Hart contract in plain text part 1: Boulder County Draft Contract

["Pete Klammer" <pklammer@xxxxxxxxxxx>]

"Boulder County Draft Contract"

http://coloradovoter.net/contracts/20040422/Boulder%20County%20Draft%20Contr
act%20-%2004-19-04.pdf

AGREEMENT BETWEEN THE COUNTY OF BOULDER, COLORADO AND
HART INTERCIVIC, INC.
FOR A VOTING TABULATION SYSTEM
This Agreement is entered into effective the ____ day of April, 2004,
between the County of Boulder, a political
subdivision of the State of Colorado ("County"), and Hart InterCivic, Inc.,
a Texas corporation ("Hart"), to provide
a New Voting Tabulation System to the County for use by the Boulder County
Clerk and Recorder.
RECITALS
1. All Colorado counties with punch-card voting systems, including the
County of Boulder, are required by the
federal Help America Vote Act of 2002 (HAVA), Public Law 101-252, to convert
from their present systems to a
new system no later than January 1, 2006.
2. County issued a Request for Proposal (RFP) #4437-03 for a New Voting
Tabulation System, on May 9, 2003, and
received Hart's response to the RFP on June 13, 2003.
3. County's objective is to procure and implement a high-quality, efficient
and cost- effective system that will
deliver accurate, error-free and rapid results for all elections.
4. Hart is certified by the State of Colorado and the appropriate certifying
federal authority to provide these
products and services to replace the County's present punch card voting
system.
5. Hart represents that it has the necessary resources to provide these
products and services in accordance with this
Agreement for implementation in connection with all elections and canvasses
beginning with the July 2004 "Mock
Election", and including the August, 2004 Primary Election, and the November
2, 2004 Presidential Election.
6. County desires to purchase Hart's Voting Tabulation System and related
software, products and services as set
forth in this Agreement.
AGREEMENT
1. EXHIBITS AND CONTENTS
This Agreement includes these attached exhibits:
Exhibit A. Hardware, Software and Support Services Compensation Plan
Exhibit B. Statement of Work
Exhibit C. Description of Warranty, Support, Maintenance and License
Agreement
Exhibit D. Indemnity and Insurance
Exhibit E. Designation of Sub-Contractor(s)
Exhibit F. Escrow Agreement
2. TERM
The term of this Agreement is one (1) year from the date of execution of
this Agreement, unless terminated earlier
in accordance with its provisions. By ninety (90) days advance written
notice to Hart, County has the right to extend
the software maintenance and support services portions of this Agreement.
Page 1 of 11
3. SYSTEMS AND SERVICES TO BE PURCHASED
3.1 As used in this Agreement, the term "Systems" collectively includes all
aspects of Hart's Voting Tabulation
System and related software, products and services to be provided pursuant
to this Agreement, including but not
limited to all firmware, equipment, devices, materials, components,
specifications and other items.
3.2 Hart must provide the System as stated in this Agreement at the prices
set forth in Exhibit A, Hardware,
Software and Support Services Compensation Plan.
3.3 Hart must furnish and deliver the System to the County and install the
System at the site designated by the
County.
3.4 On the terms and conditions set forth in this Agreement and the
Exhibits, Hart will grant to the County a license
to use all necessary Hart software and other Hart intellectual property to
the extent required for the County to use for
the System as set forth herein.
4. COMPENSATION AND PAYMENT
4.1 The full price to County for the System is $1,365,270.00 as stated in
Exhibit A.
4.2 County must pay the full price of $1,365,270.00 to Hart, per the
Milestone Payments listed in Exhibit A of this
Agreement, after County's acceptance of the installation of the equipment
and software. Acceptance of the
installation of the equipment and software is defined in Exhibit B,
Statement of Work. Hart will invoice County
upon delivery of the equipment and software and other related items.
4.3 With respect to the payment required by section 4.2 only, late payment
by the County will subject the County to
late charges at the rate per annum of 1.5% per month (150 basis points) on
the late balance.
5. TIME SCHEDULE
5.1 Hart must complete all activities in accordance with the Implementation
Schedule contained in Exhibit B.
5.2 It is critically important to County that all activities be completed on
a timely basis. If Hart anticipates possible
delay in completing any activity, it must promptly notify County in writing
within ten (10) working days.
