Exhibit D-1 - Contract.docx

CONTRACT

NO. K173

COMPETITIVE SOLICITATION NO. RFP173

FOR

DIGITAL JACKPOT SIGNS

By and Between

STATE OF WASHINGTON

WASHINGTON’S LOTTERY

and

Dated _____________________, 2021

CONTRACT

NO. K173

DIGITAL JACKPOT SIGNS

This Contract (“Contract”) is made and entered into by and between Washington’s Lottery (“Lottery”) and ____________________ “Contractor”) and is dated and effective as of _______________ __, 2024.

R E C I T A L S A. Pursuant to Legislative direction codified in chapter 39.26 RCW, Lottery is authorized to competitively solicit and award contracts for goods and/or services for use by Lottery.

B. Lottery issued Competitive Solicitation RFP173, dated __________, 2024, for the purpose of obtaining a contractor for the Digital Jackpot Signage in accordance with its authority under chapter 39.26 RCW.

C. Lottery evaluated all responses to the Competitive Solicitation and identified Contractor as the apparent successful bidder.

D. Lottery has determined that entering into this Contract will meet the identified needs and be in the best interest of the State of Washington.

A G R E E M E N T NOW THEREFORE, in consideration of the mutual promises, covenants, and conditions set forth herein, the parties hereto hereby agree as follows:

1. TERM. The term of this Contract is for a _____ (_) Month term commencing ____, ending ___; subject to mutual agreement, the term of the Contract may be extended for up to ___________.

2. SCOPE – INCLUDED SERVICES AND PRICE.

2.1. CONTRACT SCOPE. Pursuant to this Contract, Contractor is authorized to sell and provide only those goods and/or services set forth in Exhibit A – Included Goods/Services for the prices set forth in Exhibit B – Prices for Goods/Services.

(a) Goods. For purposes of this Contract, “Goods” means all equipment, materials, supplies, ancillary parts, accessories, components and other items purchased as defined in this Contract.

(b) Services. For purposes of this Contract, “Services” means all services of any nature ordered by Lottery pursuant to this Contract.

(c) Specifications. Where applicable, specifications for goods and/or services as detailed in this Contract. Unless otherwise specified, all goods and/or services provided shall be new and unused of the latest model or design.

2.2. STATE’S ABILITY TO MODIFY SCOPE OF CONTRACT. Subject to mutual agreement between the parties, Lottery reserves the right to modify the goods and/or services included in this Contract; Provided, however, that any such modification shall be effective only upon ten (10) days advance written notice; and Provided further, that any such modification must be within the scope of the Competitive Solicitation for this Contract.

2.3. PRICE CEILING. Although Contractor may offer lower prices to Lottery, during the term of this Contract, Contractor guarantees to provide the Goods/Services at no greater than the prices set forth in Exhibit B - Prices for Goods/Services.

3. CONTRACTOR REPRESENTATIONS AND WARRANTIES. Contractor makes each of the following representations and warranties as of the effective date of this Contract and at the time of performance pursuant to this Contract. If, at the time of performance, Contractor cannot make such representations and warranties, Contractor shall not perform and shall, within three (3) business days notify Lottery, in writing, of such breach.

3.1. QUALIFIED TO DO BUSINESS. Contractor represents and warrants that Contractor is (a) in good standing; (b) qualified to do business in the State of Washington; and (c) registered with the Washington State Department of Revenue and the Washington Secretary of State.

3.2. TAXES. Contractor represents and warrants that Contractor is current, in full compliance, and has paid all applicable taxes owed to the State of Washington.

3.3. LICENSES; CERTIFICATIONS; AUTHORIZATIONS; & APPROVALS. Contractor represents and warrants that Contractor possesses and shall keep current during the term of this Contract all required licenses, certifications, permits, authorizations, and approvals necessary for Contractor’s proper performance of this Contract.

3.4. SUSPENSION & DEBARMENT. Contractor represents and warrants as previously certified in Contractor’s Bidder’s Certification, that neither Contractor nor its principals or affiliates presently are not nor have ever been debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in any governmental Contract by any governmental department or agency within the United States.

