HomeMy WebLinkAbout17 087 Dominion Voting System Corporation Agreement for 2018 Election Services By-lawTHE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
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LIiY OF K1NCp�\a�
BY-LAW
NO. 2017 - 087
BEING A BY-LAW TO ENTER INTO AN AGREEMENT
FOR ELECTION SERVICES AND SOFTWARE LICENCING
WITH DOMINION VOTING SYSTEMS CORPORATION
FOR THE 2018 MUNICIPAL ELECTION
WHEREAS Section 8(1) and 9 of the Municipal Act, 2001, S.O. 2001, c.25 as
amended, provide that the powers of a municipality under this or any other Act shall
. be interpreted broadly so as to confer broad authority on the municipality to enable
the municipality to govern its affairs as it considers appropriate and to enhance the
municipality's ability to respond to municipal issues and has the capacity, rights,
powers and privileges of a natural person for the purpose of exercising its authority
under this or any other Act;
•
AND WHEREAS Council approved the use of voting by internet or telephone for the
2018 municipal election by By-law No. 2017-022 the "2018 Municipal Election —
Internet/Telephone Voting By-law";
AND WHEREAS Council passed Resolution #03/15/17 - 09 approving the
Municipality enter into an agreement with Dominion Voting for provision of
internet/telephone voting services for the 2018 municipal election;
AND WHEREAS the Council of The Corporation of the Municipality of Kincardine
deems it advisable to enter into an agreement with Dominion Voting Systems
Corporation for Election Services and to obtain the Software Licence requirements
to conduct the 2018 Municipal Election;
NOW THEREFORE the Council of The Corporation of the Municipality of Kincardine
ENACTS as follows:
That The Corporation of the Municipality of Kincardine enter into an agreement
with Dominion Voting Systems Corporation for Election Services and to obtain
the Software Licence requirements to conduct the 2018 Municipal Election,
attached hereto as Schedule 'A' and forming part of this by-law.
2. That the Mayor and Chief Administrative Officer be authorized and directed to
execute, on behalf of The Corporation of the Municipality of Kincardine, the said
agreement.
3. This By-law shall come into full force and effect upon its passage.
4. This By-law may be cited as the "Dominion Voting Systems Corporation
Agreement for 2018 Election Services By-law".
READ a FIRST and SECOND TIME this 5th day of July, 2017.
READ a THIRD TIME and FINALLY PASSED this 5th day of July, 2017.
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Mayor
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This is Schedule " " to By -Law
No i10-2-+ passed the -5— day
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ELECTION SERVICES AND SOFTWARE LICENCE AGREEMENT
BY AND BETWEEN DOMINION VOTING SYSTEMS CORPORATION
AND THE MUNICIPALITY OF KINCARDINE
This Agreement, dated this 5 day of July, 2017, ("Effective Date") is made by and
between The Corporation of the Municipality of Kincardine ("Customer") and Dominion
Voting Systems Corporation, a corporation organized under the laws of the Province of
Ontario ("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 Election Services and obtain a
Software Licence required to conduct the Election; and
WHEREAS, Dominion develops, sells and/or licences voting systems and
software and provides service related to such systems and software;
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, including the products and
services described more fully below:
1. Composition of Agreement. Exhibits A, B and C 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: Election Services, Deliverables and Pricing, Payment Summary
Exhibit B: Software Licence Terms and Conditions
Exhibit C: Mutual Nondisclosure and Confidentiality Agreement
2. Definitions. For the purposes of this Agreement, the following are defined terms:
2.1. "Election" shall mean the Customer's Advanced voting period which shall
take place from 8:00 am EDT, October 15h, 2018 through and including
8:00 pm EDT October 22th, 2018.
2.2. "Licence Agreement" means the Software Licence Terms and Conditions
contained in Exhibit B.
2.3. "Software" means software licensed by Dominion hereunder, in object code
form, including all documentation therefore.
2.4. "Third Party Software" means manufacturer supplied software, other
Dominion Voting Systems Corporation Service and Software Agreement
The Municipality of Kincardine 2018 Draft Page 1 of 6
software, or firmware owned by third parties, which Dominion may provide
to Customer pursuant to sublicences or end user licence agreements with
the owners of such Third Party Software.
3. Term of Agreement. The Term of this Agreement shall begin on the Effective
Date and shall continue until either the certification of the final official Election
results, or 90 days following the close of regular election day (October 221h, 2018)
whichever event occurring last.