6. HART'S OTHER RESPONSIBILITIES
In addition to its other responsibilities stated in this Agreement, Hart
must:
6.1 Provide services for the July 2004 "Mock Election", the August 2004
"Primary Election", and the November 2,
2004 "Presidential Election", as described in Exhibit B.
6.2 Be responsible for the professional quality, technical accuracy, timely
completion, and coordination of all
services as required by this Agreement. Hart must provide all services in
accordance with applicable federal, State
and local laws and regulations, and in a manner consistent with generally
accepted professional and technical
standards of the election industry except as otherwise stated in this
Agreement.
6.3 Provide all new products that conform to applicable federal, State, and
local laws and regulations.
6.4 Assign a Project Manager as stated in Exhibit B. County has the right to
approve in advance in writing all Hart
staff assigned at any time to this project, which approval shall not be
unreasonably withheld or delayed. Hart's
Project Manager must successfully manage the proper performance of Hart's
obligations as stated in this Agreement.
Except in emergency circumstances, Hart must not reassign or replace
assigned staff without County's prior written
Page 2 of 11
consent, which will not be unreasonably withheld or delayed. Hart must
replace any staff member with an equally
qualified person reasonably satisfactory to County. County is not
responsible for any costs associated with changes
in Hart staff.
6.5 Cooperate with County in performing this Agreement; and be available
on-site and for consultation with County
at reasonable times as requested by County after reasonable advance notice
as defined in Exhibit B.
6.6 Cooperate with County's periodic review of Hart's performance. County
may report its comments to Hart in
writing as needed. County's review or comments (written or otherwise) will
not relieve Hart of its obligations as
stated in this Agreement.
7. COUNTY'S OTHER RESPONSIBILITIES
In addition to its responsibilities as stated elsewhere in this Agreement,
County must:
7.1 Cooperate with Hart in performing this Agreement, and be available for
consultation with Hart at reasonable
times as requested by Hart after reasonable advance notice.
7.2 Furnish or make available for examination or use by Hart, after advance
notice by Hart, County data (e.g., copies
of previously prepared reports, maps, plans, specifications, records,
ordinances, codes, or regulations) reasonably
necessary for Hart's performance of this Agreement. Hart must return any
original data as provided or requested by
County. County must make reasonable efforts to assist Hart in obtaining
similar data from third parties. Hart may
rely on this data as being accurate.
7.3 Thoroughly test all future upgrades and enhancements before using the
Systems in any election.
7.4 Maintain back-up data necessary to replace critical County data in the
event of loss or damage to data from any
cause.
7.5 (a) Provide adequate working and storage space for use by Hart personnel
near equipment, (b) Provide Hart full
access to the equipment and Software and sufficient computer time, subject
to County's security rules, (c) Follow
Hart's procedures for placing warranty service requests and determining if
warranty remedial service is required, (d)
Follow Hart's instructions for obtaining support, maintenance and warranty
services, (e) Provide a memory dump
and additional data in machine readable form if requested, (f) Reproduce
suspected errors or malfunctions in
Software, and (g) Provide timely access to key County personnel and timely
respond to Hart's questions.
7.6 Prepare and maintain the installation site in accordance with
instructions provided by Hart. County is
responsible for environmental requirements, electrical interconnections and
modifications to facilities for proper
installation, in accordance with Hart's specifications. Any delays in
preparation of the installation site will
correspondingly extend Hart's delivery and installation deadlines.
7.7 Maintain the appropriate operating environment, in accordance with
Hart's specifications, for the equipment and
Software and all communications equipment, telephone lines, electric lines,
cabling, modems, air conditioning and
all other equipment and utilities necessary for the equipment and Software
to operate properly. County shall
properly store the equipment and Software when not in use.
County is exclusively responsible for supervising, managing and controlling
its use of the System, including but not
limited to, establishing operating procedures and audit controls,
supervising its employees, making daily backups,
inputting data, ensuring the accuracy and security of data input and data
output, monitoring the accuracy of
information obtained, and managing the use of information and data obtained.
County will ensure that its personnel
are, at all times, educated and trained in the proper use and operation of
the System and that the equipment and
Software are used in accordance with applicable manuals, instructions and
specifications. County shall comply with
all applicable laws, rules and regulations with respect to its use of the
System.
