Software and, where applicable, environmental specifications for the Equipment. User documentation, operator's manuals, and environmental specifications will be provided in electronic form. Client shall not remove any trademark, copyright, or other proprietary or restrictive notices contained on any Hart user documentation, operator's manuals, and environmental specifications, and all copies will contain such notices as are on the original electronic media. 1.6 Support. Support will be provided as set forth in the License Agreement. 2. Charges; Payments: 2.1 Total Purchase Price. The Total Purchase Price is set forth in Schedule A and includes the purchase price for the Equipment, the Initial Annual Fee under the License Agreement, state and local taxes (if applicable), and delivery and installation charges. 2.2 Payments. Client shall pay Hart based on the following schedule: 80% ofthe Total Purchase Price upon delivery of the HVS hardware. Page 3 of 15 Eagle County, CO - HVS Agl'eement 10% of the Total Purchase Price after completion of County staff training. 10% of the Total Purchase Price after completion of County's first election in 2006 using the Hart Voting System. All payments are to be made to Hart at its principal office in Austin, Texas, as set forth on the Signature Page or to such other location as may be designated by Hart in a notice to Client. 2.3 Late Charges. If the Total Purchase Price is not paid in full within thirty (30) days after delivery of the Equipment and Software, Hart may charge Client interest on the unpaid balance until paid, at the lesser of (a) 1% per month or (b) the maximum rate allowed by law. 2.4 Additional Charges. Additional charges may apply to services rendered outside contracted hours or beyond normal coverage at Client's request, e.g., travel expenses, and premium and minimum charges. There will be an additional charge at Hart's current technician's rate per hour for any technical work required as a result of other than Hart-recommended hardware purchased by the Client for use with the Voting System. Any other additional charges must be mutually agreed to by Hart and Client and documented in an amendment to this Agreement. 2.5 Payment Disputes. If any dispute exists between the parties concerning the amount due or due date of any payment, Client shall promptly pay the undisputed portion. Such payment will not constitute a waiver by Client or Hart of any of their respective legal rights and remedies against each other. 2.6 Taxes. If Client is tax-exempt, Client will provide Hart with proof of its tax-exempt status. If Client is not tax-exempt, (a) Client will pay any tax Hart becomes obligated to pay in connection with this Agreement, exclusive of taxes based on the net income of Hart and (b) Client will pay all personal property and similar taxes assessed after shipment. If Client challenges the applicability of any such tax, Client shall pay the tax and may thereafter seek a refund. 2.7 Suspension of Performance. If any payment due to Hart under this Agreement is past due more than thirty (30) days, Hart may suspend performance under this Agreement until all amounts due are current. 3. Client Responsibilities: 3.1 Independent Determination. Client acknowledges it has independently determined that the Hart Voting System purchased under this Agreement meets its requirements. 3.2 Cooperation. Client agrees to cooperate with Hart and promptly perform Client's responsibilities under this Agreement and the License Agreement. 4. Title; Risk of Loss: 4.1 Equipment. Subject to Section 4.3, title to Equipment will pass to Client upon delivery of the Equipment to Client. Risk of loss of, or damage to, Equipment will pass to Client upon delivery to Client. 4.2 Confidential and Proprietary Information. Title to Hart's Confidential and Proprietary Information will remain in Hart. Title to Confidential and Proprietary Information of Hart's suppliers and licensors will remain in the relevant suppliers and licensors. Page 4 of 15 Eagle County, CO - HVS Agreement 4.3 Proprietary Rights. Client acknowledges and agrees that the design of the Voting System, design of the Hart Voting System Hardware, Hart Proprietary Software, and any and all related patents, copyrights, trademarks, service marks, trade names, documents, logos, software, microcode, information, and material are the property of Hart. Client agrees that the sale of the Hart Voting System Hardware and license of Hart Proprietary Software and other accompanying items under this Agreement does not grant to or vest in Client any right, title, or interest in such proprietary property. All patents, trademarks, copyrights, trade secrets, and other intellectual property rights, whether now owned or acquired by Hart with respect to the Hart Voting System, Hart Voting System Hardware, and Hart Proprietary Software, are the sole and absolute property of Hart and no interest therein is being vested in Client by the execution of this Agreement or the sale of the Hart Voting System Hardware or license of the Hart Proprietary Software to Client. Client shall not, under any circumstances, cause or permit the adaptation, conversion, reverse engineering, disassembly, or decompilation of any Software or Equipment. Client will have no authority or right to copy, reproduce, modify, sell, license, or otherwise transfer any rights in any proprietary property of Hart. The provisions of this Section 4.3 will survive the termination or cancellation of this Agreement and the License Agreement. 5. Warranty Terms: THE WARRANTY TERMS APPLICABLE TO THE HART VOTING SYSTEM ARE SET FORTH IN THE HART VOTING SYSTEM WARRANTY, SUPPORT, AND LICENSE AGREEMENT. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES IN THE LICENSE AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE UNDER THIS AGREEMENT AND THE LICENSE AGREEMENT, AND (B) HART DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NON INFRINGEMENT FOR ALL EQUIPMENT, SOFTWARE, AND SERVICES. THE EXPRESS WARRANTIES EXTEND SOLEL Y TO CLIENT. SOME STATES (OR JURISDICTIONS) DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPL Y TO CLIENT. 6. Limitation of Damages: 6.1 EXCLUSIVE REMEDY. HART DOES NOT ACCEPT ANY LIABILITY FOR WARRANTIES BEYOND THE REMEDIES SET FORTH IN SECTION I OF THE LICENSE AGREEMENT. HART'S ENTIRE LIABILITY AND CLIENT'S EXCLUSIVE REMEDY FOR ANY CLAIM CONCERNING THIS AGREEMENT AND THE EQUIPMENT, SOFTWARE, AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE SET FORTH IN THIS SECTION. 6.2 DISCLAIMER. CLIENT IS RESPONSIBLE FOR ASSURING AND MAINTAINING THE BACKUP OF ALL CLIENT DATA. UNDER NO CIRCUMSTANCES WILL HART BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR THE LOSS OF OR DAMAGE TO CLIENT DATA. 6.3 LIMITATION. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HART, HART'S LICENSORS, AND ANY PARTY INVOLVED IN THE CREATION, MANUF ACTURE, OR DISTRIBUTION OF THE EQUIPMENT AND SOFTWARE AND THE Page 5 of 15 Eagle County, CO - HVS Ag.oeement PERFORMANCE OF SERVICES UNDER THIS AGREEMENT WILL NOT BE LIABLE TO CLIENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) OR FOR LOST DATA SUSTAINED OR INCURRED IN CONNECTION WITH THE EQUIPMENT, SOFTWARE, SERVICES, OR THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE. IN ADDITION, HART'S TOTAL LIABILITY TO CLIENT FOR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THE EQUIPMENT, SOFTWARE, SERVICES, AND THIS AGREEMENT WILL IN NO EVENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CLIENT TO HART UNDER THIS AGREEMENT. HART IS NOT LIABLE FOR DAMAGES CAUSED IN ANY PART BY CLIENT'S NEGLIGENCE OR INTENTIONAL ACTS OR FOR ANY CLAIM AGAINST CLIENT OR ANYONE ELSE BY ANY THIRD PARTY. SOME STATES (OR JURISDICTIONS) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMIT A TION MAY NOT APPLY TO CLIENT. 6.4 Referrals. Hart may direct Client to third parties having products or services that may be of interest to Client for use in conjunction with the Equipment and Software. Notwithstanding any Hart recommendation, referral, or introduction, Client will independently investigate and test non-Hart products and services and will have sole responsibility for determining suitability for use of non-Hart products and services. Hart has no liability with respect to claims relating to or arising from use of non-Hart products and services, including, without limitation, claims arising from failure of non-Hart products to provide proper time and date functionality. 7. Dispute Resolution: 7.1 Disputes and Demands. The parties will attempt to resolve any claim or controversy related to or arising out of this Agreement, whether in contract or in tort ("Dispute"), on a confidential basis according to the following process, which either party may start by delivering to the other party a written notice describing the dispute and the amount involved ("Demand"). 7.2 Negotiation and Meditation. After receipt of a Demand, authorized representatives of the parties will meet at a mutually agreed upon time and place to try to resolve the Dispute by negotiation. If the Dispute remains unresolved after this meeting, either party may start mandatory nonbinding mediation under the commercial mediation rules of the American Arbitration Association ("AAA") or such other mediation process as is mutually acceptable to the parties. Venue for disputes shall be found in Eagle County, Colorado. 7.3 Iniunctive Relief. Notwithstanding the other provisions of this Section 7, if either party seeks injunctive relief, such relief may be sought in a court of competent jurisdiction without complying with the negotiation and mediation provisions of this Section 7. 7.4 Time Limit. Neither mediation under this section nor any legal action, regardless of its form, related to or arising out of this Agreement may be brought beyond the statutory limitation of time for pursuing such remedies. 8. General Provisions: Page 6 of 15 Eagle County, CO - HVS Agreement 8.1 Entire Agreement. This Agreement and the attachments, schedules, and exhibits hereto, are the entire agreement and supersede all prior negotiations and oral agreements. Hart has made no representations or warranties with respect to this Agreement or the Hart Voting System and its components that are not included herein. This Agreement may not be amended or waived except in writing signed by an officer of the party to be bound thereby. 