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HomeMy WebLinkAboutC23-280 US Digital ResponseProgram Participation Agreement For Colorado Members This Program Participation Agreement (this “Agreement”), dated as of July 1, 2023 (the “Effective Date”) by and between U.S. Digital Response (“USDR”) and Eagle County, CO (“Member”) sets forth the terms and conditions for USDR to provide, and Member to receive, certain technical support services related to Member’s poll worker management system, all as described in more detail in this Agreement. BACKGROUND A. USDR has developed the Poll Worker Management System (the “PWMS”) as a tool that election offices can use to manage poll worker recruitment, scheduling, pay, and related back-office election tasks. Unlike other poll worker management software, the PWMS is not built on proprietary software code; instead, the PWMS is built by customizing the configuration of a low-code development platform from Airtable. USDR intends to make publicly available (for the world at large and for free) the scripts and other customization instructions that would allow anyone to build the PWMS in Airtable. B. In order to support the further development and improvement of the publicly available and free PWMS, USDR is launching (initially on a pilot basis) a membership-based Election Technical Support Collaborative (the “Program”). In exchange for an annual membership fee, members of the Program will receive the following Services: assistance from USDR with setting up their instance of the PWMS; training for their own staff on the PWMS; and access to participation in discussions among members of the Program regarding poll worker management and use of the PWMS (the “Communities of Practice”). C. Member wishes to participate in the pilot version of the Program, in exchange for the designated membership fee, under the terms and conditions set out in this Agreement. Therefore, in consideration of the agreement set forth below and contained herein, and intending to be bound hereby, USDR and Member (“the Parties”) agree as follows: 1. Description of the Program and USDR Services; Member’s Obligations. a. As a member of the Program, Member will receive from USDR technical support related to the PWMS, including the following benefits (collectively, the “Services”): i. Configuration of Member’s Airtable instance to conform to the free and publicly available PWMS specifications published online by USDR, as well as configuration of any reasonable and mutually agreed upon modifications to Member’s specifications; ii. Training Member’s staff on the use and maintenance of the PWMS; DocuSign Envelope ID: 498969AE-9583-4905-82DC-5929D66DDD53 iii. USDR’s reasonable efforts and means (e.g. phone, email, virtual meetings, etc.) to provide ongoing technical support to Member’s PWMS instance during USDR’s regular business hours; iv. Configuration of PWMS feature enhancements as they are made available (either generally to all PWMS users, which shall be in USDR’s sole discretion, or to Member specifically for beta-testing purposes, as mutually agreed by the Parties); and v. Participation in one or more Communities of Practice as established by USDR. b. As a member of the Program, Member agrees that it will: i. Pay the fees set forth in section 3 of this Agreement; ii. Provide timely feedback to USDR on the PWMS; iii. Complete an annual survey regarding the PWMS and the Services; and iv. Attend at least one Communities of Practice session hosted by USDR. Member may attend a Communities of Practice session by having at least one of Member’s employees or officials participate either virtually or in- person. c. The Services do not include access to “Third-Party Tools” necessary or useful for the Services such as (i) Airtable, which is the software platform that USDR configures to create the PWMS, (ii) Twilio, which is used for sending text messages, (iii) SendGrid, which is used for sending emails, and (iv) other software and tools that are used in conjunction with the PWMS, as determined by USDR in its sole discretion. Member will access Third-Party Tools through USDR in exchange for an additional fee (the “Third- Party Tool Fee”) and subject to the terms set forth in the Third-Party Tool Agreement that is attached to this agreement as Exhibit B. USDR hereby represents and warrants to Member that it has entered into appropriate and binding agreements with the vendors of the Third-Party Tools and that it has the right to provide access to the Third-Party Tools to Member for its use as set forth in this Agreement and Exhibit B. 2. Term. This Agreement, and Member’s participation in the Program, shall commence on the Effective Date and will continue through December 31, 2024, subject to its earlier termination as provided in this Agreement. 