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HomeMy WebLinkAbout 19-111 Agreement with Election Systems & Software ES&S for Election Software and Support ServicesRESOLUTION 19-111 A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO, APPROVING AN AGREEMENT WITH ELECTION SYSTEMS & SOFTWARE (ES&S) WHOSE FIRM SPECIALIZES IN MUNICIPAL ELECTION SYSTEMS SOFTWARE & SUPPORT SERVICES WHEREAS, the Town of Firestone is in need of an election system, software and support services for the 2020 Municipal Election. WHEREAS, Election Systems &Software (ES&S) has the professional shill and experience to provide printing and mailing services to the Town of Firestone to satisfy the needs of this service for the 2020 Municipal Election and NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO, The Agreement between the Town of Firestone and Election Systems &Support (ES&S) for election system, software and support services for the 2020 Municipal Election is approved in substantially the same form as the copy attached hereto and made a part of this resolution, and the Mayor is authorized to execute the Agreement on behalf of the Town. INTRODUCED, READ AND ADOPTED this 1 lth day of December, 2019. �IRESTp •:tic ,', T WN OF IREST NE, COLORADO . ' `�✓� ; QBAbi SmdelAr, Mayor pG T COS-Q��- ATTEST: PkN Lisa Bartley, Actin Town Clerk FORM: own Attorney AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT FOR PROFESSIONAL SERVICES (the "Agreement") is made and entered into this 11th day of, December 2019 (the "Effective Date"), by and between the Town of Firestone, a Colorado municipal corporation with an address of 151 Grant Avenue, P.O. Box 100, Firestone, Colorado 80520 (the "Town"), and Election Systems & Software (ES&S) an independent contractor with a principal place of business at, 11128 John Galt Boulevard Omaha NE 68137 ("Contractor") (each a "Party" and collectively the "Parties"). WHEREAS, the Town requires professional services; and WHEREAS, Contractor has held itself out to the Town as having the requisite expertise and experience to perform the required professional services. NOW, THEREFORE, for the consideration hereinafter sef forth, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows; I. SCOPE OF SERVICES A. Contractor shall furnish all labor and materials required for the complete and prompt execution and performance of all duties, obligations, and responsibilities which are described or reasonably implied from the Scope of Services set forth in Exhibit A, attached hereto and incorporated herein by this reference and known as: 2020 Election Systems & Software (ES&S) Support Services. The parties acknowledge and agree that the performance of the 2020 Election Systems & Software (ES&S) Support Services shall be subject to the terms and conditions set forth herein as well as the Special Terms and Conditions set forth in Exhibit B, attached hereto and incorporated herein by this reference and known as; Special Terms and Conditions, B, A change in the Scope of Services shall not be effective unless authorized as an amendment to this Agreement. If Contractor proceeds without such written authorization, Contractor shall be deemed to have waived any claim for additional compensation, including a claim based on the theory of unjust enrichment, quantum merit or implied contract. Except as expressly provided herein, no agent, employee, or representative of the Town is authorized to modify any term of this Agreement, either directly or implied by a course of action, II. TERM AND TERMINATION A. This Agreement shall commence on the Effective Date, and shall continue until Contractor completes the Scope of Services to the satisfaction of the Town, or until terminated as provided herein. The period during which the services shall be provided by Contractor is from April 1, 2020 through May 31, 2020 ("Rental Term"), B, Either Party may terminate this Agreement upon 30 days advance written notice, The Town shall pay Contractor for all work previously authorized and completed prior to the date of termination. If, however, Contractor has substantially or materially breached this Agreement and fails to cure such breach after receipt of written notice from the Town and a reasonable period of time in which to cure such breach which shall in no event be less than fifteen (15) days, the Town shall have any remedy or right of set-off available at law and equity. No later than ten (10) calendar days following the termination of the Rental Term or the Agreement, Town shall release the Contractor Equipment and Contractor Software to Contractor at its own expense and in the same operation, order, repair, condition and appearance as when received, subject to normal wear and tear. In the event the Town fails to release the Contractor Equipment and Contractor Software to Contractor no later than ten (10) calendar days following the termination or expiration of the Rental Term or Agreement, Town shall pay to Contractor a late return charge in the amount of $500.00 per calendar day until the Contractor Equipment and Contractor Software is returned to Contractor in accordance herewith III. COMPENSATION In consideration for the completion of the Scope of Services by Contractor, the Town shall pay Contractor $10,313.50 for the Town's April 2020 election. This amount shall include all fees, costs and expenses incurred by Contractor, and no additional amounts shall be paid by the Town for such fees, costs and expenses. Contractor