08/21/2013 AgreementCounty of Monroe
The Florida Keys
Robert B. Shillinger, County Attorney **
Pedro J. Mercado, Assistant County Attorney **
Susan M. Grimsley, Assistant County Attorney **
Natileene W. Cassel, Assistant County Attorney **
Cynthia L. Hall, Assistant County Attorney **
Christine Limbert- Barrows, Assistant County Attorney **
Derek V. Howard, Assistant County Attorney **
Lisa Granger, Assistant County Attorney
Steven T. Williams, Assistant County Attorney
** Board Certified in City, County & Local Govt. Law
BOARD OF COUNTY COMMISSIONERS
Mayor George Neugent, District 2
Mayor Pro Tem, Heather Carruthers, District 3
Danny L. Kolhage, District 1
David Rice, District 4
Sylvia J. Murphy, District 5
Office of the County Attorney
1111 12 Street, Suite 408
Key West, FL 33040
(305) 292 -3470 — Phone
(305) 292 -3516 — Fax
MEMORANDUM
TO: Vitia Fernandez, Deputy Clerk/Executive Assistant
FROM: Kathy M. Peters, County Attorney's Office Ob
RE: AGENDA ITEM R -2: BOCC 8/21/2013
DATE: September 25, 2013
Enclosed please find original Resolution No. 231 -2013 received by this office for transmittal to the
Clerk for processing which were approved by the BOCC on 8/21/13.
R. SUPERVISOR OF ELECTIONS
2. Approval for the Supervisor of Elections (SOE) to enter into contract negotiations with
Dominion Voting Systems, who was the lowest and most responsible respondent to an RFP for
Voting Tabulation System Hardware and Software. The Cost for the system will come
exclusively from the SOE budget..
KMP/
Enclosures
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MONROE COUWTY ATTORNEY
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Lindsey Ballard
From: Cassel -Nat < Cassel- Nat @monroecounty - fl.gov>
Sent: Friday, October 11, 2013 11:31 AM
To: Lindsey Ballard
Subject: RE: Verifying Documents - R2 Agenda backup (SOE Dominion Voting) was for app to
enter into contract negotiations /no contract: received aactual Voting System Agreement
from SOE for transmittal to Clerk -
Wait for November meeting. Sorry for the confusion.
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Assistant County Attorney
Monroe County
1111 12th Street, Suite 408
Key West, FL 33040
(305) 292 -3470
(305) 292 -3516 (fax)
From: Lindsey Ballard [mailto:lballard @monroe - clerk.com]
Sent: Friday, October 11, 2013 11:18 AM
To: Cassel -Nat
Subject: RE: Verifying Documents - R2 Agenda backup (SOE Dominion Voting) was for app to enter into contract
negotiations /no contract: received aactual Voting System Agreement from SOE for transmittal to Clerk -
Ok, do we have the authority to execute this document now? Or do we wait for the approval from the November BOCC
meeting?
Thank you for your help.
L6yt4ey 3allcw&
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AMY NEAVILIN, CPA
From: Cassel -Nat [ ma ilto : Cassel- Nat (& monroecounty- fl.gov
Sent: Friday, October 11, 2013 11:11 AM
To: Peters - Katherine
Cc: Lindsey Ballard; Vitia Fernandez
Subject: RE: Verifying Documents - R2 Agenda backup (SOE Dominion Voting) was for app to enter into contract
negotiations /no contract: received aactual Voting System Agreement from SOE for transmittal to Clerk -
In an abundance of caution we will put this on the November agenda.
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From: Peters - Katherine
Sent: Friday, October 11, 2013 11:08 AM
To: Cassel -Nat
Cc: I ba I lard @mon roe-clerk. com Vitia Fernandez
Subject: FW: Verifying Documents - R2 Agenda backup (SOE Dominion Voting) was for app to enter into contract
negotiations /no contract: received aactual Voting System Agreement from SOE for transmittal to Clerk -
.Natdeaw V. ect"d
Assistant County Attorney
Monroe County
1111 12th Street, Suite 408
Key West, FL 33040
(305) 292 -3470
(305) 292 -3516 (fax)
Good morning Miss Nat — I know you are swamped but can you please provide the Clerk with some written direction re:
Dominion Voting Systems Agreement (R2 BOCC 8/21/13). The actual agreement was not in the agenda backup and
agenda item wording was not for approval of the Agreement but for approval to "..enter into contract negotiations.." The
Clerk needs to know if the Agreement needs to go to the BOCC for approval of the Agreement or if you are advising that
approval by the BOCC approval of this item on 8/21/13 provided BOCC approval of the actual agreement. The Clerk is
unable to process until they receive written direction from you.
I have attached the R2 agenda backup and a copy of the Agreement received /transmitted to the Clerk for processing to
this email fyi.
Thanks so much.
From: Lindsey Ballard [ mailto:lballard @monroe- clerk.com
Sent: Friday, October 11, 2013 10:49 AM
To: Peters - Katherine
Cc: Vitia Fernandez
Subject: RE: Verifying Documents - R2 Agenda backup (SOE Dominion Voting) was for app to enter into contract
negotiations /no contract: received aactual Voting System Agreement from SOE for transmittal to Clerk -
Good Morning-
Have you heard from Nat about this yet?
Thank you O
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AMY NEAYILIN, CPA
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From: Peters - Katherine [ ma ilto: Peters-Katherine(& Mon roeCou nty-FL. Gov
Sent: Monday, October 07, 2013 4:28 PM
To: Lindsey Ballard; Vitia Fernandez
Subject: FW: Verifying Documents - R2 Agenda backup (SOE Dominion Voting) was for app to enter into contract
negotiations /no contract: received aactual Voting System Agreement from SOE for transmittal to Clerk -
Sorry girls ... was in a meeting from 1 until just a few minutes ago. Sorry for the delay in responding.
I have forwarded question /copy of backup info and docs on to Nat Cassel, the reviewing Assistant County Attorney, for
her review /response. We'll have to await her direction.
Geez, isn't it time to go home yet ? ? ?? Ha -ha!
From: Peters - Katherine
Sent: Monday, October 07, 2013 4:26 PM
To: Cassel -Nat
Cc: 'Ibal lard@ mon roe-clerk.com'; ' Vitia Fernandez'
Subject: FW: Verifying Documents - R2 Agenda backup (SOE Dominion Voting) was for app to enter into contract
negotiations /no contract: received aactual Voting System Agreement from SOE for transmittal to Clerk -
Nat — please see email below from the Clerk's Office concerning Supervisor of Elections Item R -2, BOCC
8/21/13 that needs your review /legal direction.
On 8/21/13, Item R -2, BOCC approved SOE item to "...approval for the Supervisor of Elections to enter into
contract negotiations with Dominion Voting..." (R -2 agenda backup attached /portion of 8/21/13 BOCC minutes
below). The R -2 agenda backup on 8/21/13 did not contain an actual agreement for approval by the BOCC.
On 9/9/13, our office received an actual "Voting System Agreement by and Between Dominion Voting System,
Inc. and Monroe County, FL" stamped by you on 9/25/13 which was transmitted to the Clerk for execution by
the Mayor /processing.
Minutes BOCC 8/21/12
Item R2 Board granted approval for the Supervisor of Elections (SOE) to enter into contract negotiations
with Dominion Voting Systems, who was the lowest and most responsible respondent to an RFP for Voting
Tabulation System Hardware and Software. The Cost for the system will come exclusively from the SOE
budget.