8. CHANGES
Page 3 of 11
Except as specifically stated in this Agreement, County personnel have no
authority to order or direct any changes to
this Agreement. Hart must not provide any equipment, services or other items
that would cause County to incur
additional costs beyond those stated in this Agreement, without the prior
written approval in the form of a purchase
order from Boulder County. Failure by Hart to secure proper prior written
authorization from County for additional
equipment, services or other items beyond those specifically stated in this
Agreement may be a waiver by Hart of
any claim for additional compensation related to such items; and such items
may be deemed to be included in the
compensation stated in this Agreement.
9. DESIGNATION OF SUBCONTRACTORS
Hart may use subcontractors as required for work to be completed under this
Agreement. Exhibit E, "Designation of
Sub-Contractors", as completed by Hart, reflects Hart's present intention to
use only specific subcontractors.
10. TRANSPORTATION OF EQUIPMENT
10.1 All shipments shall be F.O.B.,ground transportation to County's
facilities. Hart will select the carrier, unless
otherwise requested in advance by County. Hart must ship all items ground,
unless otherwise approved by the
County, with insurance and freight prepaid, to the site(s) designated by
County. Hart's selection of the carrier shall
not be deemed as an assumption of additional liability by Hart, and the
carrier shall not be Hart's agent.
10.2 Hart must notify County when any equipment or other items are shipped
to ensure delivery dates that are
mutually agreeable.
10.3. Title to the equipment shall pass from Hart to County upon delivery of
equipment inside County's elections
facility.
11. DELIVERY SCHEDULE
The delivery schedule for the Systems is detailed in Exhibit B.
12. SYSTEMS INSTALLATION
12.1 Hart must install the Systems as described in this Agreement.
12.2 For the on-site delivery of Hart services and after reasonable advance
notice by Hart, County must make all
necessary arrangements to provide Hart personnel with sufficient work space
and access to install the equipment and
software during normal business hours or at such other times as the parties
agree. If it becomes necessary to work
outside of normal business hours, County must arrange for appropriate access
to buildings or resources that Hart
personnel may reasonably require.
12.3 The Systems to be delivered shall be new when delivered and in
accordance with all specifications as stated in
this Agreement, and shall be in the same configuration as has already been
certified for these Systems by the federal
certifying authority and the State of Colorado.
12.4 During the original and extended warranty periods. County may return
defective equipment, materials, or other
components of the Systems to the original manufacturer per that
manufacturer's warranty guidelines.
Page 4 of 11
13. ACCEPTANCE TESTING
13.1 Hart will test the Systems at the County's primary location.
Verification of the Systems functions will be
completed according to the acceptance testing requirements as stated in this
Agreement. County shall complete
acceptance testing for product and software within ten (10) working days
after receipt of each shipment. County's
failure to notify Hart in writing of non-acceptance within such 10-day
period shall be deemed acceptance by County.
13.2 County must notify Hart in writing when acceptance testing has been
completed. County must identify in
writing any functions that have not performed correctly. Hart must repair or
replace any unaccepted or defective
Hart component within ten (10) working days after notification. County must
test the corrections within ten (10)
working days of receipt. The failure of County to provide written
notification to Hart of non-acceptance of
replacement or repaired components within such ten (10) working day period
shall be deemed acceptance by
County. Third-party hardware or software must be returned to the
manufacturer per its warranty/replacement
guidelines. Failure of a third-party supplier to repair or replace defective
hardware or software within the herein
designated time parameters for acceptance testing shall not be deemed as a
failure of Hart's acceptance testing for its
systems. County shall make arrangements to provide interim replacement
equipment of the same type of that shown
to be defective (if a non-Hart product) so that the Acceptance Testing can
be completed in a timely manner.
13.3 Hart has the right, upon advance written notice to County, to have its
own personnel or representative(s)
present to observe or assist with acceptance testing at County's site to
assure conformance with established testing
procedures.
14. SOFTWARE LICENSE AND MAINTENANCE FEE
14.1 Hart grants to County a non-exclusive license to the Hart Proprietary
Software provided by Hart on the terms
and conditions stated in Exhibit C, Description of Warranty, Support,
Maintenance and License Agreement. This
right is non-transferable.
14.2 For the 1st year, the annual fee for license and maintenance is
$78,000.00, plus tax, if any.
14.3 Beginning with the 1st anniversary, the annual license and maintenance
fee is subject to price increases limited
to 3 per cent per annum or CCPI, whichever is greater.
