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HomeMy WebLinkAboutC19-221 Runbeck Election ServicesSALE AND PURCHASE AGREEMENT THIS SALE AND PURCHASE AGREEMENT ("Agr eement") is made as of th e date of full execution, by and between Eagl e Co unty , Co lorado Clerk and Recorder, a governmental s ubdivi s ion of the State of Col orado ("Client"), and RUNBECK ELECTION SERVICES, INC., an Arizona corporation, whose address is 2 800 s_ 36th Street, Phoenix, AZ 8503 4 ("Runbeck") (collectively , the "Parties"). RECITALS l. In connect ion with its elections responsibilities, Cli ent desires to purchase from Runbeck election manage ment equipment ("Equipment"); and to obtain from Runbcck a license to use accompanying software ("Software") to operate the E quipment. 2. Runbeck desires to sell the Equipment and grant a license to use the software to C lient on the terms and conditions set forth in this Agreement. NOW, THEREFORE, in con s id eration of the foregoing, the mutual covenants contained herein and other good and valuable consideration, the Parties agree as fo llows: AGREEMENTS 1. Sale of E quipment. Runbeck hereby sells, a nd Client hereby purchases, the Equipment, including hardware components and accessories, as specifically set forth in the Equipme nt Description a ttach ed h ereto as Exhibit "A". 2. G rant of Software License; Ann ual License Fees; Restrictions. Subject to the Client's ongoing ob ligations under this Agreement, Client has been granted an irrevocable, non-exclus ive right and li cense to install , display and use the software necessary for operation of the Equipme nt ("Software") for U1e term described in, and in accordance with the express terms of, the Software License attached h ereto as Exhibit "B". T itle to and ownership of the Software shall at a ll times remain with Runbeck and neither Client, nor its affi liates, agents or employees, will reverse engineer or reverse compile any part of the Software without Runbeck's prior written consent. C lient shall pay Runbeck an annual Software License Fee for the Software, as specifically set forth in Exhibit "B". The Annua l Software License Fee for the first year of this Ag reement is includ ed in the purchase price of the Equipment. All subsequent payments of this Fee sh all be made on each s uccessive yearly anniversary date of execution this Agr eement, as specifically set fotth in Exhibit "D". 1 DocuSign Envelope ID: D9CF12AB-855E-476F-9037-DDA5FCB19717 3. Equipment Maintenance and Support Services; Annual Equipment Maintenance and Support Services Fee. Runbeck shall provide tho se Equipment Maintenance Support Services that are specifically set forth in the Equipment Maintenance and Supp01t Services Schedule attach ed hereto as Exhibit "C". C li ent shall pay Runbeck an annual E quipment Mainten ance Fee for the E quipment, as sp ecifically set forth in E xhibit "C". The Annual Equipment M a intenance and Support Service Fe e fo r the fi rst year of this Agreement is included in the purchase price of the E quipment. A ll subsequent paym ents of this Fee shall b e made on each successive yearly a nniversary date of execution of this Agreement, as sp ecifical Iy set forth in E xhibit "D". 4. Availability and Retention of Records. All r ecord s rel ating to the products and services provided under this Agreeme nt and s upp01ting documentation for invoices submitted to Clie nt by Runbeck shall be retained and made availabl e by Runbeck for audit by C li ent, its duly authorized r epresentati ves, the St ate of Colorado (including, but not limited to, the Auditor of the State of C ol orado , In spector General or duly appointed law enforcement officia ls) and agencies of the United Stales govemment. Such record s s hall be retained by Runbeck and made availabl e for any time period requ ired b y s ta le o r federa l law. 5. Assignment. The Parties expressly agree that neither shall assign thi s Agreement without the prior written co nsent of the other. Runbeck may subcontract services agreed to in th.is Agreement, but only with the written consent o f the Cli e nt. All subcontracts are subj ect to the s ame terms, conditions, and covenants co ntained within this Agreement. 6. Governing Law. This Agreement sha ll be governed, con strued , and enforced und e r the l aws of Colorado, notwiths tanding any conflicts of laws prov isions . Any le ga l action brou ght pursuant to thi s A greement shall be filed in the co urts of Co lorado. 