HomeMy WebLinkAboutRES 11-098 RESOLUTION NO. 11-098
BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF BEAUMONT:
THAT the City Manager be and he is hereby authorized to execute a contract with
(ES&S) Election Systems and Software, Inc., for rental of election equipment, software,
training and other related services for the May 14, 2011, General Election.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 8th day of
March, 2011.
1b
�1�, �� - ayor Becky Ames -
ELECTION SYSTEMS &SOFTWARE, INC.
ONE-TIME RENTAL OF EQUIPMENT,SALE OF SERVICES AND LICENSE OF SOFTWARE
This Agreement is made as of the date it is executed by the last of the parties named below on the signature page
(the"Effective Date"),
BETWEEN: Election Systems& Software, Inc., a Delaware corporation ("ES&S°)
AND: City of Beaumont, Texas("Customer").
RECITALS:
A. Customer has agreed to rent, license and purchase, as applicable, voter tabulation equipment and related
software and services from ES&S for use in the City of Beaumont, Texas. The terms and conditions under
which the equipment,software and services shall be provided are set forth in the GENERAL TERMS attached
hereto and incorporated herein by reference.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, each of the parties hereto:
• Agrees to the GENERAL TERMS and the terms and conditions set forth in the Agreement and Amendments.
• Agrees that at all times, this Agreement shall be governed by and construed in accordance with the laws of the
State of Texas.
• Represents and warrants to the other party that as of its signature date indicated below it has full power and
authority to enter into and perform this Agreement, and that the person signing below on its behalf has been
properly authorized to execute this Agreement.
• Acknowledges that it has read this Agreement, understands it and intends to be bound by it.
ELECTION SYSTEMS&SOFTWARE, INC. CITY OF BEAUMONT, TEXAS
11208 John Galt Boulevard 801 Main Street#125
Omaha, NE 68137 Beaumont,TX 77701
Fax No.: (402) 970-1291 Fax No.: (409)880-3740 r t
Signature Signature
Xr��
Name(Printed or Typed) Name (Printed or Typed)
Title Title
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Date Date
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RENTAL OF EQUIPMENT,SALE OF SERVICES AND LICENSE OF SOFTWARE
GENERAL TERMS
1. Description of Rental Eauipment.Software and Services. The following constitutes all Rental Equipment,Software and
Services to be provided by ES&S to Customer under this Agreement:
QUANTITY MODEL RENTAL EQUIPMENT DESCRIPTION PRICE
May 14,2011 Election:
ES&S Equipment:
1 Model 100 (USED)Model 100 Precinct Scanner with Steel Ballot Box,with $975.00
Diverter, PCMCIA Card,Start-up Kit,and Roundtrip Shipping
1 Model 100 (USED)Model 100 Precinct Scanner with PCMCIA Card, Start-up Kit, $850.00
and Roundtrip Shipping
88 12"iVotronic (USED) 12"iVotronic Voter Terminal with Booth, Supervisor PEB, $61,600.00
512mb Flashcard,and Roundtrip Shipping
44 12"iVotronic (USED) 12"iVotronic ADA Terminal with Booth, Supervisor PEB, $33,000.00
512mb Flashcard, Headset,and Roundtrip Shipping
1 PEB Reader $45.00
1 Compact Flash Card Reader $10.00
45 Printer Pack $5,175.00
5 Supervisor PEB(Additional) $50.00
50 512mb Flashcard (Additional) $500.00
1 Laptop with ERM $250.00
Services:
4 Project Management Day $6,300.00
1 Election Day On-Site Support Event with Two(2) People $8,250.00
Ballot Charges:
2,500 Ballot Printing $750.00
Data Conversion for E-Pollbook:
1 Set Up/Configuration Fee $750.00
Includes Data Analysis
Determination of the Following:
Total Registrants
Number of Polling Places
Number of Jurisdictions
Registrants per Jurisdiction
Registrants per Ballot/Style
Testing/Validation
Validation of Final Record Counts
Baseline Validation of Application Workflows&Active Functions
Testing of Special Configuration or Customer Options
95,000 Processing Fee Per Registered Voter $1,900.00
Total Rental Payment: $120,405.00
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Payment and Other Terms:
$120,405.00 Due Thirty (30)Calendar Days after the later of(a) Equipment Delivery, or(b) Receipt of Corresponding
ES&S Invoice.