Q: Does the agenda item approved by the Board giving SOE approval to enter into contract negotiations with
Dominion Voting Systems document approval of the actual Agreement received from SOE for processing or
does the Agreement itself need to go before the BOCC for approval? The Clerk needs your legal direction
advising whether the BOCC has, in fact, approved this Agreement to allow for processing by the Clerk.
Thanks so much...
Kathy
From: Lindsey Ballard [ mailto :lballard(!'a)monroe- clerk.com
Sent: Monday, October 07, 2013 1:41 PM
To: Peters - Katherine
Subject: Verifying Documents
Hi Kathy-
Vitia and I are trying to verify Item R -z from the September BOCC meeting. When I am looking online at the back up, all I see is a
letter from Joyce Griffin and two documents that give a Financial report. What you sent me does not match this.
Thank you for your help O
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AMY NEAYILIN, CPA
VOTING SYSTEM AGREEMENT
BY AND BETWEEN
DOMINION VOTING SYSTEMS, INC.
AND MONROE COUNTY FL
This Agreement, dated this ;day of September, 2013 (the "Effective Date "), for a
voting system, licenses and related services is made by and between Monroe County FL
( "Customer ") and Dominion Voting Systems, Inc., a corporation organized under the laws of the
State of Delaware ( "Dominion "). This Agreement may refer to Dominion and the Customer
together as the "Parties," or may refer to Dominion or the Customer individually as a "Party."
WHEREAS, The Customer desires to purchase a voting system, licenses and related
solutions; and
WHEREAS, Dominion designs, manufactures, sells and /or licenses, and provides
ongoing solutions for voting systems;
NOW THEREFORE, in consideration of the mutual covenants contained herein, and in
accordance with the terms and conditions set forth herein, Dominion agrees to license and /or sell
and furnish to Customer the System (as defined herein), including the products and services
described more fully below:
1. Composition of Agreement. Exhibits A and B are attached and incorporated herein by
reference and form a part of this Agreement (the "Agreement "). This Agreement consists
of the general terms and conditions contained in the following sections, together with the
listed Exhibits:
Exhibit A: Project Configuration and Pricing Summary
Exhibit B: Software License Agreement
2. Definitions. For the purposes of this Agreement, the following are defined terms:
2.1. "Acceptance" and variations thereof, mean the successful completion of the
acceptance testing performed by the Customer on each unit of Dominion Hardware
and related Dominion Software, after delivery in accordance with testing criteria
developed and updated from time to time by Dominion, or the occurrence of other
events defined in Section 8.
2.2. "Dominion Software" means software and firmware programs licensed to the
Customer by Dominion and any associated documentation including the following:
2.2.1. "Democracy Suite Software," Dominion's election management software
associated with the ImageCast voting system which includes Election
Event Designer and Results Tally and Reporting.
2.2.2. "ImageCast Software," the software /firmware designed for use in the
ImageCast voting system.
Dominion Voting Systems Inc. Voting System Agreement _v08.28.213
Monroe County, FL, Exhibit B Page 1 of 24
2.3. "Dominion Hardware" means the ImageCast Evolution or "ICE," and ImageCast
Central or "ICC," digital scanners and tabulator as more specifically described in
Exhibit A.
2.4. "Effective Date" is the date this Agreement and Exhibit B, Software Licensing
Agreement is approved by formal action of the Board of County Commissioners.
2.5. "Election Management System Hardware" or "EMS Hardware" means third party
hardware required for operating Dominion Software as used in conjunction with the
Dominion Hardware.
2.6. "License" has the meaning set forth in Section 7.
2.7. "License Agreement(s)" means the Dominion Software License Agreement
contained in Exhibit B.
2.8. "System" means the combination of Dominion Software, Dominion Hardware and
EMS Hardware.
2.9. "Third Party Software" means Software, manufacturer supplied software, other
software, or firmware owned by third parties, which Dominion provides to
Customer pursuant to sublicenses or end user license agreements with the owners of
such Third Party Software. Third Party Software includes, but is not limited to,
operating systems, software drivers, report writing subroutines, and firmware.
3. Term of Agreement. The Term of this Agreement shall begin on the Effective Date,
retroactive to September 3, 2013 and shall continue until December 31, 2014, providing
however, that Licenses or warranties authorized by this Agreement may extend beyond the
Term of this Agreement, according to the terms and conditions of such License or
warranty.
4. Dominion's Responsibilities. Dominion shall:
4.1. Deliver the System and installation plan services as described in Exhibit A (Project
Configuration and Pricing Summary).
4.2. Appoint a Project Manager to oversee the general operations of the project. The
project manager shall be responsible for arranging all meetings, visits and
consultations between the parties and for all administrative matters such as
invoices, payments and amendments. The project manager shall communicate with
the Customer as to the status of information, procedures and progress on the tasks
as set out in this Agreement and to advise the Customer forthwith upon the
occurrence of any material change in such plans.
4.3. Provide the Customer with a Dominion Software use License as described in
Exhibit B (Software License Agreement).
Dominion Voting Systems Inc. Voting System Agreement _v08.28.213
Monroe County, FL, Exhibit B Page 2 of 24
4.4. Provide the Customer with one (1) reproducible electronic copy of the user
documentation.
4.5. Assist in the Acceptance Testing process as required by Section 8 herein.
4.6. Provide invoices to Customer upon delivery of items listed in Exhibit A and
pursuant to the payment schedule described in Section 5.1 herein.
5. Customer's Responsibilities. Customer shall:
5.1. Pay invoices in a timely manner and no later than thirty (30) calendar days from
receipt of a Dominion invoice.
5.1.1. Dominion shall invoice to the Customer an amount equaling fifty percent
(50 %) of the total System price upon acceptance of the first 38 ImageCast
Tabulators
5.1.2. All remaining invoices shall be issued within ten (10) business days of
acceptance of the remaining items or service provided by Dominion to the
Customer.
5.1.4 Payments specified in this Section 5 are exclusive of all excise, sale, use
and other taxes imposed by any governmental authority, all of which taxes
shall be reimbursed by the Customer. If the Customer is exempt from
taxes, Customer shall supply Dominion a tax exemption certificate or
other similar in a form demonstrating its exempt status.
5.2. Appoint a Project Manager who shall be responsible for review, analysis and
acceptance of the System and the coordination of Customer personnel, equipment,
vehicles and facilities. The Project Manager shall be empowered to make decisions
on behalf of the Customer with respect to the work being performed under this
Agreement. The Project Manager shall also have direct access to the Customer's top
management at all times for purposes of problem resolution.
5.3. Conduct Acceptance Testing process as required by Section 8.
6. Title and Risk of Loss.
6.1. Title to the System, Excluding All Software Title to the System, or any portion
thereof, excluding software and firmware, will pass to Customer upon delivery.
6.2. Software Software, including firmware, is licensed not sold. The original and any
copies of the Dominion Software, or other software provided pursuant to this
agreement, in whole or in part, including any subsequent improvements or updates,
shall remain the property of Dominion, or any third party that owns such software.
