1
Exhibit 99.4
Contract Manufacturing
Agreement
BY AND BETWEEN
DIEBOLD, INCORPORATED
("Diebold")
AND
Global Election Systems, Inc.
("GES")
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CONTRACT MANUFACTURING AGREEMENT
This Agreement is made and entered into this ______ day of June, 2001, by
and between Diebold, Incorporated, a corporation organized and existing pursuant
to the laws of the State of Ohio, U.S.A., having its principal place of business
at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("DIEBOLD")
and Global Election Systems, Inc., a corporation organized and existing pursuant
to the laws of British Columbia, Canada, whose principal place of business is
located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
("GES").
RECITALS
WHEREAS, GES has requested that Diebold enter into this Contract
Manufacturing Agreement ("Agreement") and thereby agree to manufacture for GES
certain GES products as more specifically provided herein; and
WHEREAS, GES has agreed to accept the rights, duties and obligations under
this agreement and perform as set forth in this Agreement;
NOW, THEREFORE, Diebold and GES agree as follows:
PART 1 PRODUCTS
Diebold will cause to be manufactured the products and other items set
forth and specified in Exhibit A attached hereto ("Products") of which at least
eighty percent (80%) will be for sale by GES to the County of ▇▇▇▇▇▇▇ County,
Kansas (the "Customer"). The quantities shall be as set forth in Exhibit A. The
quantities to be purchased are firm and not subject to adjustment or
cancellation.
It is understood that additional quantities of the Products may be added
by express written agreement of the parties, provided either party may decline
to add additional quantities in their sole and absolute discretion.
Provided GES is otherwise in compliance herewith, GES may also purchase
spare parts for the Products from time to time on such terms as Diebold may
specify at the time of order.
PART 2 PRODUCT SPECIFICATIONS AND CHANGES
The current specifications for the Products are attached hereto as Exhibit
B. GES shall at all times be solely responsible for the specifications and
design of the product, even if such change originates with a Diebold suggestion
or if the change is necessitated by ▇▇▇▇▇▇▇'▇ manufacturing process. If GES
disagrees with a suggestion of Diebold or does not wish to make a change
determined by Diebold to be required by ▇▇▇▇▇▇▇'▇ manufacturing process, GES may
terminate further performance by Diebold and shall only be obligated to
immediately pay Diebold for all of ▇▇▇▇▇▇▇'▇ costs of performance (including all
purchased items or commitments to purchase) to the point of termination and such
costs which may be incurred by Diebold in terminating further performance and
cancellation of commitments made by Diebold in anticipation of performance.
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GES shall have the right to modify or change the Product specifications at any
time, upon thirty (30) days advance written notice to Diebold. Such written
notice shall include a description of the specification changes and within a
reasonable period thereafter, Diebold shall thereafter advise GES of any
adjustments to the price and delivery availability of such Products resulting
from such specification changes. Each party shall own all of the various
intellectual properties resulting from the discoveries, inventions or other
creative endeavors of such party, its officers, directors, agents or employees
during the term of this Agreement.
PART 3 GES'S CAPABILITIES
GES represents that it currently has and shall maintain sufficient
equipment, inventory, skills and capabilities to design, deliver and install the
Products, as well as provide any and all support that may be required by Diebold
to produce the Products or such support and maintenance as the Customer may
require. GES represents that it is thoroughly familiar with such Products and
accepts sole responsibility for insuring that all Products and spare parts sold
by, to or for GES comply with any and all applicable state, federal or local
laws, codes, rules, certifications, regulations, specifications, requirements
and ordinances applicable in any jurisdictions where the GES Products are sold,
delivered or installed, and whether the same be enacted, promulgated, adopted or
otherwise made effective before or after the execution hereof.
PART 4 PRICES; PAYMENT TERMS
(a) PRICES. The prices which GES shall pay to Diebold for the Products and
other services of Diebold shall be as set forth in Exhibit A attached hereto. In
the event of a change in the specification, whether the change is based on a
required manufacturing change by Diebold or otherwise, Diebold reserves the
right to increase the price charged upon thirty (30) days written notice to GES.
The prices for spare parts that Diebold may make available shall be those quoted
by Diebold from time-to-time. Prices for spare parts may be raised by Diebold at
any time, with or without notice to GES.
(b) PAYMENT TERMS, INTEREST, SECURITY. Payment for all Products and
payment for any spare parts purchased pursuant to this Agreement shall be made
within thirty (30) days of the date the Products and spare parts are made
available for shipment at ▇▇▇▇▇▇▇'▇ designated facility in the United States.