14.4 The annual license and maintenance fee includes upgrades to the
software furnished by Hart under this
Agreement at no additional cost. Hart must ensure that software upgrades are
in compliance with the federal
certifying authority and Colorado Secretary of State certification. County
is responsible for testing these upgrades to
ensure compliance with County's requirements.
15. ACCESS TO SOFTWARE SOURCE CODE
15.1 During the term of this Agreement, Hart must continuously maintain an
escrow agreement, as described in
Exhibit F, Escrow Agreement, covering software source code for the Voting
Tabulation System.
16. ORIGINAL WARRANTY
16.1 The warranty period to which this Section 16 applies is from the
effective date of this Agreement until one (1)
year after County acceptance (as defined in Exhibit B).
16.2 Third-party hardware warranties will be passed through to the County.
Hart warrants that during the Warranty
Period the Hart Proprietary Software licensed to the County will perform
substantially according to the then current
functional specifications described in the BOSST, TallyT, RallyT, and Ballot
NowT Operator's Manual
accompanying such Hart Proprietary Software.
Page 5 of 11
16.3 Hart warrants that the Systems will conform to all applicable federal,
State and local statutes, codes,
ordinances, resolutions and other regulations, as the same exist on the date
of this Agreement, and will be fit for the
sole purpose of properly conducting all federal, state, and local government
elections. The voting system shall
comply with all provisions of Federal, State and local election laws and
regulations, and any future modifications to
those laws and regulations, which include HAVA.
16.4 Hart must correct any failure of the Hart Proprietary Software to
comply during the warranty period with the
warranties set forth in Sections 16.2 and 16.3 (collectively, the
"Warranties"). Failure of Hart Proprietary Software
to conform to the warranty must be reported in writing by the County and be
accompanied with sufficient detail to
enable Hart to reproduce the error and provide a remedy or suitable
work-around. Hart will make commercially
reasonable efforts to remedy or provide a suitable work-around for defects,
errors or malfunctions covered by this
warranty that have a significant adverse affect upon operation of the Hart
Proprietary Software, at no additional
charge to County. Because not all errors or defects can or need be
corrected, Hart does not warrant that all errors or
defects will be corrected. County acknowledges and agrees that this warranty
is contingent upon and subject to
County's proper use of the Systems and the exclusions from warranty coverage
set forth in this Agreement.
16.5 The Warranties do not cover damage, defects, malfunctions or failure
caused by: (1) Failure by County to
materially follow Hart's installation, operation, maintenance, or use
instructions or its failure to materially fulfill its
obligations under this Agreement; (2) County's modification of the Systems;
(3) County's abuse, misuse, or
negligent acts; (4) the use of non-compatible media, supplies, parts or
components; (5) Failure to maintain proper
site specifications and environmental conditions, (6) Improper or abnormal
use or use under abnormal conditions,
(7) Use of equipment or software not supplied or authorized by Hart, (8) Use
of software on equipment that is not in
good operating condition, (9) Servicing, support or maintenance not
authorized by Hart, or (10) Lightening, fire,
flood, accident, actions of third parties not under the reasonable control
of Hart, or other events outside Hart's
reasonable control. Any acts or omissions of Hart's principals, officers,
employees, agents, subcontractors, or
consultants, are expressly recognized to be within Hart's control.
16.6 THE EXPRESS WARRANTIES SET FORTH IN SECTIONS 16.2 THROUGH 16.4 OF THIS
SECTION 16
ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR
OTHERWISE,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE,
WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, USEFULNESS OR TIMELINESS.
THE REMEDIES EXPRESSLY SET FORTH IN THIS SECTION 16 ARE THE SOLE AND
EXCLUSIVE
REMEDIES AVAILABLE TO COUNTY FOR BREACH OF ANY SUCH WARRANTIES.
16.7 County acknowledges that the Systems and/or Hart Proprietary Software
may contain software and/or materials
provided by other developers. Hart makes no warranty or representation
whatsoever as to the non-Hart software and
those materials not prepared by Hart that are contained in the Systems or
Hart software. HART MAKES NO
REPRESENTATIONS OR WARRANTIES AS TO NON-HART EQUIPMENT AND NON-HART
SOFTWARE,
IF ANY, PROVIDED BY HART TO COUNTY, ALL OF WHICH IS SOLD, LICENSED OR
SUBLICENSED TO
COUNTY "AS IS." HART HAS NO RESPONSIBILITY OR LIABILITY FOR NON-HART
EQUIPMENT AND
NON-HART SOFTWARE, IF ANY, PROVIDED BY HART'S DISTRIBUTORS OR OTHER THIRD
PARTIES
TO COUNTY. If Hart sells, licenses or sublicenses any non-Hart equipment or
non-Hart software to County, Hart
will pass through to County, on a non-exclusive basis and without recourse
to Hart, any third-party manufacturer's
warranties covering the equipment or software, but only to the extent, if
any, permitted by the third-party
manufacturer. County agrees to look solely to the warranties and remedies,
if any, provided by the manufacturer or
third-party licensor.