Dominion Voting Systems Inc. Voting System Agreement _v08.28.213
Monroe County, FL, Exhibit B Page 3 of 24
6.3. Risk of Loss Dominion shall bear the responsibility for all risk of physical loss or
damage to each portion of the System until such portion is delivered to the "Ship to"
address, except to the extent such damage is caused by Customer. Customer shall
provide Dominion with a single location for shipment and Dominion shall not be
responsible for shipping to more than one location. To retain the benefit of this
clause, Customer shall notify Dominion of any loss or damage within ten (10)
business days of the receipt of any or all portions of the System, or such shorter
period as may be required to comply with the claims requirements of the shipper,
and shall cooperate in the processing of any claims made by Dominion.
7. Software License and Use.
7.1. License Upon mutual execution of this Agreement, Dominion grants to the
Customer, and the Customer accepts a non - exclusive, non - transferable, license
( "License ") to use the Dominion Software subject to the terms and conditions of
this Agreement and the Software License Agreement attached hereto as Exhibit B.
7.2. Third Party Software The System includes Third Party Software, the use of which
is subject to the terms and conditions imposed by the owners of such Third Party
Software. Customer consents to the terms and conditions of the third party License
Agreements by Customer's first use of the System.
8. Acceptance.
8.1. Dominion Software or Dominion Hardware After delivery Dominion Software or
Dominion Hardware, the Customer will conduct acceptance testing of such units, in
accordance with the acceptance criteria developed and updated, from time to time,
by Dominion. Such acceptance testing shall occur at a time mutually agreed upon
by the Parties, but no later than ten (10) business days after installation.
8.2. System Acceptance Testing To the extent not tested as part of the testing pursuant
to Subsections 8.1, upon completing the installation of the System, the Customer
will conduct system acceptance testing, according to the acceptance test procedures
developed and updated, from time to time, by Dominion. Such acceptance testing
shall occur at a time mutually agreed upon by the Parties, but no later than ten (10)
business days after installation of the System.
8.3. System Conformance Customer will not refuse to grant Acceptance of the System,
in whole or in part, solely for the reason that it fails to conform with the
specifications, requirements and functions set out in the Agreement in a manner that
does not affect the performance of the System, in whole or in part, and Dominion
shall provide a plan of action to cure such non - conformity with reasonable dispatch.
Dominion Voting Systems Inc. Voting System Agreement _v08.28.213
Monroe County, FL, Exhibit B Page 4 of 24
9. Warranties.
9.1. Dominion Software Warranty The Dominion Software warranty is subject to the
terms and conditions of Exhibit B - the Software License Agreement.
9.2. Third Party Products The warranties in this Sections 9 do not apply to any third
party products. However, to the extent permitted by the manufacturers of third
party products, Dominion shall pass through to Customer all warranties such
manufacturers make to Dominion regarding the operation of third party products.
9.3. Dominion Hardware Warranty Dominion warrants that when used with the
hardware and software configuration purchased through or approved by Dominion,
each component of Dominion Hardware will be free of defects that would prevent
the Dominion Hardware from operating in conformity in all material respects with
its specifications as documented by Dominion. The Dominion Hardware Warranty
shall remain in effect until one year after Acceptance.
9.4. Dominion Hardware Warranty Services If any Dominion Hardware component
fails to operate in conformity with its specifications during the warranty period,
Dominion shall provide a replacement for the Dominion Hardware component or, at
Dominion's sole option, shall repair the Dominion Hardware component, so long as
the Dominion Hardware is operated with its designated Dominion Software and
with third party products approved by Dominion for use with the Dominion
Hardware. The following conditions apply to the Dominion Hardware warranty:
9.4.1. Customer shall bear the shipping costs to return the malfunctioning
component of Dominion Hardware to Dominion, and Dominion shall bear
the costs for standard shipping of the repaired or replaced component of
Dominion Hardware to Customer.
9.4.2. The following services are among those not covered by this Agreement,
but may be available at Dominion's current time and material rates:
9.4.2.1. Replacement of consumable items including but not limited to
batteries, paper rolls, ribbons, seals, smart cards, and
removable memory devices, disks, etc.;
9.4.2.2. Repair or replacement of Dominion Hardware damaged by of
accident, disaster, theft, vandalism, neglect, abuse, or any
improper usage;
9.4.2.3. Repair or replacement of Dominion Hardware modified by any
person other than those expressly authorized in writing by
Dominion;
9.4.2.4. Repair or replacement of Dominion Hardware from which the
serial numbers have been removed, defaced or changed;
Dominion Voting Systems Inc. Voting System Agreement _v08.28.213
Monroe County, FL, Exhibit B Page 5 of 24
9.5. No Other Warranties. DOMINION DISCLAIMS ALL OTHER
REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND
ANY WARRANTY BASED ON A COURSE OF DEALING, COURSE OF
PERFORMANCE OR USAGE OF TRADE.
10. Indemnification.
Dominion shall indemnify and hold harmless the County and the Supervisor of Elections, their
personnel, Commissioners, directors, agents and representatives from or against any and all
claims, damage or expenses arising out of actions or omission of Dominion, its personnel,
directors, agents and representatives under this Agreement. The County and Supervisor of
Elections to the extent allowed by Florida Statutes 768.28 shall indemnify and hold harmless
Dominion, its personnel, directors, agents and representatives under this Agreement for damage
arising out of negligence or willful misconduct of Customer with respect to users of the Service.
11. Limitation of Liability. Dominion's total aggregate liability for any loss, damage, costs or
expenses under or in connection with this Agreement, howsoever arising, including without
limitation, loss, damage, costs or expenses caused by breach of contract, negligence, strict
liability, breach of statutory or any other duty shall in no circumstances exceed the total dollar
amount of the Agreement. Subject to Florida Statutes 768.28, the County and Supervisor of
Elections limitation of liability shall be limited for any loss, damage, costs or expenses under or
in connection with this Agreement, arising out of negligence or willful misconduct of Customer
on account of or in connection with Customer's use of service under the Agreement.. Neither
party shall be liable for any loss of profits, loss of business, loss of data, loss of use or any other
indirect, incidental, punitive, special or consequential loss or damage, incurred by the other party
or any third party, when not arising from the parties negligent or willful misconduct.
11.1 "Non- Waiver of Immunity. Notwithstanding the provisions of Sec. 768.28, Florida
Statutes, the participation of Dominion and the Customer in this Agreement and the
acquisition of any commercial liability insurance coverage, self - insurance coverage,
or local government liability insurance pool coverage shall not be deemed a waiver
of immunity to the extent of liability coverage, nor shall any contract entered into
by the Customer be required to contain any provision for waiver."
12. Confidential Information.
12.1. For purposes of this Agreement, confidential information ( "Confidential
Information ") is defined as those materials, documents, data, and technical
information, specifications, business information, customer information, or other
information that the disclosing Party maintains as trade secrets or confidential and
which are disclosed to a receiving Party in tangible form conspicuously marked as
"confidential," or with words having similar meaning or which are expressly
identified in this Subsection 12.1. Confidential Information includes, without
limitation, Dominion Software source code and associated documentation.
Dominion Voting Systems Inc. Voting System Agreement _v08.28.213
Monroe County, FL, Exhibit B Page 6 of 24
12.2. Each Party shall treat the other Party's Confidential Information as confidential
within their respective organizations, and shall disclose it therein only on a need to
know basis.
12.3. Neither Party shall disclose the other Party's Confidential Information to any person
outside their respective organizations unless disclosure is made in response to, or
because of, an obligation to any federal, state, or local governmental agency or
court with appropriate jurisdiction, or to any person properly seeking discovery
before any such agency or court.