Other payments shall be made as set forth in Exhibit ▇. ▇▇▇▇▇▇▇ reserves the
right to limit the amount of Products shipped on credit pursuant to the
immediately preceding payment terms, or to require payment in advance, collect
on delivery, or other payment terms, including but not limited to payment by
irrevocable letter of credit, at any time Diebold believes that GES's
creditworthiness is impaired. Any payments not paid when due, and interest on
payments not made when due, shall be assessed an administrative fee of five
percent (5%) of the amount due and shall additionally bear interest at one and
one-half percent (1-1/2%) for each month or part thereof that such amounts
remain past due and unpaid, or the greatest rate permitted by law, whichever is
less.
GES hereby grants to Diebold a security interest in and to the inventory
of GES, Products, spare parts, tooling, test equipment and software and certain
other assets of GES as more fully provided in Exhibit D. Upon request of
Diebold, GES shall execute a security agreement in form and substance as set
forth in Exhibit D, along with UCC-1 forms and such other documents as Diebold
may request. Such security interest shall secure any and all payments or other
performance hereunder, including but not limited to the performance required of
GES under Parts 13 and 14.
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If requested by Diebold, GES shall assign to Diebold the right to receive
payment under GES's agreement with the Customer. If such an assignment, in and
of itself, would cause GES to breach such agreement, GES shall not be obligated
to make such an assignment but GES shall appoint Diebold its agent for receipt
of payments. GES shall supply a copy of such contract between it and the
Customer.
In order to further secure compensation and recourse to Diebold for its
efforts and to help assure the potential for a third party or Diebold to support
the Products in the event of a failure to perform of GES, GES hereby grants
Diebold a license to the Global Election Management System ("GEMS") Software and
any other software, other computer programs, manuals, documentation and the
various information and intellectual property rights associated with the
Products as set forth in Exhibit E. If requested by either party, the parties
shall cooperate and attempt to negotiate a more complete license agreement
consistent with the provisions of Exhibit E, which, when executed, shall be
deemed to supercede the provisions of Exhibit ▇.
▇▇▇▇▇▇▇ is hereby granted an option to purchase shares of the publicly
traded common stock of GES contingent upon the failure of GES to pay Diebold
sums due Diebold and remaining unpaid for thirty (30) days after the same first
became due. The aggregate value of the of shares which Diebold shall be entitled
to purchase shall be equal to the amount then due to Diebold from GES plus 15%
of such amount. The purchase price for each share shall be fifty percent (50%)
of the average of the three (3) lowest closing bid prices for the common stock
during the ten (10) consecutive trading days preceding the notice of exercise by
Diebold. Diebold may issue such notice of exercise at any time following the
coming into existence of the contingency described in the first sentence of this
paragraph. The completion of such exercise shall occur within fifteen (15) days
of the notice of exercise by Diebold. Diebold may pay GES for such shares by
offsetting amounts due Diebold from GES. GES shall immediately upon execution
hereof take any and all such actions as may be necessary to assure that the
provisions hereof are fully operational by July 31, 2001.
PART 5 PURCHASE ORDER TERMS NOT APPLICABLE
The terms and conditions set forth in this Agreement shall always be the
sole controlling ones and all preprinted terms and conditions contained in forms
such as purchase orders used by GES shall be deemed deleted and inapplicable.
PART 6 CANCELLATION CHARGES
Within five (5) days of a request by Diebold, GES shall confirm that it
intends to fully perform hereunder and reasonably believes that it has the
financial and other resources required to do so. Should GES for any reason fail
to make such confirmation or otherwise fail to take delivery of some or all of
the Products within 30 days of the dates specified in Exhibit C, such failure
shall be deemed a material breach of the Agreement and Diebold may deem the
order cancelled and assess the cancellation charges equal to one hundred percent
of the price to be charged for any affected Products that have been manufactured
by Diebold and ninety percent (90%) of the price to be charged for those
Products that have not been manufactured. Such amount is recognized by the
parties as a liquidation of the damages to be incurred by Diebold related to
such breach and not a penalty.
PART 7 DELIVERY; DELIVERY DELAYS
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Diebold will deliver all Products and spare parts ordered hereunder to
GES, Ex Works, (INCOTERMS, 2000), ▇▇▇▇▇▇▇'▇ designated facility in the United
States. Diebold shall not be obligated to deliver the goods if GES is not in
full and complete compliance herewith.