8.2 Preprinted Forms. The use of preprinted forms, such as purchase orders or acknowledgments, in connection with this Agreement is for convenience only and all preprinted terms and conditions stated thereon are void and of no effect. If any conflict exists between this Agreement and any terms and conditions on a purchase order, acknowledgment, or other preprinted form, the terms and conditions of this Agreement will govern and the conflicting terms and conditions in the preprinted form will be void and of no effect. The terms and conditions of this Agreement, including, but not limited to, this Section 8.2, cannot be amended, modified, or altered by any conflicting preprinted terms or conditions in a preprinted form. 8.3 Interpretation. Headings are for reference purposes only and are not to be used in construing the Agreement. All words and phrases in this Agreement are to be construed to include the singular or plural number and the masculine, feminine, or neuter gender as the context reqUIres. 8.4 GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF COLORADO. 8.5 Severability. Whenever possible, each provision of this Agreement will be interpreted to be effective and valid under applicable law; but if any provision is found to be invalid, illegal, or unenforceable, then such provision or portion thereof will be modified to the extent necessary to render it legal, valid, and enforceable and have the intent and economic effect as close as possible to the invalid, illegal, or unenforceable provision. If it is not possible to modify the provision to render it legal, valid, and enforceable, then the provision will be severed from the rest of the Agreement and ignored. The invalidity, illegality, or unenforceability of any provision will not affect the validity, legality, or enforceability of any other provision of this Agreement, which will remain valid and binding. 8.6 Force Majeure. "Force Majeure" means a delay encountered by a party in the performance of its obligations under this Agreement that is caused by an event beyond the reasonable control of the party, but does not include any delays in the payment of monies due by either party. Without limiting the generality of the foregoing, "Force Majeure" will include, but is not restricted to, the following types of events: acts of God or public enemy; acts of governmental or regulatory authorities (other than, with respect to Client's performance, the Client, and its governing entities); fires, floods, epidemics, or serious accidents; unusually severe weather conditions; and strikes, lockouts, or other labor disputes. If any event constituting Force Majeure occurs, the affected party shall notify the other party in writing, disclosing the estimated length of the delay and the cause of the delay. If a Force Majeure occurs, the affected party will not be deemed to have violated its obligations under this Agreement, and time for performance of any obligations of that party will be extended by a period of time necessary to overcome the effects of the Force Majeure. 8.7 Compliance with Laws. Client and Hart shall comply with all federal, state, and local laws in the performance of this Agreement, including those governing use of the Equipment and Software. Equipment and Software provided under this Agreement may be subject to U.S. and other government export control regulations. Client shall not export or re-exp0l1 any Equipment Page 7 of 15 Eagle County, CO - HVS Agreement or Software. 8.8 Assignments. Hart may assign this Agreement or its interest in any Equipment or Software, or may assign the right to receive payments, without Client's consent. Any such assignment, however, will not change the obligations of Hart to Client that are outstanding at the time of assignment. Client will be notified in writing if Hart makes an assignment of this Agreement. Client shall not assign this Agreement without the express written consent of Hart, such consent not to be unreasonably withheld. In the event of any permitted assignment of this Agreement, the assignee shall assume the liabilities and responsibilities of the assignor, in writing. 8.9 Independent Contractors. Client and Hal1 are independent contractors and are not agents or partners of each other. Hart's employees, agents, and subcontractors will not be entitled to any privileges or benefits of Client employment. Client's employees, agents, and contractors will not be entitled to any privileges or benefits of Hart employment. 8.10 Notices. Any notice required or permitted to be given under this Agreement by one party to the other must be in writing and shall be given and deemed to have been given immediately if delivered in person to the address set forth on the Signature Page for the party to whom the notice is given, or on the fifth (5th) business day following mailing if placed in the United States Mail, postage prepaid, by registered or certified mail with return receipt requested, addressed to the party at the party's address set forth on the Signature Page. Each party may change its address for notice by giving written notice of the change to the other party. 8.11 Trademarks. Ballot Now™, BOSSTM, Disabled Access Unit™, eCMTM, eScan™, eSlate@, FUSIONTM, InFusion™, Judge's Booth Controller™, Mobile Ballot Box™, TallyTM, RallyTM, SERVOTM, and Verifiable Ballot Option™ (VBOTM) are trademarks of Hart. 9. Definitions "Agreement" has the meaning set f0l1h on the Signature Page. "Anniversary Date" means each anniversary of the Effective Date. "Annual Fee" means the combined annual license, sublicense, and support fees payable by Client to Hart as described in Section 4. "Ballot NOW™'' means the Paper Ballot Management System. "BOSSTM" means the Ballot Origination Software System used to define the election. "Client" has the meaning set forth on the Signature Page. "Confidential and Proprietary Information" means Software, firmware, diagnostics, documentation (including operating manuals, user documentation, and environmental specifications), designs and configurations of Equipment, Software and firmware, trade secrets and related documentation, and any other information confidential to Hart or its suppliers or licensors. "DAUTM" means the Disabled Access Unit created by Hart as an add-on component to an eSlate@ that facilitates the performance of voting activities by disabled voters, for example, by Page 8 of 15 Eagle County, CO - HVS Ag,'eement providing an audio ballot presentation and/or accepting inputs from specialized switch mechanisms, such as head switches, breath switches, and panel switches that facilitate interaction with disabled voters, as needed. "eCA1fM" means eSlate@ Cryptographic Module, the electronic "key" required for access to secure election functions. "Effective Date" has the meaning set forth in the Signature Page and indicates the date this Agreement becomes effective. "Equipment" means the Hart Voting System Hardware and Non-Hart Equipment. "eScanTM" means the eScan™ device created by Hart, consisting of a precinct digital ballot imaging device single-feed scanner that transports and scans both sides of a ballot simultaneously, and a base that provides for secure ballot storage and transp0l1. "eSlate@" means the eSlate@ created by Hart and consisting of hardware including an electronically configurable, network-capable voting station that permits a voter to cast votes by direct interaction, which voting station in its present configuration created by Hart comprises an electronically configurable liquid crystal display (LCD) panel for use in displaying ballot images, a rotary input device for use in ballot navigation, and various buttons that facilitate voter options for selecting ballot choices and casting a ballot. "FUSIONTM" means the integration and reporting software application used to facilitate the integration of election data. "Firmware" means the Hart Proprietary Software embedded in eSlate@ voting devices that allows execution of the software functions, but does not allow access to or modification of the software by an end user. "Force Majeure" has the meaning set forth in Section 12.7. "Hart" means Hart InterCivic, Inc., a Texas corporation. "Hart Proprietary Software" means the run-time executable code and associated support files of the Ballot Origination Software System (BOSSTM) Software, TallyTM Software, RallyTM Software, Ballot Now™ Software, computer code, and software resident in the Hart Voting System Hardware and other support software utilities as specified on Schedule B, consisting of computer programs and computer code owned by Hart that are licensed to Client pursuant to this Agreement, and all updates, upgrades, versions, new releases, derivatives, revisions, corrections, improvements, rewrites, bug fixes, enhancements, and other modifications, including any custom modifications, to such computer programs and code that are provided to Client, and all copies of the foregoing. Hart Proprietary Software also includes all documentation provided by Hart to Client with respect to these computer programs and code and all copies of the foregoing. "Hart Voting System" means the Equipment and the Software. "Hart Voting System Hardware" means the DAUTM, eSlate@, eScan™, JBCTM, and VBOTM units, and units purchased by Client pursuant to the Hart Voting System Agreement. "Hart Voting System Master Agreement" means the agreement, between Client and Hart Page 9 of 15 Eagle County, CO - HVS Agreement or Hart's authorized distributor of Hart Voting System Hardware, under which Client has purchased the Hart Voting System Hardware. The Hart Voting System Master Agreement is identified on the Signature Page. ''InFusion™'' means the software utility that manages source data for ballot definition. "Initial Annual Fee" means the first Annual Fee, in the amount specified as the "Initial Annual Fee" on Schedule D, which is payable upon execution of this Agreement. "Installation Date" means, with respect to Hart Voting System Hardware, the date of delivery to Client and, with respect to Hart Proprietary Software, the date Hart completes delivery and installation of the Hart Proprietary Software, "JBCTM" means the Judge's Booth Controller created by Hart that is a local area network controller capable of interacting with one or more eSlate@ devices or DAU devices by transmitting and receiving signals that manage or control an election, e.g., by opening and closing the polls, providing or recording an audit trail of system events during an election, storing