may submit periodic invoices, which shall be paid by the Town within 30 days of receipt. IV. PROFESSIONAL RESPONSIBILITY A. Contractor hereby warrants that it is qualified to assume the responsibilities and render the services described herein and has all requisite corporate authority and professional licenses in good standing, required by law. The work performed by Contractor shall be in accordance with generally accepted professional practices and the level of competency presently maintained by other practicing professional firms in the same or similar type of work in the applicable community. The work and services to be performed by Contractor hereunder shall be done in compliance with applicable laws, ordinances, rules and regulations. B. The Town's review, approval or acceptance of, or payment for any services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement. C, Because the Town has hired Contractor for its professional expertise, Contractor agrees not to employ subcontractors to perform any work except as expressly set forth in the Scope of Services. V. OWNERSHIP Contractor owns the Contractor Software, all Documentation and training materials provided by Contractor, the design and configuration of the Contractor Equipment and the format, layout, measurements, design and all other technical information associated with the ballots to be used with the Contractor Equipment. Town has the right to use the aforementioned items to the extent specified in this Agreement. Contractor also owns all patents, trademarks, copyrights, trade names and other proprietary or intellectual property in, or used in connection with, the aforementioned items. The aforementioned items also contain confidential and proprietary trade secrets of Contractor that are protected by law and are of substantial value to Contractor. Town shall keep the Contractor Software and related Documentation free and clear of all claims, liens and encumbrances and shall maintain all copyright, trademark, patent or other intellectual or proprietary rights notices that are set forth on the Contractor Equipment, the Contractor Software, the Documentation, training materials and ballots that are provided, and all permitted copies of the foregoing. Notwithstanding the foregoing, the Town shall own all materials and information provided by the Town.. VI. INDEPENDENT CONTRACTOR Contractor is an independent contractor. Notwithstanding any other provision of this Agreement, all personnel assigned by Contractor to perform work under the terms of this Agreement shall be, and remain at all times, employees or agents of Contractor for all purposes. Contractor shall make no representation that it is a Town employee for any purposes. VII. INSURANCE A. Contractor agrees to procure and maintain, at its own cost, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by Contractor pursuant to this Agreement. At a minimum, Contractor shall procure and maintain, and shall cause any subcontractor to procure and maintain, the insurance coverages listed below, with forms and insurers acceptable to the Town. 1. Worker's Compensation insurance as required by law. 2. Commercial General Liability insurance with minimum combined single limits of $1,000,000 each occurrence and $2,000,000 general aggregate, The policy shall be applicable to all premises and operations, and shall include coverage for bodily injury, broad form property damage, personal injury (including coverage for contractual and employee acts), blanket contractual, products, and completed operations. The policy shall contain a severability of interests provision, and shall include the Town and the Town's officers, employees, and contractors as additional insureds. No additional insured endorsement shall contain any exclusion for bodily injury or property damage arising from completed operations. 3. Professional liability insurance with minimum limits of $1,000,000 each claim and $2,000,000 general aggregate. B. Such insurance shall be in addition to any other insurance requirements imposed by law. The coverages afforded under the policies shall not be canceled, terminated or materially changed without at least 30 days prior written notice to the Town. In the case of any claims -made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. Any insurance carried by the Town, its officers, its employees or its contractors shall be excess and not contributory insurance to that provided by Contractor. Contractor shall be solely responsible for any deductible losses under any policy. C. Contractor shall provide to the Town a certificate of insurance as evidence that the required policies are in full force and effect. The certificate shall identify this Agreement. VIIL INDEMN[FICATIO A. Contractor agrees to indemnify and hold harmless the Town and its officers, insurers, volunteers, representative, agents, employees, heirs and assigns from and against all claims, liability, damages, losses, expenses and demands, including attorney fees, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this Agreement if such injury, loss, or damage is caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, or other fault of Contractor, any subcontractor of Contractor, or any officer, employee, representative, or agent of Contractor, or which arise out of a worker's compensation claim of any employee of Contractor or of any employee of any subcontractor of Contractor. Contractor's liability under this indemnification