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HomeMy WebLinkAboutMOU Badger Books with WECMemorandum of Understanding By and Between City Oshkosh (Badger Book User, Name of Municipality, County) And Wisconsin Elections Commission This Memorandum of Understanding (hereinafter referred to as the "MOU'� is effective as of the last date of signature affixed hereto, and is entered into by and between the Badger Book User (City of Oshkosh in Winnebago County, Wisconsin, Administrator/Chair Mark A. Rohloff ("Municipal User', Add reSS 215 church Avenue, Oshkosh WI 54903 , and the Wisconsin Elections Commission ("Commission', 201 West Washington Avenue, Madison, WI 53703 for the purpose of detailing the parties' obligations pertaining to the Badger Books electronic poll book and associated software. Whereas, the Wisconsin Elections Commission authorized the development of an electronic poll book system in 2017 to be used in polling places in the state on election day. The 'Badger Book" is electronic poll book software that is specific to Wisconsin elections practices and statutes. The Badger Book is the only electronic poll book software created with, and given the necessary permissions to have, direct integration to WisVote, the statewide election management and voter registration system. Whereas, the Badger Book will only be supported and allowable on a limited set of hardware selected by the Commission, which is defined as Approved Hardware herein. Whereas, Municipal User seeks to participate in the Badger Book program and utilize the electronic poll book software created by the Commission. Therefore, the parties hereby resolve and agree they will mutually comply with the following terms of this MOU. Badger Book MOU Version 1.0 Page 1 I. Scope A. Badger Book Software: The Badger Book is primarily used by Municipal Users to check in voters, process absentee ballots, and register voters on election day. The Badger Book, and associated operating system, drivers, and other components, is used to maintain the voter number and count independent of poll worker input. Each process was chosen and designed based on feedback provided by clerks and poll workers from across the state, and the Commission welcomes continued feedback from the Municipal User. After election day, a data file generated from the Badger Book is used to upload election participation and Election Day Registration information into the Commission's WisVote system. Regardless, each party to this MOU retains the independent custodial and recordkeeping responsibilities required under Wis. Stat. Chapter 19, and other provisions of law. The software utilized to operate the Badger Book will only be that approved by the Commission for use, as conveyed to the Municipal user ("Approved Software'. The sunsetting, movement to an updated version, or prohibition of use, of current Approved Software will be ordered within the sole discretion of the Commission. B. Badger Book Hardware: One Badger Book station includes the main terminal computer with a touch screen for electronic signature capture, a wireless mouse, a wireless keyboard, a barcode scanner, a case of thermal printer paper, and a printer that can either be integrated into the terminal'base column or as a stand- alone printer. Additionally, a router and a specific USB flash drive (a/k/a memory stick) must be purchased by Municipal User for each polling place. The router facilitates secure communication locally between the Badger Book machines. The USB drive is used to transfer data from an internet-connected computer to the Badger Book server machine, and this is the only method that may be employed by Municipal User to transfer this critical information. i. The Badger Book is currently supported on the HP ElitePOS 141 Point of Sale retail terminal, and this is the only Commission -approved hardware for use with Badger Book software. ii. Additional hardware may be approved by the Commission at a future date. This MOU will not be nullified or otherwise invalidated by a Municipal User's purchase or use of new Badger Book hardware configurations approved by an affirmative vote of the Commission or otherwise authorized by Commission staff through formal, written notification to Municipal Users or public postings directed to elections officials ('Approved Hardware'. iii. The sunsetting, or prohibition of use, of current Approved Hardware will be ordered within the sole discretion of the Commission. The Commission will use best efforts to plan, notify, and otherwise give advance notice to Municipal Users that a sunsetting of currently Approved Hardware is upcoming, so that Municipal Users will have time to prepare and budget for any required changes. The sunsetting or de -authorization of use for an Approved Hardware component/package will include, at a minimum, a loss of support for that hardware by the Commission or a future authorized support provider. The Commission may designate, in its exclusive discretion, a deadline at which the continued use of certain Badger Book MOU Version 1.0 Page 2 hardware may result in a loss of license to use the Badger Book software (e.g., hardware poses a significant security risk, a sunsetting timeline has passed, etc.). iv. Use of hardware with the Badger Book software, other than Approved Hardware, is prohibited. Use of unapproved hardware with