Customer has the option to purchase the 12"iVotronics for$1.00 each at the conclusion of the Rental Term.
Audio Files, Ballot Layout, and Coding will be invoiced separately.
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.
Payment of invoices is due no later than 30 days after Customer's receipt of corresponding invoice. Delays in payment
due to no fault of ES&S will be subject to interest charges in the maximum amount permitted by applicable law.
Any applicable state and local taxes are not included, and are the responsibility of Customer.
Service Day and Installation rates include travel and per diem expenses.
2. Additional Professional Services..If requested in writing by Customer,ES&S will provide additional Professional Services
support to Customer at ES&S's then-applicable rates for such services.
TERMS AND CONDITIONS RELATING TO RENTAL EQUIPMENT
3. Items Included in Rental Equipment. In addition to the Rental Equipment,ES&S will also provide Customer with copies
of operating instructions, user manuals and training materials for the Rental Equipment ("Rental Equipment
Documentation"). Certain items included in the Rental Equipment may have been manufactured by parties other than
ES&S; any such items are separately identified in Section 1 and are collectively known as "Non-ES&S Rental
Equipment". Customer acknowledges and agrees that, except for the payment to ES&S of the amount dues under
Section 1 which is attributable to the Non-ES&S Rental Equipment, all of its rights and obligations with respect to the
Non-ES&S Rental Equipment flow from and to the manufacturers, lessors or other vendors of the Non-ES&S Rental
Equipment (collectively the "Third Party Rental Equipment Vendors"). Customer further acknowledges that it has
received copies of all applicable Third Party Rental Equipment Vendor Documentation,warranties and other applicable
information regarding its rights and obligations with respect to the Non-ES&S Rental Equipment.
4. Warranty. ES&S warrants that any ES&S-manufactured equipment included in the rental equipment ("Rental
Equipment")will perform in accordance with the specifications set forth in the Rental Equipment Documentation and will
be free from defects in material and workmanship under normal use and service for the Rental Term (the"Warranty
Period"). ES&S'sole obligation under this Section 4 shall be to repair or replace the Rental Equipment or the applicable
parts thereof, at its sole expense, at Customer's location or at ES&S's facilities, as determined by ES&S in its sole
discretion. Any repaired or replaced Rental Equipment or parts thereof shall be warranted only for the unexpired term of
the original Warranty Period. All replaced Rental Equipment or parts thereof will become the property of ES&S on an
exchange basis. The warranty provided by ES&S under this Section 4 does not apply to and shall not require ES&S to
repair or replace any item (i)which requires repair or replacement due to normal wear and tear, (ii)which has been
repaired, altered or transported by persons other than ES&S authorized Representatives, (iii) from which any serial
number has been removed, defaced or changed, (iv) which is damaged due to accident, disaster, theft, vandalism,
neglect, abuse, use for a purpose other than the purpose for which such item is designed or use which is not in
accordance with instructions furnished by ES&S, (v)which has been subjected to physical, mechanical or electrical
design alterations or any conversion by persons other than ES&S personnel, (vi)which has been used by any person
other than Customer's employees or persons under Customer's direct supervision;(vii)which has been used in a site not
meeting the specifications set forth in Section 2(a)above;(viii)has been used with ballots other than ES&S copyrighted
ballots;or(ix)have been used with ballot code stock other than ballot code stock supplied or approved by ES&S.
5. Rental Payments. The rental payment for each item included in the Rental Equipment for the Rental Term (defined
below)is set forth in Section 1 above,and the total amount thereof shall be paid in accordance with the terms of Section
1. Customer shall notify ES&S if it desires to rent additional items of Rental Equipment. If ES&S agrees to rent such
items to Customer, the parties shall amend Section 1 of this Agreement to include such items within the definition of
"Rental Equipment"and Customer shall pay to ES&S rental payments for each such item at ES&S's then-current rental
rates.