7. Integration and Modification. This Agreement, including exhibits (each of which is expressly incorporated here in), embodies the entire agreement of the Parties. Th ere are no promi ses, terms, conditions or o bligations other than tho se contain ed here in ; and thi s Agreement shall sup ersed e all previo us communications, representations or contract s, either written or oral, between th e Parti es to thi s Agreement. This Agreement sh all not be modified in any m anner except by an in stnune nt, in writing, executed by the Parties to thi s A greement. 8. Severability. If any t erm or prov1 s1on of this Agreement shall be held to be invalid or unenforceab le by a court of competent jurisdicti o n , the remainder of this Agreement shall not be 2 DocuSign Envelope ID: D9CF12AB-855E-476F-9037-DDA5FCB19717 affected th ereby, a nd each remaining term and prov is ion of thi s Agreem ent s ha ll be valid and enforced to t he fulle st extent permitted b y law. 9. Appropriations. Cli ent represents and covenants that (i) it has, and will h ave, funds available to pay the purchase price for the E quipme nt, Annual Software Licen se Fees, Annual E quipment Maintenance Fees a nd other financial obli gation s under this Agreement, inclucling all e xhibits h ereto, tlu·o ugh th e e nd of Client's c urrent fiscal period; and (ii) t h at it s h a ll use its best eff01i s to o btain funds to pay any of the foregoing financial obligatio ns for each subsequent fiscal year of the four (4) year term of the Agreement. In the event C lient's appropriations reques t to its legis lative bod y o r funding autho rity fo r necessary fund s h ereunder i s denied, this Agreement, a nd all exhibits, may be t erminated by R unbeck. C li ent sh a ll make payment of a ll charges and obligati ons incurred t hrough the end of the fiscal period for w hich fund s were appropria ted . In a ny such event, Client shal l thereupon return to Runbe ck a ll Software and other R unbeck prope1ty in its possession . 10. Compliance. Runbeck agrees to comply with all app li cable federal, state, and local laws in the conduct of work hereunder. Runbeck a ccepts fu ll respons ibility for payment of all taxes inc lud ing, without limitation , rn1employment comp en sation , in surance premiums , income t ax deduction s, social security ded uctions , and a ll other taxes o r payro ll deductions required for a ll employees en gaged b y R w1beck in the p erfo rmance of work under thi s Agreem ent. 1 l. Non-Discrimination. Runbeck certifies it is an e qual o pportunity employer a nd sh all remain in compliance with state and fe d eral civil ri ghts and nondiscrimination laws a nd regu la ti o ns including, but n ot limited to, Title VI, and T itle VII of the C ivj l Ri g hts /\ct of 1964 as amended, the R ehabilitat ion Act of 1973 , th e Americans w ith Disabilities Act, the Age Discrimination Act of 1975 and the Age Discrimination in E mployme nt Act, as amende d. During the p e r fo rmance of this Agreement, R un beck w ill no t discriminate again st any e mployee, contract worker, or applicant for e mployment because of race, color , re ligi on , sex, sexual o rientatio n, natio nal ori gin, ancestry, disability, Vietnam-era veteran status, age, politi cal belief o r place of birth. Runbeck will t ake affirmati ve action to e nsure that during employment, all employees are treated without regard to race, col or, religion, sex, national origin, ancestry, disability, V ietnam-era veteran st atu s , age, political beli ef or place of birth. T h ese provisio n s apply al so to c ontract worke rs , such action shall include, but i s no t limited to, the fo ll owing: employment , upgradin g , demotion or transfer; recruitm e nt or recruitment adve1iisin g, layoff, or termination; rates of pay or other forms of compen sati on; and selection for training, including apprenticeship. Runbeck agrees to p ost in con spicuous places, available to employees and applic ants fo r e mploym ent, notices statin g Runbeck complies with a ll applicab le federal and s tate non-discrimination laws. 3 DocuSign Envelope ID: D9CF12AB-855E-476F-9037-DDA5FCB19717 Runbeck, or any person claim ing through Runbeck, agrees not to establish o r knowingl y permit any such practice or practices of discrimination or segregation in reference t o anything relating t o this Agreement, or in reference to any contractors or subcontractors of said Runbeck . 