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of such revisions. Risk of loss for the ES&S Equipment and
<br />ES&S Software shall pass to Customer when such items are
<br />delivered to Customer's designated location. Upon transfer
<br />of risk of loss to Customer, Customer shall be responsible
<br />for obtaining and maintaining sufficient casualty insurance
<br />on the ES&S Equipment and ES&S Software and shall name
<br />ES&S .as an additional insured. thereunder until all amounts
<br />payable to ES&S under this Agreement have been paid by
<br />Customer.
<br />7. Warranty.
<br />a. ES&S EauipmentlES&S Software ES&S warrants
<br />that for a 1 -year period (the "Warranty Period'), it will repair
<br />or replace any component of the ES&S Equipment or ES&S
<br />Software which, while under normal use and service: (i) fails
<br />to .perform in accordance with its Documentation in all
<br />material respects, or (ii) is defective in material or
<br />workmanship. The Warranty Period will commence upon
<br />delivery. The Warranty shall not include the repair or
<br />replacement of any ES&S Equipment components that are
<br />consumed in the normal course of operating the ES&S
<br />Equipment, including printer ribbons, printer cartridges,
<br />paper rolls, batteries, removable media storage devices,
<br />,PC.MCIA, cards or marking devices. Any repaired or
<br />replaced item of ES&S Equipment or ES&S Software shall
<br />be warranted only for the unexpired term of the Warranty
<br />Period. All replaced components of the ES&S Equipment or
<br />ES&S Software will become the property of ES&S. This
<br />warranty is effective provided that (1) Customer promptly
<br />notifies ES&S of the failure of performance or defect and is
<br />otherwise in compliance with its obligations hereunder, (II)
<br />the. ES&S Equipment or ES&S Software to be repaired or
<br />replaced has not been repaired, changed, modified or
<br />altered except as authorized or approved by ES&S, (III) the
<br />ES&S Equipment or ES&S Software to be repaired or
<br />replaced is not damaged as a result of accident, theft,
<br />vandalism, neglect, abuse, use which is not in accordance
<br />with instructions or specifications furnished by ES&S or
<br />causes beyond the reasonable control of ES&S or
<br />Customer, including acts of God, fire, riots, acts of war,
<br />terrorism or insurrection, labor disputes, transportation
<br />delays, governmental regulations and utility or
<br />communication interruptions, and (IV) Customer has
<br />installed and is using the most recent update, or the second
<br />most recent update, provided to it by ES&S. This warranty
<br />is void for .any units of equipment which: () have not. been
<br />stored or operated in a temperature range according their
<br />specifications, (ii) have been severely handled so as to
<br />cause mechanical damage to the unit, or (iii) have been
<br />operated or handled In a manner Inconsistent with
<br />reasonable treatment of an electronic product. The terms of
<br />post -warranty license, .maintenance and support are set forth
<br />on Exhihit
<br />b. Exclusive Remedies/Disclaimer. IN THE EVENT OF A
<br />BREACH OF SUBSECTION 7(a), ES&S' OBLIGATIONS,
<br />AS DESCRIBED IN SUCH SUBSECTION; ARE'
<br />CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES.
<br />ES&S EXPRESSLY DISCLAIMS ALL WARRANTIES,
<br />WHETHER EXPRESS OR IMPLIED, WHICH ARE NOT
<br />SPECIFICALLY SET FORTH IN THIS AGREEMENT,
<br />INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
<br />WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
<br />A PARTICULAR PURPOSE. FURTHER,. IN THE EVENT
<br />CUSTOMER DECLINES ES&S' INSTALLATION AND
<br />ACCEPTANCE TESTING SERVICES OR IN ANY WAY AT
<br />ANY TIME ALTERS, MODIFIES OR CHANGES ANY
<br />EQUIPMENT, SOFTWARE, THIRD PARTY ITEMS
<br />ANDIOR .NETWORK. (COLLECTIVELY "SYSTEM")
<br />CONFIGURATIONS_ WHICH HAVE BEEN PREVIOUSLY
<br />INSTALLED BY ES&S OR WHICH ARE OTHERWISE
<br />REQUIRED IN ACCORDANCE WITH THE CERTIFIED
<br />VOTING SYSTEM CONFIGURATION, ALL WARRANTIES
<br />OTHERWISE PROVIDED HEREUNDER WITH REPECT
<br />TO THE SYSTEM PURCHASED, LEASED, RENTED
<br />AND1OR LICENSED UNDER THIS AGREEMENT SHALL
<br />BE VOID AND OF NO FURTHER FORCE AND EFFECT.
<br />8. Limitation Of: Liability. Neither party shall be liable for
<br />:any indirect, incidental, punitive, exemplary, special or
<br />consequential damages of any kind whatsoever arising out
<br />of or relating to this Agreement. Neither party shall be liable
<br />for the bther party's negligent or willful misconduct. ES&S'
<br />total liability to Customer erising out, of or relating to this
<br />Agreement shall not exceed the aggregate amount to be
<br />paid to ES&S hereunder. By entering into this Agreement,
<br />Customer agrees to accept responsibility for (a) the selection
<br />of the ES&S Equipment and ES&S Software to achieve
<br />Customers intended results; (q) the use of the ES&S
<br />Equipment and ES&S ,Software; (c) the results obtained from
<br />the useof the ES&S Equipment and ES&S Software; (d) the
<br />selection of;, 'use of and °results obtained from any
<br />equipment, .software or services not provided by ES&S and
<br />used with the .ES&S Equipment or ES&S Software; or (e)
<br />user arrors, voter errors or problems encountered by any
<br />individual in voting that are riot otherwise a result of the
<br />failure of E.8'0 to perform.. ES. -&S shall not be livable under
<br />this Agreement for any claim; .damage, loss, judgment,
<br />penalty; cost, amount paid in settlement or fee that is caused
<br />by (y) Customer's failure to timely or properly install anduse
<br />the most recent .update, or the second most recent update,
<br />provided to it by ES&S or (r') Customers election not to
<br />rear", or to; terminate, the Hardware Maintenance Services
<br />orthe'ES&S Software Maintenance and Support
<br />9, ProOrletary Rights.. Customer acknowledges and
<br />agrees as follows:
<br />ESM owns the ES&S Software, all Documentation and
<br />training, materials provided by £S&S, the .design and
<br />configuration: of the ES&S Equipment and the format, layout,
<br />measurements, design and all other technical information
<br />associated with the Wilots to be used with. the ES&S
<br />Equipment: Customer has the right to use the
<br />aforementioned itemsto the extent specified in this
<br />P24
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