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6. Rental Term. The period during which Customer shall rent the Rental Equipment from ES&S shall be in effect
from April 13,2011 through June 15,2011,unless earlier terminated pursuant to this Agreement(the"Rental Term").
The Rental Term shall terminate upon the first to occur of(i)a breach of any provision herein applicable to the Rental
Equipment which has not been cured by the breaching party within thirty(30)days after it receives written notice of the
breach from the nonbreaching party(except a breach as provided in(iii)below which will require no notice); (ii)either
party's providing thirty(30)days'priorwritten notice to the other party hereto of its desire to terminate the Rental Term;or
(iii) Customer's failure to make any rental payment due hereunder within sixty(60)days after it is due. In the event of
early termination by ES&S due to(a)a breach of this Agreement by Customer,(b)Customer's failure to pay any amounts
owed under this Agreement or (c) the failure of Customer's Board of Supervisors to appropriate funds to make the
payments due under this Agreement,Customer shall pay ES&S liquidated damages equal to the present value of the
remaining monthly amounts owing hereunder,discounted at the rate of 8%per annum. No later than ten(10)calendar
days following the termination of the Rental Term, Customer shall release the Rental Equipment to ES&S at its own
expense and in the same operation,order,repair,condition and appearance as when received,subject to normal wear
and tear. In the event Customer fails to release the Rental Equipment to ES&S no later than ten (10)calendar days
following the termination of the Rental Term,Customer shall pay to ES&S a late return charge in the amount of$500.00
per calendar day until the Rental Equipment is returned to ES&S in accordance herewith. Notwithstanding the foregoing,
in the event the Rental Equipment and/or Software is impounded pursuant to an order of any court of competent
jurisdiction,the Ohio Secretary of State orthe Congress of the United States,and/or the Customer is required to keep the
Rental Equipment and/or Software pursuant to an order of any court of competent jurisdiction the Ohio Secretary of
State of the Congress of the United States, the Rental Term shall be extended and the Customer will be permitted to
keep the Rental Equipment and/or Software on a day-to-day basis until the order is lifted or expires. In the event the
Rental Equipment and/or Software is required to be kept by the Customer through an order of any court of competent
jurisdiction in excess of forty-five(45)days from the expiration or termination of the Agreement,Customer shall pay rent
for the period beginning forty-five(45)days from the expiration or termination of the Agreement through the period in
which the order is lifted or expires in accordance with the rental rates set forth in this Agreement.
TERMS AND CONDITIONS RELATING TO SOFTWARE
7. Grant of License.
a. In General. ES&S hereby grants to Customer a nonexclusive and nontransferable license during the Rental
Term to Use(defined below)the Software designated in Section 1.
b. Definition of Use. For purposes of this Agreement,the term"Use"shall mean the right to copy or utilize all or
any portion of the instructions or data of the ES&S Software from tangible media supplied by ES&S("Tangible
Media"). The ES&S Software may be used only for internal purposes and shall not be used by,for,or on behalf
of, third parties. "Use" shall also mean the right to retain and consult the ES&S Software Documentation.
Customer's right to Use the ES&S Software and the ES&S Software Documentation shall not include the right to
do any of the following:
i. Copy,in whole or in part,any ES&S Software(except for backup and archive purposes and provided
that no more than one copy may be in existence at any one time for such purposes), any Tangible
Media or any ES&S Software Documentation;
ii. Reverse engineer, decompile, disassemble, re-engineer or otherwise create or attempt to create or
permit, allow or assist others to create the source code of the ES&S Software or the structural
framework of the ES&S Software;
iii. Cause or permit any use, display, loan, publication, transfer of possession, sublicensing or other
dissemination of the ES&S Software or the ES&S Software Documentation,in whole or in part,to or by
any third party without Licensor's prior written consent;
iv. Modify,enhance or otherwise change the ES&S Software;
V. Use the ES&S Software except as specified in the ES&S Software Documentation or as otherwise
authorized by ES&S in writing;or
vi. Use the ES&S Software on more items of Designated Equipment unless authorized in writing by ES&S.
