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HomeMy WebLinkAboutELECTION SYSTEMS & SOFTWARE, LLC SOFTWARE LICENSE AGREEMENT ELECTION SYSTEMS& SOFTWARE, LLC SOFTWARE LICENSE AGREEMENT THIS SOFTWARE LICENSEE AGREEMENT ("Agreement") is made effective as of the date set forth below, by and between Election Systems & Software, LLC, a Delaware Limited Liability Company("ES&S") and Augusta, Georgia("Customer"). RECITALS: A. Customer has purchased additional equipment to supplement its current equipment inventory and desires to license certain proprietary firmware, as described on Attachment 1 (the"Software"). B. ES&S has agreed to provide such license, subject to the terms and conditions of this Agreement. C. This Agreement supersedes and replaces in their entirely any and all prior agreements between ES&S and Customer respecting license services for such Software. NOW, THEREFORE, in consideration of the foregoing recitals (which are specifically incorporated herein by this reference) and the mutual representations, warranties, covenants and agreements set forth below, the parties hereby agree as follows: ARTICLE I LICENSE OF SOFTWARE 1. Grant of License. Subject to the terms and conditions of this Agreement, ES&S hereby grants to Customer a nonexclusive, nontransferable, perpetual license for its bona fide full time employees to use the Software and all related operating instructions, user manuals and training materials supplied by ES&S (collectively the "Documentation") in Richmond County, Georgia ("Jurisdiction"). The license allows Customer to use and copy the Software (in object code only) and the Documentation, solely for the purposes of defining an election and tabulating and reporting election results in the Jurisdiction. The licenses granted in this Section do not permit Customer to use the source code for the Software. The license does not permit Customer to take any of the following actions: a. Reverse engineer, decompile, disassemble, re-engineer or otherwise create, attempt to create, or permit, allow or assist others to create, the source code or the structural framework for part or all of the Software; b. Cause or permit any use, display, loan, publication, transfer of possession, sublicensing or other dissemination of the Software or Documentation, in whole or in part, to or by any third party including, but not limited to, any transfer of possession to, or use of the Software or Documentation by any third party to perform any services for Customer (including, but not limited to, any coding, programming or layout services) without ES&S' prior written consent; or c. Cause or permit any change to be made to the Software without ES&S' prior written consent. d. Allow a third party to cause or permit any copying, reproduction or printing of any output generated by the Software in which ES&S owns or claims any proprietary intellectual property rights (e.g., copyright, trademark, patent pending or patent), including, but not limited to, any ballot shells or ballot code stock. 2. License Fees. In consideration for ES&S' grant of the license for the Software described in Section 1, Customer shall pay ES&S the Software License Fees set forth on Attachment 1. Any license or royalty fees payable to any Third Parties for the use of any third party items are the sole responsibility of Customer. 3. Term of License. The licenses granted in Section 1 shall commence upon the delivery of the Software described in Section 1. The licenses shall survive the termination of all other obligations of the parties under this Agreement, provided, however, that ES&S may terminate either license if Customer fails to pay the consideration due for, or breaches Sections 1, 2, or 7 with respect to, such license. Upon the termination of either of the licenses granted in Section 1 for the Software or upon Customer's discontinuance of the use of any Software, Customer shall immediately return such Software and the related Documentation (including any and all copies thereof) to ES&S, or(if requested by ES&S) destroy such Software and Documentation and certify in writing to ES&S that such destruction has occurred. 4. Delivery; Risk of Loss. If requested, ES&S will ship the Software to Customer on a mutually agreed-upon date, and risk of loss with respect thereto shall pass to Customer when such items are delivered to Customer's designated location. 5. Warranty. ES&S warrants that for a 1-year period (the "Warranty Period"), it will repair or replace any component of the Software which, while under normal use and service: (a)fails to perform in accordance with its Documentation in all material respects, or (b) is defective in material or workmanship. The Warranty Period will commence on the date of delivery of the Software. Any repaired or replaced Software shall be warranted only for the unexpired term of the original Warranty Period. All replaced components of the Software will become the property of ES&S. This warranty is effective provided that(i)Customer promptly notifies ES&S of the failure of performance or defect and is otherwise in compliance with its obligations hereunder, (ii) the Software to be repaired or replaced has not been repaired, changed, modified or altered except as authorized or approved by ES&S, (iii)the Software to be repaired or replaced is not damaged due to accident, theft, vandalism, neglect, abuse, use which is not in accordance with instructions or specifications furnished by ES&S or causes beyond the reasonable control of ES&S or Customer, including natural disaster, fire, flood, unusually severe weather or Acts of God, and (iv) Customer has installed and is using the most recent Update (as defined below). ES&S' OBLIGATIONS, AS DESCRIBED IN THIS