3.5. WAGE VIOLATIONS. Contractor represents and warrants as previously certified in Contractor’s Bidder’s Certification, that during the term of this Contract and the three (3) year period immediately preceding the award of the Contract, Contractor has not been determined, by a final and binding citation and notice of assessment issued by the Washington Department of Labor and Industries or through a civil judgement entered by a court of limited or general jurisdiction, to be in willful violation of any provision of Washington state wage laws set forth in chapter 49.46, 49.48, or 49.52 RCW.

3.6. CIVIL RIGHTS. Contractor represents and warrants that Contractor complies with all applicable requirements regarding civil rights. Such requirements prohibit discrimination against individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. See Exhibit D.

3.7. EXECUTIVE ORDER 18-03 – WORKERS’ RIGHTS [IF APPLICABLE]. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor does NOT require its employees, as a condition of employment, to sign or agree to mandatory individual arbitration clauses or class or collective action waivers. Contractor further represents and warrants that, during the term of this Contract, Contractor shall not, as a condition of employment, require its employees to sign or agree to mandatory individual arbitration clauses or class or collective action waivers.

3.8. WASHINGTON SMALL BUSINESS [IF APPLICABLE]. Contractor represents and warrants, as previously certified in Contractor’s Bidder Certification, that Contractor qualifies as a Washington Small Business pursuant to RCW 39.26.010.

3.9. CERTIFIED VETERAN-OWNED BUSINESS [IF APPLICABLE]. Contractor represents and warrants, as previously certified in Contractor’s Bidder Certification, that Contractor qualifies as a Certified Veteran-Owned Business pursuant to RCW 43.60A.190.

3.10. PUBLIC CONTRACTS AND PROCUREMENT FRAUD. Contractor represents and warrants that, within the three (3) year period prior to this Contract, neither Contractor nor its principals or affiliates: (a) have been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offence in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) contract under a public contract; (b) have been in violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements or receiving stolen property; (c) are presently indicted for or otherwise criminally or civilly charged by a government entity (federal, state or local) with commission of any of the offense enumerated in subsection (b) of this provision; or (d) had one or more public contracts (federal, state or local) terminated for cause or default.

3.11. PROCUREMENT ETHICS & PROHIBITION ON GIFTS. Contractor represents and warrants that Contractor complies fully with all applicable procurement ethics restrictions including, but not limited to, restrictions against Contractor providing gifts or anything of economic value, directly or indirectly, to State employees.

3.12. WASHINGTON’S STATEWIDE PAYEE DESK. Contractor represents and warrants that Contractor is registered with Washington’s Statewide Payee Desk, which registration is a condition to payment.

3.13. ADVERTISING AND ENDORSEMENT. Contractor understands and acknowledges that neither Lottery nor the State of Washington are endorsing Contractor’s goods and/or services or suggesting that such goods and/or services are the best or only solution to their needs. Accordingly, Contractor further represents and warrants that Contractor shall make no reference to Lottery or the State of Washington in any promotional material without the prior written consent of Lottery.

3.14. CONTINGENT FEES. Contractor represents and warrants that no person or selling agent has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established agents as defined in the Federal Acquisition Regulations.

3.15. FINANCIALLY SOLVENT. Contractor represents and warrants that Contractor has not commenced bankruptcy proceedings and that there are no judgment, liens, or encumbrances of any kind affecting title to any goods and/or services that are the subject of this Contract.

3.16. OPERATIONAL CAPABILITY. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor has the operational and financial capability to perform the Contract.

3.17. CONTRACT TRANSITION. Contractor represents and warrants that, in the event this Contract is transitioned to another contractor (e.g., Contract expiration or termination), Contractor shall use commercially reasonable efforts to assist Lottery for a period of sixty (60) days to effectuate a smooth transition to another contractor to minimize disruption of service and/or costs to the State of Washington.