Diebold shall exercise commercially reasonable efforts to make the
Products available for shipment by the dates specified in Exhibit C. As more
fully set forth in Part 20, Diebold shall not be liable for delays in shipment
for reasons beyond its reasonable control. If there is likely to be any delay in
shipment, Diebold will notify GES of the relevant facts and circumstances
concerning the delay within a reasonable time of becoming aware of the
likelihood thereof.
PART 8 TAXES, FEES AND DUTIES
The prices at which Diebold offers to sell Products and spare parts
pursuant to this Agreement do not include any taxes, fees or duties which may be
levied on the Products or spare parts or the transaction inside or outside the
U.S.A., including, without limitation, those levied by any governmental entity
or unit. Any such taxes, fees or duties shall be paid by GES, and if Diebold is
liable for the collection of the same, the amount thereof shall be paid by GES
in addition to the prices provided herein for the Products and spare parts.
PART 9 WARRANTIES; DISCLAIMERS AND LIMITATION OF LIABILITY
(a) WARRANTIES. Diebold warrants only that the services provided hereunder
to manufacture the Products and spare parts shall have been performed in a good
and workmanlike manner and shall be free from defects in such workmanship at the
time of delivery. GES shall assert any claim for a breach of such warranty by
giving written notice to Diebold specifying in detail the workmanship defect
found. Such notice of defect shall be given within ninety (90) days from the
date of availability for shipment at the Ex Works site. ▇▇▇▇▇▇▇'▇ liability
arising from, or in any way connected with this Agreement, or from the use or
sale of the Products or spare parts, shall be limited solely and exclusively at
▇▇▇▇▇▇▇'▇ option to either the repair (at ▇▇▇▇▇▇▇'▇ designated facility) or
replacement of the defective workmanship or spare parts, or return of the that
portion of the price associated with ▇▇▇▇▇▇▇'▇ assembly of the allegedly
defective Product. Transportation of allegedly defective Products or spare parts
to and from ▇▇▇▇▇▇▇'▇ designated facility shall be at GES's sole cost and
expense, and GES shall bear all risk of loss while such Products and spare parts
are in transit. ▇▇▇▇▇▇▇'▇ obligation to repair, replace, or return the purchase
price of any Product or spare Part asserted by GES to be defective in materials
and workmanship shall be subject to ▇▇▇▇▇▇▇'▇ inspection and testing of the same
upon its return to the designated Diebold facility. Repairs or replacements
necessitated by neglect, misuse or abuse, or otherwise not covered by this
warranty shall be carried out by Diebold at its then standard rates, charges and
prices.
(b) DISCLAIMERS AND LIMITATION OF LIABILITY. DIEBOLD MAKES NO OTHER
WARRANTIES, EITHER EXPRESS OR IMPLIED, AND ANY IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED
IN CONTRACT AND IN TORT LAW. GES shall be solely and exclusively liable for any
warranties or representations about the Products and spare parts beyond those
stated in this Part 9 and for any and all warranties or representations about
the Products.
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DIEBOLD SHALL NOT BE LIABLE FOR BURGLARY, ROBBERY OR LOSS OF VALUABLES,
LOSS OF USE OR DATA, LOST PROFITS, INCREASED EXPENSE OF OPERATION, LOST
OPPORTUNITY, NOR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES, WHETHER FORESEEABLE OR NOT WHETHER OR NOT MADE KNOWN TO DIEBOLD,
ARISING FROM OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE USE OR SALE OF
THE PRODUCTS OR SPARE PARTS, AND IT IS AGREED AND UNDERSTOOD THAT DIEBOLD SHALL
HAVE NO DUTY TO INDEMNIFY GES OR GES'S CUSTOMERS FOR ANY LOSS, CLAIM, EXPENSE OR
DAMAGE TO PERSONS OR PROPERTY ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
AGREEMENT OR ANY PRODUCT OR SPARE PART. DIEBOLD DOES NOT WARRANT THAT THE
PRODUCTS OR SPARE PARTS WILL OPERATE IN AN UNINTERRUPTED MANNER OR ERROR FREE.
GES HAS SOLEY DETERMINED THE SUITABILITY OF THE DESIGN AND QUALITIES OF THE
PRODUCT FOR THE INTENDED USE AND FUNCTION, INCLUDING BUT NOT LIMITED TO ANY
CHANGES OR MODIFICATIONS SUGGESTED BY DIEBOLD.
