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<br />purchasing any upgrades or third-party items required to operate the Updates, as well as the cost of any
<br />replacements, retrofits or modifications to the any equipment which may be necessary in order to operate the
<br />Updates. All Updates shall be deemed to be Software for purposes of this Agreement upon delivery. ES&S shall
<br />charge Customer at then-current rates of ES&S to: (i) train Customer on Updates, if such training is requested by
<br />Customer; and (ii) if applicable, provide maintenance and support on the Software that is required as a result of
<br />Customer’s failure to timely or properly install an Update. Notwithstanding the foregoing, Customer shall pay ES&S
<br />to install all election management software Updates. If applicable, Customer shall be responsible for any claim,
<br />damage, loss, judgment, penalty, cost, amount paid in settlement or fee which is caused by Customer’s failure to
<br />install the most recent Update provided to Customer by ES&S. If Customer proposes changes in the Software to
<br />ES&S, such proposals shall become the property of ES&S. ES&S may, in its sole discretion, elect to make or not
<br />to make such changes without reference or compensation to Customer or any third party. ES&S represents to
<br />Customer that the Updates will comply with all applicable state law requirements at the time of deli very. Customer
<br />shall be responsible to ensure that Customer has installed and is using only certified versions of the Software in
<br />accordance with applicable law. In the event that any Updates are required due to changes in state law, ES&S
<br />reserves the right to charge Customer for the following:
<br />
<br />(i) the total cost of any third-party items that are required in order to operate the Updates;
<br />(ii) the total cost of any replacements, retrofits or modifications to any equipment in order for such
<br />equipment to remain compliant with applicable laws and regulations; and
<br />
<br />(iii) Customer’s pro-rata share of the costs of designing, developing and/or certification by applicable
<br />federal and state authorities of such state-mandated Updates.
<br />
<br />Customer’s pro-rata share of the costs included under subsection (iii) above shall be determined at the time by
<br />dividing the number of registered voters in Customer’s jurisdiction by the total number of registered voters in all
<br />counties in Customer’s state to which ES&S has licensed the Software. Customer shall pay to ES&S all costs
<br />incurred for design, development and certification of any Update which is required due to a change in local law or
<br />is otherwise requested or required by Customer.
<br />3. Conditions. ES&S shall not provide license, maintenance and support services for any component
<br />of the Software if such item requires such services as a result of: (a) repairs, changes, modifications or alterations
<br />not authorized or approved by ES&S; (b) use, modification, dismantling, disassembly, or transfer to any third party
<br />without the prior written consent of ES&S; (c) accident, theft, vandalism, neglect, abuse or use that is not in
<br />accordance with instructions or specifications furnished by ES&S; (d) causes beyond the reasonable control of
<br />ES&S or Customer, including acts of God, fire, flooding, riots, acts of war, terrorism or insurrection, government
<br />acts or orders; epidemics, pandemics or outbreak of communicable disease; quarantines; national or regional
<br />emergencies, labor disputes, transportation delays, governmental regulations and utility or communication
<br />interruptions; (e) Customer’s failure to timely and/or properly install and use the most recent Update provided to
<br />Customer by ES&S; or (f) Customer's failure to notify ES&S within three (3) business days after Customer knows
<br />of the need for such services. Any such license, maintenance and support services shall be provided at the fees to
<br />be agreed upon by the parties if and when the need arises. Replacement versions of the Software requested by
<br />Customer as a result of items set forth in Section 3 of this Article III or as a result of Customer’s actions or inactions
<br />shall be billable to Customer at then-current rates of ES&S.
<br />4. Proprietary Rights. ES&S shall own the entire right, title, and interest in and to all corrections,
<br />programs, information, and work product conceived, created or developed, alone or with Customer or others, as a
<br />result of or related to the performance of this Agreement, including all proprietary rights therein or based thereon.
<br />Subject to the payment of all fees, ES&S hereby grants to Customer a non-exclusive license to use that portion of
<br />such corrections, programs, information, and work product that ES&S delivers to Customer pursuant to this
<br />Agreement. All licensed items shall be deemed to be Software for purposes of this Agreement. Except and to the
<br />extent expressly provided herein, ES&S does not grant to Customer any right, license, or other proprietary right,
<br />express or implied, in or to any corrections, programs, information, or work product covered by this Agreement.
<br />Docusign Envelope ID: 99C86DDB-EDE0-4B35-B5C5-112789BE86C6
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