8. Fees. The license fees for the ES&S Software,the ES&S Software Documentation,the Third Party Software and the
Third Party Documentation (collectively the"Licensed Items")for the Rental Term are set forth in Section 1 above and
shall be paid in accordance with the terms of Section 1.
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9. Term:Termination. The license granted herein shall become effective on the date the ES&S Software is installed by
Customer(the"Start Date")and shall remain in force during the Rental Term. Upon termination of the license,Customer
shall immediately return the ES&S Software and any other Confidential Information in its possession or under its control
(including any and all copies)to ES&S. Termination of the license pursuant to this provision is in addition to any other
remedies available to ES&S at law or in equity.
10. Title: Copyright Notice. Customer acknowledges and agrees that: (a) all right, title and interest in and to the ES&S
Software, the ES&S Software Documentation and the Tangible Media is owned by ES&S, and Customer has only a
limited license to Use such items during the Software License Term. Customer agrees not to challenge ES&S's right,title
and interest in and to the ES&S Software,the ES&S Software Documentation or the Tangible Media and to notify ES&S
immediately if it becomes aware of any such challenge. Customer shall include the copyright and proprietary rights
notices which are set forth on each item of Tangible Media on any copies of the Software which are made from such item
of Tangible Media. Likewise,Customer shall include the copyright and proprietary rights notices which are set forth on
each item of Documentation on any copies thereof.
11. Export. Customer acknowledges that the laws and regulations of the United States may restrict the export of certain
commodities and technical data of United States origin,including the Software,in any medium. Customer agrees that it
shall not export the Software or the Documentation in any form without the appropriate United States and foreign
government licenses. Licensee further agrees that its obligations pursuant to this Section 11 shall survive and continue
after the termination of this Agreement.
TERMS AND CONDITIONS RELATING TO RENTAL EQUIPMENT AND SOFTWARE
12. Limitation on Liability. ES&S' total liability to Customer for any losses, damages, costs or expenses of any nature,
whether direct or indirect,arising from or relating to ES&S' performance of this Agreement or the products or services
provided by ES&S hereunder,shall be limited to the aggregate amount paid by Customer to ES&S for the product(s)or
services(s)that caused the losses or damages or are the subject matter of the claim or cause of action. By entering into
this Agreement, Customer agrees to accept responsibility for(i)the selection of the Rental Equipment and Software to
achieve Customers intended results; (ii)the use(Use)of the Rental Equipment and Software;(c)the results obtained
from the use of the Rental Equipment and Software; and (d) the selection of, use of and results obtained from any
equipment, software or services not provided by ES&S and used with the Rental Equipment or Software.
13. Shipment:Title and Risk of Loss. ES&S will ship the Rental Equipment and Software by common carrier to Customer on
a date mutually agreed upon by ES&S and Customer,and risk of loss with respect to the Rental Equipment and Software
shall pass to Customer when such items are delivered to Customers place of business. Title to the Rental Equipment
shall remain in ES&S.ES&S shall also bear the risk of loss with respect to the Rental Equipment(except that Customer
shall bear the risk of loss with respect to, or damage to,the Rental Equipment which is caused by fire, the elements,
theft,vandalism, negligent or intentional acts of Customers employees or other events which are within the control of
Customer). During the period in which this Agreement is in effect, Customer shall, at its sole expense, maintain the
Rental Equipment in good operating condition and repair and protect the Rental Equipment from deterioration other than
normal wear and tear and shall procure and maintain insurance on the Rental Equipment to adequately insure the risks
of loss for which Customer is responsible hereunder. Upon request,Customer shall provide ES&S with copies of any
and all policies procured and maintained by Customer insuring Customer's risks of loss hereunder. Customer shall not
use the Rental Equipment for any purpose other than those for which it was designed and shall not,without the prior
written consent of ES&S, alter the Rental Equipment or affix to or install on the Rental Equipment any accessory,
equipment or device which was not supplied to it by ES&S. Customer shall not move the Rental Equipment from the
place where it was originally installed without ES&S'prior written consent and shall make the Rental Equipment and any
records pertaining thereto available to ES&S during regular business hours for inspection.Customerwill not,withoutthe
prior written consent of ES&S and subject to such conditions as ES&S may impose for its protection,affix any item of
Rental Equipment to any real property if,as a result thereof,such item of Rental Equipment will become a fixture under
applicable state law.