16.8 WITH RESPECT TO CLAIMS ARISING FROM BREACH OF WARRANTY BY HART, HART
SHALL
NOT BE LIABLE TO COUNTY FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF
DATA, LOSS
OF USE OR ANY OTHER INDIRECT, INCIDENTAL SPECIAL OR CONSEQUENTIAL LOSS OR
DAMAGE
WHATSOEVER, WHETHER IN AN ACTION IN CONTRACT, NEGLIGENCE OR OTHER TORT, EVEN
IF
THE PARTIES OR THEIR REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF
SUCH
DAMAGES.
17. GUARANTEE OF SUPPORT
Page 6 of 11
Hart will provide warranty and support for the Software, along with all new
release versions of said Software,
provided the County continues uninterrupted payment for the warranty and
support of said Software.
18. DOCUMENTATION
18.1 Hart must provide to the County, federal authorities, and the Colorado
Secretary of State all necessary
documentation to meet all State of Colorado certification requirements for
all upgrades to the Systems for the term
of this Agreement and for future Agreement periods provided the County
continues uninterrupted payment for
warranty and support of said System. Hart must provide the documentation
stated in Exhibit B, including, but not
limited to, a user guide or training manual, a maintenance manual, system
documentation, and current/future State of
Colorado Electronic Voting System certification documents received or other
official notices of Electronic Voting
System certification compliance.
18.2 During the term of this Agreement and during future terms, provided the
County continues uninterrupted
payment for the warranty and support of said Software, Hart will amend all
documentation to indicate changes in
hardware and software made after the System is certified as ready to use.
All documentation shall be delivered to
County in proper form.
19. TERMINATION
19.1 Subject to Section 21.3 of this Agreement, either party has the right
to terminate this Agreement if the other
party substantially fails to fulfill its obligations under this Agreement
through no fault of the terminating party. A
party desiring to exercise this right of termination must first give the
other party not less than thirty (30) days
advance written notice, and an opportunity to cure such failure(s) within
thirty (30) days. Hart has no right to give
notice of termination and opportunity to cure within any thirty-day (30-day)
period immediately prior to an official
election.
19.2 If this Agreement is terminated, the County must pay to Hart all
undisputed amounts due to Hart under this
Agreement for the period prior to the date of termination. Upon receipt of a
termination notice from the County, and
payment by the County to Hart of all undisputed amounts owing to Hart under
this Agreement, Hart shall deliver or
otherwise make available to the County all deliverables that have been fully
paid for, as required under this
Agreement, prior to the date of termination under this Agreement.
20. INSURANCE
Hart must provide County with certificates of insurance as stated in Exhibit
D, Indemnity and Insurance. If Hart
fails to maintain any of the required insurance coverage, the County has the
right to declare Hart in breach of this
Agreement. The insurance requirements stated in Exhibit D do not relieve
Hart of its responsibilities as otherwise
stated in this Agreement or applicable law.
21. OTHER PROVISIONS
21.1 Compliance with Election Regulations: Hart, including its officers,
employees and agents, must maintain all
licenses and certifications required by the State of Colorado or other
jurisdictions material to this Agreement at all
times while performing services under this Agreement. This project is
subject to all applicable election laws, rules
and regulations.