12.4 Each Party shall be given the ability to defend the confidentiality of its Confidential
Information to the maximum extent allowable under the law prior to disclosure by
the other Party of such Confidential Information.
12.5 The parties understand and agree that Customer is a public entity that may be
subject to Public Record Laws. Therefore, any covenant of confidentiality given by
the Customer shall be governed by provisions of applicable Public Record Laws.
12.6 Any specific information that Dominion claims to be confidential must be clearly
identified as such by the Customer. To the extent consistent with Public Record
Laws, Customer shall maintain the confidentiality of all such information marked
by Dominion as confidential. If a request is made to view such confidential
information, Customer will notify Dominion of such request and the date the
information will be released to the requestor unless Dominion obtains a court order
enjoining such disclosure. If the Dominion fails to obtain such court order enjoining
such disclosure, the Customer will release the requested information on the date
specified. Such release shall be deemed to have been made with the Dominion's
consent and shall not be deemed to be a violation of law or this Agreement.
13. Assignment and Right to Subcontract. Neither Party may assign its rights, obligations, or
interests in this Agreement without the written consent of the other Party, providing however that
Dominion may subcontract all or any portion of the work without the prior consent of the
Customer so long as the Subcontractor agrees in writing to assume Dominion's obligations under
this Agreement, and may assign the proceeds of this Agreement to a financial institution without
prior consent of the Customer but with written notice to Customer.
14. Termination for Default. In the event either Party violates any provisions of this
Agreement, the injured Party may serve written notice upon the violating Party identifying the
violation and a providing a reasonable cure period. Except as otherwise noted herein, such cure
period shall be at least thirty (30) days. In the event the violating Party has not remedied the
infraction at the end of the cure period, the injured Party may serve written notice upon the
violating Party of its intent to terminate, and seek legal remedies for breach of contract as
allowed hereunder. If the breach identified in the notice cannot be completely cured within the
specified time period, no default shall occur if the Party receiving the notice begins curative
action within the specified time period and thereafter proceeds with reasonable diligence and in
good faith to cure the breach as soon as practicable.
Dominion Voting Systems Inc. Voting System Agreement _v08.28.213
Monroe County, FL, Exhibit B Page 7 of 24
15. Notices. All notices required or permitted to be given hereunder shall be given in writing and
shall be deemed to have been given when personally delivered or by nationally recognized
overnight carrier or mailed, certified or registered mail, return receipt requested, addressed to the
intended recipient as follows:
If to the Dominion:
Dominion Voting Systems, Inc.
Attn: Contracts Administrator
1201 18 St., Ste. 210
Denver, CO 80202
If to the Customer:
Monroe County FL
Attn: Joyce Griffin, Supervisor
530 Whitehead Street, Suite 101
Key West, FL 33040
16. Survival. The provisions of Sections 2, 9, 10, 11, 12, 18, 19, and 20 shall survive the
expiration or termination of this Agreement.
17. Force Majeure. Should any circumstances beyond the control of Dominion or Customer
occur that delay or render impossible the performance of any obligation due under this
Agreement, such obligation will be postponed for the period of any delay resulting from any
such circumstances, plus a reasonable period to accommodate adjustment to such extension, or
cancelled if performance has been rendered impossible thereby. Such events may include,
without limitation, accidents; war, acts of terrorism; acts of God; labor disputes; acts, laws, rules
or regulations of any government or government agency; or other events beyond the control of
both Dominion and Customer. Dominion shall not be liable under this Agreement for any loss or
damage to the Customer due to such delay or performance failures. Notwithstanding the
foregoing, both Parties shall use their best efforts to minimize the adverse consequences of any
such circumstances. This Section shall not operate to excuse any Party from paying amounts that
are owed pursuant to this Agreement.
18. Choice of Law. Interpretation of this Agreement shall be governed by the laws of the State
of Florida, and the courts of competent jurisdiction located in the State of Florida will have
jurisdiction to hear and determine questions relating to this Agreement. Venue for interpretation
of this Agreement shall be in Monroe County, Florida.
19. Waiver. Any failure of a Party to assert any right under this Agreement shall not constitute
a waiver or a termination of that right or any provisions of this Agreement.
20. Legality and Severability. This Agreement and the Parties' actions under this Agreement
shall comply with all applicable federal, state and local laws, ordinances, rules, regulations, court
orders, and applicable governmental agency orders. If any term or provision of this Agreement is
held to be illegal or unenforceable, the remainder of this Agreement shall not be affected thereby
and each term or provision of this Agreement shall be valid and enforceable to the fullest extent
Dominion Voting Systems Inc. Voting System Agreement _v08.28.213
Monroe County, FL, Exhibit B Page 8 of 24
permitted by law. The Parties agree that any court reviewing this Agreement shall reform any
illegal or unenforceable provision to carry out the express intent of the parties as set forth herein
to the fullest extent permitted by law.
21. Entire Agreement. This Agreement and its Exhibits incorporated herein by reference
constitute the entire agreement, understanding and representations between Dominion and the
Customer, and supersede and replace all prior agreements, written or oral. No modifications or
representations to the Agreement shall be valid unless made in writing and signed by duly
authorized representatives of both the Customer and Dominion, and incorporated as an
Addendum hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date
first above written.
MONROE COUNTY FL
Supervisor f El'
PRINT NAME
DATE
Attest: Amy Heavilin, CPA, CLERK
By:
Deputy Clerk
Date:
(SEAL)
DOMINION VOTING SYSTEMS, INC.
AUTHORIZED SfGNATURE
BOARD OF COUNTY COMMISSIONERS
OF MONROE
COUNTY, FLORIDA
LIM
Mayor /Chairman
MONROE COUNTY ATTORNrFY
AP,9ROVED AS TO FO,RtMi
"/ NAYILEENE W. CASSEL
SSISTANT COUNTY ATTORNEY
Date —s dp/ —_
PRINTED NAME
TITLE
DATE
Dominion Voting Systems Inc. Voting System Agreement _v08.28.213
Monroe County, FL, Exhibit B Page 9 of 24
EXHIBIT A
VOTING SYSTEM AGREEMENT
BY AND BETWEEN DOMINION VOTING
AND MONROE COUNTY, FL
PRICING SUMMARY AND DELIVERABLES DESCRIPTION
1. Pricing Summary - Prices of equipment, technical facilities, software, and other related
services for voting, vote counting, and result processing. All pricing in U.S. Dollars.