4. Dominion's Responsibilities. Dominion shall:
4.1. Provide the Customer with the Services described in Exhibit A.
4.2. Grant to the Customer a non-exclusive, non -transferable, licence ("Licence")
to use the Software provided by Dominion pursuant to Section 6 of this
Agreement and Exhibit B attached hereto.
4.3 Designate 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.
5. Customer's Payment Responsibilities. Customer shall:
5.1. Pay Invoices in a timely manner as defined in Exhibit A.
5.2 Perform other obligations as described in this Agreement, including but not
limited to those identified in this Section 5 and Exhibit A.
5.3 Designate 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 Dominion as to the status of
information, procedures and progress on the tasks as set out in this
Agreement and to advise Dominion forthwith upon the occurrence of any
material change in such plans.
6. Software Licence and Use.
6.1. Licence. Upon mutual execution of this Agreement, Dominion grants to the
Customer, and the Customer accepts a non-exclusive, non -transferable,
licence ("Licence") to use the Software provided by Dominion subject to the
terms and conditions of this Agreement and of all applicable Licence Terms
Dominion Voting Systems Corporation Service and Software Agreement
The Municipality of Kincardine 2018 Draft Page 2 of 6
and Conditions, including those contained in Exhibit B.
6.2. Third Party Software. The System may include 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 Licence Agreements by Customer's first use of
the System. The use of Third Party Software will not increase or reduce the
pricing disclosed in Exhibit A, Article 4.
7. Warranties. Except for warranties expressly set forth in the software licence terms
and conditions attached hereto as Exhibit B, 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.
8. Indemnification. Each Party shall indemnify and hold harmless the other Party
from third party claims arising from, or alleged to arise from, the negligence or
deliberate misconduct of a Party in the course of performing under this Agreement.
This indemnity extends solely to claims and lawsuits for personal injury, death, or
destruction of tangible personal property. In addition, Customer shall indemnify and
hold harmless Dominion from any third party claims arising from, or alleged to arise
from, Customer's failure to operate properly the System licenced, sold and/or
leased under this Agreement, in the manner so designated by Dominion.
9. Liquidated Damages. Dominion shall not be liable for liquidated damages of any
kind whatsoever.
10. 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. Neither party
shall be liable 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,
howsoever arising, incurred by the other party or any third party, 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.
11. Confidential Information.
11.1. 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 11.1.
Dominion Voting Systems Corporation Service and Software Agreement
The Municipality of Kincardine 2018 Draft Page 3 of 6
Confidential Information includes all Software source and object code and
written documentation associated therewith.
11.2. 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.
11.3. 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, provincial, or local
governmental agency or court with appropriate jurisdiction, or to any person
properly seeking discovery before any such agency or court.
11.4 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.
11.5 The parties understand and agree that Customer is a public agency that is
subject to the mandatory disclosure provisions of Public Records Laws.
Therefore, any covenant of confidentiality given by the Customer shall be
governed by the provisions and limitations of applicable Public Records
Statutes.
11.6 The terms and conditions of the Mutual Nondisclosure and Confidentiality
Agreement shown in Exhibit C form part of this Agreement.
12. 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.
13. Governing Law. This Agreement will be construed under the laws of the Province
of Ontario, and the courts within the Province of Ontario have non-exclusive
jurisdiction for all actions to enforce this Agreement.
14. Survival. The provisions of Sections and Subsections 1, 2, 3, 7, 8, 9, 10, 11, 13,
14, 16, and 18 shall survive the expiration or termination of this Agreement.
15. 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
Dominion Voting Systems Corporation Service and Software Agreement
The Municipality of Kincardine 2018 Draft Page 4 of 6
M
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.
16. Legality and Severability. This Agreement and the Parties' actions under this
Agreement shall comply with all applicable federal, provincial 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 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.
17. 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 ten (10) 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.
18. Waiver. Any failure of a Party to assert any right under this Agreement shall not
constitute a waiver or a termination of that right, this Agreement, or any provisions
of this Agreement.
19. 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 Corporation
Office of General Counsel
215 Spadina Ave.
Toronto, ON, M5T2C7
If to the Customer:
Municipality of Kincardine
1475 Concession 5, R.R. #5
Kincardine, ON N2Z 2X6
Dominion Voting Systems Corporation Service and Software Agreement
The Municipality of Kincardine 2018 Draft Page 5 of 6
20. No Third Party Beneficiaries. Dominion and the Customer 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.
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.