21.2 Patent Indemnity:
21.2.1 Hart must not provide County with a product or design that violates
or infringes any United States
copyright or any registered United States patent, trade secret or other
intellectual property right of a third party. If
County promptly notifies Hart in writing of any third-party claim against
County that any software or other item
Page 7 of 11
provided to County by Hart infringes any such rights, Hart must indemnify,
defend and hold County harmless
against these claims. Hart shall have exclusive control over the conduct,
compromise and settlement of all such
claims. County will reasonably cooperate with Hart in the defense and
settlement of all such claims. However, Hart
need not indemnify County to the extent the alleged infringement is caused
by (1) modification of the software or
item by County or any third party not expressly authorized by Hart in
writing; (2) use of the software or item other
than in accordance with the documentation or this Agreement; (3) County's
failure to use acceptable non-infringing
corrections or enhancements made available by Hart; or (4) information,
specifications or materials provided by
County or any third party. If any software or other item is, or in Hart's
reasonable opinion is likely to be, held to be
infringing, Hart must, at its expense and option and to the extent
commercially feasible: (1) procure the right for
County to continue using it; or (2) replace or modify it so that it becomes
non-infringing while giving equivalent
performance. If neither alternative is available on commercially reasonable
terms, then, at the request of Hart, any
applicable Software license and its charges will end, County will stop using
the applicable Hart Proprietary
Software, and County will return or destroy all copies of the applicable
Hart Proprietary Software, and will certify in
writing to Hart that such return or destruction has been completed. Upon
return or Hart's receipt of certification of
destruction, Hart will give County a credit for the price paid to Hart for
the returned or destroyed Hart Proprietary
Software, less a reasonable offset for use and obsolescence.
21.3 Mandatory Dispute Resolution Procedure: County and Hart must make a
good faith effort to resolve any
dispute or problem relating to or arising under this Agreement. Within ten
(10) business days after written notice of
a dispute or a problem sent by either party, Hart's Vice-President and the
Boulder County Clerk and Recorder will
meet to discuss the issue involved. If the dispute or problem is not
resolved within seven (7) business days of this
meeting, Hart's President and the Boulder County Clerk and recorder will
meet directly and attempt to resolve the
dispute or problem. Other meetings will follow as necessary or as requested
by cither party, provided however, that
this section 21.3 is not intended to limit or restrict the rights of either
party to seek any judicial remedy.
21.4 Indemnification: Hart's duty to indemnify County is stated in Exhibit
D.
21.5 Contracting Principles: This Agreement is subject to the Resolution of
the Boulder Board of County
Commissioners adopted by the Board of County Commissioners on April , 2004.
Accordingly, Hart must:
21.5.1 Comply with all applicable federal, state, and local rules,
regulations, and laws during the term of this
Agreement, including federal legislative changes to the Help America Vote
Act (HAVA) of 2002.
21.5.2 Maintain records of its operations under this Agreement. These
records must be maintained during
the term of this Agreement and for a period of three (3) years from
termination of this Agreement or until all
claims, if any, have been resolved, whichever period is longer, or longer if
otherwise required under other
provision of this Agreement.
Failure by Hart to comply with this section may be considered a material
breach of this Agreement and may, at
County's option, constitute grounds for termination and/or non-renewal of
this Agreement. County must give Hart
reasonable notice of any intended termination or non-renewal on the grounds
of noncompliance with this section,
and the opportunity to respond and discuss County's intended action.
21.6 Non-discrimination: Hart must comply with all applicable Federal,
State, and local laws and regulations
including Boulder County's equal opportunity requirements. Such laws include
but are not limited to the following:
Title VII of the Civil Rights Act of 1964 as amended; Americans with
Disabilities Act of 1990; The Rehabilitation
Act of 1973 (Sections 503 and 504); or any other applicable state or federal
law. Hart must not discriminate against
any subcontractor, employee, or applicant for employment because of age,
race, color, national origin, ancestry,
religion, sex/gender, sexual orientation, mental disability, physical
disability, medical condition, political beliefs,
organizational affiliations, or marital status in the recruitment, selection
for training including apprenticeship, hiring,
employment, utilization, promotion, layoff, rates of pay or other forms of
compensation. Hart must not discriminate
in provision of services provided under this contract because of age, race,
color, national origin, ancestry, religion,
sex/gender, sexual orientation, mental disability, physical disability,
medical condition, political beliefs,
organizational affiliations, or marital status.
Page 8 of 11
21.7 Confidential Information: Hart and County must keep confidential all
information, including, without
limitation, voter records, obtained in performing this Agreement as required
by State, federal or local laws or
regulations.