3. Fees; Discounts; Expenses; Taxes. a. In consideration for access to USDR’s Services and access to participation in the Program as set forth above, Member shall pay USDR a membership fee of $3750.00 DocuSign Envelope ID: 498969AE-9583-4905-82DC-5929D66DDD53 (the “Membership Fee”). If Member declines to utilize any or all of the Services, Member is not entitled to a refund. b. USDR may reduce Member’s Membership Fee by a set percentage in exchange for Member’s participation in one or more activities benefiting the further development of the PWMS and its effective use by other jurisdictions (together, the “Promotional Activities”). The total potential reduction in Member’s Membership Fee shall not exceed 20% per year. A list of current Promotional Activities and their corresponding percentage discounts are attached as Exhibit A. Member will indicate the Promotional Activities, if any, in which Member agrees to participate by checking the applicable boxes in Exhibit A. Member agrees that USDR may change the list of Promotional Activities that qualify for reductions in the Membership Fee and the amount of any activity’s discount at any time, in USDR’s sole discretion. Member further agrees that (i) the sufficiency of Member’s participation in a Promotional Activity for purposes of receiving a discount is within USDR’s sole discretion and (ii) for any Promotional Activity in which Member’s participation is determined by USDR to be insufficient, Member will pay USDR an additional fee equal to the amount of the discount initially applied to the Membership Fee in association with that Promotional Activity (the “Nonparticipation Fee”). USDR will invoice Member for any Nonparticipation Fees before the expiration of this Agreement and Member agrees to pay all such Nonparticipation Fees within thirty (30) days of the invoice date. Member may satisfy its obligation to pay a Nonparticipation Fee by instead participating in a substitute Promotional Activity that (i) confers an equivalent benefit to the development of the PWMS as the Promotional Activities enumerated herein and (ii) is mutually agreed to in writing by Member and USDR. c. In consideration for Member’s access to the Third-Party Tools, Member shall pay USDR a Third-Party Tool Fee of $3210.00. Member understands that the Third-Party Tool Fee is determined by Member’s anticipated use of the Third-Party Tools identified in the Third-Party Tool Agreement attached as Exhibit B. If Member’s actual use of the Third- Party Tools exceeds the anticipated use that was assumed in calculating the Third-Party Tool Fee, Member shall promptly notify USDR of such additional use and Member shall pay USDR an additional Third-Party Tool Fee. If Member’s actual use of the Third-Party Tools is less than the anticipated use that was assumed in calculating the Third-Party Tool Fee, USDR may, in its sole discretion, provide Member a partial refund of the Third- Party Tool Fee. d. USDR shall invoice Member for the Membership Fee, less any discounts applied based on Member’s agreement to participate in any Promotional Activities, and the Third-Party Tool Fee on the Effective Date. Member agrees to pay the invoice in full within thirty (30) days of the invoice date. e. Member shall reimburse USDR for reasonable out-of-pocket expenses incurred by USDR in connection with the Services, subject in each case to Member’s pre-approval. USDR shall invoice Member for all reimbursable expenses and all additional Third-Party DocuSign Envelope ID: 498969AE-9583-4905-82DC-5929D66DDD53 Tool Fees as they are incurred and shall submit with each such request receipts and documentation reasonably necessary to substantiate such invoice. Member agrees to pay the invoice in full within thirty (30) days of the invoice date. f. In the event that Member does not pay the full amount of any invoice within thirty (30) days of the invoice date, USDR may charge interest on any unpaid balance at the rate of two percent (2%) per month or the highest rate permissible under applicable law, whichever is lower, calculated daily and compounded monthly. g. Subject to the remaining provisions of this Agreement, which define the agreed upon and reasonable commercial value of Member’s participation in the Program and Member’s access to the Third-Party Tools, USDR will not provide Member with money, goods, gifts, donations, or services of any kind for free, in kind, or at a discount. h. If Member is generally exempt from paying sales tax under the laws of its state, Member will indicate as such by initialing in the box below the signature line. i. Member shall compensate USDR in a sum computed and payable as set forth herein. Total compensation under this Agreement shall not exceed $8,000.00 without prior written authorization from Member; provided that in the event of additional use of Third- Party Tools (as provided in Section 3(c) above, Member shall agree to the additional fees as reasonably calculated by USDR. j. Notwithstanding anything to the contrary contained in this Agreement, Member shall have no obligations under this Agreement after, nor shall any payments be made to USDR in respect of any period after December 31 of any year, without an appropriation therefor by Member in accordance with a budget adopted by the Board of County Commissioners in compliance with Article 25, title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. 29-1-101 et. seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). In the event that no such budget appropriation is made for any period, Member shall promptly notify USDR. Member further agrees that all access and services under this Agreement shall terminate effective upon such notice to USDR under this provision. 