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HomeMy WebLinkAbout030722ca04 JEFFERSON COUNTY BOARD OF COUNTY COMMISSIONERS AGENDA REQUEST TO: Board of County Commissioners Mark McCauley, Interim County Administrator FROM: Quinn Grewell, Elections Coordinator DATE: March 7,2022 SUBJECT: Request to approve agreement with Elections Service and Software, LLC to upgrade the Elections Tabulation Hardware and Software STATEMENT OF ISSUE: Jefferson County Elections Department is upgrading our current election tabulation system (hardware & software). At this time, we are the last county elections department in the state of Washington with an optical scan tabulation system. This is an aging system (from 2005) that will no longer be supported by the manufacturer and manufacturers of other critical components. ANALYSIS: Upgrading the aging tabulation equipment and software is a critical step to improving elections security, tabulation, processing, ballot layout and efficiency. FISCAL IMPACT: 249,525.00—This cost is already included in the approved 2022 budget. RECOMMENDATION: I recommend the board approves the contract. REVIEWED BY: ,,714/Mark McCaule nterim County Administr. Date 11208 JOHN GALT BLVD OMAHA,NE 68137-2364 (402)593-0101 Sales Order Agreement ELECTION Customer P.O.a N/A Sales Quotation#: 1983 1st Election Date April 19.2022 Estimated Delivery Date. March 2022 Customer Contact,Title Quinn Grewell-County Clerk Phone Number: 360-385-9117 Customer Name Jefferson County,Washington Fax Number N/A Type of Sale NEW Type of Equip: = NEW 717 REFURBISHED Bill To: Ship To: • Jefferson County.Washington Jefferson County,Washington Quinn Grewell-County Clerk Quinn Grewell-County Clerk 1820 Jefferson Street 1820 Jefferson Street Port Townsend,WA 98368 Port Townsend,WA 98368 Item Description gatt Price Total 'Model DS950 High Speed Digital Image Scanner with Steel Table,Start-up Kit,Dust Cover, 1 DS950 ;Reports Printer,Battery Backup,Two(2)USB Cables,and Two(2)Standard 8GB Memory 2 $121,000.00 $242,000.00 ,Devices 2 ExpressVote BMD 'ExpressVote BMD Terminal with Internal Backup Battery,ADA Keypad,Headphones. 2 $3,325.00 $6,650.00 Power Supply with AC Cord,and One(1)Standard 4GB Memory Device 3 ExpressVote BMD Soft-Sided Carrying Case 2 $175.00 $350.00 4 Software ElectionWare Software-PYO Standard 1 $17,050.00 $17,050.00 5 DS950 Equipment Installation 2 $1,500.00 $3,000.00 6 ExpressVote BMD Equipment Installation 2 $105.00 $210.00 7 Services Software Training Day 5 $1,795.00 $8,975.00 8 Services ,DS950 Training Day 1 $1,795.00 $1.795.00 9 Services Election On-Site Support Event 1 $4,975.00 $4,975.00 Equipment Being Traded-In by Customer Includes: 10 Trade-In Allowance 2-Model 650 Scanner 1 i$10.400.00i $10 40C 00 2-AutoMARK 11 Shipping Shipping&Handling 1 $1,570.00 $1,570.00 Order Subtotal $ 276,175.00 Freight Billable: yes J no [..] Customer Discount ($26,650.00) Order Total $ 249,525.00 Lon Mommaerts Regional Sales Manager Heidi Eisenhour,Chair,Board of County Commissioners Date Approved as to'orm only- March 4,2022 V.P.of Finance Date Philip C.Hunsucker, Date Chief Civil Deputy Prosecuting Attorney Jefferson County,WA-DS950-ExpressVote BMD Front Side Sales Order Agreement-01.102022.xlsx Trade-In Equipment: ES&S will coordinate and pay for the pickup and transportation of the trade-in equipment from Customer's site on a date to be mutually agreed upon by the parties. ES&S is responsible for preparing,packaging and palletizing the trade-in equipment for shipment. $124,762.50 of Order Total will be invoiced upon Contract Execution. $124,762.50 of Order Total will be invoiced as Equipment and Software are delivered to Customer. Payment Terms Invoices are due net 30 from invoice date. Note 1:Any applicable state and local taxes are not included,and are the responsibility of the Customer. Note 2:In no event shall Customer's payment obligations hereunder,or the due dates for such payments,be contingent or conditional upon Customer's receipt of federal and/or state funds. Warranty Period (Years): One(1)Year From Equipment Delivery Hardware Maintenance and Software License, Maintenance and Support Services(Post-Warranty Period) The terms,conditions,and pricing for the Hardware Maintenance and Software License,Maintenance and Support Services(Post-Warranty Period)are set forth in Exhibit A attached hereto. SEE EQUIPMENT PURCHASE AND SOFTWARE LICENSE TERMS Jefferson County,WA-DS950-ExpressVote BMD Front Side Sales Order Agreement-01.10.2022.xlsx EQUIPMENT PURCHASE AND SOFTWARE LICENSE TERMS 1. Equipment Purchase and Software License Terms. Subject to the terms and conditions of 5. Delivery;Risk of Loss. The Estimated Delivery Dates and First Election Use(if any)set forth this Agreement,Election Systems&Software(ES&S)agrees to sell and/or license,and Customer on the front side of this Agreement are estimates and may only be established or revised,as applicable, agrees to purchase and/or license, the ES&S Equipment, ES&S Software and ES&S Firmware by the parties, in a written amendment to this Agreement, because of delays in executing this described on the front side of this Agreement.The ES&S Firmware and ES&S Software are collectively Agreement,changes requested by Customer,product availability and other events. ES&S will notify referred to hereinafter as the"ES&S Software."The payment terms for the ES&S Equipment and ES&S Customer of such revisions as soon as ES&S becomes aware of such revisions. Risk of loss for the Software are set forth on the front side of this Agreement. The consideration for ES&S'grant of the ES&S Equipment and ES&S Software shall pass to Customer when such items are delivered to license during the Initial Term for the ES&S Firmware is included in the cost of the ES&S Equipment. Customer's designated location. Upon transfer of risk of loss to Customer, Customer shall be a Equipment Purchase. Subject to the terms and conditions of this Agreement,ES&S responsible for obtaining and maintaining sufficient casualty insurance on the ES&S Equipment and agrees to sell,and Customer agrees to purchase,the ES&S Equipment.Title to the ES&S Equipment ES8S Software and shall name ES8S as an additional insured thereunder and,at ES&S'request,shall shall pass to Customer when Customer has paid ES&S the total amount set forth on the front side of deliver written evidence thereof to ES&S until all amounts payable to ES&S under this Agreement have this Agreement for the ES&S Equipment been paid by Customer. b. Grant of Licenses.Subject to the terms and conditions of this Agreement,ES&S hereby 6. Warranty. grants to Customer nonexclusive, nontransferable licenses for its bona fide full time,part time or a. ES&S EquipmentlES&S Software. ES&S warrants that for a one(1)year period(the temporary employees to use the ES&S Software and any and all written or electronic documentation "Warranty Period"),it will repair or replace any component of the ES&S Equipment or ES&S Software furnished or generally made available to licensees by ES&S relating to the ES&S Software,including which,while under normal use and service:(i)fails to perform in accordance with its Documentation in any operating instructions,user manuals or training materials(collectively,the"Documentation")in the all material respects,or(ii)is defective in material or workmanship.The Warranty Period will commence Jurisdiction while Customer is using the ES&S Equipment and timely pays the applicable annual ES&S upon delivery. The Warranty shall not include the repair or replacement of any ES&S Equipment Software License,Maintenance and Support Fees set forth on Schedule Al. The licenses allow such components that are consumed in the normal course of operating the ES&S Equipment,including,but bona fide employees to use and copy the ES&S Software(in object code only)and the Documentation, not limited to,headphones and headphone protective covers,printer cartridges or ribbons,paper, in the course of operating the ES&S Equipment and solely for the purposes of defining and conducting batteries drums,toners,fusers,transfer belts,removable media storage devices,seals,keys,power elections and tabulating and reporting election results in the Jurisdiction. supplies/cords,PCMCIA,Smart,or CF cards or marking devices(collectively,the"Consumables"). 