cast ballot data, and applying data security and integrity algorithms. "Non-Hart Equipment" means the equipment, if any, not consisting of Hart Voting System Hardware that was sold to Client by Hart or Hart's distributor for use with, and in connection with the sale of, the Hart Voting System Hardware. "Non-Hart Software" means the run-time executable code and associated support files of computer programs owned by third parties that are identified on Schedule C and sublicensed by Hart to Client pursuant to this Agreement or licensed directly by the third-party licensor to Client, and all updates, upgrades, versions, new releases, derivatives, reVISIOns, corrections, improvements, rewrites, bug fixes, enhancements, and other modifications to such computer programs and code that are provided to Client, and all copies of the foregoing. Non-Hart Software also includes all documentation provided to Client with respect to these computer programs, and all copies of the foregoing. "SERVOTM" means the election records and recount management system. "Software" means the Hart Proprietary Software and Firmware, and Non-Hart Software. "Sublicensed Software" means Non-Hart Software that is identified on Schedule C as being sublicensed by Hart to Client pursuant to this Agreement. "VBOTM" means the Verifiable Ballot Option unit used in conjunction with the eSlate@ for a Voter Verifiable Paper Audit Trail. "Total Purchase Price" is defined in Section 2.1. (The rest of this page is intentionally left blank.) Page 10 of 15 Eagle County, CO - HVS Agl'eement SCHEDULE A Eagle County, Colorado EQUIPMENT AND PRICING Electronic Voting A liance. 15 DAU TM Upgrade (vA.1.3). Disabled Access $ 500.00 $ 7,500.00 Unit u rade. 15 JBCTM (4.1.3). Judge's Booth $ 2,500.00 $ 37,500.00 Controller. 50 VBOTM (v1.7.5). Verified Ballot $ 1,000.00 $ 50,000.00 o tion. 41 eSlate@ Voting Booths. Voting booths for Included. No Charge. the eSlate@. Voting booths for 15 eSlate@ Accessible Voting the Disabled Included. No Charge. Booths. Access Unit voting units. 30 Mobile Ballot Boxes / Audio Mobile Ballot Boxes Included. No Charge. Cards. and Audio Cards. Additional Mobile Ballot Boxes / Spare Mobile Ballot 75 Audio Cards. Boxes and Audio $ 60.00 $ 4,500.00 Cards. 7 eSlate@ Caddy. Storage caddy for 8 Included. No Charge. votin booths. 1 AT A Card Reader/Writer. AT A card reader. $ 125.00 $ 125.00 3 eCMTM (v1.1.7). Electronic security $ 60.00 $ 180.00 ke . Total Hart Hardware $ 239,805.00 BOSSTM (v4.2.13), TallyTM (v4.2.8), Election Management Software Ballot Now TM 1 (v3.2A) and $ 25,000.00 $ 25,000.00 System. SERVOTM (v4.1.6) electronic voting s stem software. Hart Software Subtotal $ 25,000.00 Total Hart Hardware & Software $ 264,805.00 To Be Purchased Client To 1 Personal Computers. PC workstations. and Provided By Purchase. Client. 1 Notebook Computers. For use with $ 3,500.00 $ 3,500.00 SERVO ™ software. System Setups Subtotal $ 3,500.00 1 Laser Printer. Low-volume laser $850.00 $ 850.00 rinter. Other Hardware Subtotal $ 850.00 Total 3rd Party Hardware $ 4,350.00 Page 11 of15 Eagle County, CO - HVS Agreement 12 Days Project Management. $1,500.00 per day. $ 18,000.00 5 Days Training. $1,500.00 per day. $ 7,500.00 1 Voter Education Outreach Package "An. $ 4,000.00 $ 4,000.00 Program Management. Total Professional Services $ 29,500.00 Total Price for Equipment: $ 244,155.00 Total Price for Software: $ 25,000.00 Total Price for Services: $ 29,500.00 Initial Annual Fee: $9,865.00 State and Local Taxes (if any): Not Included Total System Purchase Price: $ 308,520.00 Note: Tactile input switches are NOT included with the Disabled Access Unit. There will be an additional charge at Hart's current technician's rate per hour for any technical work required as a result of other than Hart-recommended hardware purchased by the Client for use with the Hart V oting System. *The number of "Professional Days" listed in this Schedule A has been arrived at by Hart as a result of the experience gained from over five years and 175+ "first use" election system installations across the United States. Should the number of "Professional Days" not be used during the first election, a credit will be provided against future invoices. (The rest of this page is intentionally left blank. Page 12 of 15 Eagle County, CO - HVS Agreement SCHEDULE B HART PROPRIETARY SOFTWARE QUANTITY MODEL DESCRIPTION UNIT PRICE NUMBER OF INITIAL LICENSES LICENSE FEE One (1). BOSSTM, Ballot Origination $25,000.00 Four (4) (One $25,000.00 TallyTM, Ballot Software System license per Now™, and (BOSSTM each software SERVOTM. v4.2.13), title ). Tabulation and Reporting (TalIyTM v4.2.8), Ballot On Demand (Ballot NOW™ v3.2.4), and Equipment and Data Management Software (SERVOTM v4.l.6). Licensed Location: Ea2Ie County, Colorado. NOTE: Hart and Client will update this Schedule as appropriate if Hart releases new Hart Proprietary Software that is made available to Client under the Hart Voting System Warranty, Support, and License Agreement. (The rest of this page is intentionally left blank.) Page 13 of 15 Eagle County, CO - HVS Agreement SCHEDULE C NON-HART SOFTWARE Non-Hart Software Sublicensed to Client: QUANTITY MODEL DESCRIPTION UNIT PRICE NUMBER OF TOTAL PRICE LICENSES One (I). Sybase Database Engine. No Charge. Four (4). No Charge. Embedded Runtime Program. NOTE: Hart and Client will update this Schedule as appropriate if Hart provides new or different Non-Hart Software to Client under the Hart Voting System Warranty, Support, and License Agreement. (The rest of this page is intentionally left blank.) Page 14 of 15 Eagle County, CO - HVS Agreement EXHIB IT A Hart Voting System Warranty, Support, and License Agreement (See Attached Agreement) Page 15 of 15 Eagle County, CO - HVS Agreement m H A R T i n tercivic HART VOTING SYSTEM WARRANTY, SUPPORT, AND LICENSE AGREEMENT (SIGNATURE PAGE) This Hart Voting System Warranty, Support, and License Agreement ("Agreement") is entered into by and between Hart InterCivic, Inc., a Texas corporation ("Hart"), and the Board of County Commissioners of the County of Eagle ("Client"), a governmental subdivision of the State of Colorado. This Agreement is entered into in connection with a Hart Voting System Master Agreement dated April 2006, between Hart and Client under which Client has purchased Hart Voting System Hardware. This Agreement sets forth terms between Hart and Client applicable to Client's ownership and use of the Hart Voting System Hardware and license from Hart of Hart Proprietary Software (including Firmware), including warranty, support, license, and other terms. Defined terms used in this Agreement will have the meanings specified in Section 13, Definitions, or as otherwise set forth herein. The following Schedules are attached to this Agreement and made a part hereof: Schedule A Support Contact Information Schedule B Hart Proprietary Software Schedule C Non-Hart Software Schedule D Initial Annual Fee Client acknowledges it has read and understands this Agreement (including all Schedules) and is entering into this Agreement only on the basis of the terms expressly set forth in this Agreement. There are no oral agreements, representations, or warranties. The Effective Date of this Agreement is April \ '1,2006. Agreed and Accepted: Client Hart Name: Board of County Commissioners of Hart InterCivic, Inc. the County of Eagle, Colorado Address: Eagle County Clerk & Recorder 15500 Wells Port Drive 500 Broadway, P. O. Box 537 Austin, Texas 78728 Eagle, CO 81631 Attn: Ted Simmonds Attn: Teak 1. Simonton. Senior Vice President/COO Primary Phone: 970-328-8728 800-223-4278 Facsimile: 970-328-8716 800-83 1- I 485 E-mail: T eak.s imonton@eaglecounty.us ~@hart; Executed By: Name; Peter F. Runyon d Si onds Title: Chair ( Senior Vice President/COO This Agreement is not effective until executed by both parties. Page 1 of20 Eagle County, CO - HVS License Agreement In consideration for the agreements set forth herein, the parties agree as follows: 1. Warranty Terms 1.1 Hart Voting System Limited Warranty. Hat1 warrants that during the warranty period the Hart Voting System Hardware purchased by Client will be free from defects in materials and workmanship and will substantially conform to the performance specifications stated in the Hart Precinct Voting System Operator's Manual for the Hart Voting System Hardware. The hardware warranty period is three (3) years, other than the VBO unit(s) and/or eScan™ unit(s), which is one (I) year, beginning fi'om the Installation Date. Hart will, at Hart's sole discretion, replace or repair any Hart Voting System Hardware that does not comply with this warranty, at no additional charge to Client. To request warranty service, Client must contact Hart in writing within the warranty period. Hart may elect to conduct any repairs at Client's site, Hart's facility, or any other location specified by Hart. Any replacement Hart Voting System Hardware provided to Client under this warranty may be new or reconditioned. Hart may use new and reconditioned parts in performing warranty repairs and building replacement products. If Hart repairs or replaces Hart Voting System Hardware, its warranty period is not extended and will terminate upon the end of the warranty period of the replaced or repaired Hart Voting System Hardware. Hart owns all replaced Hart Voting System Hardware and all parts removed from repaired products. Client acknowledges and agrees that this warranty is contingent upon and subject to Client's proper use of the Hart Voting System and the Exclusions from Warranty and Support Coverage set forth in Section 1.3. This warranty does not cover any Hart Voting System Hardware that has had the original identification marks and/or numbers removed or altered in any manner. The remedies set forth in this Section are the full extent of Client's remedies and Hart's obligations regarding this warranty. 