Description
Quantity
Total Price
ImageCast Evolution (ICE) Tabulator System:
38 accepted and invoiced by 0911512013
38 accepted and invoiced by 12/11/2013
76
$547,200.00
ImageCast Evolution (ICE) Tabulator
1
Included
12 Month Hardware Warranty and Software License
Included
8 GB CF Memory Cards
2
Included
Ibutton Security Key
2
Included
Audio Tactile Interface (ATI)
1
Included
External Analog Modem: Zoom 3095 Modem
1
Included
ImageCast Evolution Plastic Ballot Box
Included
Subtotal
$547
Precinct Tabulation Accessories:
8 GB CF Memory Cards
16
$1,600.00
ibutton Security Key
16
$288.00
ICE Paper Roll (5 Pack)
4
$100.00
Subtotal
$1,988.00
Absentee Ballot Scanning Hardware & Software:
ImageCast Central Cannon (Class 1) Central Count System
2
$50,000.00
ImageCast Central Cannon Tabulator
2
Included
12 Month Hardware Warranty
Included
12 Month ImageCast Central Software License
Included
Dell PC with Keyboard and Mouse
1
Included
Dominion Voting Systems Inc. Voting System Agreement _v08.28.213
Monroe County, FL, Exhibit B Page 10 of 24
ibutton Security Key
1
Included
CF Memory Card Reader /Writer
1
Included
ibutton Reader /Writer
1
Included
Kofax VRS Elite Software
1
Included
Subtotal
$50,000.00
Election Management System Hardware & Software:
12 Month Democracy Suite Application Software License
1
$65,000.00
Master EMS Server
1
$6,800.00
Dell T310 Tower Server
Included
Windows Server 2008 R2 Standard Edition
Included
Microsoft SQL Server 2008
Included
Master EMS File Server
1
$6,400.00
Dell T310 Tower Server
Included
Windows Server 2008 R2 Standard Edition
Included
Watchguard Firewall Protection
1
Included
Subtotal
$78,200.00
Election Management System Accessories:
CF Memory Card Reader /Writer
2
$50.00
ibutton Reader /Writer
2
$150.00
Digi ConnectPort LTS 8
1
$1,500.00
Serial to RJ45 Cable for Robotics Modems
8
$128.00
Subtotal
$1,828.00
Onsite Implementation & Project Management Services:
Precinct Hardware Acceptance Testing
76 units
$9,500.00
Central Tabulation Hardware Acceptance Testing
2 days
$1,000.00
Server Installation, Configuration & Testing
2 days
$3,150.00
Advanced Hardware & Software Training
5 days
$9,000.00
Subtotal
$22
Onsite Election Support Services:
Onsite Pre - Election Support
3 days
$4
Dominion Voting Systems Inc. Voting System Agreement _v08.28.213
Monroe County, FL, Exhibit B Page 11 of 24
Onsite Election Day Support
1 days
$4,125.00
Onsite Election Day Field Support (Precinct Rover)
3 days
$5,625.00
Subtotal
2
$14,475.00
Other Services:
Total
$20,860
Estimated System Shipping & Insurance
(Actual shipping charges will be invoiced at the time of
shipping)
1
$9,750.00
Total Solution Cost (excluding shipping):
$716,341.00
Credits:
Legacy EMS Software License Credit
1
($65,000.00)
Legacy Inventory Trade -In Credit: TSX 140, AVOS, 188,
OSX 30
107
($42,800.00)
Total Solution Purchase Price After Discounts (excluding
shipping):
$608,541.00
YEAR 2 HARDWARE WARRANTY
Description
Quantity
Total Price
ICE Year 2 Hardware Warranty
76
$17,860
ICC Year 2 Hardware Warranty
2
$3,000
Total
$20,860
2. Detailed Description
2.1 ImageCast Evolution (ICE) Scanner and Tabulator (Hardware and Software) is a
precinct -level all in one, digital scanner, ballot marker, and accessible voting tabulator.
Each ImageCast (ICE) provided to the Customer shall consist of the following items:
2. 1.1 Two (2) optical imaging heads for creating a duplex scanned image of each side
of the ballot. Ballots can be fed in all four (4) orientations.
2.1.2 Two (2) Compact Flash 8GB memory cards.
2.1.3 An integrated 19" diagonal full color LCD with built -in touch screen.
2.1.4 An internal thermal printer and one (1) paper roll for generating reports.
2.1.5 An integrated inkjet printer for producing marked paper ballot during the
accessible voter sessions.
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2.1.6 An external wired modem is provided for transmission of data from the
ImageCast Evolutions to the EMS system. The external wired modems require
analog phone lines in each polling place in order to function as a device for
transmission. The external wired modem needs to be connected to a RJ11 port
during transmission. The Customer shall be responsible establishing the analog
phone line infrastructure required for transmission.
2.1.7 One (1) textured molded plastic ballot box made of a three (3) compartments,
costumed designed for use with the ImageCast Evolution.
2.1.8 Two (2) administrative security key (iButton) used with an integrated receptacle
(physically attached to the top of the unit and electrically connected to the
motherboard) used for a variety of verification and security tasks such control,
data confidentiality and integrity functions.
2.1.9 A motorized paper feed mechanism for detecting and moving the ballot within
the scanner. Ballots used with the ImageCast must be 8.5" wide by a variable
length (11 ", 14 ", 17" and 22 "). The paper feed mechanism is physically capable
of moving the ballot forward into the machine, across image sensors, enabling
complete image capture of both sides of the ballot.
2.1.10 An internal battery which is rated to provide a minimum of two (2) hours of
normal use in the absence of AC power.
2.1.11 Audit functionality, known as the AuditMark For each ballot that is scanned,
interpreted and accepted into the unit, a corresponding ballot image is created
and stored for audit purposes. The image consists of two parts described below.
These images can be used to audit the unit's interpretation of each individual
ballot.
• The top portion of the image contains a scanned image of the ballot.
• The bottom portion consists of a machine - generated type -out showing
each mark that the unit interpreted for that particular ballot. This is
referred to as an AuditMark
2.1.12 The ImageCast Evolution is equipped with an integrated voting feature for
voters needing additional assistance. It uses a single ballot path which does not
require the voter to have to go to an additional unit to cast the vote. The
ImageCast Evolution features several accessible voting interfaces that allow
voters with various disabilities to effectively vote, review and cast a paper ballot
in a private and independent manner. The ImageCast Evolution offers the
following user interfaces - touch screen interface for visual ballot review and
ballot casting, accessible ballot marking interface (both audio and visual),
assistive input devices for accessible ballet navigation and voting, including an
ATI (Audio - Tactile Interface).
2.1.13 One (1) ATI is included with the ImageCast Evolution. The ATI connects to
the ImageCast Evolution via the port located on the right side of the unit. A set
of headphones (also included) connects directly to the ATI controller. Following
Dominion Voting Systems Inc. Voting System Agreement _v08.28.213
Monroe County, FL, Exhibit B Page 13 of 24
the audio voting process using the ATI controller, the integrated inkjet printer
produces a marked paper ballot which serves as the official ballot record.
2.2 Two 2) ImageCast Central Scanners Dominion shall provide two (2) ImageCast
Central Scanners for use by the Customer. The ImageCast Central Scanners are
commercial off -the -shelf digital scanners configured to work with the ImageCast
Central Software for high speed ballot tabulation. The ImageCast Central Scanners
includes the following components:
2.2.1 Canon DR -X l OC high speed document scanner
2.2.2 ImageCast Central Software including third party Kofax VRS 4.5 software
2.2.3 All -in -One Desktop Workstation with pre - loaded software and 19" monitor
2.2.4 One (1) iButton Reader /Writers used with Democracy Suite to transfer security
and election information to the iButtons for use with the ICC.
2.3 ImageCast Evolution and Central Scanner Software. This Agreement includes
software licenses for the ImageCast Evolution and Central software pursuant to the
Software License Terms attached as Exhibit B.
2.4 Democracy Suite Software platform is a set of applications used for pre- voting,
Election Day, and post- voting activities. The Democracy Suite EMS consists of the
following components:
2.4.1 Election Event Designer (EED) Client Application is the primary application
used for the definition and management of election event. EED is responsible
for the definition of election projects. Each election project is represented as an
instance of the election domain database with associated set of election project
file based artifacts. The definition of the election project can be initiated by
importing the election data from external systems or simply by defining all
election project entities without importing external data. It is important to note
that an election project initiated by importing data can be further modified
within the EED Client Application.