DOMINION V STEMS CORPORATION
AUTHORIZED SIGNATURE
(:�k\A �A CSC. V � C C\ -
PRINTED NAME
CFO
TITLE
01 �
DATE
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
AVTHORIZED SIGNATURE AUTHORIZED SIGNATURE
Anne Eadie
PRINTED NAME
Mayor
TITLE
DATE
Dominion Voting Systems Corporation
The Municipality of Kincardine 2018 Draft Page 6 of 6
Sharon Chambers
PRINTED NAME
Chief Administrative Officer
TITLE
:37 I
DATE
Service and Software Agreement
EXHIBIT A
ELECTION SERVICES AND SOFTWARE LICENCE AGREEMENT
ELECTION SERVICES, DELIVERABLES AND PRICING, PAYMENT SUMMARY
Services to be provided by Dominion. Dominion shall provide the following
"Services" to the Customer in support of the Customer Election.
1.1. Specifications. The Services must include licensing the use of an
integrated Internet and Telephone Voting (the "System") which meet the
following specifications:
a. Provide a means of voting for various Municipal Offices within the
Municipality of Kincardine.
b. The System must support and allow eligible electors (hereinafter
"Electors") to vote for the races defined by the Electors record
include Mayor, At Large and Ward Councillors and School Boards,
including system setup, configuration and ballot creation.
c. The System must support functionality for assisting Electors with
disabilities. This functionality must be equal to or exceed Level A of
the Web Content Accessibility Guidelines 2.0. The system shall
meet the minimum requirements of the Ontarians with Disabilities
Act, where applicable.
d. The System must be programmed to perform voting in accordance
with the Election laws of the Province of Ontario and by-laws of the
Municipality of Kincardine.
e. System shall provide a standard Voter Strike Off report.
f. The return address for Customer Election post shall be:
Municipality of Kincardine Office of the Clerk
1475 Concession 5 R.R.#5
Kincardine, ON N2Z2X6
1.2. Election Dates. The Services provided by Dominion shall be in support of
the Customer Election which shall occur from 8:00 am EDT October 15tH
2018 through and including 8:00 pm EDT Oct 22ndtn, 2018.
1.3. Data. Dominion shall provide the complete integrated database to record
voting from the System and convey results to the Customer in the format
mutually agreed to by the Parties for the reporting of voting results.
1.4. Hosted. Dominion shall provide to the Customer the following hosted
solutions as specifically described in this Section 1.4 of Exhibit A:
a. Provide the use of Dominion licensed Software as part of the
System, including the configuration to meet requirements within the
Municipal Elections Act of Ontario, and the by-laws of the
Municipality of Kincardine.
Dominion Voting Systems, Inc. Service and Software Agreement
Municipality of Kincardine 2018 Exhibit A Page 1 of 6
b. Host the System Software on Dominion Hardware. The
hardware infrastructure shall be comprised of the following
components:
b.1. Maintenance of two co -locations.
b.2. All equipment maintains dual power supplies.
c. Provide the Election web site for electors to access the on-line voting
application and the information related to on-line voting.
d. Provide a "Voter Credentials" in the form and manner as defined
during the project definition phase.
1.5 Training and support. Provide one Unit of Customer employee training for
administrative use of the software by election officials as well as the
following support during the Election:
a. Provide training to the Customer "help desk" which will provide
support to Electors and Customer staff. Dominion shall consult with
the Customer to provide a system capable of handling the minimum
number of calls per minute, as is specified by Dominion, based on
the number of Electors.
b. Provide Internet help guides for elector.
C. Ensure that the voting instructions are available on the System
during any testing and during the Election period.
1.6 Election Central — Election Central for the Customer Election shall be at a
location designated by the Municipality of Kincardine.
2. Dominion deliverables in support of the Services. The following are Dominion
deliverables for the System implementation. A full project management plan will be
the result of the project kickoff meeting between the Customer and Dominion Voting
Project Manager. Specific deliverables and associated dates will be defined and
used to generate the project management plan and critical path deliverables from
both Dominion Voting and the Customer.