12. Independent Relationship. Nothing in this Agreement i s in tended to, n or s hall be deemed to, create a parincrship, association or j o int venture between C lient and Runbeck in the conduct of the provisions of this Agreeme nt. Runbeck s ha ll at a ll times have the st atus of an indep endent contractor. 13. Waive r. Any waiver by either party of any ri g ht , prov1S1on o r condition under this Agreement s hal l not be construed or deemed to b e a waiver of any other right, provision o r conditi on of this Agreement, nor a waiver of a subsequent breach of the same right, provi s ion or conditi on. 14. C onfidential Information. A ll information owned, possessed or used by Client w hi ch is communicated to, learned, or o therwise acquired by Runbeck or its e mployees, agents or contract ors in the performance of th e terms of this i\.grcemel1t s ha ll be deemed and remain Confidential Information. Runbeck sha ll not, beginning on the date of first association or communication between the Client and Runbeck and continuing t hrough the term of this Agreement and thereafter, tliscloso, communi cate or divulge to another, or use for Runbeck's own benefit or the benefit of another, any such Confidential In formation with out the prior written consent of the C li ent. 15. Ris k of Loss . Runbeck agrees to bear all r i sk of loss, injury, o r destruction of goods a nd m aterials, including Equipment, ord ered as a result of thi s Agreement w hich occurs prior to delivery to the Cl ient. Upon d elivery by Runbeck to the Client, and Cli ent taking possession of s uch goods and mate rials, Client agrees to bear a ll ri sk of loss, injury, or destruction of such goo ds and materials. Runbeck 's invoices will con:fo1m to t he reasonable requireme nts of t he Cli ent. 16. Warranty. Runbeck warrants and re presents th a t services provided pursuant to this Agreement , and attached exhibits, shall be timely performed in a professional manner in accordance with app li cab le industry standards; and th at Runbeck has the re quis ite ownersh ip , authority and li cense rights to furnish Software provided to C lient in connecti on with th is Agreement. 4 DocuSign Envelope ID: D9CF12AB-855E-476F-9037-DDA5FCB19717 Runbeck warr ants and represents that Eq uipment shall be free from an y defects in material or workmanship fo r a period of one (1) year after in stall atio n ; and Software shall be free from any defects in m aterial or workmanship for a period of o ne (1) year after installation (collectively, the "Wa1Tanty Periods"); provided, however, t hal if the manufacturer 's warranty extends beyond one (1) yea r fo r any part, product, or serv ice item, Lh e longer warranty shall ap pl y. This warranty exte nds to i) any defect reported during the Warranty Periods but not corrected; ii ) any defect :repor ted and thought to be corrected but that reoccurs ou tside of the Warranty Periods; iii) a ny defect misdiagnosed during the Warranty Periods and di scovered t o reoccur outs ide of the Warranty Periods; a nd iv) any defect discovered after the Warranty Periods but which can be documented t o have started durin g the Warranty P eriods. Runbeck agrees to a one-day grace period beyond the end of the Warranty Periods fo r notification purposes for defects di scovered during the Warranty P eri ods. Runbeck sha ll , at its own e lection and expense, either r ep ai r o r replace any component whi ch C lient discovers to be defective in mater ial or workmanship, provided th at Client has f1.11nished tim ely written notice to Runbeck. EXCEPT FOR THE WARRANTIES PROVIDED HEREIN , RUNBECK HEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE CONCERNING THE EQUIPMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OP MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 17. Limitation of Runbeck Liability. Runb eck sha ll not be responsible fo r the Equ ipment's or the Software's operati on or failure to operate, to the extent such oper ation or fa ilme resul ts from, arises out of, or is re lated to C lient's improper or negligent use or operatio n of th e Equ ipment or the Software. IN