PART 10 LEGAL RELATIONSHIP
GES buys the Products and spare parts on its own account from Diebold and
uses and resells the Products and spare parts in its own name and for its own
account.
This Agreement shall not be deemed to create any relationship of
employment, agency, partnership or joint venture between Diebold and GES. GES's
status relative to Diebold shall be exclusively that of an independent
contractor. GES shall have no right or authority to make, assume or create any
express or implied representation or obligation on behalf of Diebold.
PART 11 ASSIGNMENT AND SUCCESSORS
Subject to the requirements of Part 4(b) above, GES shall have no
authority to subcontract, sell, transfer, or assign any right, or delegate any
obligation or duty, under this Agreement without ▇▇▇▇▇▇▇'▇ prior written
consent, and any such consent, if given, shall not relieve GES of its duties and
obligations hereunder. Diebold may delegate, subcontract, sell, transfer or
assign any right or any obligation or duty under this Agreement upon written
notice of the same to GES; provided, however, that Diebold remain primarily
liable to GES for the performance of ▇▇▇▇▇▇▇'▇ obligations and duties hereunder
and further provided that such person or entity shall agree to comply with the
confidentiality provisions of Part 12. Any purported sale, transfer, or
assignment or delegation in contravention of this Part 11 shall be deemed null
and void and not binding on ▇▇▇▇▇▇▇'▇ obligation to perform under this Agreement
as well as a breach hereof.
PART 12 CONFIDENTIALITY
The parties have entered into a Non-Disclosure Agreement dated January 25,
2001 ("NDA"). Such NDA is deemed incorporated herein by this reference and shall
be deemed to continue through the duration of this Agreement and the permitted
use by a party shall be deemed expanded to cover the parties respective rights
and obligations hereunder. Additional information disclosed by the parties shall
be deemed to be disclosed under the NDA to the extent the provisions thereof
apply and the requirements thereof are met. Neither party has any right or
interest in the trade secrets or other intellectual property of the other except
as provided in Part 4(b) and Exhibit ▇.
▇▇▇▇▇▇▇ CONFIDENTIAL
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Neither party shall disclose the terms or existence of this Agreement
without the express written consent of the other. Each party shall ensure that
any of its shareholders, directors, officers, employees, agents, servants,
independent contractors, subsidiaries or affiliates which are given access to
the other party's trade secrets will be validly bound, by contract, work rules
or otherwise, by the same obligations of confidentiality as are provided for
herein.
Upon the termination of this Agreement for any cause, except as otherwise
may be permitted in the NDA or this Agreement, each party shall continue to
comply with the provisions of the NDA.
Diebold reserves and retains, and this Agreement shall not reduce or
limit, ▇▇▇▇▇▇▇'▇ rights to enter into agreements with others relating to the
design, manufacture, supply, marketing, sale, lease, installation, service or
support of goods, software and services similar to those that are the subject of
this Agreement.
PART 13 INDEMNITY
GES agrees to indemnify, hold harmless and defend Diebold, including its
affiliates, subsidiaries and related companies, from and against all claims,
losses, liabilities, suits, actions, judgments, costs or expenses of whatever
nature ("Claims") incurred by or brought against them or any one of them as a
result of injury or other damage, claim or expense to persons or property
arising or in any way connected with GES's activities or GES's customers' use of
any Product or spare Part as well as Claims arising from the acts or omissions
of GES, its agents, servants, employees and independent contractors.
PART 14 INFRINGEMENT OF THIRD PARTY RIGHTS
GES represents and warrants that the Products and spare parts do not
infringe the patents, trademarks, trade dress, trade secrets or copyrights of
third parties ("Third Party Rights").
GES shall defend, indemnify and hold Diebold harmless from any and all
claims, suits, demands, actions loss, damage or expense associated with any such
claim, suit, demand or action that may be brought against Diebold that allege
that the Products or spare parts infringe Third Party Rights.
In no event shall Diebold have any liability to GES whatsoever for
infringement of Third Party Rights.
PART 15 TERMINATION OF AGREEMENT, EFFECT OF TERMINATION
Upon default of any term or provision of this Agreement, the
non-defaulting party shall have the right at its option, to cancel this
Agreement by sending the defaulting party a notice specifying the nature and
character of such default. In the event that the default is not cured within ten
(10) days of the date the defaulting party receives such notice of a financial
default, or within thirty (30) days of the date the defaulting party receives
notice of a non-financial default, the non-defaulting party may, in addition to
all of its other rights hereunder, either terminate this Agreement without
liability for such cancellation or suspend the performance of its obligations
hereunder until such default is remedied. Suspension of performance shall not
preclude termination
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for other defaults, or the default causing the suspension if the same is not
corrected within the applicable period of the imposition of the suspension.