2. Prohibited Uses.Customer shall not take any of the following actions with respect to the ES&S ES&S may modify and make available additional Consumables as they may become available from Software or the Documentation: time to time. ES&S has no obligation under this Agreement to assume the obligations under any existing or expired warranty for a Third Party Item. Any repaired or replaced item of ES&S Equipment a. Reverse engineer,decompile,disassemble,re-engineer or otherwise create,attempt to or ES&S Software shall be warranted only for the unexpired term of the Warranty Period.All replaced create,or permit,allow or assist others to create,the source code or the structural framework for part components of the ES&S Equipment or ES&S Software will become the property of ES&S. This or all of the ES&S Software; warranty is effective provided that(I)Customer notifies ES&S within three(3)business days of the b. Cause or permit any use,display,loan,publication,transfer of possession,sublicensing discovery of the failure of performance or defect and is otherwise in compliance with its obligations or other dissemination of the ES&S Software or Documentation,in whole or in part,to or by any third hereunder, (II)the ES&S Equipment or ES&S Software to be repaired or replaced has not been party without ES&S'prior written consent;or repaired,changed,modified or altered except as authorized or approved by ES&S,(Ill)the ES&S Equipment or ES&S Software to be repaired or replaced has been maintained or repaired by an c. Cause or permit any change to be made to the ES&S Software without ES&S'prior written individual other than an ES&S Representative(IV)the ES&S Equipment or ES&S Software to be consent; repaired or replaced has not been used,displayed,disseminated,transferred,loaned,disassembled, d. Cause or permit any review,testing,examination or audit of the ES&S Software without dismantled,modified,and/or tampered with by a third party without ES&S prior written consent(V)the ES&S'prior written consent;or ES&S Equipment or ES&S Software to be repaired or replaced is not damaged as a result of accident, e. Allow a party cause or permit any copying, or printing of any theft,vandalism,neglect,abuse,use which is not in accordance with instructions or specifications generated by the ES&S thirdS party to(except finished ballots by ballot,reproductionprintcts or selected by ofC any outputt)in furnished by ES&S or causes beyond the reasonable control of ES&S or Customer,including acts of which ES&S owns or claims any proprietary intellectual property rights(e.g.,copyright,trademark, God,fire,floods,or riots,acts of cwommunicable terrorismbe or insurrection,quarantines;g national orrt regionalcts ororders;emergencies,epidemics, labor patent pending or patent),including,but not limited to,any ballot shells or ballot code stock. pandemics transportation n outbreak of elays,g vern governmental disease; s n tility mmuniteru , disputes, delays,governmental regulations and utility or communication interruptions, 3. Term of Licenses. The licenses granted in Section 1(b)shall commence upon the delivery of and(VI)Customer has installed and is using the most recent update provided to it by ES&S. This the ES&S Software described in Section 1(b)and shall continue for a one(1)year period(the"Initial warranty is void for any units of equipment which:(i)have not been stored or operated in a temperature License Term). Upon expiration of the Initial License Term,the licenses shall automatically renew for range according their specifications, (ii)have been severely handled so as to cause mechanical an unlimited number of successive one-year periods(each a"License Renewal Term")upon the damage to the unit,or(iii)have been operated or handled in a manner inconsistent with reasonable payment by Customer of the annual software license and software maintenance and support fee as set treatment of an electronic product.The terms of post-warranty license,maintenance and support are forth on the front side of this Agreement. ES&S may terminate either license if Customer fails to pay set forth on Exhibit A. the consideration due for,or breaches Sections 1(b),2,or 8 with respect to,such license.Upon the b. Exclusive Remedies/Disclalmer.IN THE EVENT OF A BREACH OF SUBSECTION 6(a), termination of either of the licenses granted in Section 1(b)for ES&S Software or upon Customer's ES&S'OBLIGATIONS,AS DESCRIBED IN SUCH SUBSECTION,ARE CUSTOMER'S SOLE AND discontinuance of the use of any ES&S Software,Customer shall immediately return such ES&S EXCLUSIVE REMEDIES. ES&S EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER Software and the related Documentation(including any and all copies thereof)to ES&S,or(if requested EXPRESS OR IMPLIED,WHICH ARE NOT SPECIFICALLY SET FORTH IN THIS AGREEMENT, by ES&S)destroy such ES&S Software and Documentation and certify in writing to ES&S that such INCLUDING,BUT NOT LIMITED TO,ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR destruction has occurred. FITNESS FOR A PARTICULAR PURPOSE. FURTHER,IN THE EVENT CUSTOMER DECLINES 4. Updates. During the Initial License Term or any License Renewal Term for which Customer ES&S'INSTALLATION AND ACCEPTANCE TESTING SERVICES OR IN ANY WAY AT ANY TIME has paid the associated renewal fees,ES&S may provide new releases,upgrades or maintenance ALTERS, MODIFIES OR CHANGES ANY EQUIPMENT, SOFTWARE, THIRD PARTY ITEMS patches to the ES&S Software,together with appropriate Documentation("Updates"),on a schedule AND/OR NETWORK (COLLECTIVELY "SYSTEM") CONFIGURATIONS WHICH HAVE BEEN defined by ES&S. Customer is solely responsible for obtaining and purchasing any upgrades or Third- PREVIOUSLY INSTALLED BY ES&S OR WHICH ARE OTHERWISE REQUIRED IN ACCORDANCE Party Items required to operate the Updates,as well as the cost of any replacements,retrofits or WITH THE CERTIFIED VOTING SYSTEM CONFIGURATION,ALL WARRANTIES OTHERWISE modifications to the ES&S Equipment which may be necessary in order to operate the Updates.All PROVIDED HEREUNDER WITH REPECT TO THE SYSTEM PURCHASED, LEASED, RENTED Updates shall be deemed to be ES&S Software for purposes of this Agreement upon delivery.Updates AND/OR LICENSED UNDER THIS AGREEMENT SHALL BE VOID AND OF NO FURTHER FORCE to the ES&S Equipment Firmware will be incorporated by ES&S into a regularly scheduled preventative AND EFFECT. maintenance event at no additional charge to Customer. If this foregoing is not acceptable to Customer7. Limitation Of Liability. Neither party shall be liable for any indirect, incidental, punitive, and subject to Customers prior execution of a purchase order therefore,ES&S shall charge to