NO EVENT SHALL RUNBECK BE LIABLE TO CLIENT OR TO ANY THIRD PARTY, POR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, OR OTB.ER CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER. 18. Indemnification. Runbeck ag rees to indemnify an d hold harmless Client from and against a ny and a ll losses, damages , injuries, claims, demands and expenses, including le gal expenses, caused by the sole negligence or intenti onal mi sconduct of Rllllbeck with resp ect to its obligations under this Agreement. Runbeck further ag rees to defend , indemnify a nd hold harmless CI ient fro m and agains t any c laim, suit, dema nd , or act ion all eging the Equip.ment, or any component thereat~ infringes any copyright, trad e secre t, U.S. patent or any other proprietary right of any third party, and Runbeck sh a ll indemnify C lient agains t any judg me nt, award or a.mount paid in settlement to whi ch Runbeck has agreed. Client shall provide Runbeck prompt written notice of such claim, suit, demand , or acti on and C lient and Runbeck shall cooperat e in th e defense and settlement thereof. 5 DocuSign Envelope ID: D9CF12AB-855E-476F-9037-DDA5FCB19717 If a temporary or a final injunction is obtained against C lient's u se of Equipment by reason of an infringement of a copyright, h·ade secret, or other proprietary right, Runbeck wi ll , at its option and expense, either : A. Procure for Client the right to continue usi ng the Equipment; or B. Replace or modify E quipment, or s u ch infrin gin g po1tion thereof, so that it no longer infringes s uch copyri ght, trade secret, or other proprietary right. 19. No Third-Party Beneficiary. Enforcement of the te1ms of thi s Agreement and all rig hts of action relating to enforcement are strictly reserved to the Parties . Nothing contained in this Agreement allows any c laim or right of action in any third person or entity. Any person or entity other than Client or Runbeck receiving services or benefits pursuant to this Agr eement is an incidental beneficiary only. 20. Notices. All written notices required under this Agreement must be hand de li vered, sent by overnight courier service, ma il ed by certified mail, re turn receipt requested, or mailed via United States mail, postage prepaid as fo ll ows: By Runbeck to: To Runbeck: With a copy to: Eagle Colorado C lerk & Recorder 500 Broadway P.O. Box 537 Eagle, Colorado 81631 Attenti on: Stacey J ones Chief D eputy C lerk & Recorder Fax No.: 970-328-8716 Runbeck E lection Services, Inc. 2800 S. 36th S treet Phoenix, Arizona 85034 Attention: James Suver Fax No.: 602-437-1411 Steven II. Wil li ams, Esq. 7 1 01 N 01t h First Street Phoenix, Arizona 85020 Fax No.: 602-390-6719 Notices hand delivered or sent by overn ight courier are effective upon delivery; notices sent by certifi ed mail are effective upon receipt; and notices sent by U.S. mail are effective upon the expiration of five (5) mail delivery days from deposit (postmarked) with the U.S. Pos tal Service. 6 DocuSign Envelope ID: D9CF12AB-855E-476F-9037-DDA5FCB19717 21. Runbeck's Confidential Information. RW1b eck represents that the Softwar e a nd related d oc um e nta ti on provid ed W1d er thi s Agreem ent, including, but not limited to, the So ur ce Code, the softwar e des i gn, s tru cture and o rgani zation , the user in terface and the engineering know-how impl emented in th e software (co l1 ectively "Runbeck Co nfi dentj a l Info rm ation") c on stitute the valu a ble properties and tJade secre ts of Runbeck, embodying s ub stanti a.l cre ati ve ef fo tis w hich are secret, confid enti a l, and not generally known b y the public . Client ag rees to ho ld Runbeck's Confidenti a l Inform at ion , inc luding an y copies thereof and any docum entatio n r elated th ereto, in strict co nfidence and to not pe rmi t any un authorized p erson or ent ity t o obta in a ccess to it t o th e e xtent permitted und er appli cable law. Within this context, Cli ent agrees not to di sseminate, tran smit, li cense, sublicense, assign, lease, re lease, pu bli sh, post on the internet, t ransfer, sell, permit access to, distri bu te, a llow inter ac ti ve ri ghts to, or otherwi se make avail abl e R unbeck Confid ential Info rm a ti on or an y part ther eof t o any o th er party in an y fo rm of media for any purpose oth er than per fo rming its o bliga ti ons unde r th.i s Ag reem ent. C li e nt further agr ees no t t o discl ose or di stribute to any oth er party, in whole or in part, Runbeck C onfid enti a l Inform ati on with out w ritten co nsent fr om Runbeck. 