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3437 To enter into a lease agreement with Dominion Voting Systems Corporation.THE CORPORATION OF THE TOWN OF TILLSONBURG BY-LAW NUMBER 3437 A BY-LAW to enter into a lease agreement with Dominion Voting Systems Corporation. WHEREAS The Town of Tillsonburg is desirous of entering into an agreement with Dominion Voting Systems Corporation for the purposes of entering into a lease for the use of Election Software and Equipment for the 2010 Election and the 2014 Election. THEREFORE the Council of the Town of Tillsonburg enacts as follows: 1. THAT the lease agreement attached hereto forms part of this by-law; 2. THAT the Mayor and Clerk be hereby authorized to execute the attached lease agreement on behalf of the Corporation of the Town of Tillsonburg. READ A FIRST AND SECOND TIME THIS Iq' i\ DAY OF July, 2010. READ A THIRD AND FINAL TIME AND PASSED THIS [944""- DAY OFJuly 20100 ,=Mayor Stephen Molnar Cierk 11111:ellle4* Coulter dominion voTiNG'm Dominion Voting Systems Corporation Leasing Agreement Prepared for: The Town of Tillsonburg Date: August 3,,2010 Attention: Ms. Donna Hemeryck Tillsonburg 2010 5 -Year C-ontract (Ver 3) Page 2 of This Agreement is made as of the 3rd day of August , 2010, between DOMINION VOTING SYSTEMS CORPORATION, an Ontario corporation ("Dominion") and The Town of Tillsonbur ("Customer"). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each of the parties hereto agree as follows: I. Election Software and Equipment. Dominion will license to Customer the election software in accordance with paragraph 3 below, including any add-ons or updates delivered to Customer (the "Dominion Software"), and rent to Customer the election hardware and other equipment (collectively, and together with the Dominion Software, the "Dominion Equipment") described on the attached pricing schedule (the "Pricing Schedule") which is incorporated into, and constitutes an integral part of, this Agreement. Dominion will retain title in the Dominion Equipment, as well as all intellectual property associated with the Dominion Equipment, at all times. 2. Delivery. Dominion will ship the Dominion Equipment to the Customer on a date mutually agreed to by the parties. Dominion will also remove all Dominion Equipment rented or licensed by Customer after the results of each election conducted by Customer have been certified. 3. License. Customer is granted a non-exclusive, non-transferrable license to use the Dominion Software. The license allows Customer to use and copy the Dominion Software (in object code only) solely for the purposes of defining and conducting elections and tabulating and reporting election results. 4. Restrictive Covenants. Customer may not reverse engineer, decompile, or disassemble the Dominion Software or create any derivative works thereof. Customer may not distribute, rent or lease copies of the Dominion Software to third parties without Dominion's written consent. Customer may not cause or permit any change to be made to the Dominion Software without Dominion's prior written consent. Customer may not copy, reproduce or print any output generated by the Dominion Software in which Dominion owns or claims any intellectual property rights (e.g., copyright, trade -mark or patent), including, but not limited to, any ballots, ballot shells or code stock developed by Dominion for its own purposes. 5. Representations, Warranties and Limitation of Liability. Both parties represent and warrant that they have full authority to enter into this Agreement and be bound by the terms hereof. The Dominion Equipment is provided "as is" without warranty and Customer acknowledges that the Dominion Equipment has been fully demonstrated and tested to its satisfaction. Neither party will be liable for any indirect, incidental, punitive, exemplary, special or consequential damages of any kind relating to this Agreement. Dominion's total liability to Customer will not exceed amounts paid to Dominion under this Agreement. Any action by Customer against Dominion must be commenced within two years after the cause of action has accrued. Customer will bear the risk of loss with respect to the Dominion Equipment from the date of delivery to the date the Dominion Equipment is picked up by Dominion. 6. Indemnification. Customer will indemnify and hold harmless Dominion from all liability resulting from Customer's use of the Dominion Equipment or any other matters under this Agreement.. Dominion will indemnify and hold harmless Customer from all liability resulting from claims that any of the Dominion Equipment infringes on any third party's patent Tillsonburg 2010 5 -Year Contract (Ver 3) Page 3 of 4 existing as of the date of this Agreement, subject to the limitations set out in paragraph 5 above. 7. General. This Agreement may not be assigned by Customer except with the written approval of Dominion in Dominion's sole discretion. This Agreement constitutes the entire agreement between the parties and supercedes any prior agreement. This Agreement may only be changed or modified by mutual agreement by both parties and any such change or modification must be in writing. If any provision(s) of this Agreement are declared to be invalid, such provision(s) shall be severed from this Agreement and the other provisions shall remain in full force and effect. This Agreement will be governed and construed in accordance with the laws of Ontario, Canada. Time is of the essence in this Agreement. Dominion Voting Systems Corporation The Town of Tillsonburg 215 Spadina Avenue, Suite 200 Toronto, ON M5T 2C7 Fax No. (416) 762-8663 Per: Per: v � T r Name: John McKinstry Name: tq<eUf-, CGQ l- _ --- Title: Sales Manager Title: C � L ,.� Date: August 3, 2010 Date: . , -- 3f � l U Tillsonburg 2010 5 -Year Contract (Ver 3) PRICING SCHEDULE Page 4of4 This Pricing Schedule forms a part of the contract among Dominion Voting Systems Corporation and The Town of Tillsonburg entered into on August 3, 2010 (the "Agreement"). The Agreement governs the performance of the requirements set out below, and all defined terms in the Agreement shall have the same meanings in this Pricing Schedule. 1. Products/Services to be provided to Customer: ® Dominion Automated Ballot Tabulation System, as defined and quoted on: o Dominion proposal labelled "Response to RFP for Automated System for the Recording and Tabulation of Votes and Display of Results" dated March 31, 2010. o Dominion revised pricing document labelled "Revised Ballot Scanning and Tabulation System RFP Pricing Summary for the 2010 Election" dated August 3, 2010 2. Pricing: ® 5 -Year Contract Price (Includes 2010 and 2014 Elections): $42,000 plus taxes 3. Timing: ® From date of Contract Execution until December 31, 2014 4. Payment Terms Customer will pay one --fifth of total 5 -Year Contract Price plus taxes each contract year, on the following schedule: ® One-fifth of Contract Price plus taxes due on upon contract execution and receipt of initial invoice. ® One-fifth of Contract Price plus taxes due on Jan. 31, 2011. ® One-fifth of Contract Price plus taxes due on Jan. 31, 2012. One-fifth of Contract Price plus taxes due on Jan. 31, 2013. ® One-fifth of Contract Price plus taxes due on Jan. 31, 2014.