install exemplary,special or consequential damages of any kind whatsoever arising out of or relating to this the Updates to the ES&S Equipment Firmware. ES&S shall also charge Customer at its then-current Agreement. Neither party shall be liable for the other party's negligent or willful misconduct. ES&S' rates to;(i)train Customer on Updates,if such training is requested by Customer and(ii)if applicable, total liability to Customer arising out of or relating to this Agreement shall not exceed the aggregate provide maintenance and support on the ES&S Software that is required as a result of Customer's amount to be paid to ES&S hereunder.By entering into this Agreement,Customer agrees to accept failure to timely or properly install an Update. Notwithstanding the foregoing,Customer shall pay ES&S responsibility for(a)the selection of,use of and results obtained from any equipment,software or to install all election management software Updates. If applicable,Customer shall be responsible for services not provided by ES&S and used with the ES&S Equipment or ES&S Software;or(b)user any claim,damage,loss,judgment,penalty,cost,amount paid in settlement or fee which is caused by errors,voter errors or problems encountered by any individual in voting that are not otherwise a result Customer's failure to install the most recent Update provided to it by ES&S. If Customer proposes of the failure of ES&S to perform. ES&S shall not be liable under this Agreement for any claim,damage, changes in the ES&S Software to ES&S,such proposals will become ES&S'property. ES&S may,in loss,judgment,penalty,cost,amount paid in settlement or fee that is caused by(y)Customer's failure its sole discretion,elect to make or not to make such changes without reference or compensation to to timely or properly install and use the most recent update provided to it by ES&S or(z)Customer's Customer or any third party. ES&S represents to Customer that the Updates will comply with all election not to receive,or to terminate,the Hardware Maintenance Services or the ES&S Software applicable state law requirements at the time of delivery. Customer shall be responsible to ensure that Maintenance and Support. it has installed and is using only certified versions of ES&S Software in accordance with applicable law. In the event that any Updates are required due to changes in state law,ES&S reserves the right to 8. Proprietary Rights. Customer acknowledges and agrees as follows: charge Customer for the following: ES&S owns the ES&S Software,all Documentation and training materials provided by ES&S,the (i) the total cost of any third-party items that are required in order to operate the Updates; design and configuration of the ES&S Equipment and the format,layout,measurements,design and all other technical information associated with the ballots to be used with the ES&S Equipment. (ii) the total cost of any replacements,retrofits or modifications to the ES&S Equipment contracted Customer has the right to use the aforementioned items to the extent specified in this Agreement. for herein that may be developed and offered by ES&S in order for such ES&S Equipment to remain ES&S also owns all patents,trademarks,copyrights,trade names and other proprietary or intellectual compliant with applicable laws and regulations;and property in,or used in connection with,the aforementioned items. The aforementioned items also (iii) Customers pro-rata share of the costs of designing,developing and/or certification by applicable contain confidential and proprietary trade secrets of ES&S that are protected by law and are of federal and state authorities of such state mandated Updates. substantial value to ES&S. Customer shall keep the ES&S Software and related Documentation free Customers pro-rata share of the costs included under subsection(iii)above shall be determined at the and clear of all claims,liens and encumbrances and shall maintain all copyright,trademark,patent or time by dividing the number of registered voters in Customers jurisdiction by the total number of other intellectual or proprietary rights notices that are set forth on the ES&S Equipment,the ES&S registered voters in all counties in Customers state to which ES&S has sold and/or licensed the Software,the Documentation,training materials and ballots that are provided,and all permitted copies Equipment and/or Licensed Software purchased and licensed by Customer under this Agreement of the foregoing. Customer shall pay ES&S the entire costs incurred for design,development and certification of any 9. Termination. This Agreement may be terminated,in writing,at any time by either party if the Update which is required due to a change in local law or is otherwise requested or required by other party breaches any material provision hereof and does not cure such breach within 30 days after Customer. it receives written notification thereof from the non-breaching party. 10. Disputes. 20. Subcontractors. ES&S may engage subcontractors to provide certain of the equipment,software I! a Payment of Undisputed Amounts. In the event of a dispute between the parties or services,but shall remain fully responsible for such performance. ES&S is responsible for meeting regarding(1)a product or service for which payment has not yet been made to ES&S,(2)the amount all terms and conditions of this Agreement including standards of service,quality of materials and due ES&S for any product or service,or(3)the due date of any payment,Customer shall nevertheless workmanship,costs,and schedules.Failure of a subcontractor to perform is no defense to a breach of pay to ES&S when due all undisputed amounts. Such payment shall not constitute a waiver by this Agreement.ES&S assumes responsibility for and all liability for the actions and quality of services Customer or ES&S of any of its rights and remedies against the other party. performed by any subcontractor. Every subcontractor must agree in writing to follow every term of this Agreement ES&S must provide every subcontractor's written agreement to follow every term of this b. Remedies for Past Due Undisputed Payments. If any undisputed payment to ES&S is Agreement before the subcontractor can perform any services under this Agreement.The head of past due more than 30 days,ES&S may suspend performance under this Agreement until such amount Customer's department primarily responsible for overseeing ES&S's performance under this is paid. Any disputed or undisputed payment not paid by Customer to ES&S when due shall bear Agreement or that department head's designee must approve any proposed subcontractors in writing. interest from the due date at a rate equal to the lesser of one and one-half percent per month or the Any dispute arising between ES&S and any subcontractors or between subcontractors must be maximum amount permitted by applicable law for each month or portion thereof during which it remains resolved without involvement of any kind on the part of Customer and without detrimental impact on unpaid. the delivery of contracted goods or services. 