4. QUALITY; WARRANTY; REMEDIES.

4.1. GOODS WARRANTY. Contractor warrants that, for a period of twelve (12) months from the date when the Goods are put into use, or eighteen (18) months after delivery of the Goods, whichever is later (“Goods Warranty Period”), the Goods: (a) are free from defects in design, material, and workmanship; (b) are fit and safe for the intended purposes and appropriate for the specified application(s) (if any); (c) are consistent with recognized industry quality standards; (d) comply with the requirements, specifications, drawings, standards, and descriptions included in this Contract; and (e) are produced and delivered in full compliance with applicable law (“Goods Warranty”). Contractor further warrants that it has good and marketable title to the Goods and shall keep Lottery property free of liens. If Lottery receives notice of a lien caused by Contractor, Lottery may withhold any payment otherwise due Contractor until Contractor submits proof, in a form satisfactory to Lottery, that all lienable claims have been fully paid or waived.

4.2. GOODS REMEDY. If Goods do not comply with the Goods Warranty or any defects develop during the Goods Warranty Period under normal use, at Lottery election, Contractor promptly shall remedy the defect by removing, repairing, correcting, or replacing, and/or reinstalling any defective Goods. Contractor’s Goods Warranty support shall include, at Contractor’s sole expense, all technical support, parts, materials and equipment, and labor, including freight and “in/out” costs required to address the defect. If, in Lottery’s judgment, repair or replacement is inadequate, or fails of its essential purpose, Contractor shall refund the full amount of any payments that have been made. The rights and remedies of the parties under this warranty are in addition to any other rights and remedies of the parties provided by law or equity, including, without limitation, actual damages, and, as applicable and awarded under the law, to a prevailing party, reasonable attorneys’ fees and costs.

4.3. FAILURE TO REMEDY. If Contractor does not remedy a defect or nonconformity within ten (10) calendar days after receipt of written notice from Lottery, or if an emergency exists rendering it impossible or impractical for Lottery to have Contractor provide a remedy, Lottery may, without prejudice to any other rights or remedies available to it, make or cause to be made required modifications, adjustments, or repairs, or may replace Goods, Services, IT Goods, or IT Services, in which case Contractor shall reimburse Lottery for its actual costs or, at Lottery option, Lottery will offset the costs incurred from amounts owing to Contractor.

4.4. TECHNICAL SUPPORT. During any applicable warranty period, Contractor shall provide all warranty service and telephone support, including after-hour technical support, at its own cost. Contractor shall maintain a technical support hotline to address breakdowns and safety incidents.

5. SAFETY; SECURITY. Contractor’s failure to comply with any of the requirements in this Section shall be cause for termination.

5.1. REGULATORY REQUIREMENTS/SAFETY. Goods and/or services supplied by Contractor shall meet all OSHA and other safety-related federal, state, and/or local regulatory agency requirements applicable to the Goods/Services.

5.2. MATERIAL SAFETY DATA SHEETS. As applicable, Contractor shall provide Lottery with all appropriate Material Safety Data Sheets (“MSDS”) at the time of delivery of each shipment of Goods which requires such compliance and/or and for materials used by Contractor while performing Services and any updates of the same.

5.3. CLEAN-UP. If Contractor, its agents, employees, or subcontractors perform onsite Services, Contractor, at its cost, will remove all excess materials, equipment, packaging, and garbage within the scope of its performance of Services and leave that portion of the premises in which the work was performed in a clean condition. Should Contractor fail to clean up a site after completion of work, Lottery will have the right to remove the materials and set off the cost of clean up against amounts owed to Contractor.

5.4. ACCIDENT AND INJURY REPORTING. If Contractor, its agents, employees, or subcontractors are present at Lottery’s premises, Contractor promptly will report in writing all injuries, accidents, property damage, near-miss incidents, or any claims regarding damages or injury involving Contractor, its agents, employees, or subcontractors occurring at such premises. Contractor agrees to cooperate and assist in any Lottery investigation of incidents.

5.5. ON SITE REQUIREMENTS. While on Lottery’s premises, Contractor, its agents, employees, or subcontractors shall comply, in all respects, with Lottery’s physical, fire, access, safety, and other security requirements and not interfere with Lottery’s operations. Contractor represents and warrants that Contractor, its agents, employees, or subcontractors who access Lottery’s premises will be adequately trained and at all times comply with Lottery’s requirements.