Upon any termination, expiration, cancellation or non-renewal of this
Agreement, GES shall immediately return to Diebold all documents supplied by
Diebold and all copies thereof in GES's possession or in the power and custody
of any agent acting on behalf of GES, but the GES's obligations of
confidentiality pursuant to Parts 4(b), 12, 13 and 14 shall thereafter continue.
In the event of termination by Diebold based on a breach by GES, GES shall be
deemed to have at the same time waived any rights it may have to prohibit or
stop any GES employee or contractor from entering into a similar relationship
with Diebold.
PART 16 GOVERNING LAW; ARBITRATION
This Agreement shall be governed and construed in accordance with the law
of the State of Ohio, United States of America, applicable to transactions
occurring wholly within such state by residents thereof, and specifically
excluding the choice of law principles thereof. Any other laws which can be
negated by agreement, including but not limited to the International Sale of
Goods Law, are hereby negated and made ineffective by this Agreement. This
Agreement shall be considered as having been made in the State of Ohio.
Diebold and GES agree that any action for money or damages concerning or
related to the Products or spare parts or arising out of this Agreement or a
refusal to perform the whole or any part thereof or an assertion that a breach
or default has occurred shall be settled by arbitration. Any arbitration
proceeding shall be conducted pursuant to the applicable rules of the American
Arbitration Association and judgment upon the award of the arbitrator may be
entered in any court having jurisdiction thereof. Any laws allowing or providing
for judicial review de novo of such arbitration are hereby waived, and the award
of the arbitrator or arbitrators shall be final, binding and not subject to de
novo review.
In resolving any dispute by arbitration, the intent of the parties as
expressed in this Agreement shall be controlling over any contrary presumption
of law. The arbitrator or arbitrators shall have no power, authority or
jurisdiction, however, to award any remedy different than or in excess of the
remedy or remedies expressly provided in this Agreement, including but not
limited to cases where the remedy or remedies are expressly provided herein as
the sole and exclusive remedy or remedies (e.g., Parts 8 and 14). Further, the
arbitrator or arbitrators shall have no power, authority or jurisdiction to
award any remedy or remedies which exceeds the limitations of liability
expressly provided in Parts 8 and 14 of this Agreement.
Any arbitration or litigation conducted pursuant to or concerning this
provision or the Agreement or the goods or services provided by Diebold shall be
conducted in Cleveland, Ohio; provided however, the preceding shall not prevent
Diebold from obtaining injunctive or any other equitable relief in an action in
any court having jurisdiction thereof. The provisions of this Part 16 shall
survive any completion, expiration, termination or cancellation of this
Agreement.
PART 17 NOTICES
Any notification which is to be given to Diebold by GES pursuant to the
provisions of this Agreement shall not be effective unless delivered by
certified mail, return receipt requested, overnight courier service, or
confirmed telex or facsimile transmission, at the addresses set forth
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below:
IF TO DIEBOLD:
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
President, Diebold North America
▇▇▇▇▇▇▇, Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇. ▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, ▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Vice President and General Counsel
▇▇▇▇▇▇▇, Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
P. O. Box ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, ▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO GES:
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
President and Chief Operating Officer
Global Election Systems
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as either party previously shall have notified the
other party in writing pursuant to the terms of this Part 17.
PART 18 WAIVER
The failure of either Diebold or GES to enforce any term or provision of
this Agreement or any failure to declare a default hereunder shall apply only to
the particular instance and shall not operate as a continuing waiver or an
estoppel barring enforcement of any subsequent default of that or any other term
or provision hereof.
PART 19 COMPUTER SOFTWARE AND FIRMWARE
GES shall have full and complete responsibility to assure that the
software programs to be
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used as part of, or in conjunction with, the Products are properly and lawfully
developed or obtained and that Diebold shall have such licenses as are necessary
to perform its duties hereunder or otherwise exercise such rights as it may have
under the Agreement. GES shall be responsible for all license fees to third
parties and for assuring the compliance with any license terms in software
licensed from third parties.
PART 20 FORCE MAJEURE
Should any circumstances beyond the reasonable control of Diebold ("Events
of Force Majeure") occur that delay or render impossible the performance by
Diebold of an obligation due under the provisions of this Agreement, such
obligation will be postponed for such time as necessary, or cancelled if
performance has been rendered impossible thereby. Events of Force Majeure shall
include, without limitation, accidents, acts of God, civil commotion, strikes or
labor disputes, export license restrictions, acts, laws, rules, regulations or
other requirements of any government or government agency or other events beyond
the reasonable control of Diebold.