4. Member Data; Prohibited Use of the PWMS. As between the Parties, Member shall retain all right, title and interest in all information, data, and other content that is uploaded by Member into the PWMS or otherwise received directly or indirectly by USDR from Member (“Member Data”). USDR agrees to keep confidential all Member Data, and agrees not to sell, assign, distribute, or disclose any such confidential information to any other person or entity without seeking written permission from Member; provided that, for the avoidance of doubt, Member Data may be shared with or disclosed to USDR’s staff and volunteers (in accordance with the terms of this Agreement). Member shall have the ability to export Member Data in piecemeal or in entirety at its discretion without interference from USDR. This includes the ability for Member to export Member Data to/from other vendors or service DocuSign Envelope ID: 498969AE-9583-4905-82DC-5929D66DDD53 providers in a CSV format and image file format or other mutually agreeable format. Member hereby grants to USDR a non-exclusive, worldwide, fully paid-up, royalty-free license to use, copy, store, transmit, modify, and display Member Data exclusively for the following purposes: (i) in order to provide, maintain, or improve the PWMS or the Services; and (ii) in order to perform any other actions that are authorized or instructed by Member in writing (including by email). Member shall not use the PWMS (i) to access, store or transmit Social Security Numbers or marked ballots; or (ii) for any activities related to tabulating votes. 5. Notification of Legal Requests. USDR shall contact Member upon receipt of any electronic discovery, litigation holds, discovery searches and expert testimonies related to Member Data under this contract, or which in any way might reasonably require access to the data of Eagle County. USDR shall not respond to subpoenas, service of process and other legal requests related to Member without first notifying Member, unless prohibited by law from providing such notice. 6. Transfer to a New Vendor. The Parties agree that in the event Member transitions to a software solution other than those listed herein, Member may release necessary and detailed information related to Member Data solely for the purpose of facilitating the conversion of Member Data to the new systems and that USDR will assist Member in retrieving and downloading Member Data and ensure that Member has documentation of the data structure. 7. USDR Volunteers. USDR is a 501(c)(3) public charity. The volunteers working with USDR do not receive compensation from any person for their time performing the Services. Member shall not provide any compensation, of any kind whatever, to such volunteers. Member may not sell or otherwise commercially exploit the Services for profit. Should Member wish to retain any Program volunteer as a paid consultant or employee, or in any other paid or compensated arrangement, Member will ensure that such volunteer terminates his/her volunteer relationship with Member via USDR prior to entering into any such paid or compensated relationship, unless otherwise discussed and agreed upon. 8. Background Checks. Member may conduct background checks on all employees, representatives, agents, or volunteers who have access to, or may have access to, any Member Data, to ensure such employees have not been credibly accused or convicted of any crimes involving or related to fraud or election offenses. Member shall assume the cost of any background checks conducted pursuant to this section. Should a USDR employee, representative, agent, or volunteer fail to meet the above criteria, USDR agrees not to allow that employee, representative, agent, or volunteer to receive, handle, or otherwise access Member Data. 9. Non-disclosure and Separation of Duties. USDR shall enforce separation of job duties, require that all staff and volunteers be subject to commercially reasonable confidentiality restrictions, and limit staff and volunteer knowledge of Member Data to that which is necessary to perform the services under this Agreement. DocuSign Envelope ID: 498969AE-9583-4905-82DC-5929D66DDD53 10. Independence; No Joint Venture. USDR and Member are and will remain independent, arms-length contracting parties. The arrangements contemplated under the Program or this Agreement do not create a partnership, joint venture, employment, fiduciary, or similar relationship for any purpose. Neither USDR nor Member has the power or authority to bind or obligate the other to a third party or commitment in any manner. The use of the term “partner” or comparable term in any communications is solely for convenience. 