the Badger Book may result in the Commission immediately or subsequently revoking Municipal User's license to the software. The Badger Book hardware should not be used with any non -Commission authorized software, applications, internet connected activities, or purposes not associated with the administration of elections. II. Badger Book Software License A. Badger Book is an on -premise software solution, which may be downloaded onto the Approved Hardware with the permission of the Commission staff, only after agreement to the terms provided within this MOU. Existing Municipal Users may be asked to retroactively agree to the terms of this MOU, and continued use is contingent upon such execution of these required terms. B. The Commission grants to Municipal User, solely for the uses authorized herein, a nontransferable, nonexclusive, terminable, limited license to the Badger Book software. Municipal User shall prevent unauthorized access to the Badger Book software and municipal hardware. The Commission requires installation of antivirus and antispyware software on the Approved Hardware and other internet-connected hardware used for uploading the extracted data into WisVote. C. The Badger Book software is licensed not sold to Municipal User. The Commission retains all rights, title, interest, and ownership over the software, as well as audit access to the Badger Book and licensed software therein. III. Badger Book License Use Provisions A. Municipal User shall not, and shall not permit any third -party to: i) reverse engineer, decompile, or disassemble the Badger Book software; ii) attempt in any other manner to obtain the source code; iii) create derivative works of, or make modifications to the Badger Book software; iv) grant use of the Badger Book to any user not approved by the Commission as detailed herein; v) otherwise grant unauthorized access or visibility to ancillary systems such as WisVote and its protected data and information; vi) use the Approved Hardware or Badger Book software shall only be in accordance with the intended purpose and no other systems or solutions shall be placed on or utilized on the hardware. B. While some Approved Hardware may be enabled to have router connectivity, Municipal User shall only use that connectivity to allow the Approved Hardware (i.e., Badger Books) to connect securely to each other within the polling place. At no time should Approved Hardware ever be connected to the internet or any other network outside the polling place. Municipal User may wish to disable or otherwise block such functionality as it pertains to internet or outside connectivity. Unauthorized connection of the Municipal User's Approved Hardware may result in loss of the user's license, or removal from the Badger Book program by the Commission. IV. Software and Approved Hardware Delivery/Implementation/Use A. Municipal User will purchase Approved Hardware through the Commission - authorized vendors. The vendor has been granted authority to download the Badger Book MOU Version 1.0 Page 3 Badger Book software onto the purchased units. Municipal User is responsible for attending baseline, introductory training prior to the first election cycle for which the Approved Hardware will be used. V. Allowance of Use and Program Requirements A. The Badger Book software license is provided to Municipal User free of charge. The only requirement for implementation and continued use is Municipal User compliance with the terms of this MOU. The joint obligations of the parties to this MOU include: B. Commission Requirements i. Provide continued and free access to the Badger Book software. ii. Provide reasonable, free software support, maintenance, and troubleshooting. This will include upgraded support and response times within one week of an election, and in the two days following an election, contingent upon Municipal User's continued compliance with the Commission's software update schedule. iii. Provide reasonable hardware troubleshooting support. iv. Continue to seek third -party software/hardware support for Municipal Users, that can be purchased by the user off of a competitively -procured state contract. v. Provide baseline, train -the -trainer user training on the Badger Book, at no expense, to the authorized staff of the Municipal User. This may be initially conducted by Commission staff, or another trainer authorized by the Commission. C. Municipal User Requirements i. Municipal Clerk and Deputy Clerk must remain certified and maintain required training hours every two years. Wis. Stat. § 7.15(1m) and Wis. Admin. Code EL 12.03(2). ii. Authorized staff of the Municipal User, including but not limited to Municipal Clerk and/or designee, agree to attend introductory training provided by Commission staff or another trainer authorized by the Commission and provide such training to municipal election inspectors. iii. An accurate user count of authorized municipal Badger Book users must be maintained, and that list shall be provided to the Commission upon request. iv. Notification shall be given to the Commission each time new or additional Approved Hardware is purchased. v. Municipal User must implement each required software update on all Badger Books in their possession, as required by the Commission, and on the schedule provided by the Commission. Non-compliance may result in