11. Assignment. Except in the case of a reorganization of the assets or operations of ES&S with 21 Mutual Indemnity. To the extent of its comparative liability,each party agrees to indemnify, one or more affiliates of ES&S or the sale,transfer or assignment of all or substantially all of the assets defend and hold the other party,its officers,officials,employees,agents and volunteers(and their of ES&S or any business operations thereof to a successor who has asserted its intent to continue the applicable business of ES&S, neither party may assign or transfer this Agreement or assign, marital communities),harmless from and against any and all claims,damages,losses and expenses, subcontract or delegate any of its rights,duties or obligations hereunder without the prior written including but not limited to court costs,attomey's fees and alternative dispute resolution costs,for any consent of the other party hereto,such consent not to be unreasonably withheld or conditioned,nor personal injury,for any bodily injury,sickness,disease or death and for any damage to or destruction unduly delayed. of any property(including the loss of use resulting therefrom)which are alleged or proven to be caused by an act or omission,negligent or otherwise,of its officers,officials,employees,agents or volunteers. 12. Compliance with Laws. ES&S warrants to Customer that,at the time of delivery,the ES&S A party shall not be required to indemnify,defend,or hold the other party or its officers,officials, Equipment and ES&S Software sold and licensed under this Agreement will comply with all applicable employees,agents and volunteers(and their marital communities)harmless if the claim,damage,loss requirements of federal and state election laws and regulations that are mandatory and effective as of or expense for personal injury,for any bodily injury,sickness,disease or death or for any damage to or the Effective Date and will have been certified by the appropriate state authorities for use in Customers destruction of any property(including the loss of use resulting therefrom)is caused by the sole act or state. The ES&S Equipment and ES&S Software, including all components will be provided to omission of the other party or its officers,officials,employees,agents or volunteers. In the event of Customer with a hardened network for the election management software("EMS"),in accordance with any concurrent act or omission of the parties and their officers, officials, employees, agents and the guidelines of the United States Election Assistance Commission. During the Term of this volunteers,negligent or otherwise,these indemnity provisions shall be valid and enforceable only to Agreement,in the event Customer fails to maintain EMS in the hardened network or allows any internal the extent of the comparative liability of each party and its officers,officials,employees,agents or or external access to the hardened network,Customer agrees to indemnify and hold harmless ES&S volunteers. The parties agree to maintain a consolidated defense to claims made against them and to from and against any and all claims, damages, losses, liens, obligations, liabilities, judgments, reserve all indemnity claims against each other until after liability to the claimant and damages,if any, assessed damages,costs,expenses(including reasonable attomey's fees)and the like arising out of are adjudicated.If any claim is resolved by voluntary settlement and the parties cannot agree upon or related to the Customer's breach of its obligations hereunder. apportionment of damages and defense costs,they shall submit apportionment to binding arbitration. 13. Voting System Reviews. In the event that the Jurisdiction or the State require any future The indemnification obligations of the parties shall not be limited in any way by the Washington State reviews or examinations("Reviews")of current or previous versions of state-certified ES&S voting Industrial Insurance Act,Title 51 RCW,or by application of any other workmen's compensation act, systems or components thereof that are not otherwise required as a result of any changes or disability benefit act or other employee benefit act.Each party hereby expressly waives any immunity modifications voluntarily made by ES&S to the ES&S Software and/or ES&S Equipment licensed and afforded by such acts to the extent required by a party's obligations to indemnify,defend and hold sold hereunder,Customer shall be responsible for: harmless the other party,its officers,officials,employees,agents and volunteers(and their marital communities).A party's waiver of immunity does not extend to claims made by its own employees (i) Customers pro-rata share of such Review costs; directly against that party as employer. The indemnity provisions of this section are a material inducement to enter into this Agreement and have been mutually negotiated. The provisions of this (ii)Customers pro-rata share of the costs of designing,developing,manufacturing and/or certification section shall survive the expiration or termination of this Agreement by applicable federal and state authorities of any mandated modifications to the ES&S Equipment and/or ES&S Software that may result from such Reviews;and 22. Maintenance of Records. Each party shall maintain books,records,documents and other evidence that sufficiently and properly reflect all direct and indirect costs expended by either party in (iii)the total cost of any third-party items that are required in order for the ES&S Equipment and/or the performance of this Agreement.These records shall be subject to inspection,review or audit by ES&S Software to satisfy any new requirements resulting from such Reviews in order to remain personnel of both parties,other personnel duly authorized by either party,the Office of the Washington certified. State Auditor,and federal officials so authorized by law. All books,records,documents,and other material relevant to this Agreement will be retained for six years after expiration of agreement.The Customers pro-rata share of the costs included under subsections 130)and 13(iii)above shall be Office of the Washington State Auditor,federal auditors,the Jefferson County Auditor,and any persons determined at the time by dividing the number of registered voters in Customers jurisdiction by the total duly authorized by the parties shall have full access and the right to examine any of these materials number of registered voters in all counties in Customers state to which ES&S has sold and/or licensed during this period. If any litigation,claim or audit is started before the expiration of the six(6)year the ES&S Equipment and/or ES&S Software purchased and licensed by Customer under this period,the records shall be retained until all litigation,claims,or audit findings involving the records Agreement. have been resolved. Records and other documents,in any medium,furnished by one party to this Agreement to the other party,will remain the property of the furnishing party,unless otherwise agreed. 