22. No Construction Against Drafting Party. The P ar ti es a nd the ir r esp ective counsel have had th e op portunity t o rev iew this Agreem ent, and the A greement will no t be co nstrued against an y p arty merely b ecau se th.i s Agreem ent was prepared by a partic ul ar party. 23. Successors and Assigns . T he ri ghts and o bligations of t he Parties herein set fo rth shall inure to th e be nefit of a nd be bindi ng upon th e P a rti es h eret o and th eir resp ec tive successors and assigns pe1mitted under this Agreem ent. 24. Time is of the Essence. T he P arti es agree th at in th e perfo rman ce of the t erms of thi s Agreement, time shall be of the essence, it bei ng und er s too d by th e Pa rti es that the Equipment and its co mp o nent s, a nd Runbeck 's services re lated thereto, ar e essential to th e Clie nt's abilit y to conduct statewid e and local elections. 25. Attorneys' Fees. In the e vent of a litigation action to enfor ce, or arising fro m, the t e rm s of this Agreem en t, th e prevailing p atty in s uch acti on s hall be entitled to recover fro m th e no n - prevailing party its reasona bl e attorneys' fees and costs incmred in the action . 26. Term and Renewal. T he Pru·ties decl are, acknowledge and ag ree th at the t erm of this Agreem ent s hall be fo ur ( 4) years from the dat e the Agreem ent is last full y executed b y the Parties , subj ec t to Runb eck 's ri ght to terrrun a te immediately du e to lack of approved appropriations as set forth in 7 DocuSign Envelope ID: D9CF12AB-855E-476F-9037-DDA5FCB19717 Section 9 of the Agreement; fraud; breach of contract as set forth in Section 27; or di sclosure of Runbcck Confidential Informatio n. T he Agree ment will automatically r enew unl ess C li ent provides Runbeck with writte n no tice, at least ninety (90) days prior to the Agreeme nt end date, of its intention to not renew. 27 . Breach. Subject to the terms of Section 26, in the event C lient commits a material breach of its o bligation s under this A g reement and any exhibits hereto, inc luding a fa ilure to time ly pay any license or maintenance fees , and Cli ent fails to cure the breach within s ixty (60) days after receiv ing notice thereof, Runbeck may terminate this Agreem e nt effec ti ve upon deli very of written notice to Client. In any s uch event, Client shall thereupon r etwn to Runbeck all Softwar e and other Runbeck property in its possession. fN WITNESS WHEREOF , the Parties have signed this Agreement to b e effective as of the da te of full execution by the P arties. Runbeck E lection Services, Inc . Eagle County C lerk & R eco rd er -Title: tl[CLf JJztft TL),l'--,1/ J Date: ~Jl {/\,~ I 2, 20 J CJ I I 8 DocuSign Envelope ID: D9CF12AB-855E-476F-9037-DDA5FCB19717 6/19/2019 County Manager EXHIBIT A EQUIPMENT LIST AND PRICE S Pr im ar y l ocatio n of the equipment: 500 Broadway P.O. Box 537 Eagle, Co]o rado 8163 1 Agili sDuo V o te-By-M a il Processing System -Agili sDuo Vot e-B y-Mail Processing System -In s talla tio n -Training on si te (6-8 hours) AgilisD uo Vote-By-M a il P rocessing System includes: • A g ilisDuo Sorting System • D ual O utp ut Trays • Tray Tag Printe r • Scanning Sig nature Capture Softwar e • S ig na ture Verification C lient Software Pri ce $50,000.00 $1,500.00 $1,500 .00 MAINTENANC E SERVICES S oftware Maintenance • 7X24 technical softwar e su pport hotline during declar ed e lection cycles • Insta llation of a ll software upda tes • Testing and validation of alt software updat es • S oftwar e License Fees Hardware Maintenance • 7X24 teclmical supp or t h otline during declar ed e lecti on cycles • H ardware m ainte nance fees • C li ent a lso agrees to allow Runbeck employees access t o the e quipme nt, when req uested, dur ing no1ma l wo rking h ours. Training Additiona l training re quires an o n-sit e s upp ort fee, indi c ated below. Materials management • Clie nt is respons ibl e for any p r e-electi on inventory of Agil.isD uo Vote-By-Mai l Processing Syste m co n sumables. 