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ELECTION SYSTEMS&SOFTWARE,INC.
ONE-TIME RENTAL OF EQUIPMENT,SALE OF SERVICES AND LICENSE OF SOFTWARE
This Agreement is made as of the date it is executed by the last of the parties named below on the signature page
(the"Effective Date"),
BETWEEN: Election Systems&Software,Inc.,a Delaware corporation("ES&S")
AND: City of Beaumont,Texas("Customer").
RECITALS:
A. Customer has agreed to rent,license and purchase,as applicable,voter tabulation equipment and related
software and services from ES&S for use in the City of Beaumont,Texas. The terms and conditions under
which the equipment,software and services shall be provided are set forth in the GENERAL TERMS attached
hereto and incorporated herein by reference.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged,each of the parties hereto:
• Agrees to the GENERAL TERMS and the terms and conditions set forth in the Agreement and Amendments.
• Agrees that at all times,this Agreement shall be governed by and construed in accordance with the laws of the
State of Texas.
Represents and warrants to the other party that as of its signature date indicated below it has full power and
authority to enter into and perform this Agreement,and that the person signing below on its behalf has been
properly authorized to execute this Agreement.
• Acknowledges that it has read this Agreement,understands it and intends to be bound by it.
ELEC ) YSTEM F ARE,I CITY OF BEAUMONT,TEXAS
11208 Jo6f Galt B $v rd 801 Main Street#125
Omaha, 6 137 , Beaumont,TX 77701
Fax :( 0 970 1? Fax No.:(409)880-3740 j
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Signatu a Signature
�/fi,��r l� Ie /-7'
r
NamM( tc d Name(Printed or Type )
Title Title
Date I Date
1
RENTAL OF EQUIPMENT,SALE OF SERVICES AND LICENSE OF SOFTWARE
GENERALTERMS
1. Description of Rental Eauipment.Software and Services.The following constitutes all Rental Equipment,Software and
Services to be provided by ES&S to Customer under this Agreement:
QUANTITY MODEL RENTAL EQUIPMENT DESCRIPTION PRICE
May 14,2011 Election:
ES&S Equipment:
1 Model 100 (USED)Model 100 Precinct Scanner with Steel Ballot Box,with $875.00
Diverter,PCMCIA Card,Start-up Kit,and Roundtrip Shipping
1 Model 100 (USED)Model 100 Precinct Scanner with PCMCIA Card,Start-up Kit, $850.00
and Roundtrip Shipping
88 12"Uotronic (USED)12"Uotronic Voter Terminal with Booth,Supervisor PEB, $61,600.00
512mb Flashcard,and Roundtrip Shipping
44 12"iVotronic (USED)12"Uotronic ADA Terminal with Booth,Supervisor PEB, $33,000.00
512mb Flashcard,Headset,and Roundtrip Shipping
1 PEB Reader $45.00
1 Compact Flash Card Reader $10.00
45 Printer Pack $5,175.00
5 Supervisor PEB(Additional) $50.00
50 512mb Flashcard(Additional) $500.00
1 Laptop with ERM $250.00
Services:
4 Project Management Day $6,300.00
1 Election Day On-Site Support Event with Two(2)People $8,250.00
Ballot Charges:
2,500 Ballot Printing $750.D0
Data Conversion for E-Pollbook:
1 Set Up/Configuration Fee $750.00
Includes Data Analysis
Determination of the Following:
Total Registrants
Number of Polling Places
Number of Jurisdictions
Registrants per Jurisdiction
Registrants per Ballot/Style
Testing/Validation
Validation of Final Record Counts
Baseline Validation of Application Workflows&Active Functions
Testing of Special Configuration or Customer Options
95,000 Processing Fee Per Registered Voter $1,900.00
Total Rental Payment: $120,405.00
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Payment and Other Terms:
$120,405.00 Due Thirty(30)Calendar Days after the later of(a)Equipment Delivery,or(b)Receipt of Corresponding
ES&S Invoice.
