Participating+Addendum.docx

PARTICIPATING ADDENDUM FOR VOTING SYSTEM REPLACEMENT SYSTEM EQUIPMENT AND SOFTWARE

VOTING SYSTEM REPLACEMENT CONTRACT

North Dakota State Term Contract #214

Election Systems and Software (CONTRACTOR) And Insert County Here (PARTICIPATING ENTITY)

1. Reference:

This Participating Addendum (PA) and that certain Master Contract by and between CONTRACTOR and the State of North Dakota, acting through its Office of Management and Budget, State Procurement Office, in cooperation with the Secretary of State, Elections Unit dated _____, together with any attachments to such documents, set forth the entire agreement (CONTRACT) between the parties for use by PARTICIPATING ENTITY. This Participating Addendum may not be modified, supplemented or amended, in any manner, except by written agreement signed by both parties.

2. Scope of Work: This PA authorizes CONTRACTOR to provide the deliverables described in accordance with the Scope of Work specified in the Master Contract.

3. Implementation and/or Support Services:

Add specific items as to what this will include for the specific county (such as implementation details or type of support services).

4. Warranty and Maintenance for County Purchases:

The Warranty and Maintenance for County Purchases shall be governed by the warranty and maintenance language agreed upon in the Master Contract.

Add specific hardware to be purchased.

5. Project Timeline Details (including date for final delivered product):

Add timeline details such as starting date, other milestone dates, and final delivered product for the specific project.

6. Cost:

Add cost details as it relates to the services and device/hardware being purchased under this PA. Refer to the Master Contract for agreed upon pricing.

7. Payment:

a. The contractual amount to be paid for the services and devices/hardware purchased under this PA is applicable to each PARTICIPATING ENTITY and shall be billed as delivered to such PARTICIPATING ENTITY.

b. Upon receipt of invoices from CONTRACTOR, PARTICIPATING ENTITY is allowed thirty (30) days to process each payment.

c. No claim for additional services, not specifically provided herein, is allowed by PARTICIPATING ENTITY except to the extent provided by a valid change order or amendment to this CONTRACT.

d. The payment of an invoice by PARTICIPATING ENTITY does not prejudice PARTICIPATING ENTITY’S right to object to or question that or any other invoice or matter in relation to the invoice. CONTRACTOR's invoice is subject to reduction for amounts included in any invoice or payment made which are determined by PARTICIPATING ENTITY, on the basis of audits conducted in accordance with the terms of this CONTRACT, not to constitute allowable costs. Any payment may be reduced for overpayments, or increased for underpayments on subsequent invoices.

e. PARTICIPATING ENTITY reserves the right to deduct from amounts that are or will become due and payable to CONTRACTOR under this, or any contract between the parties, any amounts that are or will become due and payable to PARTICIPATING ENTITY by CONTRACTOR.

8. Work Product:

All CONTRACTOR software and firmware (collectively “Contractor Software”) licensed to the PARTICIPATING ENTITY shall be in accordance with the license terms set forth in the Master Contract. CONTRACTOR retains all right, title, and interest in and to the CONTRACTOR Software (including all source code, firmware, and algorithms). Notwithstanding the foregoing, in the event CONTRACTOR specifically develops software for the PARTICIPATING ENTITY under this PA, the licenses to use any software specifically developed by CONTRACTOR for PARTICIPATING ENTITY and purchased By PARTICIPATING ENTITY under this CONTRACT belong to PARTICIPATING ENTITY and must be delivered to PARTICIPATING ENTITY at PARTICIPATING ENTITY’S request upon termination of this CONTRACT. All licenses to use the software and related materials developed by CONTRACTOR specifically for the PARTICIPATING ENTITY in performance of this CONTRACT solely for use by the PARTICIPATING ENTITY shall be the sole property of PARTICIPATING ENTITY, and CONTRACTOR hereby assigns and transfers all its right, title, and interest therein to PARTICIPATING ENTITY. Notwithstanding anything to the contrary contained herein, CONTRACTOR retains all right, title, and interest in and to the CONTRACTOR Software (including all source code, firmware, and algorithms), and any rights not expressly granted to PARTICIPATING ENITTY herein are reserved by CONTRACTOR. PARTICIPATING ENTITY may not reverse engineer, disassemble, decompile, or translate the CONTRACTOR Software, or otherwise attempt to derive the source code of the Software, except to the extent allowed under any applicable law and upon prior written notice to the CONTRACTOR. CONTRACTOR shall execute all necessary documents to enable PARTICIPATING ENTITY to protect its rights under this section solely for such software as may be developed by CONTRACTOR specifically for the PARTICIPATING ENTITY.

In the event that the PARTICIPATING ENTITY requires any future reviews or examinations (“Reviews”) of current or previous versions of state-certified CONTRACTOR voting systems or components thereof that are not otherwise required as a result of any changes or modifications voluntarily made by CONTRACTOR to the Software and/or Equipment licensed and sold hereunder, the PARTICIPATING ENTITY shall be responsible for:

(i) the Review costs

(ii) the costs of designing, developing, manufacturing and/or certification by applicable federal and state authorities of any mandated modifications to the Equipment and/or Software that may result from such Reviews; and

(iii) the total cost of any third party items that are required in order for the CONTRACTOR Equipment and/or CONTRACTOR Software to satisfy any new requirements resulting from such Reviews in order to remain certified;

CONTRACTOR’s failure to comply with this section may be deemed a material breach by CONTRACTOR entitling PARTICIPATING ENTITY to terminate this PA.

9. Entire Software License Agreement: This PA, including referenced invoices and attachments (including, without limitation, the Master Contract and the SLSA), constitutes the entire Software License Agreement between the parties with respect to the subject matter hereof, and supersedes all prior agreements, oral or written, and all other communications relating to the subject matter hereof.

10. Primary Contacts for this Participating Addendum: All notices or other communications required under this CONTRACT and Participating Addendum must be given by registered or certified mail and are complete on the date mailed when addressed to the parties at the following addresses:

Insert Contact Name Insert Address Insert Phone Insert Email Election Systems & Software, LLC Attention: Office of General Counsel 11208 John Galt Boulevard Omaha, NE 68137 402-593-0101 legal@essvote.com

11. Effective Date:

This PA is not effective until fully executed by both parties.

12. Termination:

PARTICIPATING ENTITY may terminate this PA with 30 days’ notice.

13. Distribution:

A copy of each executed PA will be submitted by CONTRACTOR to:

PARTICIPATING ENTITY CONTRACTOR: ELECTION SYSTEMS & SOFTWARE