Dominion Voting Systems, Inc. Service and Software Agreement
Municipality of Kincardine 2018 Exhibit A Page 2 of 6
Services Fee Includes
In addition to the services listed in the table Dominion voting provides the Project
Management services as described in the project management section included with
the quote.
Dominion Voting Systems, Inc. Service and Software Agreement
Municipality of Kincardine 2018 Exhibit A Page 3 of 6
BASE FEE SERVICES
DESCRIPTION
NOT INCLUDED
INCLUDED
1
Internet and
Provides the voter with access to internet
Voter
Telephone voting
and telephone voting capability. Includes
equipment/hardware;
channel
all activities associated with the setup for
equipment and internet
electronic voting; appropriate bandwidth;
connections within the
website registration etc.
Municipality. Voter list
management services as
provided by Datafix, and
associated costs.
2
Election event
All activity associated with configuring the
system setup
election are included in the base service.
This includes activities such as: Internet
ballot configuration, secure ID and
password management; configuring and
loading races (i.e. type of race, sequence
and presentation display).
3
Customization of
Creation of the voter instructions letter
Cost of Production and
voter instructions
template, used to produce the voter
Mailing of Voter
instruction letters that will be mailed to
Instruction letters. These
all voters on the final list of electors,
fees are based on the
providing specific instructions on how to
cost of the voter letter
successfully use the electronic voting
printing and the current
process.
Canada postal rate.
4
Customized welcome
Generation of a customized webpage and
webpage
voting address (URL)
5
Election Official(s)
The Municipality of Kincardine Elections
Equipment or hardware
management tools
Officials will have a secure login that
used by the Election
provides for an up-to-the-minute view of
Official, standard PC with
critical election data, required for the
internet access is required,
administration of the election.
existing hardware and
access would be sufficient.
6
Auditor control &
The Auditor will have a secure login
Equipment or hardware
management tools
capability, and be involved with the
used by the Auditor. A
Logic and Accuracy test as defined by
standard PC with internet
Dominion Voting.
access is required.
Services of the auditor.
8
Support module for
The Municipality of Kincardine Voter Help
Voter's Help Line
line workers will have secure login access
to the Help Desk application. Help Agents
will be able to assist voters that may
require help finding the voter credentials or
accessing the voting system. Dominion will
assist the Municipality in creation of a Help
Desk protocol.
Dominion Voting Systems, Inc. Service and Software Agreement
Municipality of Kincardine 2018 Exhibit A Page 3 of 6
3. Customer Deliverables. The following are the Customer deliverables for the System
implementation and projected deliverable dates:
Summary
BASE FEE SERVICES
INCLUDED
DESCRIPTION
NOT INCLUDED
10
Reporting
A series of reports are available both
Customer shall review and approve the System
ballot proofs provided by Dominion.
during and after the election. These
Customer shall provide the list of Eligible
Electors for the Municipality once the final list of
include election vote results, audit
Electors is made available.
Voter Letter Final Approval
Customer shall provide Dominion with final
reports, participation rate reports etc.
approved Voter Letter artwork.
11
Election Implementation
An experienced Internet Voting
procedures.
Logic and Accuracy Testing
Team, including project
deployment team led by the Project
and Accuracy testing to the System. The
management,
Manager, who advises on aspects of the
present for this testing stage.
Acceptance Testing Approval
configuration and
configuration and deployment of the
testing on final System and provide Dominion
deployment specialists. I
voting solution.
3. Customer Deliverables. The following are the Customer deliverables for the System
implementation and projected deliverable dates:
Summary
Description
Branding Guidelines
Customer shall provide Dominion with branding
guidelines for website styling and report formats.
Ballot Proof Approval
Customer shall review and approve the System
ballot proofs provided by Dominion.
List of Eligible Electors
Customer shall provide the list of Eligible
Electors for the Municipality once the final list of
Electors is made available.
Voter Letter Final Approval
Customer shall provide Dominion with final
approved Voter Letter artwork.
Recount Procedures
Customer shall develop and document recount
procedures.
Logic and Accuracy Testing
Customer is responsible for performing Logic
and Accuracy testing to the System. The
Customer can choose to have an auditor
present for this testing stage.
Acceptance Testing Approval
Customer shall perform Logic and Accuracy
testing on final System and provide Dominion
with final acceptance documentation.