revocation of the software license or removal from the program. vi. All support requests to the Commission must be routed only through the Commission Helpdesk at Email: elections(&wisconsin oov or Phone: (608) 261-2028. vii. The Badger Book shall be used, and elections must be conducted, in accordance with Wisconsin Statutes Chapters 5-10 and 12, as well as other applicable statutes, laws, and requirements placed on local Badger Book MOU Version 1.0 Page 4 elections officials and Municipal Users. Paper pollbook copies should be prepared and maintained as a backup to the Badger Book. viii. If Municipal User is not a WisVote user ("Relier'� and is part of an agreement with another jurisdiction to provide WisVote election system services, the provider ("WisVote Provider's must be a cosigner on this agreement. WisVote Providers are generally employees of the county in which the Relier is situated, but in some instances may be employees of another municipality. ix. Municipal User shall immediately report all suspected and actual Badger Book/software security breaches, improper system access, and noncompliance with this MOU to the Commission. VI. Terms and Conditions of Badger Book Software License/Use A. Term: The term of this MOU, and the associated software license, are perpetual. Use and licensing of the software may be revoked by the Commission at any time for non-compliance with the terms of this MOU by the Municipal User. Revocation of a Municipal User's software license for reasons other than noncompliance requires ninety (90) days advance notice by the Commission. Municipal Users may withdraw from the Badger Book program at any time, but the Commission requests as much advance notice of potential or actual termination of program participation as possible. The Commission retains the right to require any reasonable withdrawal or return requirements associated with program participation and software usage. B. Representations: Each party to this MOU has and will provide accurate, current, and complete information. The signatories of this agreement are duly authorized to bind the parties to the terms stated herein. The Commission will use best efforts to create software updates to address functionality and security, and the Municipal User must implement such updates. Neither party will use or develop the software to infringe upon the intellectual property rights of third parties. C. Warranties: The Commission warrants that the Badger Book software will reasonably perform in accordance with program requirements and the purposes stated herein. Municipal User will only use the Badger Book software as authorized herein or as appropriate under the law. The Commission makes no warranty as to the performance or replacement of the Approved Hardware. Municipal User's sole recourse for hardware non-performance will be the manufacturer's warranty and similar guarantees. ALL OTHER WARRANTIES NOT DETAILED IN THIS MOU ARE DISCLAIMED AND NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. D. Indemnification: The parties to this MOU will indemnify each other to the extent allowable under Wisconsin law. E. Confidentiality: The Badger Book software, Approved Hardware, associated documentation, WisVote system, login credentials, and data within those systems are confidential under state and federal law, and to the extent they are not, are required to be kept confidential under the terms of this MOU. Municipal User shall maintain the confidentiality of each and all of those items to the greatest Badger Book MOU Version 1.0 Page 5 extent allowable by law. Industry best practices shall be employed when creating and maintaining passwords (e.g., unique/lengthy/complicated passwords, updating of passwords, etc.). Furthermore, both parties shall maintain the confidentiality of any other information or data which the other party designates or which a party knows or has reason to believe is proprietary or protected, in at ,least the same manner as the party maintains the confidentiality of its own information ("Confidential Information'. Each party may use Confidential Information only as permitted hereunder. Neither party shall disclose or provide any Confidential Information to any third -party and shall take necessary measures to prevent any unauthorized disclosure by its employees, agents, contractors, or consultants including by completing appropriate individual nondisclosure agreements. F. Amendment: Any term changes, amendments, or addenda to this MOU must be in writing, executed by both parties. Changes to the program, Badger Book software, or Approved Hardware may require an addendum, new MOU, or the formal attachment of items such as a technical specifications or security -based document. Badger Book MOU Version 1.0 Page 6 IN WITNESS WHEREOF, the parties have executed this MOU on the date shown below. The signatories hereto personally represent that this MOU is executed pursuant to legal authorization by the organizations on behalf of which they are signing. BADGER BOOK USER Sign d Date Mark A. Rohloff Printed name Oshkosh Municipality Name WisVote Relier El If yes, WisVote Provider must sign below: WISVOTE PROVIDER Signed Date N/A per WEC Printed name Winnebago WisVote Provider Name (County) Badger Book MOU Version 1.0 Page 7 WISCONSIN ELECTIONS COMMISSION Signed Date Printed Name Winnebago County Name