PART 21 SERVICING OF PRODUCTS
GES shall assume any and all obligations, if any, imposed by contract or
expressly or impliedly required by law for the repair and service of the
Products and spare parts.
PART 22 SAFETY REGULATIONS AND OTHER PRODUCT STANDARDS
Diebold disclaims any familiarity with the safety regulations and other
laws, regulations, specifications, standards or other requirements
("Requirements") of any kind or nature for the Products and spare parts. GES
expressly assumes full, complete and total responsibility for compliance with
any such Requirements, including, but not limited to, any necessary or desirable
modifications to the Products or spare parts or the designs to aid in the
compliance therewith. GES shall bear any and all costs and expenses for
modifications, changes, testing, marking and other similar costs for marketing,
sale or use of the Products and spare parts. GES shall indemnify, defend and
hold harmless Diebold, its officers, directors, employees, agents,
subcontractors and suppliers for any and all claims, suits, demands, loss, cost,
damage and expense, including attorney's fees and the cost to enforce any breach
hereof incurred by Diebold which are obligations of GES as described by this
Part.
PART 23 U.S. EXPORT AND CERTAIN OTHER LAWS
This Agreement is subject to U.S. export laws and regulations, including
specifically the United States Export Administration Act and the Export
Administration Regulations issued thereunder. GES agrees that any Products and
spare parts purchased from Diebold will be not be transferred or transshipped to
any person, entity or country prohibited under U.S. export laws and regulations,
to any nuclear end user, or to any entity whose name appears on the then current
Table of Denial Orders issued under U.S. Export Administration Regulations. GES
further agrees to comply with any and all applicable laws, regulations, treaties
and other requirements, whether enacted in the United States or other
jurisdictions, applicable to the shipment, import, and use of the Products and
spare parts to any country in which they may be used.
▇▇▇▇▇▇▇'▇ agreement to sell Products and spare parts to GES hereunder is
subject to the obtaining of any required export or other licenses or permits and
Diebold shall not be liable to GES
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for any loss or damage sustained by GES because of ▇▇▇▇▇▇▇'▇ inability to sell
or deliver Products or spare parts to GES by reason of ▇▇▇▇▇▇▇'▇ inability to
obtain the required licenses or permits.
PART 24 SEVERABILITY
The invalidity or unenforceability of any provision of this Agreement
shall not affect the other provisions hereof and this Agreement shall be
construed in all respects as if said invalid or unenforceable provisions were
not contained herein. The parties agree to cooperate in any revisions or
amendments of this Agreement which may be necessary to effect the intent of the
parties in the event that any provision of this Agreement is deleted as herein
provided.
PART 25 LANGUAGE, SURVIVAL
This Agreement shall be written in the English language and executed in
duplicate copies, each of which shall be deemed an original. The portions of the
various provisions of this Agreement that have potential for applicability
subsequent to an event of completion, termination, nullification or cancellation
of the Agreement for any reason shall be deemed to survive and continue in full
force and effect after any such event.
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PART 26 ENTIRE AGREEMENT; MODIFICATION
This Agreement and the Exhibits attached hereto state the entire Agreement
between Diebold and GES and supersede all proposals, communications, or
agreements whether oral or written. The provisions of this Agreement are for the
benefit of the parties hereto solely and not for the benefit of any other person
or entity. No waiver, alteration, or modification of any of the provisions of
this Agreement shall be binding unless in writing and signed by the duly
authorized representatives of Diebold and GES. Any written waiver, alteration,
or modification made in accordance with the provisions hereof shall be of no
effect unless expressly incorporating this Agreement by reference.
DIEBOLD AND GES HAVING AGREED TO ABIDE BY AND PERFORM ACCORDING TO PROVISIONS
SET FORTH HEREINABOVE SIGNIFY THEIR ACCEPTANCE OF THIS AGREEMENT THROUGH THE
SIGNATURES OF THEIR DULY AUTHORIZED REPRESENTATIVES.
Accepted for Diebold
▇▇▇▇▇▇▇, INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President and Chief Financial Officer
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Date:
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Accepted for GES
GLOBAL ELECTION SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------------------
Title: President and Chief Operating Officer
-------------------------------------------------
Date:
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DIEBOLD CONFIDENTIAL
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