The system can generate two types of paper ballots:
• Proofing ballots — ballots produced to allow election project
stakeholders to proof ballot content and styling. These ballots
cannot be processed by the ImageCast as they don't have proper
ballot barcodes. These ballots are overprinted with the text
"Proofing Ballots — date /time"
• Official ballots — represent production ready, press ready ballots in
PDF format with barcodes and without any overprinting.
2.4.2 Results Tally and Reporting g RTR) Client Application is the application used
for the tally, reporting and publishing of election results.
Dominion Voting Systems Inc. Voting System Agreement _v08.28.213
Monroe County, FL, Exhibit B Page 14 of 24
2.4.3 Audio Studio (AS) Client is the utility used for recording audio files for audio
ballot presentation for accessible voting.
2.5 EMS System Hardware Dominion will provide the EMS System Hardware required for
operating the Democracy Suite Software system. The EMS System hardware shall
consist of the following third party hardware and software components:
2.5.1 One (1) Master EMS Server consisting of Windows Server 2008 R2 Standard
Edition, and Microsoft SQL Server 2008.
2.5.2 One (1) Master File Server consisting of a PowerEdge R210II unit, Windows
Server 2008 R2 Standard Edition.
2.5.3 One (1) Watchguard Firewall Protection unit.
2.5.4 Server monitor and ancillary hardware (mouse, keyboard, etc.)
2.6 The EMS System Accessories described below shall be provided.
2.6.1 Two (2) Compact Flash Reader /Writers used with Democracy Suite to upload
ballot information to Compact Flashes used with both scanner types. These can
also be used to transfer election results data to Democracy Suite.
2.6.2 Two (2) Mutton Reader /Writers used with Democracy Suite to transfer security
and election information to the iButtons for use with the ICE.
3. Services Description
3.1 Project Management Support. Dominion will provide project management support to
oversee the general operations of the project through the Agreement Term. The project
manager shall be responsible for arranging all meetings, visits and consultations
between the parties and for all administrative matters such as invoices, payments and
amendments. The project manager shall communicate with the Customer as to the
status of information, procedures and progress on the tasks set out in this Agreement
and alert of any material change in such plans.
3.1.1 Upon execution of this Agreement, the Parties shall develop and finalize a
project implementation plan including a training and delivery schedule. The
Parties agree that during the course of the implementation, changes to the
project schedule may be required. Any changes to the project schedule must be
mutually agreed to by both Parties and such agreement shall not be
unreasonably withheld.
3.2 Implementation Services. During the implementation phase of the Agreement,
Dominion shall provide the following services:
3.2.1 System Acceptance Testing Support. Dominion will provide direct onsite
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training and support during the System Acceptance Testing period.
3.2.2 EMS Server Installation, Configuration & Testing. Dominion will provide a
total of two (2) days of direct onsite support for EMS Server installation,
configuration & testing.
3.2.3 System Training. Dominion shall provide a total of five (5) days of direct
onsite training for the System.
3.2.4 On -Site Pre - Election Support. Dominion will provide three (3) days of direct
onsite pre - election support for the first election during the implementation
period.
3.2.5 On -Site Election Day Support. Dominion will provide one (1) day of direct
onsite election support for the first election during the implementation period.
3.2.6 On -Site Election Day Field Support. Dominion will provide three (3)
technicians for direct onsite Election Day field support for the first election
during the implementation period.
3.3 Other Services, Consumables or Equipment. Any other services, consumables or
equipment not specifically identified in this Agreement are available for purchase by
the Customer at the then current Dominion list price.
Dominion Voting Systems Inc. Voting System Agreement _v08.28.213
Monroe County, FL, Exhibit B Page 16 of 24
EXHIBIT B
VOTING SYSTEM AGREEMENT
BY AND BETWEEN DOMINION VOTING SYSTEMS, INC.
AND MONROE COUNTY FL
SOFTWARE LICENSE AGREEMENT
THIS AGREEMENT is made on the _ day of September, 2013 ( "Effective Date ")
BETWEEN
DOMINION VOTING SYSTEMS, INC., located at 1201 18 Street, Suite 210, Denver, CO
80202 ( "Licensor ")
:►-
MONROE COUNTY FL, located at 530 Whitehead St Key West, FL 33040 ( "Licensee ")
WHEREAS The Licensee wishes the Licensor to grant to it a license to use the Software
as defined in this agreement and the Licensor is agreeable to granting such a license subject to
the following terms and conditions:
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. Definitions.
1.1. " Party " or " Parties " Licensor and Licensee may hereinafter be referred to individually as
a Party and collectively as the Parties.
1.2. " Software " means software and firmware licensed by Licensor hereunder, in object code
form, including all documentation therefore.
1.3. " Specifications " means descriptions and data regarding the features, functions and
performance of the Software, as set forth in user manuals or other applicable documentation
provided by Licensor.
1.4. " Third - Party Products means any software or hardware obtained from third -party
manufacturers or distributers and provided by Licensor hereunder.
2. Term. This Agreement is effective as of the Effective Date and expires on the day before
the first anniversary of the Effective Date ( "Initial Period "), unless earlier terminated or extended
as provided herein. After the Initial Period, Licensee may extend the effectiveness of this
Agreement for up to four (4) years ( "Software Renewal Term ") by paying the Annual Software
License Fee set forth in Schedule A of the Agreement within thirty (30) days of receiving an
invoice from Licensor. The period during which this Agreement is in effect is referred to herein
as the "Term ". On expiration of the Term (a) the licenses granted in this Agreement will
automatically terminate, (b) Licensee shall cease any further use of the Software, and (c) return
Dominion Voting Systems Inc. Voting System Agreement _v08.28.213
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the Software pursuant to Section 12 herein. Notwithstanding such expiration or termination,
Section 4 (Payment) to the extent any payment is due and Section 7 (Confidential Information)
will survive any expiration or termination of this Agreement in accordance to their respective
terms. The terms of this Agreement that do not survive expiration or termination will
nonetheless be effective in determining the Parties' rights and obligations for events taking place
before such expiration or termination.
3. License Terms.
3.1. License to Software Subject to the terms of this Agreement, Licensor grants Licensee a
non - exclusive, non - transferrable license to use the Software solely for the Licensee's own
internal business purposes and solely in conjunction with the Software and hardware. This
License shall only be effective during the Term and cannot be transferred or sublicensed. This
License includes the types and numbers of copies specified in Schedule A of the Software
identified therein.
3.2. Print Copyright License Subject to the Print Copyright License terms and conditions as
defined in Schedule B to this Agreement, Licensor grants to Licensee a non - exclusive, non-
transferable print copyright license as defined in Schedule B.
3.3. Third -Party Products Subject to the terms of this Agreement and when applicable,
Licensor agrees to sublicense any software that constitutes or is contained in Third -Party
Products, in object code form only, to Licensee for use during the Term as part of the System for
the purposes described in Section 3.1 of this Agreement. This sublicense is conditioned on
Licensee's continued compliance with the terms and conditions of the end -user licenses
contained on or in the media on which such software is provided.