14. Binding on Successors and Assigns. This Agreement,including all exhibits hereto,shall be binding upon and inure to the benefit of the parties and their respective representatives,successors 23. Washington Public Records Act. Notwithstanding any provisions of this Agreement to the and assigns. contrary,to the extent any record,including any electronic,audio,paper or other media,is required to be kept or indexed as a public record in accordance with the Washington Public Records Act,Chapter 15. Entire Agreement.This Agreement,including all Exhibits hereto,contains the entire agreement 42.56 RCW(as may be amended),ES&S agrees to maintain all records constituting public records and of the parties with respect to the subject matter hereof and shall supersede and replace any and all to produce or assist Customer in producing such records,within the time frames and parameters set other prior or contemporaneous discussions,negotiations,agreements or understandings between the forth in state law. ES&S also agrees that upon receipt of any written public record request,ES&S shall, parties,whether written or oral,regarding the subject matter hereof. within two business days,notify Customer by providing a copy of the request per the notice provisions 16. Conflicts with Other Documents.An provision of anyof this Agreement. This Agreement,once executed,will be a"public record"subject to production to a y p purchase order,form or other third party if it is requested pursuant to the Washington Public Records Act,Chapter 42.56 RCW(as which conflicts with or is in addition to the provisions of this Agreement shall be of no force or effect. In may be amended). the event of any conflict between a provision contained in an Exhibit to this Agreement and these General Terms,the provision contained in the Exhibit shall control. 24. Controlling Law. It is understood and agreed that this Agreement is entered into in the State of 17. No Waiver. No waiver,amendment or modification of any provision of this Agreement shall be UWashington.This Agreement shall be governed by and construed in accordance with the laws of the effective unless in writing and signed by the party against whom such waiver, amendment or enteredne States,the State of Washington and the County of Jefferson,as if applied too transactions modification is sought to be enforced. County into and to partye performed wholly within thatJe any staten County,wother Washington between law Jefferson County residents. No shall argue or assert any law than Washington applies 18. No Consent to Waiver or Breach. No consent by either party to,or waiver of,a breach by to the governance or construction of this Agreement. either party shall constitute a consent to or waiver of any other different or subsequent breach by either 25. Litigation/JurisdictionNenue. Should either party bring any legal action,each party in such party. action shall bear the cost of its own attomey's fees and court costs. The venue for any legal action 19. Independent Contractor. ES&S is providing equipment,software and services to Customer as shall be solely in the appropriate state court in Jefferson County,Washington,subject to the venue • an independent contractor,and shall not be deemed to be a"state actor"for purposes of 42 U.S.C.§ provisions for actions against counties in RCW 36.01.050. 1983. ES&S is not as an agent,an employee or a servant of Customer. ES&S specifically has the 26. Provisions that Survive Termination. The provisions of Sections 1-4,6(b),7,8,10(b),11-15, right to direct and control Contractors own activities and over all of its subcontractors,employees, 19-26 shall survive the termination of this Agreement,to the extent applicable. agents and representatives in providing the agreed services in accordance with the specifications set out in this Agreement. ES&S shall perform the contracted work. ES&S acknowledges that the entire 27. No Harassment or Discrimination. Any form of harassment,discrimination,or improper compensation for this Agreement is set forth in the compensation provisions of this Agreement and fraternization with any Customer employee is strictly prohibited.ES&S shall not discriminate on the ES&S is not entitled to any County benefits,including,but not limited to:retirement,vacation pay; grounds of race,color,national origin,religion,creed,age,sex,sexual orientation,or the presence of holiday pay;sick leave pay;medical,dental or other insurance benefits;fringe benefits;or any other any physical or sensory disability in the selection and retention of employees or procurement of rights or privileges afforded to Jefferson County employees. ES&S agrees to The all necessary materials or supplies. governmental documents,including appropriate tax returns,reflecting income status as an independent contractor for services rendered to Customer under this Agreement. Should any governmental agency 28. Signature in Counterparts. This Agreement may be executed in one or more counterparts, audit any of the files and request information on either ES&S or Customer,ES&S and Customer agree each of which shall be deemed an original,and all of which counterparts together shall constitute the to furnish immediately the requesting party with any records,including tax returns,relating to the same instrument which may be sufficiently evidenced by one counterpart.Execution of this Agreement services rendered under this Agreement. No subcontractor,employee,agent or representative of at different times and places by the parties shall not affect the validity of this Agreement,so long as all ES&S will be or be deemed to be,or act or purport to act,as an employee,agent or representative of the parties execute a counterpart of this Agreement Customer. 29. Facsimile and Electronic Signatures.The parties agree that facsimile and electronic signatures shall have the same force and effect as original signatures. 30. Representations and Warranties. The parties represent and warrant that:(a)Each person signing this Agreement is fully authorized to enter into this Agreement on behalf of the party for whom signature is being made;(b)Each party that is a corporate entity is duly organized and validly existing in good standing under the laws of one of the states of the United States of America;(c)The making and performance of this Agreement will not violate any provision of law or of any parry's articles of incorporation,charter,or by-laws;(d)Each corporate party has taken all necessary corporate and internal legal actions to duly approve the making and performance of this Agreement and that no further corporate or other internal approval is necessary;and,(e)Each party has read this Agreement in its entirety and know the contents of this Agreement,that the terms of this Agreement are contractual and not merely recitals,and that they have signed this Agreement,having obtained the advice of legal counsel. EXHIBIT A HARDWARE MAINTENANCE AND SOFTWARE LICENSE, MAINTENANCE AND SUPPORT SERVICES (POST-WARRANTY PERIOD) ARTICLE I GENERAL 1. Term; Termination. This Exhibit A for Hardware Maintenance and Software License, Maintenance and Support Services shall be in effect for the coverage period as described in Schedule Al (the"Term"). Upon expiration of the Term, this Agreement may be renewed by the parties upon terms and conditions as may be mutually agreed upon in writing by the parties. This Agreement may be terminated by the first to occur of(a) the date which is thirty (30) days after either party notifies the other that it has materially breached this Exhibit A, if the breaching party fails to cure such breach (except for a breach pursuant to subsection (d), which will require no notice), (b) the date which is thirty (30) days after ES&S notifies Customer that it is no longer able to procure replacement parts that may be needed in order to perform the Hardware Maintenance Services contemplated hereunder, (c)the date on which the Equipment or firmware installed thereon is no longer certified by federal and/or state authorities for use in Customer's jurisdiction, or (d) the date which is thirty (30) days after Customer fails to pay any amount due to ES&S under this Exhibit A. The termination of this Exhibit A shall not relieve Customer of its liability to pay any amounts due to ES&S hereunder and shall only entitle Customer to a prorated refund of any fees already paid to ES&S in the event that this is Exhibit A is terminated pursuant to subsection 1(b) or 1(c) above. 