Okaloosa County BOCC — September 15, 2015 — Order Agreement — reading text

(in object code only) and amount to be paid to ES&S hereunder. By entering into this Agreement, Customer agrees to accept the Documentation, in the course of operating the ES&S Equipment and solely for the purposes of responsibility for (a) the selection of the Equipment and Software to achieve Customer’s intended defining and conducting elections and tabulating and reporting election results in Customer’s results; (b) the use of the Equipment and Software; (c) the results obtained from the use of the jurisdiction. The licenses granted in this Section 2 do not permit Customer to access or in any way Equipment and Software; (d) the selection of, use of and results obtained from any equipment, use the source code for the ES&S Software or ES&S Firmware. software or services not provided by ES&S and used with the Equipment or Software; or (e) user 3. Prohibited Uses. Customer shall not take any of the following actions with respect to the errors, voter errors or problems encountered by any individual in voting that are not otherwise a result ES&S Software, ES&S Firmware or the Documentation: of the failure of ES&S’ Software and Equipment 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 a. Reverse engineer, decompile, disassemble, re-engineer or otherwise create, attempt to is caused by (y) Customer’s failure to timely or properly install and use the most recent update, or the create, or permit, allow or assist others to create, the source code or the structural framework for part second most recent update, provided to it by ES&S or (z) Customer’s election not to receive, or to or all of the ES&S Software or ES&S Firmware; terminate, the Hardware Maintenance Services or the Software Maintenance and Support. b. Cause or permit any use, display, loan, publication, transfer of possession, sublicensing 9. Proprietary Rights. Customer acknowledges and agrees as follows: or other dissemination of the ES&S Software, ES&S Firmware or Documentation, in whole or in part, to or by any third party without ES&S’ prior written consent; or ES&S owns the Software, all Documentation and training materials provided by ES&S, the design and configuration of the Equipment and the format, layout, measurements, design and all other c. Cause or permit any change to be made to the ES&S Software or ES&S Firmware technical information associated with the ballots to be used with the Equipment. Customer has the without ES&S’ prior written consent; or right to use the aforementioned items to the extent specified in this Agreement. ES&S also owns all 4. Term of Licenses. The licenses granted in Section 2 shall commence upon the delivery of patents, trademarks, copyrights, trade names and other proprietary or intellectual property in, or used the ES&S Software described in Section 2 and shall continue for a one-year period (the “Initial in connection with, the aforementioned items. The aforementioned items also contain confidential License Term). Upon expiration of the Initial License Term, the licenses shall automatically renew for and proprietary trade secrets of ES&S that are protected by law and are of substantial value to ES&S. an unlimited number of successive one-year periods (each a “License Renewal Term”) upon the Customer shall keep the Software and related Documentation free and clear of all claims, liens and payment by Customer of the annual software license and software maintenance and support fee as encumbrances and shall maintain all copyright, trademark, patent or other intellectual or proprietary set forth on the reverse side. ES&S may terminate either license if Customer fails to pay the rights notices that are set forth on the Equipment, the Software, the Documentation, training materials consideration due for, or breaches Sections 2, 3, or 9 with respect to, such license. Upon the and ballots that are provided, and all permitted copies of the foregoing. termination of either of the licenses granted in Section 2 for ES&S Software or upon Customer’s 10. Indemnification. To the fullest extent permitted under applicable law, Customer shall discontinuance of the use of any ES&S Software, Customer shall immediately return such ES&S indemnify and hold harmless ES&S from and against any and all claims, damages, amounts paid in Software and the related Documentation (including any and all copies thereof) to ES&S, or (if settlement and reasonable fees and costs (including reasonable attorneys' fees) (collectively requested by ES&S) destroy such ES&S Software and Documentation and certify in writing to ES&S “Adverse Consequences”) arising out of or relating to the following: that such destruction has occurred. 5. Updates. During the Initial License Term or any License Renewal Term, ES&S may provide a. Any claim that any of the ES&S Equipment or ES&S Software infringes upon any third party’s copyright, trademark or patent existing as of the date hereof (a “Third Party Infringement Claim”) new releases, upgrades or maintenance patches to the ES&S Software, together with appropriate resulting from (i) Customer’s failure to timely or properly install and use any Update provided to it by Documentation (“Updates”), on a schedule defined by ES&S. Upon receipt of written notice from ES&S; (ii) the use of any ES&S Equipment or ES&S Software in combination with other equipment, ES&S of such updates, Customer is responsible for obtaining any upgrades or purchases of Third hardware or software not meeting ES&S’ specifications for use with such ES&S Equipment or ES&S Party Items required to operate the Updates. All Updates shall be deemed to be ES&S Software for Software; or (iii) Customer’s modification or alteration of any item of ES&S Equipment or ES&S purposes of this Agreement upon delivery. Customer may install the Updates in accordance with Software without the prior written consent of ES&S; ES&S’ recommended instructions or may request that ES&S install the Updates. ES&S may charge Customer at its then-current rates to (i) deliver the Updates to the Customer, (ii) train Customer on b. Any claims by third parties arising out of or relating to the use or misuse by Customer, its Updates, if such training is requested by Customer; (iii) install the Updates or (iv) provide employees and any other persons under its authority or control (“Customer’s Representatives”) of any maintenance and support on the ES&S Software that is required as a result of Customer’s failure to third party items; timely or properly install an Update. Customer shall be responsible for any claim, damage, loss, c. Personal injury (including death) or property damage that is caused by any negligent or willful judgment, penalty, cost, amount paid in settlement or fee which is caused by Customer’s failure to act, error or omission of one or more of Customer’s Representatives; and install and use the most recent Update provided to it by ES&S. If Customer proposes changes in the ES&S Software to ES&S, such proposals will become ES&S’ property. ES&S may, in its sole d. Customer’s election not to receive, or to terminate, Hardware Maintenance Services or discretion, elect to make or not to make such changes without reference or compensation to Software Maintenance and Support. Customer or any third party. ES&S represents to Customer that the Updates will comply with all ES&S shall notify Customer immediately if it becomes aware of any claim for which it may be entitled applicable state law requirements at the time of delivery. Customer shall be responsible to ensure to indemnification under this Section 10, and hereby gives Customer full and complete authority, and that it has installed and is using only certified versions of ES&S Software in accordance with shall provide such information and assistance as is necessary (at Customer’s expense with respect to applicable law. Customer shall pay ES&S for any Update which is required due to a change in local reasonable out-of-pocket costs), to enable Customer to defend, compromise or settle any such claim. (not State or Federal) law. 11. Termination. This Agreement may be terminated, in writing, at any time by either party if the 6. Delivery; Risk of Loss. The Estimated Delivery Dates set forth on the reverse side are merely other party breaches any material provision hereof and does not cure such breach within 30 days estimates and may be revised by ES&S because of delays in executing this Agreement, changes after it receives written notification thereof from the non-breaching party. requested by Customer and other events. ES&S will notify Customer of revisions to the Estimated Delivery Dates as soon as ES&S becomes aware of such revisions. Risk of loss for the Equipment 12. Disputes. and Software shall pass to Customer when such items are delivered to Customer’s designated a. Payment of Undisputed Amounts. In the event of a dispute between the parties location. Upon transfer of risk of loss to Customer, Customer shall be responsible for obtaining and regarding (1) a product or service for which payment has not yet been made to ES&S, (2) the amount maintaining sufficient casualty insurance on the Equipment and Software and shall name ES&S as an due ES&S for any product or service, or (3) the due