1.2 Hart Proprietary Software Limited Warranty. Hati warrants that during the term of this Agreement, the Hart Proprietary Software will perform substantially according to the then-current functional specifications described in the BOSSTM, TallyTM, RallyTM, and Ballot Now™ Operators' Manuals accompanying such Hart Proprietary Software. To request warranty service, Client must contact Hart in writing within the warranty period. Failure to conform to the warranty must be reported in writing and be accompanied with sufficient detail to enable Hart to reproduce the error and provide a remedy or suitable workaround (a solution that will allow the software to function appropriately as certified). Hart will make commercially reasonable efforts to remedy or provide a suitable workaround for defects, errors, or malfunctions covered by this warranty that have a significant adverse affect upon operation of the Hart Proprietary Software, at no additional charge to Client. Because not all errors or defects can or need to be corrected, Hart does not warrant that all errors or defects will be corrected. Client acknowledges and agrees that this warranty is contingent upon and subject to Client's proper use of the Hart Voting System and the Exclusions from Warranty and Support Coverage set forth in Section 1.3. The remedies set forth in this Section 1.2 are the full extent of Client's remedies and Hart's obligations regarding this warranty. 1.3 Exclusions from Warranty and Support Coverage. The warranties under this Section I and Software Support under Section 2 do not cover defects, errors, or malfunctions that are caused by any external causes, including, but not limited to, any of the following: (a) Client's failure to follow operational, support, or storage instructions as set forth in applicable documentation; (b) the use of noncompatible media, supplies, parts, or components; (c) modification or alteration of the Hart Voting System, or its components, by Client or third parties not authorized by Hart; (d) use of equipment or software not supplied or authorized by Hart; (e) external factors (including, without limitation, power failure, surges or electrical damage, fire or water damage, air conditioning failure, humidity control failure, or corrosive atmosphere harmful to electronic circuitry); (f) failure to maintain proper site specifications and environmental conditions; (g) negligence, accidents, abuse, neglect, misuse, or tampering; (h) improper or abnormal use or use under abnormal conditions; (i) use in a manner not authorized by this Agreement or use inconsistent with Hart's specifications and instructions; G) use of Page 2 of20 Eagle County, CO - HVS License Agreement software on Equipment that is not in good operating condition; (k) acts of Client, its agents, servants, employees, or any third party; (I) servicing or support not authorized by Hart; or (m) Force Majeure. Hart reserves the right to charge for repairs on a time-and-materials basis at Hart's then-prevailing rates, plus expenses, and for replacements at Hart's list prices caused by these exclusions from warranty and support coverage. 1.4 Non-Hart Equipment and Non-Hart Software Excluded. HART MAKES NO REPRESENTATIONS OR WARRANTIES AS TO NON-HART EQUIPMENT AND NON-HART SOFTW ARE, IF ANY, PROVIDED BY HART TO CLIENT, ALL OF WHICH IS SOLD, LICENSED, OR SUBLICENSED TO CLIENT "AS IS." HART HAS NO RESPONSIBILITY OR LIABILITY FOR NON-HART EQUIPMENT AND NON-HART SOFTWARE, IF ANY, PROVIDED BY HART'S DISTRIBUTORS OR OTHER THIRD PARTIES TO CLIENT. If Hart sells, licenses, or sublicenses any Non-Hart Equipment or Non-Hart Software to Client, Hart will pass through to Client, on a nonexclusive basis and without recourse to Hart, any third-party manufacturer's warranties covering the equipment or software, but only to the extent, if any, permitted by the third-party manufacturer. Client agrees to look solely to the warranties and remedies, if any, provided by the manufacturer or third-party licensor. 1.5 Disclaimer. THE WARRANTIES IN THIS WARRANTY TERMS SECTION GIVE CLIENT SPECIFIC LEGAL RIGHTS, AND CLIENT MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE (OR JURISDICTION TO JURISDICTION). HART'S RESPONSIBILITY FOR MALFUNCTIONS AND DEFECTS IN HART VOTING SYSTEM HARDWARE AND HART PROPRIETARY SOFTWARE IS LIMITED TO REPAIR AND REPLACEMENT AS SET FORTH IN THIS WARRANTY TERMS SECTION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE EXPRESS LIMITED WARRANTIES IN SECTION I OF THIS AGREEMENT, (A) THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SALE OF HART VOTING SYSTEM HARDWARE AND LICENSE OF HART PROPRIETARY SOFTWARE, AND (B) HART DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, AND NON INFRINGEMENT FOR ALL EQUIPMENT, SOFTWARE, AND SERVICES. THE EXPRESS WARRANTIES EXTEND SOLELY TO CLIENT. SOME STATES (OR JURISDICTIONS) DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MA Y NOT APPLY TO CLIENT. 2. Software Support Services 2.1 Description of Software Support Services. Subject to the terms and conditions of this Agreement, Hart will provide Client the Software Support Services described below. Support Services under this Section 2 do not cover any of the exclusions from warranty and support coverage as described under Section 1.3. If Hart, in its discretion, provides Support Services in addition to the services described under this Section 2, Client will pay Hart for such services on a time-and-materials basis at Hart's then-prevailing rates, plus expenses, and for replacements at Hart's list prices, unless otherwise agreed in writing by Hart and Client. 2.1.1 General Software Support. General Software Support will consist of assisting the Client in the design and production of elections, including pre-election and post-election testing and general operation of the Hart Voting System. This support will be limited to twenty (20) hours of requested support per calendar year. A request for support is defined as any specific request for Page 3 of20 Eagle County, CO - HVS License Agreement assistance on a specific task or question about software functionality pertaining to the standard operation of the Hart Voting System (hardware and software) and does not apply to reporting of software defects. Additional hours of support will be billed at $125.00. Client will be notified that the annual number of hours for support has exceeded the annual limit prior to any liability of the part of Client being incurred. 2.1.2 Software Support Services. Software Support Services will consist of periodic updates and any software "bug" corrections to Hart software. A software "bug" is any malfunction that prevents the Hart software from performing substantially as described in the then-current operator's manual for such software. Because not all errors or defects can or need to be corrected, Hart does not warrant that all errors or defects will be corrected. Hart reserves the right to determine whether any reported, claimed software malfunction is in fact a "bug." Software "bugs" must be reported in writing and be accompanied with sufficient detail to enable Hart staff to reproduce the error and provide a remedy or suitable workaround. The exclusions from warranty coverage under Section 1.3 also are exclusions from Software Support Services under this Section 2.1.2. 2.1.3 Engineering Services. In any case where Hart software interfaces with a third party software system, including but not limited to, the Client's voter registration system, non-Hart election management system, early voting validation system, non-Hart election systems, absentee envelope management systems, or other like systems; Hart will not be responsible for proper operation of any Hart software that interfaces with the third party software should such third party software be upgraded, replaced, modified, or altered in any way. Hart will also not be responsible for the proper operation of any Hart software running on Client's computer hardware, should Client install a new computer operating system on said hardware without advising Hart of such changes and receiving Hart's written approval. Engineering services and associated costs may be required in those situations where the Client requests Hart's review and approval of any system changes outside the original system specifications at the time of the original acceptance date of this Agreement and the Hart Voting System Master Agreement. Hart will not be responsible for the proper operation of any Hart software that interfaces with third party software should such third party software be configured or operated in any manner contrary than that described in a Statement of Work ( to be attached as a mutually agreed upon Schedule to this Agreement if engineering services are requested by the Client). 2.1.4 Client Suggestions and Recommendations. Client may propose, suggest, or recommend changes to the Software at any time in writing to Hart. Such proposals, suggestions, or recommendations will become Hart's property. Hart may include any such proposals, suggestions, or recommendations, solely at Hart's option, in subsequent periodic Software updates. Hart is under no obligation to change, alter, or otherwise revise the Software according to Client's proposals, suggestions, or recommendations. 2.2 Software Support Services Contact Information. Support contact information is set forth in Schedule A, Support Contact Information. 3. Software Licenses and Sublicenses 3.1 Licenses and Sublicenses. Subject to the terms and conditions of this Agreement, Hart grants to Client a personal, nonexclusive, nontransferable, and limited license to use the Hart Proprietary Software and a personal, nonexclusive, nontransferable, and limited sublicense to use the Sublicensed Software. Hart will provide Client, and Client will be permitted to use, only the run-time executable code and associated support files of the Software for Client's internal data processing requirements as part of the Hart Voting System. The Software may be used only in the United States at the Licensed Location Page 4 of20 Eagle County, CO - HVS License Agreement specified on Schedule B on the Equipment or other computer systems authorized by Hart in writing. Client may temporarily transfer the Software to a backup computer system at an alternative location within Client's county of operation if the Equipment or other authorized computer system is inoperative or the Licensed Location is temporarily unavailable, provided Client must promptly give Hart written notice of such temporary transfer, including a description of the backup computer system and the alternative location. Client's use of the Software will be limited to the number of licenses specified in Schedules Band C. Only Client and its authorized employees may use or access the Software. Voters are also authorized to interact with the Software, in a manner consistent with user instructions, for the sole purpose of producing a Cast Vote Record during the course of an election. Client agrees that Hart, the licensors of Sublicensed Software, and their representatives may periodically inspect, conduct, and/or direct an independent accounting firm to conduct an audit, at mutually agreed-upon times during normal business hours, of the computer site, computer systems, Equipment, and appropriate records of Client to verify Client's compliance with the terms ofthe licenses and sublicenses granted to Client. 