provision shall be to the fullest extent of, but shall not exceed, that amount represented by the degree or percentage of negligence or fault attributable to Contractor, any subcontractor of Contractor, or any officer, employee, representative, or agent of Contractor or of any subcontractor of Contractor. B. If Contractor is providing architectural, engineering, surveying or other design services under this Agreement, the extent of Contractor's obligation to indemnify and hold harmless the Town may be determined only after Contractor's liability or fault has been determined by adjudication, alternative dispute resolution or otherwise resolved by mutual agreement between the Parties, as provided by C.R.S. § 13-50.5-102(8)(c). IX. ILLEGAL ALIENS A. Certification. By entering into this Agreement, Contractor hereby certifies that, at the time of this certification, it does not knowingly employ or contract with an illegal alien who will perform work under this Agreement and that Contractor will participate in either the E-Verify Program administered by the United States Department of Homeland Security and Social Security Administration or the Department Program administered by the Colorado Department of Labor and Employment to confirm the employment eligibility of all employees who are newly hired to perform work under this Agreement. B. Prohibited Acts. Contractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement, or enter into a contract with a subcontractor that fails to certify to Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. C. Verification, 1. If Contractor has employees, Contractor has confirmed the employment eligibility of all employees who are newly hired to perform work under this Agreement through participation in either the E-Verify Program or the Department Program. 2. Contractor shall not use the E-Verify Program or Department Program procedures to undertake pre -employment screening of job applicants while this Agreement is being performed. 3. If Contractor obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien who is performing work under this Agreement, Contractor shall: notify the subcontractor and the Town within 3 days that Contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien who is performing work under this Agreement; and terminate the subcontract with the subcontractor if within 3 days of receiving the notice required pursuant to subsection 1 hereof, the subcontractor does not stop employing or contracting with the illegal alien who is performing work under this Agreement; except that Contractor shall not terminate the subcontract if during such 3 days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien who is performing work under this Agreement. D. Duty to Comply with Investigations. Contractor shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation conducted pursuant to C.R.S. § 8-1 7.5-1 02(5)(a) to ensure that Contractor is complying with the terms of this Agreement. E. Affidavits, If Contractor does not have employees, Contractor shall sign the "No Employee Affidavit" attached hereto. If Contractor wishes to verify the lawful presence of newly hired employees who perform work under the Agreement via the Department Program, Contractor shall sI gn the "Department Program Affidavit" attached hereto. X. MISCELLANEOUS A. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Weld County, Colorado, B. No Waiver. Delays in enforcement or the waiver of any one or more defaults or breaches of this Agreement by the Town shall not constitute a waiver of any of the other terms or obligation of this Agreement. C. Integration, This Agreement constitutes the entire agreement between the Parties, superseding all prior oral or written communications, D. Third Parties. There are no intended third -party beneficiaries to this Agreement. E. Notice, Any notice under this Agreement shall be in writing, and shall be deemed sufficient when directly presented or sent pre -paid, first class United States Mail to the Party at the address set forth on the first page of this Agreement. F, Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be unlawful or unenforceable for any reason, the remaining provisions hereof shall remain in full force and effect, G. Modification, This Agreement may only be modified upon written agreement of the Parties. H, Assignment. Neither this Agreement nor any of the rights or obligations of the Parties shall be assigned by either Party without the written consent of the other. I. Governmental Immunity. The Town and its officers, attorneys and employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities or protections provided by the Colorado Governmental Immunity Act, C,R.S. § 24-10-101, et seq., as amended, or otherwise available to the Town and its officers, attorneys or employees. J. Rights and Remedies, The rights and remedies of the Town under this Agreement are in addition to any other rights and remedies provided by law. The expiration of this Agreement shall in no way limit the Town's legal or equitable remedies, or the period in which such remedies may be asserted, for work negligently or defectively performed. K. Subject to Annual Appropriation. Consistent with Article X, § 20 of the Colorado Constitution, any financial obligation of the Town not performed during the current fiscal year is subject to annual appropriation, shall extend only to monies currently appropriated, and shall not constitute a mandatory charge, requirement, debt