21.7.1 Information that either party may acquire from the other in
conjunction with this Agreement or the
products or services provided by Hart hereunder are considered "Confidential
Information," if so marked or
identified, or if its confidential nature is reasonably apparent. In
addition, Hart's Confidential Information includes
all Software, firmware, diagnostics, documentation (including operating
manuals, user documentation and
environmental specifications), Software, trade secrets and related
documentation. All ideas, concepts, know-how,
data processing techniques, documentation, diagrams, schematics, firmware,
equipment architecture, software,
improvements, bug fixes, upgrades and trade secrets developed by Hart
personnel (alone or jointly with County) in
connection with Hart's Confidential Information, and/or Hart Proprietary
Software will be the exclusive property of
Hart. Hart must not use the County's Confidential Information except to
provide services to County, and will not
disclose or transfer County's Confidential Information to others, except to
Hart's employees who reasonably require
it for purposes of this Agreement and who agree to maintain its
confidentiality or where disclosure is required by
applicable law, and then on not less than ten (10) days prior written notice
to County. County will not disclose
Confidential Information of Hart to any third party, except to employees of
County having a need to know and who
agree to maintain its confidentiality or where disclosure is required by
applicable law, and then on not less than ten
(10) days prior written notice to Hart. Each party must safeguard all
Confidential Information in its possession.
However, neither party is prevented from using or disclosing information
that:
21.7.1.1 The receiving party can demonstrate by written records was known to
that party before the date
of disclosure hereunder;
21.7.1.2 At the time of disclosure was in the public domain;
21.7.1.3 Becomes part of the public domain, except by breach of this
Agreement;
21.7.1.4 Is lawfully disclosed to the receiving party on a non-confidential
basis by a third party who is
not obligated to any other party to retain the information in confidence; or
21.7.1.5 Is used or disclosed, without restriction, with the disclosing
party's prior written approval.
County shall keep the Software and all tapes, diskettes, CDs and other
physical embodiments of them, and all copies
thereof, at a secure location and limit access to those employees who must
have access to enable County to use the
Software. County acknowledges that unauthorized disclosure of Hart's
Confidential and Proprietary Information
may cause substantial economic loss to Hart or its suppliers and licensors.
Each permitted copy of Hart's
Confidential and Proprietary Information, including its storage media, will
be marked by County to include all
notices that appear on the original. Title, copyright and all other
proprietary rights in and to the Software at all times
remains vested exclusively in Hart or, as applicable, third party licensors.
Upon termination or cancellation of this Agreement or, if earlier, upon
termination of County's permitted access to
or possession of Hart's Confidential Information, County shall return to
Hart all copies of Hart's Confidential
Information in County's possession (including Confidential Information
incorporated in software or writings) and
delete or destroy all remaining electronic copies in County's possession.
County acknowledges that all support and maintenance materials are the
property of Hart and include Confidential
Information of Hart. County agrees that it will not permit anyone other than
Hart installation and maintenance
personnel and authorized County employees to use such materials.
If County possesses or comes to possess a licensable or sublicensable
interest in any issued patent with claims that
read upon the Electronic Voting System, its method of operation, or any
component thereof, County hereby grants
and promises to grant an irrevocable, royalty free, paid-up license, with
right to sublicense, of such interest to Hart
permitting Hart to make, have made, use and sell materials or services
within the scope of the patent claims.
This Section 21.7.1 will survive termination or cancellation of this
Agreement.
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21.7.2 Hart must not improperly disclose any information to County that is
the proprietary property of a third
party. However, if Hart docs so, it must hold County and its contractors
harmless and indemnify them against
all claims, damages and costs as a result of County's use or disclosure of
this third-party information in
accordance with the procedures stated in section 21.2.
21.8 Notices: All notices required by this Agreement will be deemed given
when in writing and delivered personally
or deposited in the United States mail, postage prepaid, return receipt
requested, addressed to the other party at the
address set forth below or at such other address as the party may designate
in writing in accordance with this
section:
To Hart: Hart InterCivic, Inc.
15500 Wells Port Drive
Austin, TX 78728
Attn: Administrative Services Manager
To County: Boulder County Clerk and Recorder
1750 33rd Street
Boulder, CO 80301
Attn: Ms. Linda Salas
21.9 Governing Law: This Agreement has been executed and delivered in, and
will be construed and enforced in
accordance with, the laws of the State of Colorado. The venue for legal
action regarding this Agreement shall be in
the County of Boulder, State of Colorado.
21.10 Assignment: Any attempt by a party to assign or otherwise transfer any
interest in this Agreement without the
prior written consent of the other party is void. Any subsequent owner of
Hart must fulfill all the obligations of Hart
as stated in this Agreement.