9 DocuSign Envelope ID: D9CF12AB-855E-476F-9037-DDA5FCB19717 • C li ent is resp on sible for purchasing con sumabl es, t he shipping a nd t axes associated with s uch cons uma bles. • C li en t is res po nsi ble fo r prov iding s torage area that provid es adequate space and ma intai ns prop e r env ironmenta l conditi on s fo r stocking of su pplies. Cli ent mu st provid e RES n otice of el ection at ]east 75 days in adv ance of 1st day that serv ices wi ll be required . C lient is respon si ble fo r inst alla ti o n of con suma bles w hile operatin g the AgilisDuo Vote- B y-M ail Processin g System during an el ectio n cycle. ON-SITE S UPPORT FEES Option a l dedi cated o n-site s upp or t, and/or training (does n o t include e lection set -up or ro uti ne m ainten ance) w ill be bill ed a t a rate of $1,75 0 .00 fo r the fi r s t day (an e igh t-hour wo rk d ay) and $1,5 00 for each additi o na l 8-ho ur work day. T h e am ount b illed sh all be due and payabl e within thirty (30) d ays of the invoice dat e. T hi s service i s s ubj ect t o availa bility. OTHER Repair Services During th e term of th e Agreem ent, as set fo rth in Secti on 26 thereof, s ho uld any componen t of the AgilisDuo Vo te-By-Mail P rocessing Sys tem , t o in c lude hardwar e and software items listed above, becom e dam aged and require repair as a r esult of C li ent's action s, C lient agrees t o p ay Run beck a R epa ir Pee of $150.00 per hour. Taxes Tf taxes apply , th ey w i 11 be the sole resp ons ibili ty of th e C li ent. Shipping Fees S hipping fees will appl y as oth er goo ds may be purchased and need to be s hipped t o t he jmisd iction and are the so le responsibility of the Client. End of Contract Options -S ubject to Section 26 of th e Agreement, C lient May: • Ren ew w it h exi sting system, for which new Usage, License, Mainte nan ce a nd Service agreem ents sha ll app ly. • Ren ew wi th upgrade to existing system , fo r whi ch new Usage, License, Maintenan ce and Servi ce agreem ents s ha ll appl y. 10 DocuSign Envelope ID: D9CF12AB-855E-476F-9037-DDA5FCB19717 EXHIBITB SOFTWARE LICENSE 1. Grant and Scope of License. A . Grant of License. Subj ect t o C li e nt's discharge of i ts m ateri a l duties und e r this Agreem ent, to inc lude the timel y p aym ent of any fees due he r etmder , Runbeck h er e by gran ts to Client an in-evocable, non-exclus ive right and licen se to ins tall, disp lay and use th e Soft ware p ursuant to the terms of th e Agreeme nt. For the avoida nce of d oubt, the licen se gra nted under thi s c lause sh a ll b ecom e revocable in the event t h at C lient mater iall y breach es th is Agr eement and C lient fail s to cure withi n t h e p roscri bed cure period . B. Tille. R unbeck sh aJl at all t imes re tain title to the Software provided by it he reund e r and R unbcck does n ot co nvey a ny p ropriet ar y inter est the re in to C li ent. C. U pdates. For payme nt of the required fees by the C lient a s set fo rth herei n and in the S al e and Pw·c hase A g1·eem ent, Runbeck sh a ll provide to C lient upda tes of any Soft ware licensed h ereun der a t n o additi ona l ch arge and con tinue to ma intai n the Software in acco rdance with th e requirem e nts of th e attach ed Sale and Purch ase Agreem ent as long as C lient con tinues to p ay annual license an d s upport servi ces fees with respect t o such Softwar e. D . B reach. In the event C lient comm its a m aterial b reach of its o bli gati on s unde r thi s Agreeme nt, t o expressly inc lude failure t o time ly p ay an y fees due h e reunder , a nd C li e nt fa il s to cu re the breach wit hin s ixty (60) d ays after rece iving n otice thereof, Runbeck may terminate thi s Agreem ent, and the licen se h ere und er , immedi at el y up on deli ver y of written notice to C lient. 2. Annual Software License Fee. A. Fees. Runbeck will invoi ce Client for th e annual Software L icen se Fee, set forth in Exhi bit D t o the Agree m e nt. T he annual Software L icense Fee fo r the fi r st year of this Agr eem ent i s inc luded in the p urchase an d in s tallat ion p rice of the E quipme nt. A ll pay ments of this Fee shall be made annual ly on each su ccessive anniver sary term of th e Servi ce Ag reem ent, fo r as lo n g as C li e nt continues to u se referen ced Software. The licen se fo r the Soft ware entitl es C li ent to the Warra nti es in Secti o n 4 b elow but does n o t otherwise entitle C lient t o receive m aintenance and s uppo1i or updates t o the So ftware. T h e annua l Software L icen se Fee is s ubj ect to an a n_nual adjustm ent not to exceed fi ve percent (5%). B . Invoices. R unbeck's invo ices will confo rm to the fo rma t r equirem ents of the C li ent. C lie n t w ill pay Ru nbeck's valid invoi ces within thirty (3 0) days aft er receipt. 