SECTION 6, ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES FOR A BREACH OF THE ABOVE-DESCRIBED WARRANTY. ES&S EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WHICH ARE NOT SPECIFICALLY SET FORTH IN THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 6. Proprietary Rights. Customer acknowledges and agrees that ES&S owns or possess through valid and subsisting license agreements all right, title and interest in and to the Software and Documentation, necessary to license the Software and Documentation set forth hereinto the Customer in accordance with the term of this Agreement. ES&S likewise owns or possesses through valid and subsisting license agreements the right to use all patents, trademarks, copyrights, trade names and other proprietary or intellectual property in, or used in connection with, the Software and Documentation licensed to the Customer. The Software and Documentation also contains confidential and proprietary trade secrets which are protected by law and are substantial value to ES&S or the owner thereof, as applicable. Customer shall keep the Software and Documentation free and clear of all claims, liens and encumbrances and shall maintain all copyright, trademarks, patent or other intellectual or proprietary rights notices which are set forth on the Software, the Documentation, and all permitted copies thereof. 7. Indemnification By Customer. To the fullest extent permitted under applicable law, Customer shall indemnify and hold harmless ES&S from and against any and all claims, damages, amounts paid in settlement and reasonable fees and costs (including reasonable attorneys' fees) (collectively"Adverse Consequences")arising out of or relating to the following: a. Any claim that any of the Software infringes upon any third party's copyright, trademark or patent existing as of the date hereof (a "Third Party Infringement Claim") resulting 2 from (i) Customer's failure to timely or properly install and use any update provided to it by ES&S; (ii) the use of any Software in combination with other equipment, hardware or software not meeting ES&S' specifications for use with such Software; or (iii) Customer's modification or alteration of any item of Software without the prior written consent of ES&S; b. Any claims by Third Parties arising out of or relating to the use or misuse by Customer, its employees and any other persons under its authority or control ("Customer's Representatives") of any Third Party Items; and c. Customer's election not to receive, or to terminate, the Software License. ES&S shall notify Customer immediately if it becomes aware of any claim for which it may be entitled to indemnification under this Section 7, and hereby gives Customer full and complete authority, and shall provide such information and assistance as is necessary (at Customer's expense with respect to reasonable out-of-pocket costs), to enable Customer to defend, compromise or settle any such claim. ARTICLE II MISCELLANEOUS 1. Taxes; Interest. Customer will provide ES&S with proof of its tax-exempt status. If Customer does not provide such proof, it shall pay, or shall reimburse ES&S for, all sales and use, excise or other similar taxes imposed on the transactions contemplated by this Agreement, but shall in no event be liable for taxes imposed on or measured by ES&S' income. If Customer disputes the applicability of any tax to be paid pursuant to this Section 1, it shall pay the tax and may thereafter seek a refund. Any disputed or undisputed payment which is past due to ES&S will bear interest at the rate of one and one- half percent per month (or such lesser amount as may be permitted by applicable law)for each month or portion thereof during which it remains unpaid. 2. Limitation of Liability. Neither party shall be liable for any indirect, incidental, punitive, exemplary, special or consequential damages of any kind whatsoever arising out of or relating to this Agreement. Neither party shall be liable for the other party's negligent or willful misconduct. ES&S' total liability to Customer arising out of or relating to this Agreement shall not exceed the aggregate amount to be paid to ES&S hereunder. Any action by Customer against ES&S must be commenced within one (1) year after the cause of action has accrued. By entering into this Agreement, Customer agrees to accept responsibility for(a)the selection of the equipment and Software to achieve Customer's intended results; (b) the use of the equipment and Software; (c) the results obtained from the use of the equipment and Software; (d) the selection of, use of and results obtained from any equipment, software or services not provided by ES&S and used with the equipment or Software; or(e) user errors, voter errors or problems encountered by any individual in voting that are not otherwise a result of the failure of ES&S to perform. ES&S shall not be liable under this Agreement for any claim, damage, loss, judgment, penalty, cost, amount paid in settlement or fee that is caused by (y) Customer's failure to timely or properly install and use any update provided to it by ES&S or (z) Customer's election not to receive, or to terminate, the Software License and Support. 3. Excusable Nonperformance. Except for obligations to make payments hereunder, if either party is delayed or prevented from performing its obligations under this Agreement as a result of any cause beyond its reasonable control, including acts of God, fire, riots, acts of war, terrorism or insurrection, labor disputes, transportation delays, governmental regulations and utility or communication interruptions, the delay shall be excused during the continuance of, and to the extent of, such cause, and the period of performance shall be extended to the extent necessary to allow performance after the cause of delay has been removed. ES&S agrees to work with Customer, at Customer's request, to develop mutually agreeable alternatives in order to minimize the negative impact of any such delay. 