5.6. IT SECURITY POLICIES. Contractor, its agents, employees, or subcontractors shall comply with all Washington State IT security policies and standards which will be made available to Contractor upon request.

6. SUBCONTRACTORS [IF APPLICABLE].

6.1. CONTRACTOR RESPONSIBILITY. Notwithstanding any provision to the contrary, in the event Contractor elects to utilize subcontractors to perform this Contract, Contractor shall: (a) incorporate Contractor’s responsibilities under this Contract into its subcontracts; (b) be fully responsible for the performance of any such subcontractors (regardless of tier) and ensure that subcontractors comply with each and every Contractor obligation set forth in this Contract; (c) be the sole point of contact for Lottery regarding all contractual matters; and (d) defend, indemnify, and hold Lottery harmless in case of negligence, other tortious fault, or intentional misconduct by any such subcontractors (regardless of tier).

6.2. REPORTING. If Contractor is required to report to Lottery, such report(s) will include subcontractor data, by subcontractor, for any data that Contractor is required to report as well as a consolidated ‘rollup’ report combining Contractor and subcontractor data.

6.3. SUBCONTRACTOR REPRESENTATIONS AND CERTIFICATIONS. Any Contractor representations or certifications set forth in this Contract shall apply to subcontractors (at any tier) and Contractor shall not utilize any subcontractors (at any tier) who cannot provide such representations or certifications, excepting the certification to be registered with Washington’s Statewide Payee Desk, unless Lottery will pay such subcontractor directly.

6.4. SUBCONTRACTOR PAYMENTS REPORTING REQUIREMENTS. This Contract is subject to compliance tracking using the State’s business diversity management system, Access Equity (B2Gnow). Access Equity is web-based and can be accessed at the Office of Minority and Women’s Business Enterprises at https://omwbe.diversitycompliance.com/. The Contractor and all subcontractors shall report and confirm receipt of payments made to the Contractor and each subcontractor through Access Equity. User guides and documentation related to Contractor and subcontractor access to and use of Access Equity are available online at https://omwbe.wa.gov/access-equity-help-center. Lottery reserves the right to withhold payments from Contractor for non-compliance with this section. For purposes of this section, subcontractor means any subcontractor working on the Contract, at any tier and regardless of status as certified WMBE or Non-WMBE.

Contractor shall:

a) Register and enter all required subcontractor information into Access Equity no later than 15 days after Lottery creates the Contract Record.

b) Complete the required user training (two (2) one-hour online sessions) no later than 20 days after Lottery creates the Contract Record.

c) Report the amount and date of all payments (i) received from the Lottery, and (ii) paid to subcontractor(s), no later than _______________________, issuance of each payment made by Lottery to Contractor, unless otherwise specified in writing by Lottery, except that the Contractor shall mark as “Final” and report the final Subcontractor payments) into Access Equity no later than thirty (30) days after the final payment is due the subcontractor(s) under the Contract, with all payment information entered no later than sixty (60) days after end of fiscal year.

d) Monitor contract payments and respond promptly to any requests or instructions from the Lottery or system-generated messages to check or provide information in Access Equity.

e) Coordinate with subcontractor(s), or Lottery, when necessary, to resolve promptly any discrepancies between reported and received payments.

f) Require each subcontractor to: (i) register in Access Equity and complete the required user training; (ii) verify the amount and date of receipt of each payment from Contractor or a higher tier subcontractor, if applicable, through Access Equity; (iii) report payments made to any lower tier subcontractor(s), if any, in the same manner as specified herein; (iv) respond promptly to any requests or instructions from Contractor or system-generated messages to check or provide information in Access Equity; and (v) coordinate with Contractor, or Lottery when necessary, to resolve promptly any discrepancies between reported and received payments.

7. DELIVERY & INSTALLATION.

7.1. DELIVERY REQUIREMENTS. Contractor must ensure that the goods and/or services are delivered or provided as required by this Contract, including the requirements set forth in Exhibit A, or as otherwise mutually agreed in writing between Lottery and Contractor. The following apply to all deliveries:

(a) Contractor shall make all deliveries to the applicable delivery location specified herein. Such deliveries shall occur during Lottery’s normal work hours and within the time period mutually agreed in writing between Contractor and Lottery.