Customer has the option to purchase the 12"Motronics for 31.00 each at the conclusion of the Rental Term.
Audio Files,Ballot Layout,and Coding will be invoiced separately.
I
In no event shall Customers payment obligations hereunder,or the due dates for such payments,be contingent or
conditional upon Customer's receipt of federal and/or state funds.
Payment of invoices is due no later than 30 days after Customer's receipt of corresponding invoice.Delays in payment
due to no fault of ES&S will be subject to interest charges in the maximum amount permitted by applicable law.
Any applicable state and local taxes are not included,and are the responsibility of Customer.
Service Day and Installation rates include travel and per diem expenses.
2. Additional Professional Services..lf requested in writing by Customer,ES&S will provide additional Professional Services
support to Customer at ES&S's then-applicable rates for such services.
TERMS AND CONDITIONS RELATING TO RENTAL EQUIPMENT
3. Items Included in Rental Eauioment. In addition to the Rental Equipment,ES&S will also provide Customer with copies
of operating instructions, user manuals and training materials for the Rental Equipment ("Rental Equipment
Documentation").Certain items included in the Rental Equipment may have been manufactured by parties other than
ES&S; any such items are separately identified in Section 1 and are collectively known as"Non-ES&S Rental
Equipment". Customer acknowledges and agrees that,except for the payment to ES&S of the amount dues under
Section 1 which is attributable to the Non-ES&S Rental Equipment,all of its rights and obligations with respect to the
Non-ES&S Rental Equipment flow from and to the manufacturers,lessors or other vendors of the Non-ES&S Rental
Equipment(collectively the"Third Party Rental Equipment Vendors"). Customer further acknowledges that it has
received copies of all applicable Third Party Rental Equipment Vendor Documentation,warranties and other applicable
information regarding its rights and obligations with respect to the Non-ES&S Rental Equipment.
4. Warranty. ES&S warrants that any ES&S-manufactured equipment included in the rental equipment ("Rental
Equipment")will perform in accordance with the specifications set forth in the Rental Equipment Documentation and will
be free from defects in material and workmanship under normal use and service for the Rental Term(the"Warranty
Period"). ES&S'sole obligation under this Section 4 shall be to repair or replace the Rental Equipment or the applicable
parts thereof,at its sole expense,at Customer's location or at ES&S's facilities,as determined by ES&S in its sole
discretion.Any repaired or replaced Rental Equipment or parts thereof shall be warranted only for the unexpired term of
the original Warranty Period. All replaced Rental Equipment or parts thereof will become the property of ES&S on an
exchange basis. The warranty provided by ES&S under this Section 4 does not apply to and shall not require ES&S to
repair or replace any item(1)which requires repair or replacement due to normal wear and tear,(ii)which has been
repaired,altered or transported by persons other than ES&S authorized Representatives,(iii)from which any serial
number has been removed,defaced or changed,(iv)which is damaged due to accident,disaster,theft,vandalism,
neglect,abuse, use for a purpose other than the purpose for which such item is designed or use which is not in
accordance with instructions furnished by ES&S,(v)which has been subjected to physical,mechanical or electrical
design alterations or any conversion by persons other than ES&S personnel,(vi)which has been used by any person
other than Customer's employees or persons under Customers direct supervision;(vii)which has been used in a site not
meeting the specifications set forth in Section 2(a)above;(viii)has been used with ballots other than ES&S copyrighted
ballots;or(ix)have been used with ballot code stock other than ballot code stock supplied or approved by ES&S.
5. Rental Payments. The rental payment for each item included in the Rental Equipment for the Rental Term(defined
below)is set forth in Section 1 above,and the total amount thereof shall be paid in accordance with the terms of Section
1. Customer shall notify ES&S if it desires to rent additional items of Rental Equipment. If ES&S agrees to rent such
items to Customer,the parties shall amend Section 1 of this Agreement to include such items within the definition of
"Rental Equipment"and Customer shall pay to ES&S rental payments for each such item at ES&S's then-current rental
rates.
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8. Rental Term. The period during which Customer shall rent the Rental Equipment from ES&S shall be in effect
from April 13,2011 through June 15,2011,unless earlier terminated pursuant to this Agreement(the"Rental Term").