4. Pricing and Payment for Services. For the Services and licenced Software provided
by Dominion to the Customer, the Customer shall pay $1.63 for every Elector as
defined herein (hereinafter the "Election Pricing"), this is based on an approximate
10,220 eligible electors, the final price will depend on the actual number of Electors
on the final list of Electors. The following payment schedule is based on 10,220
Eligible Electors:
4.1. Payment 1 — $4,996.58 equal to 30% on January 15th 2018.
4.2. Payment 2 — $6,663.44 equal to 40% on close of nominations.
Dominion Voting Systems, Inc. Service and Software Agreement
Municipality of Kincardine 2018 Exhibit A Page 4 of 6
4.3. Payment 3 — Equal to the outstanding 30% ($4,996.58) plus or minus any
adjustment based on the number of eligible on the final list of electors, one
week following the final election results.
4.4. If no election is held within the Municipality, a payment of $4,996.580
equal to 30% of the total service fee is required.
4.5. Additional costing for voter letter printing and Canada Post services fees
will be billed as per the total number of voters. Letter printing and Postage
is due prior to the production and mail out.
5. Additional Services and Change Order. Customer may at any time, by written
request, propose changes within the general scope of the Services described in this
Agreement ("Change Order"). Any such requested Change Order shall be subject
to the change order process more particularly described in this Section 5. The
parties acknowledge that the intent of the Change Order process is to provide an
equitable adjustment in the Services and upon acceptance according to the Change
Order process, this Agreement is modified accordingly.
5.1 Customer may submit to Dominion a Change Order request from time to
time during the Term. Not more than one (1) business day from the date of
such Change Order, Dominion shall complete and return to Customer a
proposed Change Order, which shall contain a written cost estimate of
such requested change, a complete itemization of all costs, the proposed
adjustment in the Agreement price, if any, and any impact on the Services
requirements applicable thereto. Dominion shall not be reimbursed for the
costs or expenses incurred by it to prepare estimates relating to a
proposed Change Order. Customer shall endeavor reasonably to notify
Dominion whether to proceed with the Change Order within one (1)
business day following the Customer's receipt of Dominion's written
estimate. If Customer approves the Change Order in accordance with the
foregoing, evidenced by the execution of the applicable Change Order
request by Customer's Project Manager and Executive Director, Dominion
shall perform the Services as described in such Change Order and any
adjustment to the pricing approved in the Change Order shall become
effective as of the effective date thereof. Customer assumes no obligation
to pay for changes performed without prior written approval in accordance
with the Municipality of Kincardine.
5.2 For any additional services provided outside the Services defined in this
Agreement, Dominion shall invoice the Customer in the following amounts.
The Customer shall pay invoices within fifteen (15) days after the
Customer's receipt of the invoice.
a. Technical Staff: Junior software developer: $2500 per day
b. Technical Staff: Senior software developer: $4000 per day
Dominion Voting Systems, Inc. Service and Software Agreement
Municipality of Kincardine 2018 Exhibit A Page 5 of 6
C. Technical Staff: Senior Product Manager: $4000 per day
d. General Project Management Staff: $2500 per day
e. Help Desk Support Resource: $45 per hour
Dominion Voting Systems, Inc.
Municipality of Kincardine 2018 Exhibit A
Service and Software Agreement
Page 6 of 6
EXHIBIT B
ELECTION SERVICES AND SOFTWARE LICENCE AGREEMENT
Software Licence Terms and Conditions
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 licenced 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. Licence Terms.
2.1. Licence to Software. Subject to the terms of this Agreement, Licensor grants
Licensee a non-exclusive, non-transferrable licence to use the Software solely for the
Licensee's own internal business purposes and solely in conjunction with the Software
and hardware. This Licence shall only be effective during the Term and cannot be
transferred or sublicensed. This Licence includes the types and numbers of copies
specified in Schedule A of the Software identified therein.
2.2. Third -Party Products. Subject to the terms of this Agreement and when
applicable, Licensor agrees to sublicence 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 2.1 of this Agreement. This
sublicence is conditioned on Licensee's continued compliance with the terms and
conditions of the end-user licences contained on or in the media on which such software
is provided.
2.3. No Other Licences. Other than as expressly set forth in this Agreement, (a)
Licensor grants no licences, expressly or by implication, and (b) Licensor's entering into
and performing the Agreement will not be deemed to licence 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 -licences 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.