3.4. No Other Licenses Other than as expressly set forth in this Agreement, (a) Licensor
grants no licenses, expressly or by implication, and (b) Licensor's entering into and performing
the Agreement will not be deemed to license or assign any intellectual property rights of
Licensor to Licensee or any third party. Without limiting the foregoing sentence, Licensee agrees
to use each copy of the Software outlined in Schedule A hereto, with which the copy is supplied,
agrees not to use any Software as a service bureau for elections outside the Licensee's
jurisdiction and agrees not to reverse engineer or otherwise attempt to derive the source code of
any Software. The Licensee shall have no power to transfer or grant sub - licenses for the
Software. Any use of all or any portion of the Software not expressly permitted by the terms of
this Agreement is strictly prohibited.
4. Payment. In consideration of the grant of the license, the Licensee shall pay Licensor
the Annual Software License Fee set forth in Schedule A of the Agreement within thirty (30)
days of receiving an invoice from Licensor. Licensee is responsible for all sales, excise, personal
property or other taxes or duties on the amounts paid or products or services provided under this
Agreement. If Licensee is exempt from such taxes or duties, Licensee shall provide Licensor
with a tax exemption certificate.
5. Upgrades and Certification. During the Term, Licensor may provide upgrades to
Licensee under the following terms and conditions.
Dominion Voting Systems Inc. Voting System Agreement _v08.28.213
Monroe County, FL, Exhibit B Page 18 of 24
5.1. Upgrades In the event that Licensor, at its sole discretion, certifies a software upgrade
under the applicable provisions of the election laws and regulations of the Licensee's State,
Licensor may make the certified software upgrade available to the Licensee. The Customer shall
be required to install the Software upgrade within six (6) months of certification unless the
extended use of the previous certified version of the Software is approved in writing by the
Licensor.5.2. Certification Requirement Notwithstanding any other terms of this Agreement,
Licensor shall not provide, and shall not be obligated to provide under this Agreement any
upgrade, enhancement or other software update that has not been certified under the applicable
provisions of the election laws and regulations of the Licensee's State.
6. Warranties. The following warranties will apply to all Software during the Term.
6.1 Software Licensor warrants that the Software, for a period of one (1) year following
delivery to the Licensee, will function substantially in accordance with the Specification. If the
Licensee believes that the Software is not functioning substantially in accordance with the
Specifications, the Licensee shall provide Licensor with written notice of the material failure
within thirty (30) days of discovering the material failure, provided that the Licensee can
reproduce the material failure to Licensor. The Licensee's exclusive remedy under this warranty
shall be, at Licensor's sole option (a) return of the Annual Software License Fee set forth in
Schedule A paid by the Licensee (if any) for the Software, or (b) Licensor shall use reasonable
efforts to correct the material failure of the Software. The foregoing warranty shall be void in
the event of the Software (i) having been modified by any party other than Licensor or (ii)
having been used by the Licensee for purposes other than those for which the Software was
designed by Licensor. If Licensor establishes that the reported material failure is not covered by
the foregoing warranty, the Licensee shall be responsible for the costs of Licensor's investigative
and remedial work at Licensor's then current rates.
6.2. -Party Products The warranties in this Section 6 do not apply to any Third -Party
Products. However, to the extent permitted by the manufacturers of Third -Party Products,
Licensor shall pass through to Licensee all warranties such manufacturers make to Licensor
regarding the operation of such Third -Party Products.
6.3. NO OTHER WARRANTIES. LICENSOR DISCLAIMS ALL OTHER
REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY BASED ON A
COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
7. Confidential Information. Licensee acknowledges that the Software and related
documentation (collectively, the "Information ") (i) constitutes confidential and proprietary trade
secrets, disclosure of which would materially injure Licensor's business and competitive
position, and (ii) is exempt from disclosure under, the terms of any applicable freedom of
information, open public records act or similar statute ( "FOIA Statute "). Licensee therefore
agrees, to the maximum extent permitted by law, to keep confidential and not to disclose any of
the Information to any other person or entity, or use such Information for any purpose other than
as expressly permitted by this Agreement. Licensee shall limit disclosure to employees of
Licensee having a need to know to perform their duties to Licensee who have agreed in writing
to be bound by the restrictions of this Section 7. Licensee shall take any and all action necessary
Dominion Voting Systems Inc. Voting System Agreement _v08.28.213
Monroe County, FL, Exhibit B Page 19 of 24
or appropriate to assert all applicable or potentially applicable exemptions from disclosure under
the FOIA Statute and take all other legally permissible steps to resist disclosure of the
Information including, without limitation, commencement or defense of any legal actions related
to such disclosure. In the event Licensee receives a request for Information under the FOIA
Statute, Licensee shall inform Licensor of such request within ten (10) days of Licensee's
knowledge or such shorter period as necessary under the FOIA Statute to avoid prejudice to
Licensor's ability to oppose disclosure. In the event Licensee is nonetheless required by law to
disclose any of the Information, Licensee shall give written notice to Licensor at the earlier of (i)
twenty (20) business days prior to disclosure or (ii) such longer period as may be required by
applicable law. Licensee understands that Florida has a broad public records law and agrees that
the County `s and Supervisor of Election's responsibility if presented with a public records
request is to advise the Licensee in writing at the address for notices listed in the attached Voting
System Agreement; and the Licensor shall immediately cooperate and take all relevant action
necessary to asset the County or Supervisor of Elections to provide whatever documentation or
testimony as required under Florida law to preserve the confidentiality of information under this
paragraph.
8. Prohibited Acts. The Licensee shall not, without the prior written permission of
Licensor:
8.1. Transfer or copy onto any other storage device or hardware or otherwise copy the
Software in whole or in part except for purposes of system backup;
8.2. Reverse engineer, disassemble, decompile, decipher or analyze the Software in whole or
in part;
8.3. Alter or modify the Software in any way or prepare any derivative works of the Software
or any part of parts of the Software;
8.4. Alter, remove or obstruct any copyright or proprietary notices from the Software, or fail
to reproduce the same on any lawful copies of the Software.
9. Limitation of Liability
Licensor's total aggregate liability for any loss, damage, costs or expenses under or in connection
with this Agreement, howsoever arising, including without limitation, loss, damage, costs or
expenses caused by breach of contract, negligence, strict liability, breach of statutory or any
other duty shall in no circumstances exceed the total dollar amount of the Agreement. Subject to
Florida Statutes 768.28, the County and Supervisor of Elections limitation of liability shall be
limited for any loss, damage, costs or expenses under or in connection with this Agreement,
arising out of negligence or willful misconduct of Customer on account of or in connection with
Customer's use of service under the Agreement.. Neither party shall be liable for any loss of
profits, loss of business, loss of data, loss of use or any other indirect, incidental, punitive,
special or consequential loss or damage, incurred by the other party or any third party, when not
arising from the parties negligent or willful misconduct.
9.1 "Non- Waiver of Immunity. Notwithstanding the provisions of Sec. 768.28, Florida
Statutes, the participation of Dominion and the Customer in this Agreement and the acquisition
of any commercial liability insurance coverage, self - insurance coverage, or local government
liability insurance pool coverage shall not be deemed a waiver of immunity to the extent of
Dominion Voting Systems Inc. Voting System Agreement _v08.28.213
Monroe County, FL, Exhibit B Page 20 of 24
liability coverage, nor shall any contract entered into by the Customer be required to contain any
provision for waiver."