11. No Warranties. USDR makes no representation or warranty of any kind, express or implied, relating to the Services, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, or non-infringement of intellectual property rights. USDR also makes no representation or warranty of any kind, express or implied, that any software created or modified through the Services will operate without interruption, meet any performance or reliability standards, or be error-free. 12. Insurance. USDR agrees to provide and maintain at USDR’s sole cost and expense, the following insurance coverage with limits of liability not less than those stated below: a. Types of Insurance. i. Workers’ Compensation insurance as required by law. ii. Auto coverage with limits of liability not less than $1,000,000 each accident combined bodily injury and property damage liability insurance, including coverage for owned, hired, and non-owned vehicles. iii. Commercial General Liability coverage to include premises and operations, personal/advertising injury, products/completed operations, broad form property damage with limits of liability not less than $1,000,000 per occurrence and $1,000,000 aggregate limits. iv. Professional Liability (Errors and Omissions) including Cyber Liability with prior acts coverage for all deliverables, Services and additional services required hereunder, in a form and with insurer or insurers satisfactory to Member, with limits of liability of not less than $2,000,000 per claim and $2,000,000 in the aggregate. The insurance shall provide coverage for (i) liability arising from theft, dissemination and/or use of confidential information stored or transmitted in electronic form; (ii) Network Security Liability arising from unauthorized access to, use of or tampering with computer systems including hacker attacks, inability of an authorized third party to gain access to USDR’s software or Services including denial of access or Services unless caused by a mechanical or electrical failure; (iii) liability arising from the introduction of a computer virus into, or otherwise causing damage to, Member or a third person’s computer, computer system, network or similar computer related property and the data, software and programs thereon. DocuSign Envelope ID: 498969AE-9583-4905-82DC-5929D66DDD53 v. Crime Coverage shall include employee dishonesty. The policy shall include coverage for all directors, officers and employees of USDR. The bond or policy shall include coverage for extended theft and mysterious disappearance. The bond or policy shall not contain a condition requiring an arrest or conversion. Limits shall be a minimum of $1,000,000 per loss. b. Other Requirements. i. The automobile and commercial general liability coverage shall be endorsed to include Eagle County, its associated or affiliated entities, its successors and assigns, elected officials, employees, agents and volunteers as additional insureds. A certificate of insurance consistent with the foregoing requirements is attached hereto as Exhibit C. ii. USDR’s certificates of insurance shall include subcontractors, if any as additional insureds under its policies or USDR shall furnish to Member separate certificates and endorsements for each subcontractor. iii. The insurance provisions of this Agreement shall survive expiration or termination hereof. iv. The parties hereto understand and agree that the Member is relying on, and does not waive or intend to waive by any provision of this Agreement, the monetary limitations or rights, immunities and protections provided by the Colorado Governmental Immunity Act, as from time to time amended, or otherwise available to Member, its affiliated entities, successors or assigns, its elected officials, employees, agents and volunteers. v. USDR is not entitled to workers’ compensation benefits except as provided by USDR, nor to unemployment insurance benefits unless unemployment compensation coverage is provided by USDR or some other entity. USDR is obligated to pay all federal and state income tax on any moneys paid pursuant to this Agreement. 13. Indemnification. Each of USDR and Member (in such capacity, the “Indemnifying Party”) shall indemnify and hold harmless the other party, and any of its respective officers, agents and employees (in such capacity, the “Indemnified Party”) against any losses, claims, damages or liabilities for which the Indemnified Party may become subject to insofar as any such losses, claims, damages or liabilities arise out of, directly or indirectly, any claim, action or suit against an Indemnified Party brought by a third party to the extent based upon: (a) injury to or death of persons or loss of or damage to tangible property caused by the gross negligence or willful misconduct of the Indemnifying Party or any of its sub-consultants hereunder; (b) in the case of USDR as the Indemnifying Party, an allegation that any deliverable created by USDR infringes upon or misappropriates the intellectual property rights of the third party; (c) the Indemnifying Party’s material breach of this Agreement; or (d) any gross negligence or willful misconduct by the Indemnifying Party or any of its sub- consultants in delivering the Services (in the case of USDR as the Indemnifying Party) or DocuSign Envelope ID: 498969AE-9583-4905-82DC-5929D66DDD53 participating in the Program (in the case of Member as the Indemnifying Party) (each, a “Claim”) and the Indemnifying Party shall reimburse the Indemnified Party for reasonable attorney fees and costs, legal and other expenses incurred by the Indemnified Party in connection with investigating or defending any such Claim. In the event of any such Claim for which an Indemnified Party is or may be entitled to indemnification hereunder, the Indemnified Party shall notify the Indemnifying Party promptly in writing of such Claim for which it seeks indemnification. The obligations under this Section shall not apply to any claims by third parties against the Member to the extent based on deliverables created by USDR in accordance with Member’s specifications or instructions. This paragraph shall survive expiration or termination hereof. 14. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL USDR, ITS DIRECTORS, OFFICERS, EMPLOYEES OR VOLUNTEERS BE LIABLE TO MEMBER FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR FOR ANY LOST PROFITS, COSTS OF DELAY, FAILURE OF DELIVERY, LOSS OF DATA OR BUSINESS INTERRUPTION, RELATED TO THIS AGREEMENT, THE PROGRAM OR THE SERVICES; OR (B) ANY LOSS OR DAMAGE, HOWEVER ARISING, RELATED TO THE THIRD-PARTY TOOLS, EVEN IF, IN EITHER CASE, USDR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE NATURE OF THE CLAIM GIVING RISE TO THE LOSS OR DAMAGE (INCLUDING CLAIMS IN CONTRACT, TORT, OR STRICT LIABILITY). USDR recognizes that Program volunteers may enter into specific agreements with Member from time to time and nothing in this Agreement shall alter any such agreement with a Program volunteer; provided, however, except as otherwise specifically agreed in such an agreement, the foregoing limitation of liability shall apply to each such agreement that Member may enter into with a Program volunteer. Member recognizes that USDR is not a party to such agreements and shall not seek to hold USDR liable for any breach of the same by any Program volunteer. 15. No Religious or Political Activities. Member agrees that it will not request nor assign Program volunteers or USDR personnel to conduct or engage in religious, sectarian, or political activities. 16. No Harassment or Discrimination; Accommodation of Disabilities. Member agrees that it will not engage in harassment of, or discrimination against, Program volunteers on the basis of race; color; national origin, including limited English proficiency; sex; sexual orientation; age; political affiliation; religion; disability (if the volunteer is a qualified individual with a disability); or any other category protected by law. Member will cooperate with USDR regarding any issues or concerns that are raised by or about any aspect of the Program in this regard. To the extent reasonably practicable, Member will make the activities to which Program volunteers are assigned accessible to persons with disabilities (including mobility, hearing, vision, mental, and cognitive impairments or addictions and diseases) and/or limited English language proficiency and provide reasonable accommodation to allow persons with disabilities to participate in such activities. DocuSign Envelope ID: 498969AE-9583-4905-82DC-5929D66DDD53 17. Compliance with Protection Against Discrimination on the Basis of Disability. a. USDR is responsible for addressing accessibility issues in any software, including but not limited to any implementation, configuration, or documentation provided by USDR and delivered to Member. b. USDR shall use reasonable efforts to ensure that all end user deliverables provided directly by USDR adhere to the Governor’s Office of Information Technology’s Technology Accessibility for Persons with Disabilities Standards and must be able to update any software/systems in the event of updates to those standards. If USDR has agreed to perform maintenance for Member, USDR’s obligations apply to its performance of maintenance. c. In collaboration with Member, USDR shall use reasonable efforts to ensure that accessibility and usability are addressed at every stage of the project. USDR shall provide accessibility conformance reports for any software with which users will interact when requested by Member; in the case of Third-Party Tools, USDR shall use reasonable efforts to have the providers of such Third-Party Tools provide such reports upon Member’s request. Remediation of accessibility issues which pose a minor inconvenience to disabled users but do not prevent them from using the software may be waived in Member’s sole discretion. Correction of accessibility issues may require, among other things, writing new core code, shutting off inaccessible features, providing users with Third Party Software in addition to their assistive technology, or providing disabled users with an alternative pathway to the inaccessible feature of the business process that it automates. USDR shall collaborate with Member to prioritize accessibility defects based on severity. If Member determines that accessibility issues exist but either USDR or Member determine cannot be resolved or mitigated with a reasonable amount of effort and time, USDR may immediately terminate this agreement without liability to Member or any users. d. Notwithstanding the provisions in subsections (a) through (c) above, USDR’s obligations under this Section 11 shall be limited to those services, deliverables and software for which USDR is directly responsible and shall not apply to the Third-Party Tools that are made available to Member through participation in the Program. Furthermore, in the event that Member requests correction of accessibility issues for which USDR is responsible hereunder, Member shall compensate USDR for the reasonable costs and expenses (including the licensing of any additional Third-Party Tools) in making such corrections. 