(b) Contractor shall ship all goods and/or services purchased pursuant to this Contract, freight charges prepaid by Contractor, FOB Lottery’s specified destination with all transportation and handling charges included. Contractor shall bear all risk of loss, damage, or destruction of the goods and/or services ordered hereunder that occurs prior to delivery and installation, except loss or damage attributable solely to Lottery’s fault or negligence.

(c) All packing lists, packages, instruction manuals, correspondence, shipping notices, shipping containers, and other written materials associated with this Contract shall be identified by the Contract number set forth on the cover of this Contract.

7.2. RECEIPT AND INSPECTION OF GOODS AND/OR SERVICES. Goods and/or Services purchased under this Contract are subject to Lottery’s reasonable inspection, testing, and approval at Lottery’s destination. Lottery reserves the right to reject and refuse acceptance of goods and/or services that are not in accordance with this Contract. If there are any apparent defects in the goods and/or services at the time of delivery, Lottery promptly will notify Contractor. At Lottery’s option, and without limiting any other rights, Lottery may require Contractor to repair or replace, at Contractor’s expense, any or all of the damaged goods and/or services or, at Lottery’s option, Lottery may note any damage to the goods and/or services on the receiving report, decline acceptance, and deduct the cost of rejected goods and/or services from final payment.

8. INVOICING & PAYMENT.

8.1. CONTRACTOR INVOICE. Contractor shall submit properly itemized invoices to Lottery’s designated invoicing contact for goods and/or services delivered under this Contract. Such invoices shall itemize the following:

a) Contract No. K173;

b) Contractor name, address, telephone number, and email address for billing issues (i.e., Contractor Customer Service Representative);

c) Contractor’s Federal Tax Identification Number;

d) Date(s) of delivery;

e) Description of services and deliverables provided;

f) Net invoice price for each service or deliverable;

g) Applicable taxes;

h) Total invoice amount; and

i) Payment terms, including any available prompt payment discounts.

Contractor’s invoices for payment shall reflect accurate Contract prices. Invoices will not be processed for payment until receipt of a completed invoice as specified herein. Lottery shall have no obligation to pay Contractor for any services that do not comply with this Contract.

8.2. PAYMENT. Payment is the sole responsibility of, and will be made by, Lottery. Payment is due within thirty (30) days of invoice. If Lottery fails to make timely payment(s), Contractor may invoice Lottery in the amount of one percent (1%) per month on the amount overdue or a minimum of $1. Payment will not be considered late if a check or warrant is mailed within the time specified.

8.3. OVERPAYMENTS. Contractor promptly shall refund to Lottery the full amount of any erroneous payment or overpayment. Such refunds shall occur within thirty (30) calendar days of written notice to Contractor; Provided, however, that Lottery shall have the right to elect to have either direct payments or written credit memos issued. If Contractor fails to make timely refunds of overpayment(s) (either directly or by such credit memo), Contractor shall pay Lottery interest at a rate of one percent (1%) per month on the amount overdue thirty (30) calendar days after notice to Contractor.

8.4. ADVANCE PAYMENT PROHIBITED. Except as authorized by law, Contractor shall not request or receive advance payment for any Good and/or Services furnished by Contractor pursuant to this Contract.

8.5. NO ADDITIONAL CHARGES. Unless otherwise specified herein, Contractor shall not include or impose any additional charges including, but not limited to, charges for shipping, handling, insurance, or payment processing.

8.6. TAXES/FEES. Contractor promptly shall pay all applicable taxes on its operations and activities pertaining to this Contract. Failure to do so shall constitute breach of this Contract. Unless otherwise agreed, Lottery shall pay applicable sales tax imposed by the State of Washington on purchased goods and/or services. Contractor’s invoices shall separately state (a) taxable and non-taxable charges and (b) sales/use tax due by jurisdiction. In regard to federal excise taxes, Contractor shall include federal excise taxes only if, after thirty (30) calendar days written notice to Lottery, Lottery has not provided Contractor with a valid exemption certificate from such federal excise taxes.