21.11 Relationship of Parties: Hart must perform all work and services as an
independent contractor and not as an
officer, agent, servant or employee of County. No provision of this
Agreement is intended to create, nor shall be
deemed or construed to create, any relationship between the parties except
that of independent parties contracting
with each other for purpose of effecting the provisions of this Agreement.
The parties are not, and will not be
construed to be in a relationship of joint venture, partnership or
employer-employee. Neither party has the right to
make any statements, representations or commitments of any kind on behalf of
the other party, or to use the name of
the other party in any publications or advertisements, except with the
written consent of the other party or as
explicitly stated herein.
21.12 Employees: County shall not solicit for employment, whether directly
or indirectly, employ, engage or
contract during the term of this Agreement or within a period of two (2)
years thereafter, for work on voting and
election matters, any person who is employed or contracted by Hart during
the duration of this Agreement. If a
person who is employed or contracted by Hart seeks to be employed or
contracted by County prior to the expiration
of said two-year (2-year) period, County shall promptly advise Hart in
writing. County agrees that the restrictions
set forth in this section 21.12 are fair and reasonable and are in addition
to, and not in substitution for, any similar
restrictions in any other agreements between the parties.
21.13 Non-Appropriation: If funds are not appropriated in any fiscal year
for payments by County under this
Agreement, County has the right to terminate this Agreement without penalty
on or before September 30th of such
fiscal year by giving thirty (30) days written notice. County administration
must make every reasonable effort
including, but not limited to, requesting budget funds to be appropriated in
order to avoid termination of this
Agreement. Upon termination of this Agreement under this section, Boulder
County agrees to reimburse Hart
InterCivic for any costs incurred through the date of termination and any
costs that Hart InterCivic is committed to
that cannot be cancelled. Hart has the right to recover any and all amounts
then due or accrued.
21.14 Limitation on Hart's Liability: Hart's total aggregate liability to
County for any loss, damage, costs or
expenses under or in connection with the Agreement, howsoever arising,
including without limitation, loss, damage,
Page 10 of 11
costs or expenses caused by breach of contract, negligence, strict
liability, breach of statutory or any other duty shall
not exceed total contract amount.
21.14.1 HART SHALL NOT BE LIABLE TO COUNTY 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 WHATSOEVER, HOWSOEVER ARISING,
WHETHER IN AN ACTION IN CONTRACT, NEGLIGENCE OR OTHER TORT, EVEN IF HART OR
ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
21.15 No Third-Party Beneficiaries: This Agreement is not intended and will
not be construed to create any rights in
third parties.
21.16 Titles and Headings: The titles and headings of sections, subsections
and Exhibits are for convenience only
and arc not intended to affect the proper construction of this Agreement.
25.17 Construction: This Agreement was drafted jointly by the parties. They
intend that any legal principle favoring
construction of language for or against the drafter in case of dispute docs
not apply to this Agreement.
21.18 Entire Agreement: This Agreement, including its attached Exhibits,
constitutes the entire agreement between
the County and Hart relating to the subject matter of this Agreement. It
supersedes any oral or written negotiations.
This Agreement is modifiable only by a written document signed by both
parties. The Exhibits are incorporated
herein by reference.
21.19 Severability: If any provision of this Agreement is found by a court
of competent jurisdiction to be void,
invalid or unenforceable, the same will either be reformed to comply with
applicable law or stricken if not so
conformable, so as not to affect its validity or enforceability.
21.20 Waiver: No delay or failure to require performance of any provision of
this Agreement shall constitute a
waiver of that provision as to that or any other instance. Any waiver
granted by a party must be in writing, and shall
apply only to the specific instance expressly stated.
21.21 eSlateT, eSlate 3000T, Judges Booth ControllerT, JBC1000T, Disabled
Access UnitT, DAU5000T,
Mobile Ballot BoxT, Ballot Origination Software SystemT, BOSST, TallyT,
Ballot NowT, RallyT, and
BRAVOT are trademarks of Hart.
Therefore the parties, through their duly authorized representatives, have
executed this Agreement on the dates
shown below:
HART INTERCIVIC, INC. COUNTY OF BOULDER
_______________________ ____________________________
Signature Signature
Ted Simmonds, VP/CFO ____________________________
Printed Name Printed Name
Date: April 19, 2004 Date: April __, 2004
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