18. Policies. Member’s participation in the Program shall be subject to the U.S. Digital Response Policies and Guidelines, as the same may be applicable and published or updated from time to time; should Member determine that it cannot comply with such policies, it must terminate its participation in the Program. By default and unless agreed otherwise, all software and design assets produced by USDR team members or volunteers may be published using Open Source Initiative-approved or Creative Commons Zero licenses. Nothing in this Agreement prohibits or restricts Member from requiring Program volunteers to comply with Member’s applicable policies and procedures, provided the same are consistent with applicable law and do not conflict with this Agreement. DocuSign Envelope ID: 498969AE-9583-4905-82DC-5929D66DDD53 19. Compliance with Laws. The Parties shall, at their own expense, comply with all federal, state, and local laws, ordinances, rules, regulations, orders, licenses, permits and other governmental requirements applicable to the Services and its participation in the Program. Without limiting the generality of the foregoing, Member represents and warrants that its participation in the Program and its utilization of the Services are in full compliance with all laws applicable to it and its operations. 20. Termination. Either USDR or Member may terminate this Agreement and Member’s participation in the Program at any time, by providing written notice to the other; provided, however, this Agreement shall continue to govern any issues arising in connection with Member’s participation in the Program even after such termination. 21. Notices. Any and all notices, demands, or other communications required or desired to be given hereunder by either party shall be in writing and shall be validly given or made to the other party if sent via personal delivery, prepaid overnight delivery, or by email with confirmation of receipt. Notice shall be deemed effective upon receipt. Notice to a party shall be sent to the address set out underneath its signature below. Any Party may change its address for purposes of this paragraph by written notice given in the manner provided above. 22. Miscellaneous. This Agreement and Member’s participation in the Program shall be governed by the laws of the state of Colorado, without regard to its conflicts of laws rules. This Agreement may only be altered or waived by a writing signed by both Member and USDR, recognizing that no volunteer has any authority to bind USDR or otherwise alter this Agreement. Member may not assign any rights, responsibilities or duties arising from its participation in the Program without USDR’s express written consent. Unless expressly stated to the contrary, the terms “include” and “including” (and the like) as used in this Agreement are deemed to be followed by the words “without limitation”. Sections 4 through 7, 10 through 14, and 18 through 25 of this Agreement shall survive indefinitely. 23. Publicity. USDR may name Member as a participant in the Program in public communications including, but not limited to, on USDR’s website and in materials marketing the Program to other potential members. 24. Data Security. a. Definitions: i. “County Data” means all data created by or in any way originating with Member and End Users, and all information that is the output of any computer processing, or other electronic manipulation, of any information that was created by or in any way originating with Member and End Users, in the course of using and configuring the Services provided under this Agreement, and includes all records relating to Member’s use of USDR Services and Protected Information. DocuSign Envelope ID: 498969AE-9583-4905-82DC-5929D66DDD53 ii. “End User” means the individuals (including, but not limited to employees, authorized agents, students and volunteers of Member; Third Party consultants, auditors and other independent contractors performing services for Member; any governmental, accrediting or regulatory bodies lawfully requesting or requiring access to any Services; customers of Member provided services; and any external users collaborating with Member) authorized by Member to access and use the Services provided by USDR under this Agreement. iii. “Protected Information” includes, but is not limited to, personally-identifiable information, student records, protected health information, criminal justice information or individual financial information and other data defined under C.R.S. §§ 24-72-101 et seq., and personal information that is subject to local, state or federal statute, regulatory oversight or industry standard restricting the use and disclosure of such information. The loss of such Protected Information would constitute a direct damage to the Member. iv. “Security Incident” means the potentially unauthorized access by non- authorized persons to personal data or non-public data USDR believes could reasonably result in the use, disclosure or theft of Member Data/County Data within the possession or control of USDR. A Security Incident may or may not turn into a data breach. b. During the course of USDR’s performance of the Services, USDR may be required to maintain, store, process or control County Data. USDR represents