3. Delivery, fnstallation ,tnd A cceptance. A. Estima ted Shipping. Runbeck agrees to ship the Softwar e to the location, and on or a bout t h e Est i mated Shipping date, set fotth in Exhibit D . 11 DocuSign Envelope ID: D9CF12AB-855E-476F-9037-DDA5FCB19717 B. Installation. Runbeck agr ees to install the Software r ead y fo r u se and in good working ord e r a nd r ende r said Softwar e Functi ona l as a part of the fu lly Functi o na l Syst e m at the applicable location as soo n as p racticable after delive ry, but in no event more than ten (10) d ays after d e liver y . C. Acceptance. Acceptance T esting a nd Acceptance of the Software as a part of the System sh a ll be in accordance with th e provisions of the attached Sale and Purc hase Agreement. 4. Training. If C lient's personnel r equire training in order t o properly use the Software and Syst em , Runbeck will provide su c h training for all users des i gnated b y C lient, at a tim e agr eed to by the Parties. A ll initial training b y Runbeck in the prop er use of the Software and Sys tem sh all be at no addit ion a l ch a rge, unless a fee for s uch tra ining is o the rwise agreed upon and funds appropriated and certified as available for s uc h purposes by the C lient in accordance w ith the Agreem e nt. 5. Maintenance of Software; Term and Termination. A . Maintenance Services. Dur ing the term of this A g reement and s u bj ect to payment of any require d fees by the Cli e nt, Runbeck agr ees to provide maintenance and s upport services for the Software ("Ma inten ance Serv ices"). B. Software Updates. Runbeck sh a ll provide updates to the Software a s t hey becom e availa bl e. Installation of Software updates will include testing a nd val idation of the update d Software. Runbeck will provide the C li e nt w ith a toll -free support hotline numbe r tha t may be used to o btain assistance w ith the Software during the term of this Agreem e nt , su bject to payment of a n y re quired fees . C . Term and Terminati o n. This Agr eement s hall be effective as of the date of execution b y the parties, and shall expire upon termination of the Agreement, unl ess mutually terminated earli e r. T h e p a rties have the right to t erminate this Agreement in accordance w ith Section 9, ("Appropriatio n s") of the Service Agreement. 6. Warranties. A. In addition to any wa1Tanties w hich may be contained in the Agreement, Runbeck: p rovid es the fo llowing warranties: i. Non-Infringem en t. Runbeck warrants that Runbeck owns t he Software, including all associ at ed rig hts, and has t he light to grant C lient the l icenses provided pursu ant to this Agreem e nt, free from all liens, claims, encumbrances, securit-y inte r ests and other r estric tion s . Run beck wanants tha t the Software d oes n o t and use of the Software w ill n o t; infringe any valid patents, copyrig hts, trademarks, tra de secret s, or oth er proprie ta r y ri ghts of an y third parties. 12 DocuSign Envelope ID: D9CF12AB-855E-476F-9037-DDA5FCB19717 ii . Con-ect ion of Defects. In the event of discovery of any material defect in the Software, C lien t agrees to provide Runbeck with sufficient detail to allow RUJ1beck to verify and reproduce the error, and Runbeck sh all use reasonable diligence to correct s uch defect. Runbeck shal l use its reasonab le effo rts to promptly respond and thereafter to diagnose and correct the material defect. Run beck is not respon sibl e for any enor in the Software that has been modified by C li ent without Run beck's prior written consent. C lient's sole remedy in the event of a breach of this warranty is to require that Runbeck conect any materia l defects. iii. Performance of Services. Runbeck represents and warrants t hat a ll services provided by Runbeck to C lient w ill be performed in a timely, competent and workmanlike manner. Runbeck further represents and warrants that it has a sufficient number of compete nt, qualified employees lo provide the Services to support th e Soft.ware. 1v. R unbeck Disclaimer of A ll Other Warranties. Except as otherwi se expressl y s tated in the Agreement, Runbeck makes no representations or warranties concerning t he Softwar e . THE FOREGOING WARRANTIES ARE IN LIEU OF, AND RUNBECK HEREBY EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, BOTH EXPRESS AND I MPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A P AR1'ICULAR PURPOSE. 