3 4. Notice. Any notice or other communication required or permitted hereunder shall be in writing, and will be deemed given when (a) delivered personally, (b) sent by confirmed email, (c) sent by confirmed fax, (d) sent by commercial overnight courier(with written verification of receipt) or(e) sent by registered or certified mail, return receipt requested, postage prepaid, when the return receipt is received. All communications shall be sent to the attention of the persons listed on the signature page to this Agreement and at the addresses, email address or fax numbers set forth on such signature page unless other names, addresses or fax numbers are provided by either or both parties in accordance herewith. 5. Assignment. Except in the case of a sale, transfer or assignment of all or substantially all of the assets of ES&S to a successor who has asserted its intent to continue the business of ES&S, neither party may assign or transfer this Agreement or assign, subcontract or delegate any of its rights, duties or obligations hereunder without the prior written consent of the other party hereto, such consent not to be unreasonably withheld or conditioned, nor unduly delayed. ES&S may assign its right to receive payments under this Agreement to such third party(ies) as ES&S may desire without the prior consent of Customer, provided that ES&S provides written notice (including evidence of such assignment) to Customer thirty(30)days in advance of any payment(s)so assigned. 6. Entire Agreement. This Agreement, including all exhibits hereto, shall be binding upon and inure to the benefit of the parties and their respective representatives, successors and assigns. This Agreement, including Attachment 1 (which is specifically incorporated herein by this reference), contains the entire agreement of the parties with respect to the subject matter hereof and supersedes and replaces any and all other prior or contemporaneous discussions, negotiations, agreements or understandings between the parties, whether written or oral, regarding the subject matter hereof. Any provision of any purchase order, form or other agreement which conflicts with or is in addition to the provisions of this Agreement shall be of no force or effect. In the event of any conflict between a provision contained in an Attachment to this Agreement and these General Terms, the provision contained in the Attachment shall control. No waiver, amendment or modification of any provision of this Agreement shall be effective unless in writing and signed by the party against whom such waiver, amendment or modification is sought to be enforced. No consent by either party to, or waiver of, a breach by either party shall constitute a consent to or waiver of any other different or subsequent breach by either party. This Agreement shall be governed by and construed in accordance with the laws of the State in which the Customer resides, without regard to its conflicts of laws principles. The parties agree that venue for any dispute or cause of action arising out of or related to this Agreement shall be in the state and federal courts of the United States located in the State in which the Customer resides. ES&S is providing services to Customer as an independent contractor, and shall not be deemed to be a "state actor" for purposes of 42 U.S.C. § 1983. ES&S may engage subcontractors to provide certain of the services, but shall remain fully responsible for such performance. The provisions of Article I, Sections 1-3, 6, 7 and Article II, Sections 1-6 shall survive the termination of this Agreement, to the extent applicable. 7. Counterparts; Execution By Facsimile. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument. The parties may execute this Agreement and exchange counterparts of the signature pages by means of facsimile transmission, and the receipt of such executed counterparts by facsimile transmission shall be binding on the parties. Following such exchange, the parties shall promptly exchange original versions of such signature pages. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] 4 IN WITNESS WHEREOF, this Agreement has been executed effective as of the date it is signed by the last of the parties hereto. ELECTION SYSTEMS&SOFTWARE, LLC AUGUSTA, GEORGIA 11208 John Galt Blvd. Office of the Mayor Omaha, N 68137 535 Telfair Street.—Ste. 200 Fax No.; 0 970- p Augusta, GA 30901 Fax No.: (706)821-1835 Ale, Abi, _ . 4_ ' ---i A__ Sig :t - Sign ture �% �slim,, '46 It Na a(' ted or ._.) /,01 Name(Printed or Typed) .4. • "YO Y Title Title / Date Date , F I Attest ,-,.,-,,,45, ;/„� I �ti� ae /Ei `/�✓ A �... , `� / r it L- Vin 1 A ttf ,'+mr issic s , 1Da4J/0: E 44148 JOS 5 PRICING SUMMARY AND PAYMENT TERMS Sale Summary: Description Refer To Amount Software License Fees Attachment 1 $15,000.00 Total Software License Fees: $15,000.00 Terms& Conditions: Note 1:Any applicable state and local taxes are not included, and are the responsibility of Customer. Note 2: Invoicing and Payment Terms are as Follows: $15,000.00 due Thirty(30)Calendar Days after the later of(a)Software Delivery, or(b) Receipt of Corresponding ES&S Invoice. 6 • Attachment 1 ESUS SOFTWARE LICENSE DESCRIPTION AND FEES Listed below is the Software and Fees for which Software License will be provided: Number of Software License Licenses Description Rate Fee In Total 100 AccuVote TSX Terminal $150.00 $15,000.00 Total License Fees $15,000.00 1 .+.a.�' �' '`.,N"?�t'. "�', � . �. y'i� 7