and warrants that: c. Contractor will take all reasonable precautions to maintain all Member Data/County Data in a secure environment to prevent unauthorized access, use, or disclosure, including industry-accepted firewalls, up-to-date anti-virus software, and controlled access to the physical location of the hardware containing County Data; d. USDR’s collection, access, use, storage, disposal and disclosure of Member Data/County Data shall comply with all applicable data protection laws, as well as all other applicable regulations and directives; e. USDR will notify Member of any Security Incident as soon as practicable, but no later than 72 hours after USDR becomes aware of it; f. USDR will provide information sufficient to satisfy Member’s legal and regulatory notice obligations. In the event of a Security Incident for which USDR bears responsibility, USDR shall promptly provide any legally-required notice to any potentially impacted individual or entity, at USDR’s expense, and USDR shall be liable, subject to the limitation of liability provisions in this Agreement, for resulting actual and documented damages incurred by Member not to exceed $_________; g. Where USDR has been contracted to maintain, store or process personal information on behalf of Member, it shall be deemed a “Third-Party Service Provider as defined in C.R.S. § 24-73-103(1)(i), and USDR shall maintain security procedures and practices consistent with C.R.S §§ 24-73-101 et seq. if and to the extent it stores personally identifiable information covered by such statutory sections. As of the date DocuSign Envelope ID: 498969AE-9583-4905-82DC-5929D66DDD53 of this Agreement, USDR does not store, nor does it anticipate storing, any such data; and h. USDR will promptly return or destroy any County Data upon request from a duly authorized representative of Member. i. USDR’s indemnification obligations identified elsewhere in this Agreement shall apply to any breach of the provisions of this Paragraph. 25. Authority and Execution. Each of USDR and Member represents and warrants that it has the full legal right, power and authority to enter into this Agreement and perform the obligations set forth herein and when executed and delivered by that party, this Agreement will constitute its legal, valid and binding obligation, enforceable against it in accordance with the terms of this Agreement. This Agreement may be executed in print or digital counterparts, each of which shall be deemed a duplicate original, and all of which together shall constitute one instrument. IN WITNESS WHEREOF, USDR and Member each has caused this Agreement to be signed by its duly authorized representative. U.S. Digital Response Eagle County, CO By: By: Name: Name: Title: Title: Date: Date: Address for notices: Address for notices: 490 43rd Street Unit #230 Oakland, California 94609 _______ By initialing here, Member represents that it is exempt from sales tax under the laws of its state. DocuSign Envelope ID: 498969AE-9583-4905-82DC-5929D66DDD53 8/23/2023 Hillary Hartley Chief Executive Officer PO Box 850 Jeff Shroll County Manager Eagle, CO 81631 8/23/2023 Exhibit A Promotional Activities and Corresponding Discounts Member will check the box next to each Promotional Activity in which it is willing to participate. USDR may reduce the Membership Fee by no more than 20% for all Promotional Activities combined. [ X ] Early Adopter – A 10% discount is available to Members that enroll in the Election Technical Support Collaborative before December 31, 2023, and either (1) helped USDR co- develop the PWMS before February 1, 2023, or (2) are among the first three Members to enroll in their state. [ ] New Feature Development – A 10% discount is available to Members that support USDR in ideation, building and testing of a new PWMS feature. The feature must be a brand- new feature. Feature development subject to availability and approval of USDR.  [ ] Case Study – A 10% discount is available to Members that partner with USDR to write a case study benefiting the Election Technical Support Collaborative. Must be a new case study featuring a new module.  [ ] Co-presenter – A 10% discount is available to Members that co-present with USDR at a local-elections-related conference on the PWMS and the Election Technical Support Collaborative for the purpose of marketing to new members. [ X ] Refer a Friend – A 10% discount is available to Members that refer a new member to the Election Technical Support Collaborative. The discount will be applied to the year after the referral joins the Collaborative. DocuSign Envelope ID: 498969AE-9583-4905-82DC-5929D66DDD53 Exhibit B Third-Party Tool Agreement 1. Subject to the terms and conditions of the Program Participation Agreement and this Third-Party Tool Agreement, USDR will provide Member with access to and use of the following Third-Party Tools: (i) Airtable, (ii) Twilio, and (iii) SendGrid. 