13 DocuSign Envelope ID: D9CF12AB-855E-476F-9037-DDA5FCB19717 EXHIBITC EQUIPMENT MAINTENANCE A ND SU PPORT SE RVICE S Upon p ay m ent of the required fees by Client, Runbeck shall prov id e Equipment ma intenan ce a nd supp01t se rvi ces as set fo rth in this Exhibit "C". l . Annual Equipment Maintenance Fee. Runb eck will invo ice C lient for the Annua l Equipment M aintenance fee, as set fo rth in Ex hi b it D t o the Agreement. The Fee is subj ect to a n annu a l adjus tm ent not to exceed fi ve percent (5%). T h e Alm u a l Equipme nt Mainten ance Fee fo r the fi r st year of this Agree ment is in cluded in t he pu rchase p ri ce and i nstall ation price of the Eq ui pme nt. All s ub seq uent payments of thi s Fee sha ll b e made on each s uccessive anni versary term of thi s Agreement. 2 . E quipment Maintenance S ervices. For p aym ent of the Fee, Runbeck sh al l per fo rm preventative m aintenance on Equi p ment once each year. T he m aintenance will be perfo rm ed on a date and tim e that is mutu ally acceptabl e to t he Parties. The m aintenance perfo rmed s ha ll be Pre ~election or Post-electi on Maintenance as described be low: A. P re-election P reventative Maintenance. t. C leani ng and inspec tio n of th e Equipment 11. Repl acem ent of any worn parts th at need t o be rep laced * 111. Co rrect any hardware o r softwar e iss ues 1v. P ost maintenan ce testing B . P ost-electi on Preventati ve Mainte nance. 1. Cleaning an d in spection of the Equipm ent 11. R ep lacem ent of any wo rn parts th at n eed t o be replaced* 111. A ll syst ems wi.11 be p ro perly s hut down and power w ill be removed . * The C li ent is so lely responsible for pay ing the cost (including th e shipping costs and any appli cable taxes) of any repl acement parts and cons uma bl es that are needed for the Equi pm ent. 3. Consumables. The C l ie nt acknowledges that the Equip ment inc lud es consu mab le item s that r equire repl acement. The con su ma bl es include, but are n ot limited t o, suc h things as be lt s, rollers and tray t ags. Client shal l be sole ly respo nsi ble fo r the cost (including the s hipping cost s and any app licable taxes) to pl.U'chase a ll co ns uma bl es t hat are needed for t h e Equipm ent. Th e Cl ient is res po ns ib le for in stallati on of th e co ns um a bl es. 14 DocuSign Envelope ID: D9CF12AB-855E-476F-9037-DDA5FCB19717 4. Additional Remote Support. Runbeck will provide the Cli e nt w ill a toll-free telephone number that it may use fo r assi stance in addressing any Equipm e nt i ssues th at may arise or for general questi o ns relat ed t o the use of t he E quipment. 15 DocuSign Envelope ID: D9CF12AB-855E-476F-9037-DDA5FCB19717 EXHIBITD Invoice Schedu le lnvoice To: Eagle Colorado Clerk & Recorder 500 Broadway P.O. Box 537 Eagle, Colo rado 8163 1 2019 -2023 July 31, 2019 Contract Period Estimated Ship Date Actua l S h ip Date (to be co mpleted by accounting) For Invoicin g Purposes: System Qua ntity U nit Pr·icc To tal pi1yments New Agil isDuo I $50,000 $50,000 Purchased Training (o n-$1,500 s ite 6-8 hour s) lnstal lation $1,500 Set up & lnelu ded In tegration Shipping $0.00 Totrr l $53,000 Due Jun e 20 19 $26.500 Due Upon $26,500 Dcliverv Yenr I Year 2 Year 3 License Fees, (2 019-2020) (2020-2021) (202 1-2022) Mai 11te11a11 ce and of thi s of this of thi s S upport Type of agreemen t on agree me nt o n all 11grce ment on a ll Service ex isting eq uipm e nt eq ui pment e auinment Agili sDuo License & Included $8 ,000 $8,000 Maintenance Fee* Totn l Included $8 000 $8.000 NOTES Year 4 (2022-2023) of this agreement on all equipment $8 ,000 $8 000 Any app licab le taxes a re lh e so le re spo ns ibility of the Client * Subject to an annu al fee adjustment not lo exceed five percent (5%), per Secti on 2 of Exh ibit B. *"' S ubj ect to an annual adjustment not to exceed five percent (5%), per Section I of Ex hi b it C. 16 DocuSign Envelope ID: D9CF12AB-855E-476F-9037-DDA5FCB19717