or liability beyond the current fiscal year. L, Limitation Of Liability. Neither party shall be liable for any indirect, incidental, punitive, exemplary, special or consequential damages of any kind whatsoever arising out of or relating to this Agreement. Neither party shall be liable for the other party's negligent or willful misconduct. Contractor's total liability to Town arising out of or relating to this Agreement shall not exceed the aggregate amount to be paid to Contractor hereunder. By entering into this Agreement, Town agrees to accept responsibility for (a) the selection of, use of and results obtained from any equipment, software or services not provided by Contractor and used with the Contractor Equipment or Contractor Software; or (b) user errors, voter errors or problems encountered by any individual in voting that are not otherwise a result of the failure of Contractor to perform. M. Dis utes. 1. Payment of Undisputed Amounts. In the event of a dispute between the parties regarding (1) a product or service for which payment has not yet been made to Contractor, (2) the amount due Contractor for any product or service, or (3) the due date of any payment, Town shall nevertheless pay to Contractor when due all undisputed amounts. Such payment shalt not constitute a waiver by Town or Contractor of any of its rights and remedies against the other party. 2. Remedies for Past Due Undisputed Payments. If any undisputed payment to Contractor is past due more than 30 days, Contractor may suspend performance under this Agreement until such amount is paid. Any disputed or undisputed payment not paid by Town to Contractor when due shall bear interest from the due date at a rate equal to the lesser of one and one-half percent per month or the maximum amount permitted by applicable law for each month or portion thereof during which it remains unpaid. ate. IN WITNESS YMEREOF, the Parties have executed this Agreement as of the Effective D ATTEST; Lisa Bartley, Acting Town Cleric By; Title; 01= FIRE41 CYNE, COLORADO Mayor, rabbi Sindelar NO EMPLOYEE AFFIDAVIT To be completed only if Contractor has no employees �. Check and complete one: ❑ I, am a sole proprietor doing business as I do not currently employ any individuals. Should I employ any employees during the term of my Agreement with the Town of Firestone (the "Town"), I certify that I will comply with the lawful presence verification requirements outlined in that Agreement. ❑ I, am the sole owner/member/shareholder of a [specify type of entity i.e., corporation, limited liability company], that does not currently employ any individuals. Should I employ any individuals during the term of my Agreement with the Town, I certify that I will comply with the lawful presence verification requirements outlined in that Agreement. 2. Check one. ❑ I am a United States citizen or legal permanent resident. The Town must verify Phis statement by reviewing one of the following items: ■ A valid Colorado driver's license or a Colorado identification card; ■ A United States military card or a military dependent's identification card; ■ A United States Coast Guard Merchant Mariner card; ■ A Native American tribal document; ■ In the case of a resident of another state, the driver's license or state4ssued identification card from the state of residence, if that state requires the applicant to prove lawful presence prior to the issuance of the identification card; or ■ Any other documents or combination of documents listed in the Town's "Acceptable Documents for Lawful Presence Verification" chart that prove both Contractor's citizenship/lawful presence and identity. OR ❑ I am otherwise lawfully present in the United States pursuant to federal law. Contractor must verify this statement through the federal Systematic Alien Verification of Entitlement ("SAVE") program, and provide such verification to the Town. Signature Date DEPARTMENT PROGRAM AFFIDAVIT To be completed only if Contractor participates in the Department of Labor Lawful Presence verification Program I, as a public contractor under contract with the Town of Firestone (the "Town"), hereby affirm that: 1. I have examined or will examine the legal work status of all employees who are newly hired for employment to perform work under this public contract for services ("Agreement") with the Town within 20 days after such hiring date; 2. I have retained or will retain file copies of all documents required by 8 U.S.C. § 1324a, which verify the employment eligibility and identity of newly hired employees who perform work under this Agreement; and 3. I have not and will not alter or falsify the identification documents for my newly hired employees who perform work under this Agreement. Signature Date STATE OF COLORAQO ) ss. COUNTY OF ) The foregoing instrument was subscribed, sworn to and acknowledged before me this — day of 2019, by as of My commission expires; (SEAL) Notary Public uantit EXHIBIT A SCOPE OF SERVICES Rental Solution Includes; Item Description Tabulation Hardware: Price Model DS200 Precinct Scanner: 2 Model DS200 (Includes Scanner, Plastic Ballot Box with Steel Door and a -Bin, Paper Roll and Standard 4G8 Memory Device) $1,730,00 2 Paper Roll (Additional) $3,50 1 Standard 4GB Memory Device (Additional) $15,00 Services: Implementation Services: 1 Project Management $1,700,00 1 First Election On -Site Support (One Event includes a person on -site the day before, day of, and day after