3.2 Delivery and Installation. Hart will deliver and install the Software at the Client's site on a mutually agreed-upon date during Hart's normal working hours. The Software will be deemed accepted upon the Installation Date. 3.3 Training and Documentation. Hart will provide standard user-level documentation in electronic form for the Software and standard operational training before the first election for which the Software will be used. Charges for additional training or support services will be invoiced to Client at Hart's then-current hourly rates, plus travel, communication, and other expenses. Any nonstandard or additional training or support services will be mutually agreed to by Hart and Client and documented in an amendment to this Agreement. 3.4 Protection of Software. (a) The Hart Voting System Hardware and Hart Proprietary Software are designed to be used only with each other and the agreed-upon Non-Hart Software and Non-Hart Equipment. To protect the integrity and security of the Hart Voting System, without the express written consent of Hart, (i) Client shall use the Software and Equipment only in connection with the Hart Voting System; (ii) Client shall not install or use other software on or with the Equipment or Software or network the Equipment or Software with any other hardware, software, equipment, or computer systems; and (iii) Client shall not modify the Equipment or Software. If Client does not comply with any provisions of the preceding sentence, then (i) the Limited Warranties under Section I will automatically terminate; (ii) Hat1 may terminate its obligation to provide Support Services under Section 2; (iii) Hart will have no further installation obligations under Section 3.2 (Delivery and Installation), and (iv) Hart will have no further obligations under Section 3.3 (Training and Documentation). Furthermore, if Client uses the Software and Equipment in combination with other software and equipment (other software or equipment being those not provided by Hart or its designees), and the combination infringes Hart proprietary patent claims outside the scope of the software license granted to Client under Section 3, Hart reserves its rights to enforce its patents with respect to those claims. (b) Client shall not, under any circumstances, cause or permit the adaptation, conversion, reverse engineering, disassembly, or decompilation of any Software. Client shall not use any Software for application development, modification, or customization purposes, except through Hart. (c) Client shall not assign, transfer, sublicense, time-share, or rent the Software or use it for facility management or as a service bureau. This restriction does not preclude or restrict Client from Page 5 of20 Eagle County, CO - HVS License Agreement contracting for election services for other local governments located within Client's jurisdictional boundaries. Client shall not modify, copy, or duplicate the Software; provided, during the term of the Software licenses and sublicenses, Client may have in its possession one (I) copy of the Software for inactive archival or backup purposes. All copies of the Software, in whole or in part, must contain all of Hru1's or the third-party licensor's titles, trademarks, copyright notices, and other restrictive and proprietary notices and legends (including government-restricted rights) as they appear on the copies of the Software provided to Client. Client shall notify Hru1 of the following: (i) the location of all Software and all copies thereof and (ii) any circumstances known to Client regarding any unauthorized possession or use of the Software. (d) Upon termination of Client's license or sublicense of Software, Client shall immediately discontinue all use of the Software and return to Hart or destroy, at Hart's option, the Software (and all related documentation (electronic and hard copy) and Confidential and Proprietru)' Information) and all archival, backup, and other copies thereof, and provide certification to Hart of such return or destruction. (e) Client shall not publish any results of benchmark tests run on any Software. (1) Although the Hart Proprietary Software and Sublicensed Software are protected by copyright and/or patents, they may be unpublished, and constitute Confidential and Proprietary Information of Hart and the third-party licensor, respectively. Client shall maintain the Software in confidence and comply with the terms of Section 6, Protection of Confidential and Proprietary Information, with respect to the Software. (g) This Section 3.4 will survive the termination or cancellation of this Agreement. 3.5 No Transfer of Title. This Agreement does not transfer to Client title to any Software, intellectual property contained in any Software, or Confidential and Proprietary Information. Title to Hart Proprietary Software and all copies thereof, and all associated intellectual property rights therein, will remain in Hart. Title to Non-Hart Software and all copies thereof, and all associated intellectual property rights therein, will remain in the applicable third-party licensor. 3.6 Inherently Dangerous Applications. The Software is not developed or licensed for use in any nuclear, aviation, mass transit, or medical application or in any other inherently dangerous applications. Client shall not use the Software in any inherently dangerous application and agrees that Hart and any third-party licensor will not be liable for any claims or damages arising from such use. 4. Annual Fee 4.1 Amount of Annual Fee. The Annual Fee is a combined licensing, sublicensing, and support fee. Client will pay Hart an Annual Fee upon execution of this Agreement and annually thereafter before each Anniversary Date. The amount of the Initial Annual Fee, payable upon execution of this Agreement, is the amount specified as the "Initial Annual Fee" on Schedule D, Initial Annual Fee. Subsequent Annual Fees are due annually before each Anniversary Date of this Agreement. Hart may adjust the amount of the Annual Fee payable on each Anniversary Date by notifying Client of any price changes with the invoice in which the adjustment is made. Unless adjusted by Hart, each Annual Fee will be the same as the immediately preceding Annual Fee. 4.2 Invoices. Hart will invoice Client annually ninety (90) calendar days before the due date of the Annual Fee. Page 6 of20 Eagle County, CO - HVS License Agreement 4.3 Payments. Client must pay each invoiced Annual Fee before the Anniversary Date immediately following the date of invoice. If Client elects not to or fails to timely pay an Annual Fee, this Agreement and the licenses, sublicenses, and software support services will automatically terminate on such Anniversary Date. All payments are to be made to Hart at its principal office in Austin, Texas, as set forth on the Signature Page or to such other location as may be designated by Hart in a notice to Client. 4.4 Additional Charges. Additional charges may apply to services rendered outside contracted hours or beyond normal coverage at Client's request, e.g., travel expenses, and premium and minimum charges. Any additional charges must be mutually agreed to by Hart and Client and documented in an amendment to this Agreement. 4.5 Payment Disputes. If any dispute exists between the parties concerning the amount due or due date of any payment, Client shall promptly pay the undisputed portion. Such payment will not constitute a waiver by Client or Hart of any of their respective legal rights and remedies against each other. 4.6 Taxes. If Client is tax-exempt, Client will provide Hart with proof of its tax-exempt status. If Client is not tax-exempt, (a) Client will pay any tax Hart becomes obligated to pay in connection with this Agreement, exclusive of taxes based on the net income of Hart and (b) Client will pay all personal property and similar taxes assessed after shipment. If Client challenges the applicability of any such tax, Client shall pay the tax and may thereafter seek a refund. 4.7 Suspension of Performance. Ifany payment due to Hart under this Agreement is past due more than thirty (30) days, Hart may suspend performance under this Agreement until all amounts due are current. S. Client Responsibilities 5.1 Independent Determination. Client acknowledges it has independently determined that the Hart Voting System meets its requirements. 5.2 Cooperation. Client agrees to cooperate with Hart and promptly perform Client's responsibilities under this Agreement. Client will (a) provide adequate working and storage space for use by Hart personnel near Equipment; (b) provide Hart full access to the Equipment and Software and sufficient computer time, subject to Client's security rules; (c) follow Hart's procedures for placing hardware warranty or software support service requests and determining if warranty remedial service is required; (d) follow Hart's instructions for obtaining hardware and software support and warranty services; (e) provide a memory dump and additional data in machine-readable form if requested; (f) reproduce suspected errors or malfunctions in Software; (g) provide timely access to key Client personnel and timely respond to Hart's questions; and (h) otherwise cooperate with Hart in its performance under this Agreement. 