9. CONTRACT MANAGEMENT.

9.1. CONTRACT ADMINISTRATION & NOTICES. Except for legal notices, the parties hereby designate the following contract administrators as the respective single points of contact for purposes of contract administration for this Contract. Lottery’s contract administrator shall provide contract administrative oversight. Contractor’s contract administrator shall be Contractor’s principal contact for invoice/billing activities under this Contract. The parties may change contract administrators by written notice as set forth below.

Any notices required or desired shall be in writing and sent by U.S. mail, postage prepaid, or sent via email, and shall be sent to the respective addressee at the respective address or email address set forth below or to such other address or email address as the parties may specify in writing:

Attn: Stacy Sund Washington’s Lottery PO Box 43000 Olympia WA 98504 Tel: (360) 870-6096 Email: SSund@walottery.com Attn: _________________________ Tel: (___) __________ Email: _______________

Notices shall be deemed effective upon the earlier of receipt, if mailed, or, if emailed, upon transmission to the designated email address of said addressee.

9.2. CONTRACTOR CUSTOMER SERVICE REPRESENTATIVE. Contractor shall designate a customer service representative (and inform Lottery of the same) who shall be responsible for addressing Lottery’s issues pertaining to this Contract.

9.3. LEGAL NOTICES. Any legal notices required or desired shall be in writing and delivered by U.S. certified mail, return receipt requested, postage prepaid, or sent via email, and shall be sent to the respective addressee at the respective address or email address set forth below or to such other address or email address as the parties may specify in writing:

Attn: Kristi Weeks Washington’s Lottery PO Box 43000 Olympia WA 98504 Email: KWeeks@walottery.com Attn: ____________________ Email: _______________

Notices shall be deemed effective upon the earlier of receipt when delivered, or, if mailed, upon return receipt, or, if emailed, upon transmission to the designated email address of said addressee.

10. RECORDS RETENTION & AUDITS.

10.1. Records RETENTION. Contractor shall maintain books, records, documents, and other evidence pertaining to this Contract to the extent and in such detail as shall adequately reflect contract performance and administration of purchases, payments, taxes and fees. Contractor shall retain such records for a period of six (6) years following expiration or termination of this Contract or final payment, whichever is later; Provided, however, that if any litigation, claim, or audit is commenced prior to the expiration of this period, such period shall extend until all such litigation, claims, or audits have been resolved.

10.2. AUDIT. Lottery reserves the right to audit, or have a designated third-party audit, applicable records to ensure that Contractor properly has invoiced Lottery. Accordingly, Contractor shall permit Lottery and any other duly authorized agent of a governmental agency, to audit, inspect, examine, copy and/or transcribe Contractor’s books, documents, papers and records directly pertinent to this Contract for the purpose of making audits, examinations, excerpts, and transcriptions. This right shall survive for a period of six (6) years following expiration or termination of this Contract or final payment, whichever is later; Provided, however, that if any litigation, claim, or audit is commenced prior to the expiration of this period, such period shall extend until all such litigation, claims, or audits have been resolved.

11. INSURANCE.

11.1. REQUIRED INSURANCE. Contractor, at its expense, shall maintain in full force and effect the insurance coverages set forth in Exhibit C– Insurance Requirements. All costs for insurance, including any payments of deductible amounts, shall be considered incidental to and included in the prices for Goods/Services and no additional payment shall be made to Contractor.

11.2. WORKERS COMPENSATION. Contractor shall comply with applicable workers compensation statutes and regulations (e.g., Title 51 RCW, Industrial Insurance). If Contractor fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its employees as may be required by law, Lottery may terminate this Contract. This provision does not waive any of the Washington State Department of Labor and Industries (L&I) rights to collect from Contractor. If Contractor performs Services on Lottery’s behalf in the State of Washington, and only to the extent of claims against Contractor by Lottery under the Indemnity obligations in this Contract, Contractor expressly waives any immunity it may be granted under the Washington State Industrial Insurance Act, Title 51 RCW. Contractor’s indemnification obligation will not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable to or for any third party under workers’ compensation acts, disability benefit acts, or other employee benefit acts. The parties expressly acknowledge and certify that the waiver of immunity under Title 51 RCW was mutually negotiated and agreed upon.