The Rental Term shall terminate upon the first to occur of(1)a breach of any provision herein applicable to the Rental
Equipment which has not been cured by the breaching party within thirty(30)days after it receives written notice of the
breach from the nonbreaching party(except a breach as provided in(iii)below which will require no notice);(ii)either
party's providing thirty(30)days'prior written notice to the other party hereto of its desire to terminate the Rental Term;or
(iii)Customer's failure to make any rental payment due hereunder within sixty(80)days after it is due.In the event of
early termination by ES&S due to(a)a breach of this Agreement by Customer,(b)Customer's failure to pay any amounts
owed under this Agreement or(c)the failure of Customer's Board of Supervisors to appropriate funds to make the
payments due under this Agreement,Customer shall pay ES&S liquidated damages equal to the present value of the
remaining monthly amounts owing hereunder,discounted at the rate of 8%per annum. No later than ten(10)calendar
days following the termination of the Rental Term,Customer shall release the Rental Equipment to ES&S at its own
expense and in the same operation,order,repair,condition and appearance as when received,subject to normal wear
and tear. In the event Customer fails to release the Rental Equipment to ES&S no later than ten(10)calendar days
following the termination of the Rental Term,Customer shall pay to ES&S a late return charge in the amount of$500.00
per calendar day until the Rental Equipment is returned to ES&S in accordance herewith. Notwithstanding the foregoing,
in the event the Rental Equipment and/or Software is impounded pursuant to an order of any court of competent
jurisdiction,the Ohio Secretary of State or the Congress ofthe United States,and/or the Customer is required to keep the
Rental Equipment and/or Software pursuant to an order of any court of competent jurisdiction the Ohio Secretary of
State of the Congress of the United States, the Rental Term shall be extended and the Customer will be permitted to
keep the Rental Equipment and/or Software on a day-to-day basis until the order is lifted or expires. In the event the
Rental Equipment and/or Software Is required to be kept by the Customer through an order of any court of competent
jurisdiction in excess of forty-five(45)days from the expiration or termination of the Agreement,Customer shall pay rent
for the period beginning forty-five(45)days from the expiration or termination of the Agreement through the period in
which the order is lifted or expires in accordance with the rental rates set forth in this Agreement.
TERMS AND CONDITIONS RELATING TO SOFTWARE
7. Grant of License.
a. in General. ES&S hereby grants to Customer a nonexclusive and nontransferable license during the Rental
Tenn to Use(defined below)the Software designated in Section 1.
b. Definition of Use. For purposes of this Agreement,the term'Use"shall mean the right to copy or utilize all or
any portion of the instructions or data of the ES&S Software from tangible media supplied by ES&S CTangible
Media").The ES&S Software may be used only for internal purposes and shall not be used by,for,or on behalf
of,third parties. "Use'shall also mean the right to retain and consult the ES&S Software Documentation.
Customer's right to Use the ES&S Software and the ES&S Software Documentation shall not include the right to
do any of the following:
i. Copy,in whole or in part,any ES&S Software(except for backup and archive purposes and provided
that no more than one copy may be in existence at any one time for such purposes),any Tangible
Media or any ES&S Software Documentation;
ii. Reverse engineer,decompile,disassemble,re-engineer or otherwise create or attempt to create or
permit, allow or assist others to create the source code of the ES&S Software or the structural
framework of the ES&S Software;
iii. Cause or permit any use,display,loan,publication,transfer of possession,sublicensing or other
dissemination of the ES&S Software orthe ES&S Software Documentation,in whole or in part,to or by
any third party without Licensors prior written consent;
iv. Modify,enhance or otherwise change the ES&S Software;
V. Use the ES&S Software except as specified in the ES&S Software Documentation or as otherwise
authorized by ES&S In writing;or
Vi. Use the ES&S Software on more items of Designated Equipment unless authorized In writing by ES&S.
8. Fees. The license fees for the ES&S Software,the ES&S Software Documentation,the Third Party Software and the
Third Party Documentation(collectively the"Licensed Items")for the Rental Term are set forth in Section 1 above and
shall be paid in accordance with the terms of Section 1.