2. This Third-Party Tool Agreement may be amended by mutual written agreement of the Parties if additional Third-Party Tools are required or are no longer required in order for Member to use the PWMS or for USDR to perform the Services. If such amendment includes an additional Third-Party Tool Fee, USDR will invoice Member for the fee and Member shall pay the invoice in full within thirty (30) days of the invoice date. 3. General Terms. a. Member will access the Third-Party Tools as a permitted end user of USDR. Member understands that it does not have any right to access the Third-Party Tools except as provided for in the Program Participation Agreement and this Third-Party Tool Agreement. b. Member’s access to one or more Third-Party Tools may be revoked by USDR at any time if, in USDR’s sole discretion, Member violates any of the terms of this Third-Party Tool Agreement. If Member’s access to a Third-Party Tool is revoked pursuant to this subsection 3(b), Member shall not be entitled to a refund of any Third-Party Tool Fees. c. Member’s access to one or more Third-Party Tools may also be revoked by USDR at any time if USDR’s agreement to license those Third-Party Tools is terminated. If Member’s access to a Third-Party Tool is revoked pursuant to this subsection 3(c), Member shall be entitled to a refund of the relevant part of any unused portions of its Third-Party Tool Fees or, in the alternative, shall be entitled to a credit to be applied to any additional fees for substitute Third- Party Tools. d. Member understands that, as USDR’s end user, all Member Data and other information that Member stores in, transmits or processes using the Third- Party Tools will be made available to the companies from which USDR has licensed the Third-Party Tools. Each company has agreed to limit its use of USDR’s end users’ information, including Member’s information, in accordance with the policies cited in section 4 below. DocuSign Envelope ID: 498969AE-9583-4905-82DC-5929D66DDD53 e. USDR makes no representation or warranty of any kind, express or implied, relating to the Third-Party Tools, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, or non- infringement of intellectual property rights. USDR also makes no representation or warranty of any kind, express or implied, that any Third- Party Tool will operate without interruption, meet any performance or reliability standards, or be error-free. f. Member shall not permit any person other than Member’s agents to use the Third-Party Tools. Member shall use commercially reasonable efforts to prevent unauthorized access to or use of the Third-Party Tools and notify USDR promptly of any such unauthorized access or use. If Member is given passwords to access Third-Party Tools, Member shall require that all persons who are permitted to access the Third-Party Tools on Member’s behalf must keep user ID and password information strictly confidential and not share such information with any unauthorized person. Member shall be responsible for any and all actions taken using Member’s accounts and passwords. g. Member shall not, and shall not allow any other person to: i. use the Third-Party Tools for any purpose other than enabling Member’s participation in the Program and its use of the PWMS; ii. use the Third-Party Tools to access, store or transmit Social Security Numbers or marked ballots or for any activities related to tabulating votes; iii. sell, transfer, or license any Third-Party Tool to another person or entity; iv. reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code of any Third-Party Tool; v. copy, modify, or create derivative works from any Third-Party Tool or any documentation that exists to support the use of the Third- Party Tool (“Documentation”); vi. remove or obscure any copyright or proprietary or other notice contained in any Third-Party Tool or Documentation; vii. propagate any virus, Trojan horse, or other malware or programming routine intended to damage any system or data; viii. use any Third-Party Tool in a manner that violates any applicable law, regulation, or legal requirement or obligation; ix. use any Third-Party Tool in violation of any third-party rights of privacy or intellectual property rights; x. use or permit the use of any tools in order to probe, scan or attempt to penetrate or benchmark any Third-Party Tools; xi. post, upload, transmit or provide any Member Data that is unlawful, harmful, abusive, libelous, defamatory, or otherwise objectionable; DocuSign Envelope ID: 498969AE-9583-4905-82DC-5929D66DDD53 xii. use the name, logo or marks of any Third-Party Tool or any company from which USDR has licensed a Third-Party Tool without first obtaining USDR’s express written consent to such use; or xiii. use the Third-Party Tools except as expressly permitted by the Program Participation Agreement, this Third-Party Tool Agreement, and the policies set forth in section 4 below. 4. Policies Applicable to Members’ Use of Specific Third-Party Tools. a. The Privacy Policy available here applies to Member’s use of Airtable: https://www.airtable.com/privacy. b. The Privacy Notice available here applies to Member’s use of Twilio: https://www.twilio.com/legal/privacy. The Acceptable Use Policy available here applies to Member’s use of Twilio: https://www.twilio.com/legal/aup. c. The Privacy Policies available here applies to Member’s use of SendGrid: https://sendgrid.com/policies/privacy/?ust=1570226656505000. The Acceptable Use Policy available here also applies to Member’s use of SendGrid: https://www.twilio.com/legal/aup. DocuSign Envelope ID: 498969AE-9583-4905-82DC-5929D66DDD53