5.3 Site Preparation. Client shall prepare and maintain the installation site in accordance with instructions provided by Hart. Client is responsible for environmental requirements, electrical interconnections, and modifications to facilities for proper installation, in accordance with Hart's specifications. Any delays in preparation of the installation site will correspondingly extend Hart's delivery and installation deadlines. Page 7 of20 Eagle County, CO - HVS License Agreement 5.4 Site Maintenance; Proper Storage. Client shall maintain the appropriate operating environment, in accordance with Hart's specifications, for the Equipment and Software and all communications equipment, telephone lines, electric lines, cabling, modems, air conditioning, and all other equipment and utilities necessary for the Equipment and Software to operate properly. Client shall properly store the Equipment and Software when not in use. 5.5 Use. Client is exclusively responsible for supervising, managing, and controlling its use of the Hart Voting System, including, but not limited to, establishing operating procedures and audit controls, supervising its employees, making daily backups, inputting data, ensuring the accuracy and security of data input and data output, monitoring the accuracy of information obtained, and managing the use of information and data obtained. Client will ensure that its personnel are, at all times, educated and trained in the proper use and operation of the Hart Voting System and that the Equipment and Software are used in accordance with applicable manuals, instructions, and specifications. Client shall comply with all applicable laws, rules, and regulations with respect to its use of the Hart Voting System. 5.6 Backups. Client will maintain backup data necessary to replace critical Client data in the event of loss or damage to data from any cause. 6. Protection of Confidential and Proprietary Information 6.1 Confidentiality. Client will keep in confidence and protect Confidential and Proprietary Information (electronic or hard copy) from disclosure to third parties and restrict its use to uses expressly permitted under this Agreement. Client shall take all reasonable steps to ensure that the trade secrets and proprietary data contained in the Equipment and Software and the other Confidential and Proprietary Information are not disclosed, copied, duplicated, misappropriated, or used in any manner not expressly permitted by the terms of this Agreement. Client shall keep the Software and all tapes, diskettes, CDs, and other physical embodiments of them, and all copies thereof, at a secure location and limit access to those employees who must have access to enable Client to use the Software. Client acknowledges that unauthorized disclosure of Confidential and Proprietary Information may cause substantial economic loss to Hart or its suppliers and licensors. Each permitted copy of Confidential and Proprietary Information, including its storage media, will be marked by Client to include all notices that appear on the original. Title, copyright, and all other proprietary rights in and to the Software at all times remains vested exclusively in Hart or, as applicable, third-party licensors. 6.2 Return of Confidential and Proprietary Information. Upon termination or cancellation of this Agreement or, if earlier, upon termination of Client's permitted access to or possession of Confidential and Proprietary Information, Client shall return to Hart all copies of the Confidential and Proprietary Information in Client's possession (including Confidential and Proprietary Information incorporated in software or writings, electronic and hard copies). 6.3 Intellectual Properties. All ideas, concepts, know-how, data processing techniques, documentation, diagrams, schematics, firmware, equipment architecture, software, improvements, bug fixes, upgrades, and trade secrets developed by Hart personnel (alone or jointly with Client) in connection with Confidential and Proprietary Information, Hart Voting System Hardware, and Hart Proprietary Software will be the exclusive property of Hart. 6.4 Support Materials. Client acknowledges that all support materials are the property of Hart and include Confidential and Proprietary Information of Hart. Client agrees that it will not permit anyone other than Hart installation and supp0l1 personnel and authorized County employees to use such Page 8 of20 Eagle County, CO - HVS License Agreement materials. 6.5 Client Employees. Client will inform its employees of their obligations under this Section 6 to ensure that such obligations are met. 6.6 License Back. If Client possesses or comes to possess a licensable or sublicensable interest in any issued patent with claims that read upon the Hart Voting System, its method of operation, or any component thereof, Client hereby grants and promises to grant an irrevocable, royalty-free, paid-up license, with right to sublicense, of such interest to Hart permitting Hart to make, have made, use, and sell materials or services within the scope of the patent claims. 6.7 Survival. This Section 6 will survive termination or cancellation of this Agreement. 7. Title; Risk of Loss 7.1 Software. (a) Hart Proprietary Software: Title to Hart Proprietary Software, all copies thereof, and all associated intellectual proprietary rights therein will remain in Hart including, but not limited to, all patents, copyrights, trade secrets, trademarks, and other proprietary rights. (b) Non-Hart Software: Title to Non-Hart Software, all copies thereof, and all associated intellectual proprietary rights therein will remain in the applicable third-party licensor including, but not limited to, all patents, copyrights, trade secrets, trademarks, and other proprietary rights. (c) Risk of Loss: Risk of loss to Software will pass to Client upon delivery. 7.2 Confidential and Proprietary Information. Title to Hart's Confidential and Proprietary Information will remain in Hart. Title to Confidential and Proprietary Information of Hart's suppliers and licensors will remain in the relevant suppliers and licensors. 7.3 Proprietary Rights. Client acknowledges and agrees that the design of the Hart Voting System, design of the Hart Voting System Hardware, Hart Proprietary Software, and any and all related patents, copyrights, trademarks, service marks, trade names, documents, logos, software, microcode, information, and material, are the property of Hart. Client agrees that the sale of Hart Voting System Hardware and license of Hart Proprietary Software to Client does not grant to or vest in Client any right, title, or interest in such proprietary property. All patents, trademarks, copyrights, trade secrets, and other intellectual property rights, whether now owned or acquired by Hart with respect to the Hart Voting System, Hart Voting System Hardware, and Hart Proprietary Software, are the sole and absolute property of Hart and no interest therein is being vested in Client by the execution of this Agreement or the sale of the Hart Voting System Hardware or license of the Hart Proprietary Software to Client. Client shall not, under any circumstances, cause or permit the adaptation, conversion, reverse engineering, disassembly, or decompilation of any Software or Equipment. Client will have no authority or right to copy, reproduce, modify, sell, license, or otherwise transfer any rights in any proprietary property of Hart. The provisions of this Section 7.3 will survive the termination or cancellation of this Agreement. 8. Term of Agreement; Termination Page 9 of20 Eagle County, CO - HVS License Agreement 8.1 Term. The initial term of this Agreement and the licenses granted herein is one (I) year commencing on the Effective Date and expiring on the first Anniversary Date. 8.2 Renewal Terms. Except as otherwise provided in this Agreement, Client may renew this Agreement before its expiration or termination by paying the Annual Fee invoiced by Hart, as provided in Section 4.2, before the Anniversary Date immediately following the date of invoice, as provided in Section 4.3. Each renewal term will be a one-year (I-year) term, commencing on the expiration of the prior term and expiring on the immediately following Anniversary Date. 8.3 Defaults. The following events will be deemed to be defaults: (a) A party committing a material breach of any term of this Agreement or the eSlate@ Agreement if such breach has not been cured within thirty (30) days after written notice of such breach has been given by the nondefaulting party to the defaulting party; (b) A party filing bankruptcy, becoming insolvent, or having its business placed in the hands of a receiver, assignee, or trustee, whether by voluntary act or otherwise; or (c) A party failing to comply in any material respect with any federal, state, or local laws applicable to a party's performance under this Agreement or the Hart Voting System Master Agreement. 8.4 Termination. (a) This Agreement will automatically terminate at the end of its then-current term if Client has elected not to or has failed to timely make full payment to Hart of the invoiced Annual Fee required to renew the term, as provided in Sections 4.3 and 8.2. (b) Hart may terminate Software Support Services under Section 2 on thirty (30) days prior written notice to Client if Hart determines that any alterations, attachments, or modifications not made by Hart or the failure to install a software or hardware release will interfere with the provision of support. (c) A party may terminate this Agreement before expiration of its term for default by the other party. If default occurs, the parties will have all remedies provided in this Agreement and otherwise available by statute, law, or equity. 8.5 Survival. Section 1.1 will survive the termination or expiration of this Agreement until the end of the warranty period stated therein. Sections 3.4(b), 3.4(c), 3.4(d), 3.4(e), 3.4(f), 6, 7.3, 8.5,9, II, and 12 will survive the termination or expiration of this Agreement. 9. Limitation of Damages 9.1 EXCLUSIVE REMEDY. HART DOES NOT ACCEPT ANY LIABILITY FOR WARRANTIES BEYOND THE REMEDIES SET FORTH IN SECTION I. HART'S ENTIRE LIABILITY AND CLIENT'S EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS CONCERNING THE ESLA TE@ HARDWARE PROVIDED TO CLIENT BY HART OR ITS DISTRIBUTORS, THIS AGREEMENT, AND SOFTWARE AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE SET FORTH IN THIS SECTION. Page 10 of20 Eagle County, CO - HVS License Agreement 9.2 DISCLAIMER. CLIENT IS RESPONSIBLE FOR ASSURING AND MAINTAINING THE BACKUP OF ALL CLIENT DATA. UNDER NO CIRCUMSTANCES WILL HART BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR THE LOSS OF OR DAMAGE TO CLIENT DATA. 9.3 LIMITATION. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HART, HART'S LICENSORS, AND ANY PARTY INVOLVED IN THE CREATION, MANUFACTURE, OR DISTRIBUTION OF THE EQUIPMENT, SOFTWARE, AND PERFORMANCE OF SERVICES UNDER THIS AGREEMENT WILL NOT BE LIABLE TO CLIENT FOR ANY SPECIAL, INDIRECT, INCIDENT AL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) OR FOR LOST DATA SUSTAINED OR INCURRED IN CONNECTION WITH THE EQUIPMENT, SOFTWARE, SERVICES, OR THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE. IN ADDITION, HART'S TOTAL LIABILITY TO CLIENT FOR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THE EQUIPMENT, SOFTWARE, SERVICES, AND THIS AGREEMENT WILL IN NO EVENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CLIENT TO HART UNDER THIS AGREEMENT. HART IS NOT LIABLE FOR DAMAGES CAUSED IN ANY PART BY CLIENT'S NEGLIGENCE OR INTENTIONAL ACTS OR FOR ANY CLAIM AGAINST CLIENT OR ANYONE ELSE BY ANY THIRD PARTY. SOME STATES (OR JURISDICTIONS) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENT AL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO CLIENT. 9.4 Referrals. Hart may direct Client to third parties having products or services that may be of interest to Client for use in conjunction with the Equipment and Software. Notwithstanding any Hart recommendation, referral, or introduction, Client will independently investigate and test non-Hart products and services and will have sole responsibility for determining suitability for use of non-Hart products and services. Hart has no liability with respect to claims relating to or arising from use of non- Hart products and services, including, without limitation, claims arising from failure of non-Hart products to provide proper time and date functionality. 10. Infringement Indemnity 10.1 Indemnity. Hart, at its own expense, will defend and indemnify Client against claims that the Hart Voting System Hardware or Hart Proprietary Software infringe a United States patent, copyright, or misappropriate trade secrets protected under United States law, provided Client (a) gives Hart prompt written notice of such claims; (b) permits Hart to control the defense and settlement of the claims; and (c) provides all reasonable assistance to Hart in defending or settling the claims. 10.2 Remedies. As to Hart Voting System Hardware or Hart Proprietary Software that is subject to a claim of infringement or misappropriation, Hart may (a) obtain the right of continued use of the Hart Voting System or Hart Proprietary Software for Client or (b) replace or modify the Hart Voting System Hardware or Hart Proprietary Software to avoid the claim. If neither alternative is available on commercially reasonable terms, then, at the request of Hart, any applicable Software license and its charges will end, Client will cease using the applicable Hart Voting System and Hart Proprietary Software, Client will return to Hat1 all applicable Hart Voting System and return or destroy all copies of the applicable Hart Proprietary Software, and Client will certify in writing to Hart that such return or Page 11 of20 Eagle County, CO - HVS License Agreement destruction has been completed. Upon return or Hart's receipt of certification of destruction, Hart will give Client a credit for the price paid to Hart for the returned or destroyed Hart Voting System Hardware and Hart Proprietary Software, less a reasonable offset for use and obsolescence. 10.3 Exclusions. Hart will not defend or indemnify Client if any claim of infringement or misappropriation (a) is asserted by an affiliate of Client; (b) results from Client's design or alteration of any eSlate@ Hardware or Hart Proprietary Software; (c) results from use of any Hart Voting System Hardware or Hart Proprietary Software in combination with any non-Hart product, except to the extent, if any, that such use in combination is restricted to the Hart Voting System designed by Hati; (d) relates to Non-Hart Software or Non-Hart Equipment alone; or (e) arises from Client-specified customization work undertaken by Hart or its designees in response to changes in Hart Proprietary Software or Non-Hart Software that are made in response to Client specifications. 10.4 EXCLUSIVE REMEDIES. THIS SECTION lOST A TES THE ENTIRE LIABILITY OF HART AND CLIENT'S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT AND TRADE SECRET MISAPPROPRIATION. 11. Dispute Resolution 11.1 Disputes and Demands. The parties will attempt to resolve any claim or controversy related to or arising out of this Agreement, whether in contract or in tort ("Dispute"), on a confidential basis according to the following process, which either party may start by delivering to the other party a written notice describing the dispute and the amount involved ("Demand"). 11.2 Negotiation and Meditation. After receipt of a Demand, authorized representatives of the parties will meet at a mutually agreed-upon time and place to try to resolve the Dispute by negotiation. If the Dispute remains unresolved after this meeting, either party may start mandatory nonbinding mediation under the commercial mediation rules of the American Arbitration Association ("AAA") or such other mediation process as is mutually acceptable to the parties. 11.3 Injunctive Relief. Notwithstanding the other provisions of this Section II, if either party seeks injunctive relief, such relief may be sought in a court of competent jurisdiction without complying with the negotiation and mediation provisions of this Section I I. 11.4 Time Limit. Neither mediation under this section nor any legal action, regardless of its form, related to or arising out of this Agreement may be brought more than two (2) years after the cause of action first accrued. 12. General Provisions 12.1 Entire Agreement. This Agreement and the attachments, schedules, and exhibits hereto are the entire agreement and supersede all prior negotiations and oral agreements. Hart has made no representations or warranties with respect to this Agreement or the Hart Voting System and its components that are not included herein. Client acknowledges and agrees that Hart has no responsibility or liability under the Hart Voting System Agreement except to the extent, if any, that Hart is a party to the eSlate@ Agreement. This Agreement may not be amended or waived except in writing signed by an officer of the party to be bound thereby. 12.2 Preprinted Forms. The use of preprinted forms, such as purchase orders or Page 12 of20 Eagle County, CO - HVS License Agreement acknowledgments, in connection with this Agreement is for convenience only and all preprinted terms and conditions stated thereon are void and of no effect. If any conflict exists between this Agreement and any terms and conditions on a purchase order, acknowledgment, or other preprinted form, the terms and conditions of this Agreement will govern and the conflicting terms and conditions in the preprinted form will be void and of no effect. The terms and conditions of this Agreement, including, but not limited to, this Section 12.2, cannot be amended, modified, or altered by any conflicting preprinted terms or conditions in a preprinted form. 12.3 Interpretation. This Agreement will be construed according to its fair meaning and not for or against either party. Headings are for reference purposes only and are not to be used in construing the Agreement. All words and phrases in this Agreement are to be construed to include the singular or plural number and the masculine, feminine, or neuter gender as the context requires. 12.4 GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO ITS CONFLICT OF LAWS PROVISIONS, UNLESS CLIENT IS A GOVERNMENTAL SUBDIVISION OF ANOTHER STATE, IN WHICH CASE THE LAWS OF THE STATE IN WHICH CLIENT IS A GOVERNMENTAL SUBDIVISION WILL CONTROL. 12.5 Severability. Whenever possible, each provision of this Agreement will be interpreted to be effective and valid under applicable law; but if any provision is found to be invalid, illegal, or unenforceable, then such provision or portion thereof will be modified to the extent necessary to render it legal, valid, and enforceable and have the intent and economic effect as close as possible to the invalid, illegal, or unenforceable provision. If it is not possible to modify the provision to render it legal, valid, and enforceable, then the provision will be severed from the rest of the Agreement and ignored. The invalidity, illegality, or unenforceability of any provision will not affect the validity, legality, or enforceability of any other provision of this Agreement, which will remain valid and binding. 12.6 Delays. Hart is not responsible for failure to fulfill its obligations when due to causes beyond its reasonable control, including the failure of third parties to timely provide Software, Equipment, materials, or labor contemplated herein. Hart will notify Client in writing of any such delay, and the time for Hart's performance will be extended for a period corresponding to the delay. Hart and Client will determine alternative procedures to minimize delays. 12.7 Force Majeure. "Force Majeure" means a delay encountered by a party in the performance of its obligations under this Agreement that is caused by an event beyond the reasonable control of the party, but does not include any delays in the payment of monies due by either party. Without limiting the generality of the foregoing, "Force Majeure" will include, but is not restricted to, the following types of events: acts of God or public enemy; acts of governmental or regulatory authorities (other than, with respect to Client's performance, the Client, and its governing entities); fires, floods, epidemics, or serious accidents; unusually severe weather conditions; and strikes, lockouts, or other labor disputes. If any event constituting Force Majeure occurs, the affected party shall notify the other party in writing, disclosing the estimated length of the delay and the cause of the delay. If a Force Majeure occurs, the affected party will not be deemed to have violated its obligations under this Agreement, and time for performance of any obligations of that party will be extended by a period of time necessary to overcome the effects of the Force Majeure. 12.8 Compliance with Laws. Client and Hart shall comply with all federal, state, and local laws in the performance of this Agreement, including those governing use of the Equipment and Page 13 of20 Eagle County, CO - HVS License Agreement Software. Equipment and Software provided under this Agreement may be subject to U.S. and other government export control regulations. Client shall not export or re-export any Equipment or Software. 