12. CLAIMS.

12.1. ASSUMPTION OF RISKS; CLAIMS BETWEEN THE PARTIES. Contractor assumes sole responsibility and all risks of personal injury or property damage to itself and its employees and agents in connection with Contractor’s operations under this Contract. Lottery has made no representations regarding any factor affecting Contractor’s risks. Contractor shall pay for all damage to any Lottery’s property resulting directly or indirectly from Contractor’s acts or omissions under this Contract, even if not attributable to negligence by Contractor or its agents.

12.2. THIRD-PARTY CLAIMS; GENERAL INDEMNITY. To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold harmless Lottery and its employees and agents harmless from and against all claims, demands, judgments, assessments, damages, penalties, fines, costs, liabilities or losses including, without limitation, sums paid in settlement of claims, attorneys’ fees, consultant fees, and expert fees (collectively “Claims”) arising out of Contractor’s or its successors’, agents’, and subcontractors’ negligence, other tortious fault, or intentional misconduct under this Contract, ; Provided, however, that no right to indemnity will exist as to that portion of a Claim resulting from the sole negligence, tortious fault, or intentional misconduct of Lottery. The parties agree that if there are any limitations of Contractor’s liability, including a limitation of liability clause for anyone for whom the Contractor is responsible, such limitations of liability shall not apply to injuries to persons, including death, or to damages to property. Contractor shall take all steps needed to keep Lottery’s property free of liens arising from Contractor’s activities, and promptly obtain or bond the release of any such liens that may be filed.

12.3. INTELLECTUAL PROPERTY INDEMNITY. To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold harmless Lottery and their employees and agents harmless from and against any and all Claims resulting from allegations of infringement of any patents, copyrights, trade secret, or similar intellectual property rights covering the Goods or Services provided, or the use of the Goods or Services under this Contract. If Lottery’s use of Goods or Services provided by Contractor is enjoined based on an intellectual property infringement Claim, Contractor shall, at its own expense, either procure for Lottery the right to continue using the Goods or Services or, after consulting with Lottery and obtaining Lottery’s consent, replace or modify the Goods or Services with substantially similar and functionally equivalent non-infringing Goods or Services.

13. DISPUTE RESOLUTION.

13.3. The parties shall cooperate to resolve any dispute pertaining to this Contract efficiently, as timely as practicable, and at the lowest possible level with authority to resolve such dispute. If, however, a dispute persists and cannot be resolved, it may be escalated within each organization. In such situation, upon notice by either party, each party, within five (5) business days shall reduce its description of the dispute to writing and deliver it to the other party. The receiving party then shall have three (3) business days to review and respond in writing. In the event that the parties cannot then agree on a resolution of the dispute, the parties shall schedule a conference between the respective senior manager of each organization to attempt to resolve the dispute. In the event the parties cannot agree, either party may resort to court to resolve the dispute.

14. SUSPENSION; EXPIRATION; TERMINATION; REMEDIES.

14.1. TERMINATION. This Contract may be terminated: (a) upon the mutual written agreement of the parties; (b) by the non-breaching party where the breach is not cured within thirty (30) calendar days after written notice of breach is delivered to the breaching party, unless a different time for cure is otherwise stated in this Contract; and (c) as otherwise expressly provided for in this Contract. This Contract shall terminate automatically and without further action if a party becomes insolvent or is placed in receivership, reorganization, liquidation, or bankruptcy. In addition to any other available remedies, the non-breaching party may terminate this Contract as provided in subsection (b) herein without further liability by written notice to the breaching party. A termination for breach will not affect rights or obligations accrued or owed before the effective date of the termination notice.