Dominion Voting Systems, Inc. Service and Software Agreement
Municipality of Kincardine 2018 Exhibit B Page 1 of 2
3. Warranties. The following warranties will apply to all Software during the Term
3.1 Software. Licensor warrants that during the term of this Agreement, the Software
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 Licence 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.
3.2 Third -Party Products. The warranties in this Sections 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.
3.3. 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.
4. Prohibited Acts. The Licensee shall not, without the prior written permission of
Licensor:
4.1. 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;
4.2. Reverse engineer, disassemble, decompile, decipher or analyze the Software in
whole or in part;
4.3. Alter or modify the Software in any way or prepare any derivative works of the
Software or any part of parts of the Software;
4.4. 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.
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Municipality of Kincardine 2018 Exhibit B Page 2 of 2
EXHIBIT C
ELECTION SERVICES AND SOFTWARE LICENCE AGREEMENT
MUTUAL NONDISCLOSURE AND CONFIDENTIALITY AGREEMENT
THIS AGREEMENT is made as of the 5, day of July, 2017 (the "Effective Date") by
and between Dominion Voting Systems Corporation, having its principal office at 215 Spadina
Avenue, Suite 200, Toronto, ON, M5T 2C7 ("Dominion") and The Corporation of the
Municipality of Kincardine, 1475 Concession 5, R.R.#5, Kincardine, ON N2Z 2X6 ("Party B").
WHEREAS Dominion and Party B (each referred to as "Party" and collectively referred
to herein as the "Parties") propose to have business and/or technical discussions or negotiations,
or other prospective business arrangement ("Project"), and anticipate that the Project will involve
disclosures by both Parties of confidential and proprietary information as defined below
("Confidential Information").
WHEREAS the information to be exchanged relates to the business and products of both
Parties, all of which consist of proprietary and non-public information, the confidential nature of
which each Party desires to maintain.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein; and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties agree as follows:
1. CONFIDENTIAL INFORMATION.
The term "Confidential Information" shall mean any and all information disclosed to the
receiving party by the disclosing party or its representatives (including information or data
received by the disclosing party from a third party and as to which the disclosing party has
confidentiality obligations), that is (a) marked or designated by the disclosing party as
"confidential" or "proprietary;" (b) disclosed orally or visually provided that such information is
identified at the time of such disclosure as proprietary or confidential; or (c) known to the
receiving party, or should be known to a reasonable person given the facts and circumstances of
the disclosure, as being treated as confidential or proprietary by the disclosing party.
2. CONFIDENTIALITY OBLIGATIONS.
2.1 Duty to Hold in Confidence. Receiving Party agrees that it will preserve in strict
confidence and secure against accidental loss any Confidential Information disclosed by
disclosing Party to receiving Party, and will otherwise comply with the terms of this Agreement.
In preserving disclosing Party's Confidential Information, receiving Party will use the same
standard of care it would use to secure and safeguard its own confidential information of similar
importance, but in no event less than reasonable care. Receiving Party shall secure and safeguard
any and all information, documents, items of work -in -process and other tangible materials that
embody Confidential Information of disclosing Party in locked files or areas providing restricted
access to prevent unauthorized disclosure. Any permitted reproduction of disclosing Party's
Confidential Information shall contain all confidential or proprietary legends which appear on
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The Municipality of Kincardine 2018 Exhibit C Page 1 of 5
M
the original. Receiving Party shall immediately notify disclosing Party in the event of any loss
or unauthorized disclosure of Confidential Information.
2.2 Duty not to reverse engineer. Receiving Party agrees not to reverse engineer Confidential
Information consisting of tangible material provided by the other pursuant to this Agreement,
and to return such material to disclosing Party (at a time governed by Section 4 hereof)
substantially in the same condition it was received.
3. PERMITTED DISCLOSURES. Receiving Party shall permit access to disclosing
Party's Confidential Information solely to its employees, contractors, subsidiaries, Affiliates and
parent who:
(a) have a need to know such information; and
(b) are bound by confidentiality obligations at least as restrictive as those contained
herein. Receiving Party shall not disclose or transfer any Confidential Information to third
parties, without the specific prior written approval of disclosing Party. Specifically, receiving
Party shall not disclose any Confidential Information, including samples or other tangible items,
in advertising, product displays or trade shows, without the specific prior written approval of
disclosing Party. Further, receiving Party shall use disclosing Party's Confidential Information
disclosed hereunder solely for the purposes of the Project.