2. Fees. In consideration for ES&S' agreement to provide Hardware Maintenance and Software License, Maintenance and Support Services under this Exhibit A, Customer shall pay to ES&S the Hardware Maintenance and Software License, Maintenance and Support Fees set forth on Schedule Al for the Term. The Hardware Maintenance and Software License, Maintenance and Support Fees for the Term are due as set forth on Schedule Al. The Software License, Maintenance and Support Fee shall be comprised of (i) a fee for the Software License, Maintenance and Support provided for the ES&S Firmware, and (ii) a fee for the Software License, Maintenance and Support provided for all other ES&S Software, and shall be in addition to any fees or charges separately referred to in any Section of this Exhibit A. If Customer elects to receive Software License, Maintenance and Support for an Add-On or New Product during the Term, ES&S will charge an incremental Software License, Maintenance and Support Fee for such services. ARTICLE II HARDWARE 1. Maintenance Services. The Hardware Maintenance Services to be provided to Customer under this Agreement for the ES&S equipment set forth on Schedule Al (the "Products") shall be subject to the following terms and conditions: a. Routine Maintenance Services. An ES&S Representative shall provide such services as may be necessary to keep the Products working in accordance with their Documentation, normal wear and tear excepted ("Normal Working Condition"). The services provided by ES&S pursuant to this Subsection 1(a) are referred to herein as "`Routine Maintenance Services. Routine Maintenance Services shall be provided once each Twelve (12) Months during the Term for those hardware products identified as "Gold Coverage" on Attachment 1 and once each Twenty-Four (24) Months during the Term for those hardware products identified as "Silver Coverage" on Attachment 1 during the Term or any Renewal Period thereof. Generally, Routine Maintenance Services shall include cleaning, lubrication, diagnostic check, and calibration services. The Routine Maintenance Services shall not include the repair or replacement of any ES&S Equipment components that are consumed in the normal course of operating the Equipment, including, but not limited to, headphones and headphone protective covers, printer cartridges or ribbons, paper, batteries, drums, toners, fusers, transfer 1 belts, removable media storage devices, seals, keys, power supplies/cords, PCMCIA, Smart, or CF cards or marking devices (collectively, the "Consumables"). ES&S may modify and make available additional Consumables as they may become available from time to time. Customer may request that Routine Maintenance Services be performed more than once during the Term. Any such request shall be made at least sixty (60) days before the Routine Maintenance Services are desired. The per-unit fee for such additional Routine Maintenance Services is set forth on Schedule Al and shall be due within thirty (30) days after invoice date. ES&S will schedule the Routine Maintenance Services with Customer. The Routine Maintenance Services will be provided at Customer's Designated Location. Customer's "Designated Location" shall mean Customer's owned or leased facility at which Customer desires ES&S to perform the Hardware Maintenance Services. b. Repair Services. i. Defects Under Normal Use and Service. If a defect or malfunction occurs in any Product while it is under normal use and service, Customer shall promptly notify ES&S, and ES&S shall use reasonable efforts to restore the item to Normal Working Condition as soon as practicable. The services provided by ES&S pursuant to this Subsection 1(b)(i) are referred to herein as "Repair Services". ES&S will perform Repair Services in conjunction with a Routine Maintenance Service event at the Customer's Designated Location. ii. Defects Due to Customer Actions or Omissions. If a defect or malfunction occurs in any Product as a result of (1) repairs, changes, modifications or alterations not authorized or approved by ES&S, (2) use, modification, dismantling, disassembly,or transfer to third party without ES&S's prior written consent, (3)accident, theft, vandalism, neglect, abuse or use that is not in accordance with instructions or specifications furnished by ES&S or(4) causes beyond the reasonable control of ES&S or Customer, including acts of God, fire, floods, riots, acts of war, terrorism or insurrection, government acts or orders; epidemics, pandemics or outbreak of communicable disease; quarantines; national or regional emergencies, labor disputes, transportation delays, governmental regulations and utility or communication interruptions, rodent infestation, or if Customer does not notify ES&S within 72 hours after it knows of the defect or malfunction, Customer shall pay ES&S for the Repair Services at ES&S' then-current rates, as well as for the cost of all parts used in connection with such Repair Services. iii. Timing. The date(s) on which any Repair Services shall be provided shall be mutually agreed upon by ES&S and Customer. If Customer requires ES&S to provide"emergency"Repair Services(which shall be defined as Repair Services that are provided by ES&S within 48 hours after Customer notifies ES&S of the need therefore), and such emergency Repair Services are not needed as a result of an action, error or omission by ES&S, Customer shall pay a surcharge, as set forth on Schedule Al. iv. Loaner Unit. At Customer's request and if such product is available, ES&S shall use reasonable efforts to promptly make available to Customer a product that is the same as, or substantially similar to, the Product for which Repair Services are being performed (a "Loaner Unit"). If the Repair Services are being performed pursuant to Subsection I(b)(ii) above, Customer shall pay ES&S for the use of the Loaner Unit at ES&S'then-current rates including the cost of shipping. c. Exclusions. ES&S has no obligation under this Agreement to (i) assume the obligations under any existing or expired warranty for a Third Party Item; (ii) repair or replace Product components that are consumed in the normal course of operating the Product, including, but not limited to, headphones and headphone protective covers, printer cartridges or ribbons, paper, batteries, drums, toners, fusers, transfer belts, removable media storage 2 devices, seals, keys, power supplies/cords, PCMCIA, Smart, or CF cards or marking devices (collectively, the"Consumables"), , or(iii) repair any Product from which the serial number has been removed or altered. In addition, ES&S may, at any time in its discretion, determine that any Product is no longer fit for Hardware Maintenance Services because it is in such poor condition that it cannot practically be restored to Normal Working Condition, or cannot be restored to Normal Working Condition at an expense that is less than the then-current value of the Product. If such a determination is made, ES&S shall no longer be required to provide Hardware Maintenance Services for such Product. ES&S shall also refund to Customer an amount equal to(1)that portion of the most recent fee paid for Hardware Maintenance Services that is attributable to such Product, multiplied by (2) a fraction, the numerator of which is the remaining number of days within