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9. Term:Termination. The license granted herein shall become effective on the date the ES&S Software is installed by
Customer(the"Start Date)and shall remain in force during the Rental Term.Upon termination of the license,Customer
shall immediately return the ES&S Software and any other Confidential Information in its possession or under its control
(including any and all copies)to ES&S. Termination of the license pursuant to this provision is in addition to any other
remedies available to ES&S at law or in equity.
10. Titie:Copyright Notice. Customer acknowledges and agrees that(a)all right,title and interest in and to the ES&S
Software,the ES&S Software Documentation and the Tangible Media is owned by ES&S,and Customer has only a
limited license to Use such items during the Software License Term.Customer agrees not to challenge ES&S's right,title
and interest in and to the ES&S Software,the ES&S Software Documentation or the Tangible Media and to notify ES&S
immediately if it becomes aware of any such challenge.Customer shall include the copyright and proprietary rights
notices which are set forth on each Rem of Tangible Media on any copies of the Software which are made from such item
of Tangible Media. Likewise,Customer shall include the copyright and proprietary rights notices which are set forth on
each item of Documentation on any copies thereof.
11. Export. Customer acknowledges that the laws and regulations of the United States may restrict the export of certain
commodities and technical data of United States origin,including the Software,in any medium. Customer agrees that it
shall not export the Software or the Documentation in any form without the appropriate United States and foreign
government licenses. Licensee further agrees that its obligations pursuantto this Section 11 shall survive and continue
after the termination of this Agreement.
TERMS AND CONDITIONS RELATING TO RENTAL EQUIPMENT AND SOFTWARE
12. Limitation on Liability. ES&S'total liability to Customer for any losses,damages,costs or expenses of any nature,
whether direct or indirect,arising from or relating to ES&S'performance of this Agreement or the products or services
provided by ES&S hereunder,shall be limited to the aggregate amount paid by Customer to ES&S for the products)or
services(s)that caused the losses or damages or are the subject matter of the claim or cause of action.By entering into
this Agreement,Customer agrees to accept responsibility for(!)the selection of the Rental Equipment and Software to
achieve Customer's intended results;(ii)the use(Use)of the Rental Equipment and Software;(c)the results obtained
from the use of the Rental Equipment and Software;and(d)the selection of,use of and results obtained from any
equipment,software or services not provided by ES&S and used with the Rental Equipment or Software.
13. Shipment:Title and Risk of Loss.ES&S will ship the Rental Equipment and Software by common carrier to Customer on
a date mutually agreed upon by ES&S and Customer,and risk of loss with respect to the Rental Equipment and Software
shall pass to Customer when such items are delivered to Customer's place of business. Title to the Rental Equipment
shall remain in ES&S.ES&S shall also bear the risk of loss with respect to the Rental Equipment(except that Customer
shall bear the risk of loss with respect to,or damage to,the Rental Equipment which is caused by fire,the elements,
theft,vandalism,negligent or intentional acts of Customer's employees or other events which are within the control of
Customer). During the period in which this Agreement is In effect,Customer shall,at its sole expense,maintain the
Rental Equipment in good operating condition and repair and protect the Rental Equipment from deterioration otherthan
normal wear and tear and shall procure and maintain insurance on the Rental Equipment to adequately insure the risks
of loss for which Customer is responsible hereunder. Upon request,Customer shall provide ES&S with copies of any
and all policies procured and maintained by Customer insuring Customer's risks of loss hereunder. Customer shall not
use the Rental Equipment for any purpose other than those for which R was designed and shall not,without the prior
written consent of ES&S,alter the Rental Equipment or affix to or install on the Rental Equipment any accessory,
equipment or device which was not supplied to it by ES&S. Customer shall not move the Rental Equipment from the
place where it was originally installed without ES&S'prior written consent and shall make the Rental Equipment and any
records pertaining thereto available to ES&S during regular business hours for inspection.Customerwill not,without the
prior written consent of ES&S and subject to such conditions as ES&S may Impose for its protection,affix any item of
Rental Equipment to any real property if,as a result thereof,such item of Rental Equipment will become a fixture under
applicable state law.
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