election) $4,675,00 1 Ballot Layout $11000.00 1 Coding $500,00 2 Installation - DS200 $230.00 Shipping & Other: 2 Shipping" (M100/DS200 Based on Non -Truckload Quantities) $460,00 Total Rental Solution $101313M ExHlD1T D SPECIAL TERMS AND CONDITIONS 1. Rental/License Terms, Subject to the terms and conditions of this Agreement, Contractor agrees to rent and/or license, and Town agrees to rent and/or license, the Contractor Equipment, Contractor Software and Contractor Firmware described on the front side of this Agreement during the Rental Term. The Contractor Firmware and Contractor Software are collectively referred to hereinafter as the "Contractor Software." The rental payment terms for the Contractor Equipment and Contractor Software are set forth on Exhibit A. Title to the Contractor Equipment and Contractor Software shall, at all times, remain with Contractor. The consideration for Contractor's grant of the license during the Rental Term for the Contractor Firmware is included in the cost of the Contractor Equipment, 2, Grant of Licenses, Subject to the terms and conditions of this Agreement, Contractor hereby grants to Town nonexclusive, nontransferable licenses for its bona fide full time, part time or temporary employees to use the Contractor Software and related Documentation in the Jurisdiction during the Rental Term. The licenses allow such bona fide employees to use and copy the Contractor Software (In object code only) and the Documentation, in the course of operating the Contractor Equipment and solely for the purposes of defining and conducting elections and tabulating and reporting election results in the Jurisdiction during the Rental Term, 3, Prohibited Uses, Town shall not take any of the following actions with respect to the Contractor Software or the Documentation: a, Reverse engineer, decompile, disassemble, re- b, Cause or permit any use, display, loan, publication, transfer of possession, sublicensing or other dissemination of the Contractor Software or Documentation, in whole or in part, to or by any third party without Contractor's prior written consent; or a Cause or permit any change to be made to the Contractor Software without Contractor's prior written consent; or d, Allow a third party to cause or permit any copying, reproduction or printing of any output generated by the Contractor Software (except finished ballots by ballot printers selected by Town) in which Contractor owns or claims any proprietary intellectual property rights (e,g., copyright, trademark, patent pending or patent), including, but not limited to, any ballot shells or ballot code stock, 4, Term of Licenses, The licenses granted in Section 2 shall commence upon the delivery of the Contractor Software described in Section 2 and shah continue during the Rental Term. Contractor may terminate either license if Town fails to pay the rental fees when due, or breaches Sections 2 or 3 with respect to, such license. Upon the termination of either of the licenses granted in Section 2 for Contractor Software or upon the expiration of the Rental Term, Town shall immediately return such Contractor Software and the related Documentation (including any and all copies thereof) to Contractor, or (if requested by Contractor) destroy such Contractor Software and Documentation and certify in writing to Contractor that such destruction has occurred. 5. Delivery; Risk of Loss. The Estimated Delivery Dates and First Election Use if any) set forth on Exhibit A are estimates and may only be established or revised, as applicable, by the parties, in a written amendment to this Agreement, because of delays in executing this Agreement, changes requested by Town, product availability and other events. Contractor will notify Town of such revisions as soon as Contractor becomes aware of such revisions. Risk of loss for the Contractor Equipment and Contractor Software shall pass to Town when such items are delivered to Town's designated location. Upon transfer of risk of loss to Town, Town shall be responsible for obtaining and maintaining sufficient casualty insurance on the Contractor Equipment and Contractor Software and shall name Contractor as an additional insured thereunder and, at Contractor's request, shall deliver written evidence thereof to Contractor. Town shall not use the Contractor Equipment for any purpose other than those for which it was designed and shall not, without the prior written consent of Contractor, alter the Contractor Equipment or affix to or install on the Contractor Equipment any accessory, equipment or device which was not supplied to it by Contractor. Town shall not move the Contractor Equipment from the place where it was originally installed, unless such Contractor Equipment is to be used at various polling places throughout the Jurisdiction, without Contractor's prior written consent. Town shall make the Contractor Equipment and any records pertaining thereto available to Contractor during regular business hours for inspection. Town will not, without the prior written consent of Contractor and subject to such conditions as Contractor may impose forits protection, affix any item of Contractor Equipment to any real property if, as a result thereof, such item of Contractor Equipment will become a fixture under applicable state law. 6. Installation. Exhibit A specifies the items of Contractor Equipment or Contractor Software, iI any, which Contractor's employees, agents or authorized representatives ("Representatives") will install at Town's designated site. Town shall pay Contractor a fee for such installation services, as set forth on Exhibit A. Town will provide, at its own expense, a site adequate in space and design for installation and operation of the Contractor Equipment and Contractor Software. Town shall be responsible for providing a site that is temperature and humidity controlled, has all necessary electric current outlets, circuits, and wiring for the Contractor Equipment and Contractor Software, and has electric current of sufficient quality and quantity to operate the Contractor Equipment and Contractor Software. Contractor may, but shall not be required to, inspect the site and advise on its acceptability before any Contractor Equipment or Contractor Software is installed, Town shall be responsible for installing all items of equipment or software not installed by Contractor, in accordance with the instructions furnished in the Documentation. Contractor shall have no liability for actual site preparation or for any costs, damages or claims arising out of the installation of any Contractor Equipment or Contractor Software by Town. 7, Warranty. a. Contractor Eguipment/ContractorSnftware. Contractor warrants that during the Rental Term (the "Warranty Period"), it will repair or replace, at Town's designated location or at Contractor's designated location, as determined by Contractor in its sole discretion, any component of the Contractor Equipment or Contractor Software which, while under normal use and service: (1) fails to perform in accordance with its Documentation in all material respects, or (ii) is defective in material or workmanship. The Warranty shall not include the repair or replacement of any Contractor Equipment components that are consumed in the normal course of operating the Contractor Equipment, including printer ribbons, printer cartridges, paper rolls, batteries, removable media storage devices, PCMCIA cards or marking devices, Any repaired or replaced item of Contractor Equipment or Contractor Software shall be warranted only for the unexpired term of the Warranty Period. All replaced components of the Contractor Equipment or Contractor Software will become the property of Contractor. This warranty is effective provided that (1) Town notifies Contractor within three (3) business days of the discovery of the failure of performance or defect, (II) the Contractor Equipment or Contractor Software to be repaired or replaced has not been repaired, changed, modified or altered except as authorized or approved by Contractor, (III) the Contractor Equipment or Contractor Software to be repaired or replaced is not damaged as a result of accident, theft, vandalism, neglect, abuse, use which is not in accordance with instructions or specifications furnished by Contractor or causes beyond the reasonable control of Contractor or Town, including acts of God, fire, floods, riots, acts of war, terrorism or insurrection, labor disputes, transportation delays, governmental regulations and utility or communication interruptions, and (IV) Town has installed and is using the most recent update provided to it by Contractor. This warranty is void for any units of equipment which: (1) have not been stored or operated in a temperature range according their specifications, (III) have been severely handled so as to cause mechanical damage to the unit, or (iii) have been operated or handled in a manner inconsistent with reasonable treatment of an electronic product. b. S stem. Contractor warrants that the Contractor Equipment and Contractor Software will operate in conjunction with the third party items during the Warranty Period, provided that the third party items are performing in accordance with their own specifications and documentation in all material respects and are not defective in material or workmanship. In the event of a breach of this warranty, Contractor will repair or replace the item of Contractor Equipment or Contractor Software that is causing such breach to occur. Town acknowledges that Contractor has merely purchased the third party items for resale or rental to Town, and that the proprietary and intellectual property rights to the third party items are owned by parties other than Contractor ("Third Parties"). Town further acknowledges that except for the rental payments to Contractor for the third party items, all of its rights and obligations with respect thereto flow from and to the Third Parties. Contractor shall provide Town with copies of all documentation and warranties for the third party items which are provided to Contractor. c. Exclusive Remedies/Disclaimer. IN THE EVENT OF A BREACH OF SUBSECTION 7(a) or 7(b), CONTRACTOR'S OBLIGATIONS, AS DESCRIBED IN SUCH SUBSECTION, ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES, CONTRACTOR EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WHICH ARE NOT SPECIFICALLY SET FORTH IN THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, FURTHER, IN THE EVENT TOWN IN ANY WAY AT ANY TIME ALTERS, MODIFIES OR CHANGES ANY EQUIPMENT, SOFTWARE, THIRD PARTY ITEMS AND/OR NETWORK (COLLECTIVELY "SYSTEM") CONFIGURATIONS WHICH HAVE BEEN PREVIOUSLY INSTALLED BY CONTRACTOR OR WHICH ARE OTHERWISE REQUIRED IN ACCORDANCE WITH THE CERTIFIED VOTING SYSTEM CONFIGURATION, ALL WARRANTIES OTHERWISE PROVIDED HEREUNDER WITH REPECT TO THE SYSTEM RENTED AND/OR LICENSED UNDER THIS AGREEMENT SHALL BE VOID AND OF NO FURTHER FORCE AND EFFECT.