Affiliate of a party means any entity that controls, is controlled by, or is under common control
with that party, where "control" means ownership or control, direct or indirect, of more than fifty
percent (50%) of the stock or other equity interest entitled to vote for the election of directors or
equivalent governing body.
4. OBLIGATION TO RETURN CONFIDENTIAL INFORMATION. Receiving Party
acknowledges that disclosing Party retains ownership of all Confidential Information disclosed
or made available to receiving Party. Accordingly, within thirty (30) days of termination of
discussions or upon any termination, cancellation or expiration of this Agreement, or upon
disclosing Party's request for any reason, receiving Party shall return to disclosing Party the
originals and all copies (without retention of any copy) of any written documents, tools,
materials or other tangible items containing or embodying Confidential Information.
5. NO REPRESENTATIONS OR WARRANTIES.
All confidential information is provided strictly "as -is" with no warranties, express, implied or
statutory, made with respect to the confidential information including but not limited to, the
implied warranties of merchantability, fitness for a particular purpose, title and non -
infringement. The receiving party assumes the entire risk as to the quality, accuracy, and
performance of the confidential information of the disclosing party, and assumes any and all risk
and liability for any actions taken by receiving party on the basis of its analysis or other use of
the confidential information, and the receiving party acknowledges that the disclosing party shall
have no responsibility or liability as a result of receiving party's use of the confidential
information.
6. EXCLUSIONS. This Agreement shall not apply to information to which receiving Party
can establish that:
Dominion Voting Systems, Inc.
The Municipality of Kincardine 2018 Exhibit C
Service and Software Agreement
Page 2 of 5
(a) receiving Party rightfully possessed such information prior to its first receipt thereof
from disclosing Party, as shown by files of receiving Party in existence at the time of the
disclosure;
(b) such information is publicly known or, through no wrongful act or failure to act by
receiving Party, becomes publicly known;
(c) the information is hereafter furnished to receiving Party by a third party who is not in
breach of an obligation of confidentiality;
(d) employees or other agents of receiving Party who have not been exposed to the
Confidential Information independently developed such information without reference to
or reliance upon disclosing Party's Confidential Information; or
(e) receiving Party is required by governmental entity or court order to disclose such
information, provided that receiving Party shall promptly provide disclosing Party
advance notice thereof to enable disclosing Party the opportunity to seek an appropriate
protective order.
7. NO GRANT OF PROPERTY RIGHTS. Receiving Party recognizes and agrees that
nothing contained in this Agreement shall be construed as granting any property rights, by
licence or otherwise, to any disclosing Party Confidential Information disclosed pursuant to this
Agreement, or to any invention or any patent right that has issued or that may issue based on
such Confidential Information.
8. NO COMMITMENT TO DO BUSINESS. This Agreement does not bind, nor shall it
be construed as binding, disclosing Party to conduct any specific business with receiving Party.
Any agreement by disclosing Party to buy, sell, develop, produce, manufacture, test or otherwise
deal in products or services of receiving Party shall be by separate written agreement. However,
to the extent that the parties proceed to do business together without executing a new
confidentiality agreement for that purpose, receiving Party shall continue to comply with the
terms of this Agreement with respect to any Confidential Information disclosed by disclosing
Party to receiving Party prior to and during the course of that business relationship. This
Agreement does not create and shall not be interpreted to create, any partnership, joint venture or
agency relationship between the Parties.
9. GOVERNING LAW; JURISDICTION; ETC. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the Province of Ontario as to all
matters, without reference to conflict of laws principles. The Parties hereby consent to the
personal and exclusive jurisdiction the courts of the Province of Ontario. Receiving Party
acknowledges that improper disclosure, or threatened disclosure, of disclosing Party Confidential
Information may cause irreparable harm to disclosing Party. Accordingly, damages caused by a
breach of this Agreement may be impossible to calculate and may, therefore, be an inadequate
remedy. The Parties agrees that the disclosing Party shall be entitled to seek temporary and
permanent injunctive relief against receiving Party and/or its agents for any threatened or actual
breach hereof. In addition, the Parties irrevocably submit to the exclusive jurisdiction of the
courts of the Province of Ontario.
10. NO LICENCES. Nothing contained in this Agreement shall be construed as conferring
any rights by implication, estoppel or otherwise, under any intellectual property right, other than
the rights expressly granted in this Agreement with respect to Confidential Information.