the Term for which such fee was paid and the denominator of which is the total number of days within the Term. d. Sole Provider; Access. Customer shall not permit any individual other than an ES&S Representative to provide maintenance or repairs with respect to the Products during the Term. Customer shall provide ES&S Representatives with all information necessary to enable them to provide Hardware Maintenance Services. Customer shall likewise provide full access to the Products and adequate working space for all Hardware Maintenance Services performed at its Designated Location, including sufficient heat, lights, ventilation, electric current and outlets. e. Environmental Conditions. Products should be stored in a clean, dry and secure environment. During the storage and operation of the Products, the temperature and moisture ranges should be maintained in accordance with the Products' Documentation. f. Reinstatement of Hardware Maintenance Services; Inspection. If the Term expires without being renewed, Customer may thereafter resume receiving Hardware Maintenance Services upon (a) notification to ES&S and (b) the granting to ES&S of access to the Products. ES&S requires Customer to allow it to inspect such Products before it provides any Hardware Maintenance Services. The purpose of such inspection shall be to determine whether or not the Products are in Normal Working Condition. The cost of such inspection will be at ES&S' then current rates and shall be due from Customer within thirty (30) days of its receipt of ES&S' invoice therefore. If any of the Products is not in Normal Working Condition, ES&S, at the option of Customer, (i) shall provide such repairs and replacements as it deems reasonable and necessary to restore such item to Normal Working Condition, at Customer's expense with respect to the cost of any labor (charged at ES&S' then current rates) and parts used in such repairs or replacements, or (ii) shall not provide any Hardware Maintenance Services with respect to such Product(s). ARTICLE III SOFTWARE LICENSE, MAINTENANCE AND SUPPORT SERVICES 1. License and Services Provided. ES&S shall provide license, maintenance and support services ("Software License, Maintenance and Support") for the ES&S Software and ES&S Firmware (collectively, "ES&S Software"), to allow Customer to continue to license and use the software in accordance with the license terms set forth in Sections 2-4 of the General Terms as well as to enable it to perform in accordance with its Documentation in all material respects, and to cure any defect in material or workmanship. The specific Software License, Maintenance and Support services provided by ES&S and each party's obligations with respect to such services are set forth on Schedule Al. 2. Updates. During the Term and any Renewal Period thereof, ES&S may continue to provide Updates in accordance with the terms of Section 4 of the General Terms. Unless otherwise agreed to by the parties, and subject to Customer's prior execution of a purchase order therefor, ES&S shall install ES&S Firmware Updates in accordance with Section 4 of the General Terms. ES&S shall install such ES&S Firmware Updates in conjunction with a scheduled Routine Maintenance Services event provided Customer is subscribing to and has paid for ES&S' hardware maintenance services which include Routine 3 Maintenance Services. Customer shall pay ES&S to install all ES&S Firmware Updates which are requested to be installed outside of a scheduled Routine Maintenance Services event or in the event the Customer has not subscribed to ES&S' hardware maintenance services which include Routine Maintenance Services. Notwithstanding the foregoing, Customer shall pay ES&S to install all election management software Updates. 3. Conditions. ES&S shall not provide Software License, Maintenance and Support for any item of ES&S Software if such item requires such services as a result of(a) repairs, changes, modifications or alterations not authorized or approved by ES&S, (b) use, modification, dismantling, or transfer to third party without ES&S's prior written consent, (c)accident, theft, vandalism, neglect, abuse or use that is not in accordance with instructions or specifications furnished by ES&S, (d) causes beyond the reasonable control of ES&S or Customer, including acts of God, fire,floods, riots, acts of war, terrorism or insurrection, government acts or orders; epidemics, pandemics or outbreak of communicable disease; quarantines; national or regional emergencies, labor disputes,transportation delays,governmental regulations and utility or communication interruptions, (e)Customer's failure to timely and properly install and use the most recent update provided to it by ES&S, or(f) Customer's failure to notify ES&S within three(3) business days after Customer knows of the need for such services. Any such Software License, Maintenance and Support shall be provided at the fees to be agreed upon by the parties if and when the need for such Software License, Maintenance and Support arises. Replacement versions of Software requested by Customer as a result of items set forth in this Section 3 or as a result of Customer's actions or inactions shall be billable to Customer at ES&S'then current rates. 4. Proprietary Rights. ES&S shall own the entire right, title and interest in and to all corrections, programs, information and work product conceived, created or developed, alone or with Customer or others, as a result of or related to the performance of this Exhibit A, including all proprietary rights therein or based thereon. Subject to the payment of all Software License, Maintenance and Support Fees, ES&S hereby grants to Customer a non-exclusive license to use that portion of such corrections, programs, information and work product that ES&S actually delivers to Customer pursuant to this Exhibit A. All licensed items shall be deemed to be ES&S Software for purposes of this Exhibit A. Except and to the extent expressly provided herein, ES&S does not grant to Customer any right, license, or other proprietary right, express or implied, in or to any corrections, programs, information, or work product covered by this Exhibit A. 5. Reinstatement of Software License, Maintenance and Support. If the Term expires without being renewed, Customer may thereafter receive a Software License and resume receiving Software Maintenance and Support upon (a) notification to ES&S, (b) payment of all fees, which would have been due to ES&S had the Term not expired, and (c) the granting to ES&S of access to the ES&S Software, so that ES&S may analyze it and perform such maintenance as may be necessary before resuming the Software License, Maintenance and Support services. 4 Schedule Al Pricing Summary Summary: Description Refer To Amount ES&S Hardware Maintenance Fees ES&S Hardware Maintenance $24,555.00 Description and Fees Below ES&S Software License, ES&S Software License, Maintenance and Support Fees Maintenance and Support $62,079.00 Description and Fees Below ES&S Firmware License, ES&S Firmware License, Maintenance and Support Fees Maintenance and Support $10,200.00 Description and Fees Below Total Maintenance Fees for the Term: $96,834.00 Payment Terms: ES&S shall Invoice Customer annually for each year of the Term. Payment is due before the start of each period within the Term. Terms&Conditions: Note 1: Any applicable state and local taxes are not included, and are the responsibility of Customer. 