12.9 Assignments. Hart may assign this Agreement or its interest in any Equipment or Software, or may assign the right to receive payments, without Client's consent. Any such assignment, however, will not change the obligations of Hart to Client that are outstanding at the time of assignment. Client will be notified in writing if Hart makes an assignment of this Agreement. Client shall not assign this Agreement without the express written consent of Hart, such consent not to be unreasonably withheld. In the event of any permitted assignment of this Agreement, the assignee shall assume the liabilities and responsibilities of the assignor, in writing. 12.10 Independent Contractors. Client and Hart are independent contractors and are not agents or partners of each other. Hart's employees, agents, and subcontractors will not be entitled to any privileges or benefits of Client employment. Client's employees, agents, and contractors will not be entitled to any privileges or benefits of Hart employment. 12.11 Notices. Any notice required or permitted to be given under this Agreement by one party to the other must be in writing and shall be given and deemed to have been given immediately if delivered in person to the address set forth on the Signature Page for the party to whom the notice is given, or on the fifth business day following mailing ifplaced in the United States Mail, postage prepaid, by registered or certified mail with return receipt requested, addressed to the party at their address set forth on the Signature Page. Each party may change its address for notice by giving written notice of the change to the other party. 12.12 Trademarks. Ballot Now™, BOSSTM, Disabled Access Unit™, eCMTM, eScan™, eSlate@, FUSIONTM, InFusion™, Judge's Booth Controller™, Mobile Ballot Box™, TallyTM, RallyTM, SERVOTM , and Verifiable Ballot Option™ (VBOTM) are trademarks of Hart. 13. Definitions "Agreement" has the meaning set forth on the Signature Page. "Anniversary Date" means each anniversary of the Effective Date. "Annual Fee" means the combined annual license, sublicense, and support fees payable by Client to Hart as described in Section 4. "Ballot Now™'' means the Paper Ballot Management System. "BOSSTM" means the Ballot Origination Software System used to define the election. "Client" has the meaning set forth on the Signature Page. "Confidential and Proprietary Information" means Software, firmware, diagnostics, documentation (including operating manuals, user documentation, and environmental specifications), designs and configurations of Equipment, Software and firmware, trade secrets and related documentation, and any other information confidential to Hart or its suppliers or licensors. "DA1JTM" means the Disabled Access Unit created by Hart as an add-on component to an eSlate@ Page 14 of20 Eagle County, CO - HVS License Agreement that facilitates the performance of voting activities by disabled voters, for example, by providing an audio ballot presentation and/or accepting inputs from specialized switch mechanisms, such as head switches, breath switches, and panel switches that facilitate interaction with disabled voters, as needed. "eCiWM" means eSlate@ Cryptographic Module, the electronic "key" required for access to secure election functions. "Effective Date" has the meaning set forth in the Signature Page and indicates the date this Agreement becomes effective. "Equipmenf' means the Hart Voting System Hardware and Non-Hart Equipment. "eScanTM" means the eScan™ device created by Hart, consisting of a precinct digital ballot imaging device single-feed scanner that transports and scans both sides of a ballot simultaneously, and a base that provides for secure ballot storage and transport. "eSlate@" means the eSlate@ created by Hart and consisting of hardware including an electronically configurable, network-capable voting station that permits a voter to cast votes by direct interaction, which voting station in its present configuration created by Hart comprises an electronically configurable liquid crystal display (LCD) panel for use in displaying ballot images, a rotary input device for use in ballot navigation, and various buttons that facilitate voter options for selecting ballot choices and casting a ballot. "FUSIONTM" means the integration and reporting software application used to facilitate the integration of election data. "Firmware" means the Hart Proprietary Software embedded in eSlate@ voting devices that allows execution of the software functions, but does not allow access to or modification of the software by an end user. "Force Majeure" has the meaning set forth in Section 12.7. "Hart" means Hart InterCivic, Inc., a Texas corporation. "Hart Proprietary Software" means the run-time executable code and associated support files of the Ballot Origination Software System (BOSSTM) Software, TallyTM Software, RallyTM Software, Ballot Now™ Software, computer code, and software resident in the Hart Voting System Hardware and other support software utilities as specified on Schedule B, consisting of computer programs and computer code owned by Hart that are licensed to Client pursuant to this Agreement, and all updates, upgrades, versions, new releases, derivatives, revisions, corrections, improvements, rewrites, bug fixes, enhancements, and other modifications, including any custom modifications, to such computer programs and code that are provided to Client, and all copies of the foregoing. Hart Proprietary Software also includes all documentation provided by Hart to Client with respect to these computer programs and code and all copies of the foregoing. "Hart Voting System" means the Equipment and the Software. "Hart Voting System Hardware" means the DAUTM, eSlate@, eScan™, JBCTM, and VBOTM units, and units purchased by Client pursuant to the Hart Voting System Master Agreement. Page 15 of20 Eagle County, CO - HVS License Agreement "Hart Voting System it1aster Agreement" means the agreement, between Client and Hart or Hart's authorized distributor of Hart Voting System Hardware, under which Client has purchased the Hart Voting System Hardware. The Hart Voting System Master Agreement is identified on the Signature Page. ''InFusion™'' means the software utility that manages source data for ballot definition. "Initial Annual Fee" means the first Annual Fee, in the amount specified as the "Initial Annual Fee" on Schedule D, which is payable upon execution of this Agreement. "Installation Date" means, with respect to Hart Voting System Hardware, the date of delivery to Client and, with respect to Hart Proprietary Software, the date Hart completes delivery and installation of the Hart Proprietary Software. "JBCTM" means the Judge's Booth Controller created by Hart that is a local area network controller capable of interacting with one or more eSlate@ devices or DAU devices by transmitting and receiving signals that manage or control an election, e.g., by opening and closing the polls, providing or recording an audit trail of system events during an election, storing cast ballot data, and applying data security and integrity algorithms. "Non-Hart Equipment" means the equipment, if any, not consisting of Hart Voting System Hardware that was sold to Client by Hart or Hart's distributor for use with, and in connection with the sale of, the Hart Voting System Hardware. "Non-Hart Software" means the run-time executable code and associated support files of computer programs owned by third parties that are identified on Schedule C and sublicensed by Hart to Client pursuant to this Agreement or licensed directly by the third-party licensor to Client, and all updates, upgrades, versions, new releases, derivatives, revisions, corrections, improvements, rewrites, bug fixes, enhancements, and other modifications to such computer programs and code that are provided to Client, and all copies of the foregoing. Non-Hart Software also includes all documentation provided to Client with respect to these computer programs, and all copies of the foregoing. "SERVOTM" means the election records and recount management system. "Software" means the Hart Proprietary Software and Firmware, and Non-Hart Software. "Sublicensed Software" means Non-Hart Software that is identified on Schedule C as being sublicensed by Hart to Client pursuant to this Agreement. "VBOTM" means the Verifiable Ballot Option unit used in conjunction with the eSlate@ for a Voter Verifiable Paper Audit Trail. (The rest of this page is intentionally left blank.) Page 16 of20 Eagle County, CO - HVS License Agreement SCHEDULE A SUPPORT CONTACT INFORMATION The following contact inforn1ation is to be used by Client for submitting Support requests to Hart InterCivic, Inc.: Client Support Center: I-800-750-HART (4278) Client Support Center Fax: 1-800-396-HART (4278) E-mail Address: hatisupport@hartic.com Hart InterCivic, Inc. Switchboard: 1-800-223-HAR T (4278) Client Support Manager: The following contact information is to be used by Hati for contacting Client on Software Support Service requests: Primary Client Contact Point ("CCP"): First Alternate CCP: (The rest of this page intentionally left blank.) Page 17 of20 Eagle County, CO - HVS License Agreement SCHEDULE B HART PROPRIETARY SOFTWARE QUANTITY MODEL DESCRIPTION UNIT PRICE NUMBER OF INITIAL LICENSES LICENSE FEE One (1). BOSSTM, Ballot Origination $25,000.00 Four (4) (One $25,000.00 TallyTM, Ballot Software System license per Now™, and (BOSSTM each software SERVOTM. v4.2.13), title ). Tabulation and Reporting (TallyTM v4.2.8), Ballot On Demand (Ballot Now™ v3.2.4), and Equipment and Data Management Software (SERVOTM v4.1.6). Licensed Location: Eae:le County, Colorado. NOTE: Hart and Client will update this Schedule as appropriate if Hart releases new Hart Proprietary Software that is made available to Client under the Hart Voting System Warranty, Support, and License Agreement. (The rest of this page is intentionally left blank.) Page 18 of20 Eagle County, CO - HVS License Agreement SCHEDUL E C NON-HART SO FTW ARE Non-Hart Software Sublicensed to Client: QUANTITY MODEL DESCRIPTION UNIT PRICE NUMBER OF TOT AL PRICE LICENSES One (1). Sybase Database software. Included. Four (4). No Charge. Embedded Runtime Program NOTE: Hart and Client will update this Schedule as appropriate if Hart provides new or different Non- Hart Software to Client under this Agreement. (The rest of this page intentionally left blank.) Page 19 of20 Eagle County, CO - HVS License Agreement SCHEDULE D INITIAL ANNUAL FEE Initial Annual Fee: $9,865.00. (The rest of this page intentionally left blank.) Page 20 of20 Eagle County, CO - HVS License Agreement