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The Municipality of Kincardine 2018 Exhibit C Page 3 of 5
11. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the
Parties with respect to the subject matter hereof and shall supersede any course of dealing, usage
of trade, and all prior written and oral and all contemporaneous oral agreements and
understandings with respect to the subject matter hereof. There are no understandings,
agreements, or representations, expressed or implied, with respect to the subject matter hereof
not specified herein.
12. PUBLIC DISCLOSURE. Receiving Party shall not make any press release or other
public disclosure regarding this Agreement, the Project or any performance provided hereunder
which mentions the disclosing Party or its trademarks without the prior written consent of
disclosing Party.
13. NOTICES. All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given when delivered in person, by telecopy with answer
back, by express or overnight mail delivered by a nationally recognized air courier (delivery
charges prepaid) or by registered or certified mail (postage prepaid, return receipt requested) to
the respective parties at their respective addresses set forth in this Agreement or to such other
address as the party to whom notice is given may have previously furnished to the other in
writing in the manner set forth above. Any notice or communication delivered in person shall be
deemed effective on delivery. Any notice or communication sent by telecopy or by air courier
shall be deemed effective on the first Business Day following the day on which such notice or
communication was sent. Any notice or communication sent by registered or certified mail shall
be deemed effective on the third Business Day following the day on which such notice or
communication was mailed. As used in this Section, "Business Day" means any day other than a
Saturday, a Sunday, or a Canadian Statutory holiday.
14. NON ASSIGNABILITY. Parties may not directly or indirectly, in whole or in part,
assign or transfer this Agreement, without the prior written consent of both Parties, and any
attempted assignment, transfer or delegation without such prior written consent shall be voidable
at the sole option of the other Party. Without limiting the foregoing, this Agreement will be
binding upon and inure to the benefit of the Parties and their permitted successors and assigns.
15. SEVERABILITY. If any term or other provision of this Agreement is determined by a
non -appealable decision of a court, administrative agency or binding arbitrator by any court or in
any binding arbitration to be invalid, illegal or incapable of being enforced by any rule of law or
public policy, all other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to either party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being enforced, the Parties
hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of
the Parties as closely as possible in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the fullest extent possible.
16. AMENDMENT. This Agreement may not be amended, nor may any obligation
hereunder be waived, except by a writing signed by both parties hereto.
17. FAILURE NOT WAIVER; REMEDIES CUMULATIVE. No failure or delay on the
part of either Party hereto in the exercise of any right hereunder shall impair such right or be
Dominion Voting Systems, Inc. Service and Software Agreement
The Municipality of Kincardine 2018 Exhibit C Page 4 of 5
construed to be a waiver of, or acquiescence in, any breach of any representation herein, nor
shall any full or partial exercise of any such right preclude other or further exercise thereof or of
any other right. All rights and remedies existing under this Agreement are cumulative to, and not
exclusive of, any rights or remedies otherwise available.
18. DESCRIPTIVE HEADINGS. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
19. COUNTERPARTS. This Agreement may be executed in two or more counterparts, all
of which, taken together, shall be considered to be one and the same instrument.
20. TERM. This Agreement will remain in effect for one (1) year from the Effective Date
except that either party may terminate the Agreement by giving the other party thirty (30) day
advance notice of termination, provided that any such termination shall not affect either party's
obligation hereunder with respect to information designated in writing as confidential and
received by it from the other party prior to the effective date of such termination.
21. SURVIVAL. The confidentiality obligations under this Agreement shall survive
termination of this Agreement and termination of the Parties' association for a period of five (5)
years regardless of the manner of such termination and shall be binding upon both Parties' heirs,
successors and assigns.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the date first above written.
DOMINION SYSTEMS CORPORATION
AUTHORIZED SIGNATURE
PRINTED NAME
Exc- vhv� C1�kk OAO-�A
TITLE
j `;,\ '-4 \-1 Icy
DATE
THE CORPORATION OF THE MUNICIPALITY
KINCARDINE
A ThMIZMD SIGNATURE
Anne Eadie
PRINTED NAME
Mayor
TITLE
_ O\
DAT
ORIZED SIGNATURE
Sharon Chambers
PRINTED NAME
Chief Administrative Officer
TITLE
DATE
Dominion Voting Systems, Inc. Service and Software Agreement
The Municipality of Kincardine 2018 Exhibit C Page 5 of 5