5 ES&S HARDWARE MAINTENANCE DESCRIPTION AND FEES Term: Expiration of the Warranty Period through the third anniversary thereof Annual Maintenance Qty Description Coverage Period Maintenance Fee In Total Fee Per Unit 2 Model DS950 Scanner Year 1 $3,995.00 $7,990.00 (Gold Coverage) 2 ExpressVote BMD Terminal Year 1 $97.50 $195.00 (Silver Coverage) Total Maintenance Fees Year 1 $8,185.00 185.00 2 Model DS950 Scanner Year 2 $3,995.00 $7,990.00 (Gold Coverage) 2 ExpressVote BMD Terminal Year 2 $97.50 $195.00 (Silver Coverage) Total Maintenance Fees Year 2 $8,185.00 2 Model DS950 Scanner Year 3 $3,995.00 $7,990.00 (Gold Coverage) 2 ExpressVote BMD Terminal Year 3 $97.50 $195.00 (Silver Coverage) Total Maintenance Fees for Year 3 $8,185.00 Total Hardware Maintenance Fees for the Term $24,555.00 Note 1: The Per-Unit Fees if Customer requests more than one Routine Maintenance visit in a 12- month period for "Gold" Coverage Items shall be 55% of the then current maintenance fee per unit. The Per-Unit Fees if Customer requests more than one Routine Maintenance visit in a 24- month period for"Silver"Coverage Items shall be 75%of the then current maintenance fee per unit. Note 2: Surcharge for Emergency Repair Services shall be the daily maintenance service rate in effect at the time such service is requested. Note 3: Customer's Designated Location: Jefferson County,Washington Note 4: The Per Unit Surcharge for performance of Routine Maintenance visit at more than one Customer Designated Location shall be $25.00 per unit for all units located at second or more locations. Hardware Maintenance Services Provided by ES&S Under this Schedule Al 1. Telephone Support. 2. Issue Resolution. 3. Technical Bulletins will be available through Customer's ES&S Web-based portal. 4. Routine Maintenance Services. • Onsite scheduled maintenance inspection per Article II, Section 1(a). The 6 Inspection includes: o Service performed by an ES&S trained and certified technician. o Performance of factory approved diagnostics on the unit, identifying and adjusting where necessary as indicated by the testing. o Replacement of worn or defective parts with new or remanufactured federally and state certified parts. o Conducting a final test to verify that the unit is working according to manufacturer's specifications. o Use of a checklist tailored for each piece of ES&S Equipment. 5. Repair Services. • Customer will receive coverage for interim repair calls. o Interim repair calls may be provided during a scheduled Routine Maintenance Services event or scheduled in conjunction with other service work being performed in close proximity to Customer's location if such repairs are not election critical. o A Product may be sent to ES&S' Depot location for repairs at a time to be mutually agreed upon by ES&S and Customer. 6. Priority Services. • Customer has access to the ES&S Help Desk for assistance. • The customer receives priority on service calls. P Y • The customer receives priority on response time. • The customer receives priority on certified ES&S parts inventory. Note: Except for those Hardware Maintenance Services specifically set forth herein, ES&S is under no obligation and shall not provide other Hardware Maintenance Services to the Customer unless previously agreed upon in writing by the parties. 7 ES&S SOFTWARE LICENSE, MAINTENANCE AND SUPPORT DESCRIPTION AND FEES SOFTWARE Term: Expiration of the Warranty Period through the third anniversary thereof Listed below is the Software and Fees for which Software License, Maintenance and Support will be provided: Software License, Qty Description Coverage Period Maintenance and Support Fee In Total 1 ElectionWare Software—PYO Standard Year 1 $18,755.00 1 ElectionWare Software—PYO Standard Year 2 $20,630.00 1 ElectionWare Software—PYO Standard Year 3 $22,694.00 Total Software License, Maintenance and Support Fees for the Term $62,079.00 ES&S SOFTWARE LICENSE, MAINTENANCE AND SUPPORT DESCRIPTION AND FEES FIRMWARE Term: Expiration of the Warranty Period through the third anniversary thereof Listed below are the Hardware Products and Fees for which Firmware License, Maintenance and Support will be provided: Annual Firmware License, Qty Description Coverage Period Firmware License, Maintenance and Maintenance and Support Fee In Total Support Fee Per Unit 2 Model DS950 Scanner Year 1 $1,630.00 $3,260.00 2 ExpressVote BMD Terminal Year 1 $70.00 $140.00 Total License, Maintenance and Support Fees for Year 1 $3,400.00 2 Model DS950 Scanner Year 2 $1,630.00 $3,260.00 2 ExpressVote BMD Terminal Year 2 $70.00 $140.00 Total License, Maintenance and Support Fees for Year 2 $3,400.00 2 Model DS950 Scanner Year 3 $1,630.00 $3,260.00 2 ExpressVote BMD Terminal Year 3 $70.00 $140.00 Total License, Maintenance and Support Fees for Year 3 $3,400.00 Total Firmware License, Maintenance and Support Fees for the Term $10,200.00 8 Software License, Maintenance and Support Services Provided by ES&S under the Agreement 1. Telephone Support. 2. Issue Resolution. 3. Technical Bulletins will be available through Customer's ES&S Web-based portal. Note: Except for those Software License, Maintenance and Support services specifically set forth herein, ES&S is under no obligation and shall not provide other Software License, Maintenance and Support services to the Customer unless previously agreed upon by the parties. Software License, Maintenance and Support and Hardware Maintenance and Support Services — Customer Responsibilities 1. Customer shall have completed a full software training session for each product selected. • Customer shall have completed training at a proficiency level to successfully use the hardware (firmware) and software products. • Customer shall have the ability to install firmware and application software and make changes to date and time settings. • Customer shall have the ability to change consumable items. Any other changes made by the customer must be pre-approved in writing by ES&S. 2. Customer shall have reviewed a complete set of User Manuals. 3. Customer shall be responsible for the installation and integration of any third-party hardware or software application or system purchased by the Customer, unless otherwise agreed upon, in writing, by the parties. 4. Customer shall be responsible for data extraction from Customer voter registration system. 5. Customer shall be responsible for implementation of any security protocols physical, network or otherwise which are necessary for the proper operation of the ES&S Equipment and ES&S Software. 6. Customer shall be responsible for the acceptance of the Equipment and Software, unless otherwise agreed upon, in writing, by the parties. 7. Customer shall be responsible for the design, layout, set up, administration, maintenance or connectivity of the Customer's network. 8. Customer shall be responsible for the resolution of any errors associated with the Customer's network or other hardware and software not purchased or recommended by ES&S and not otherwise identified in the User Guides as part of ES&S' Equipment and Software. 9. Customer shall be responsible for all costs associated with diagnosing ballot printing problems resulting from the use of non-ES&S Ballot Partner Printers ballots. 10. Customer shall be responsible for the payment of additional or replacement Software CDs or DVDs requested by Customer. The price for such additional or replacement Software CDs or DVDs shall be at ES&S'then current rates. 9