10. Force Majeure. Licensor's obligations hereunder will be suspended so long as its
performance is impeded or prevented by causes beyond Licensor's reasonable control, including
acts of God, embargoes, acts of war (including terrorist attacks), labor disturbances and acts or
regulations of governmental entities.
11. Termination for Cause. If either Party materially breaches this Agreement and does not
cure the breach within 30 days after receiving written notice of the breach from the non -
breaching Party, the non - breaching Party may terminate this Agreement as of a termination date
specified in that notice or in a subsequent notice delivered within the 30 -day period. If the breach
cannot be completely cured within the 30 -day period, no default will occur if the Party receiving
the notice begins curative action within the 30 -day period and thereafter proceeds with diligence
and in good faith to cure the breach as soon as practicable.
12. Return of Software. Upon termination or expiration of this Agreement, Licensee shall
(i) forthwith return to Licensor all Software in its possession or control, or, if so requested by
Licensor, destroy all such Software from any electronic media, and certify in writing to Licensor
that it has been destroyed.
13. Miscellaneous.
13.1 Assignment Neither Party may assign any rights or delegate any obligations under this
Agreement without the prior written consent of the other Party; provided that Licensor may
subcontract Services upon 30 days' prior written notice to Licensee. Any attempted assignment
in violation of this Section 13.1 will be null and void.
13.2. Severability If any term of this Agreement is held to be unenforceable, the other terms of
this Agreement will be enforced to the fullest extent permitted by law.
13.3. Counterparts This Agreement may be executed in counterparts, each of which will be
deemed an original but all of which together will constitute one and the same instrument.
13.4. Governing Law This Agreement will be construed under the laws of the Customer's state
identified on Page 1 of this Agreement, and the state and federal courts within the Customer's
state shall have non - exclusive jurisdiction for all actions to enforce this Agreement.
13.5 Waiver No waiver or failure by a Party to assert any right under this Agreement on any
one occasion will operate as a waiver of any other right on that occasion or any right on any
other occasion.
13.6 Notices All notices under this Agreement will be delivered personally, sent by nationally
recognized express courier or sent by certified or registered U.S. mail, return receipt requested,
to the addresses set forth on Page 1. Notices will be deemed effective on personal receipt, receipt
of such electronic facsimile confirmation, two days after such delivery by courier or such
mailing by U.S. mail.
13.7 Interpretation This Agreement, including all Schedules, is the complete and final
expression of the Parties' agreement regarding its subject matter and supersedes all prior or
Dominion Voting Systems Inc. Voting System Agreement _v08.28.213
Monroe County, FL, Exhibit B Page 21 of 24
contemporaneous communications or agreements, written or oral, by the Parties regarding such
subject matter. In the event of any conflict between these Terms and Conditions and any
provisions set forth in any other part of this Agreement, these Terms and Conditions will prevail.
No amendment or supplement to this Agreement is effective unless in writing and signed by both
Parties' authorized representatives. The word "include" (or any of its derivatives) is deemed to
be followed in all contexts by the words "without limitation." Headings are included for
convenience and will be ignored in interpreting this Agreement.
13.8 No Third Party Beneficiaries Licensor and Licensee agree that this Agreement is for the
benefit of the parties hereto and is not intended to confer any rights or benefits on any third
party, and that there are no third -party beneficiaries of this Agreement or any part or specific
provision of this Agreement, and no third party shall have any right to enforce this Agreement or
any provision hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the
Effective Date.
DOMINION VOTING SYSTEMS, INC.
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Attest: Amy Heavilin, CPA, CLERK
By:
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Date:
(SEAL)
Dominion Voting Systems Inc.
Monroe County, FL, Exhibit B
MONROE COUNTY ATTORNEY
PROVED AS TO F RM:
ASSISTANT COUNTY ATTORNEY
Date 9 - Li
BOARD OF COUNTY COMMISSIONERS
OF MONROE
COUNTY, FLORIDA
USE
Mayor /Chairman
Voting System Agreement _v08.28.213
Page 22 of 24
SCHEDULE A
PRICING AND PAYMENT SCHEDULE
Annual Software License Fee
Year 1 Software License
Payment Terms:
1. Licensee shall pay the amounts indicated within 30 days from receipt of Licensor's
invoice.
2. To the extent this Agreement is extended for an additional year or years pursuant to
Section 2 herein, Licensor reserves the right to increase the Annual Software License Fee
within five percent (5 %) of the previous year's fee. The increase would begin at the start
of the contract term.
Dominion Voting Systems Inc. Voting System Agreement _v08.14.213
Monroe County FL Page 23 of 24
Included in the System
ICE Annual Software License
76
purchase price as described
in Exhibit A
Included in the System
ICC Annual Software License
2
purchase price as described
in Exhibit A
Included in the System
Democracy Suite Application Software License
1
purchase price as described
in Exhibit A
Included in the System
purchase price as described
Year 1 Total
in Exhibit A
Year 2 Software License
ICE Annual Software License
76
$17,328
ICC Annual Software License
2
$5,150
Democracy Suite Application Software License
1
$13,000
Year 2 Total
$35,478
Payment Terms:
1. Licensee shall pay the amounts indicated within 30 days from receipt of Licensor's
invoice.
2. To the extent this Agreement is extended for an additional year or years pursuant to
Section 2 herein, Licensor reserves the right to increase the Annual Software License Fee
within five percent (5 %) of the previous year's fee. The increase would begin at the start
of the contract term.
Dominion Voting Systems Inc. Voting System Agreement _v08.14.213
Monroe County FL Page 23 of 24
SCHEDULE B
PRINT COPYRIGHT LICENSE TERMS AND CONDITIONS
1. Definitions. For the purposes of this Agreement, the following are defined terms:
1.1. "Derivative Works" shall mean any work that is based upon or derived from the
Licensor's voting systems' ballots, including without limitation, sample ballots and
voting booklets.
1.2. "Voting Systems' Ballots" shall mean any ballot created for use with any voting
system owned or licensed by the Licensor.
2. Print Copyright License and Use.
a. Copyright License Grant Licensor grants to the Licensee a non - exclusive, non-
transferable copyright license to print, reproduce, distribute or otherwise copy the
Licensor's Voting Systems' Ballots or any Derivative Works (collectively the
"Materials ") pursuant to the terms and conditions of this Schedule B.
b. Copyright License Use. Other than as expressly set forth herein, (a) Licensor grants
no other licenses, expressly or by implication, and (b) Licensor's entering into and
performing the Agreement will not be deemed to license or assign any intellectual
property rights of Licensor to Licensee or any third party, (c) the copyright license
granted herein cannot be transferred or sublicensed and the Voting Systems' Ballots
or Derivative Works cannot be reproduced by any third party without the prior
written consent of the Licensor, including without limitation:
(i) any commercial or non - commercial printer
(ii) any third party vendor using ballot on demand system.
2.3. Rights and Interests All right, title and interest in the Material, including without
limitation, any copyright, shall remain with the Licensor.
3. No Copyright Warranties. LICENSOR DISCLAIMS ALL REPRESENTATIONS AND
WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE AND ANY WARRANTY BASED ON A COURSE OF DEALING,
COURSE OF PERFORMANCE OR USAGE OF TRADE.
Dominion Voting Systems Inc. Voting System Agreement _v08.14.213
Monroe County FL Page 24 of 24