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

date of any payment, Customer shall additional insured thereunder until all amounts payable to ES&S under this Agreement have been nevertheless pay to ES&S when due all undisputed amounts. Such payment shall not constitute a paid by Customer. waiver by Customer or ES&S of any of its rights and remedies against the other party. 7. Warranty. b. Remedies for Past Due Undisputed Payments. If any undisputed payment to ES&S a. ES&S Equipment/ES&S Software. ES&S warrants that for a 1-year period (the is past due more than 30 days, ES&S may suspend performance under this Agreement until such “Warranty Period”), it will repair or replace any component of the Equipment or Software which, while amount is paid. If Customer’s payment is past due for more than 60 days and is undisputed, ES&S under normal use and service: (i) fails to perform in accordance with its Documentation in all material may declare the total amount remaining due under this Agreement to be immediately due and respects, or (ii) is defective in material or workmanship. The Warranty Period will commence uponthe payable, enter the premises where the Equipment is located and remove it. Any disputed or conclusion of acceptance testing. The Warranty shall not include the repair or replacement of any undisputed payment not paid by Customer to ES&S when due shall bear interest from the due date at ES&S Equipment components that are consumed in the normal course of operating the Equipment, a rate equal to the lesser of one and one-half percent per month or the maximum amount permitted including printer ribbons, printer cartridges, paper rolls, batteries, removable media storage devices, by applicable law for each month or portion thereof during which it remains unpaid. PCMCIA cards or marking devices. Any repaired or replaced item of Equipment or Software shall be 13. Notice. Neither party may assign or transfer this Agreement or assign, subcontract or warranted only for the unexpired term of the Warranty Period. All replaced components of the delegate any of its rights, duties or obligations hereunder without the prior written consent of the other Equipment or Software will become the property of ES&S. This warranty is effective provided that (I) party hereto Customer promptly notifies ES&S of the failure of performance or defect and is otherwise in compliance with its obligations hereunder, (II) the Equipment or Software to be repaired or replaced 14. Compliance with Laws. In performing its obligations or enjoying its rights under this has not been repaired, changed, modified or altered except as authorized or approved by ES&S, (III) Agreement, each party shall comply with all applicable laws and regulations. In addition, ES&S the Equipment or Software to be repaired or replaced is not damaged as a result of accident, theft, warrants to Customer that, at the time of delivery, the Equipment and Licensed Software sold and vandalism, neglect, abuse, use which is not in accordance with instructions or specifications furnished licensed under this Agreement will comply with all applicable requirements of state election laws and by ES&S or causes beyond the reasonable control of ES&S or Customer, including acts of God, fire, regulations that are mandatory and effective as of the Effective Date and will have been certified by riots, acts of war, terrorism or insurrection, labor disputes, transportation delays, governmental the appropriate state authorities for use in Customer’s state. ES&S further warrants that during the regulations and utility or communication interruptions, and (IV) Customer has installed and is using Warranty Period and thereafter so long as Customer is subscribing and paying for Maintenance and Support Services, the Equipment and Licensed Software shall be maintained or upgraded by ES&S in such a way as to remain compliant with all applicable state election laws and regulations. "Maintained or upgraded" shall mean only such changes to individual items of the Licensed Software (but not Equipment) as are technologically feasible and commercially reasonable. Customer shall be solely responsible for the cost of any third party items that are required in order for the Equipment and/or Licensed Software to remain compliant with applicable laws and regulations. 15. State Recertifications. In the event that any future state certifications or recertifications are required that are not otherwise required as a result of a change in state law or any changes or modifications voluntarily made by ES&S to the Licensed Software and/or Equipment licensed and sold hereunder, County shall be responsible for (i) the total cost of any modifications to the Equipment or third party items that are required in order for the Equipment and/or Licensed Software to remain certified; (ii) County’s pro-rata share of out-of-pocket certification or recertification costs; and (iii) County’s pro-rata share of the costs of designing and/or developing any mandated modifications to the Equipment and/or Licensed Software that may result from such certifications or recertifications. County’s pro-rata share of the costs included under subsections 2.7 a.(ii.) and 2.7 a.(iii.) above shall be determined at the time by dividing the number of registered voters in County’s jurisdiction by the total number of registered voters in all counties in County’s state to which ES&S has sold and/or licensed the Equipment and/or Licensed Software purchased and licensed by County under this Agreement. Notwithstanding the foregoing, the total costs to be incurred by County under Sections 2.7 (a)(ii) and (iii) shall not exceed $100,000. 16. 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 all Exhibits hereto, contains the entire agreement of the parties with respect to the subject matter hereof and shall supersede and replace 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 Exhibit to this Agreement and these General Terms, the provision contained in the Exhibit 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 Equipment, Software and 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 Equipment, Software or services, but shall remain fully responsible for such performance. The provisions of Sections 1-5, 7(b), 8-10, 12(b), 13-16 these General Terms shall survive the termination of this Agreement, to the extent applicable.  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 A1 (the “Initial Term”). Upon expiration of the Initial Term, this Exhibit A shall automatically renew for an unlimited number of successive Two-Year Periods (each a “Renewal Period”) until this Exhibit A is terminated by the first to occur of (a) either party’s written election not to renew, which shall be delivered to the other party at least thirty (30) days prior to the end of the Initial Term or any Renewal Period, as applicable, (b) 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 (e), which will require no notice), (c) 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, (d) 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 (e) 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(c) or 1(d) 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 A1 for the Initial Term. The Hardware Maintenance and Software License, Maintenance and Support Fees for the Initial Term are due as set forth on Schedule A1. The Hardware Maintenance and Support Fees for any Renewal Period shall be the then current fees in effect. The Software License, Maintenance and Support Fees for any Renewal Period shall increase by not more than six percent (6%) of the previous year fee. A portion of all such fees are due annually and payable no later than thirty (30) days prior to the beginning of such renewal period in accordance with the payment term set forth on Schedule A1. 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 Initial Term or any Renewal Period thereof, ES&S will charge an incremental Software License, Maintenance and Support Fee for such services. In the event Customer terminates this Exhibit A through no fault of ES&S and later desires to subscribe for a Hardware Maintenance and Software License,