14.2. TERMINATION FOR NONAPPROPRIATION OR REDUCTION OF FUNDS OR CHANGES IN LAW. Lottery may suspend or terminate this Contract, at the sole discretion of Lottery or, as applicable, if Lottery reasonably determines that: (a) a change in Federal or State legislation or applicable laws materially affects the ability of either party to perform under the terms of this Contract; or (b) that a change in available funds affects Lottery’s ability to pay Contractor. A change of available funds as used in this section includes, but is not limited to, a change in Federal or State funding, whether as a result of a legislative act or by order of the President or the Governor. If a written notice is delivered under this provision, Lottery will reimburse Contractor for Goods properly ordered and/or Services properly performed until the effective date of said notice. Except as stated in this provision, in the event of termination for nonappropriation or reduction of funds or changes in law, Lottery will have no obligation or liability to Contractor.

14.3. TERMINATION FOR PUBLIC CONVENIENCE. Lottery, for public convenience, may terminate this Contract; Provided, however, that such termination for public convenience must, in Lottery’s judgment, be in the best interest of the State of Washington; and Provided further, that such termination for public convenience shall only be effective upon sixty (60) days prior written notice; and Provided further, that such termination for public convenience shall not relieve Lottery from payment for goods and/or services already ordered as of the effective date of such notice. Except as stated in this provision, in the event of such termination for public convenience, Lottery shall not have any obligation or liability to Contractor.

14.4. EXPIRATION – LOTTERY’S OBLIGATIONS. Upon expiration of this Contract, Lottery shall accept and take delivery of all outstanding and not yet fulfilled orders and pay Contractor the price as set out in the Contract.

14.5. EXPIRATION OR TERMINATION – CONTRACTOR’S OBLIGATIONS. Upon expiration or termination of this Contract, Contractor shall: (a) continue to fulfill its warranty obligations with respect to any Goods or Services sold hereunder and all provisions of the Contract that, by their nature, would continue beyond the expiration, termination, or cancellation of the Contract shall so continue and survive; and (b) promptly return to Lottery all keys, badges, and other materials supplied by Lottery pursuant to this Contract.

14.6. DEFAULT. Any of the following events shall constitute cause for Lottery to declare Contractor in default of this Contract:

(a) Contractor fails to perform or comply with any of the terms or conditions of this Contract;

(b) Contractor breaches any representation or warranty provided herein; or

(c) Contractor enters into proceedings relating to bankruptcy, whether voluntary or involuntary.

14.7. SUSPENSION & TERMINATION FOR DEFAULT. Lottery may suspend Contractor’s operations under this Contract immediately by written cure notice of any default. Suspension shall continue until the default is remedied to Lottery’s reasonable satisfaction; Provided, however, that, if after twenty (20) days from such a suspension notice, Contractor remains in default, Lottery may terminate Contractor’s rights under this Contract. All of Contractor’s obligations to Lottery survive termination of Contractor’s rights under this Contract, until such obligations have been fulfilled.

14.8. REMEDIES FOR DEFAULT.

(a) Lottery’s rights to suspend and terminate Contractor’s rights under this Contract are in addition to all other available remedies.

(b) In the event of termination for default, Lottery may exercise any remedy provided by law including, without limitation, the right to procure replacement goods and/or services. In such event, Contractor shall be liable to Lottery for damages as authorized by law including, but not limited to, any price difference between the Contract price and the replacement or cover price as well as any administrative and/or transaction costs directly related to such replacement procurement – e.g., the cost of the competitive procurement.

14.9. LIMITATION ON DAMAGES. Notwithstanding any provision to the contrary, the parties agree that in no event shall any party be liable to the other for exemplary or punitive damages; Provided, however, that nothing contained in this Section will in any way exclude or limit: (a) a party’s liability for all damages arising out of that party’s intentional acts or omissions; (b) the operation of any goods and/or services warranty provided in this Contract; or (c) damages subject to the Intellectual Property Indemnity section of this Contract. Any limitation of either party’s obligations under this Contract, by delivery slips or other documentation is void.

14.10. SUSPENSION/TERMINATION PROCEDURE. Regardless of basis, in the event of suspension or termination (in full or in part), the parties shall cooperate to ensure an orderly and efficient suspension or termination. Accordingly, Contractor shall deliver to Lottery all goods and/or services that are complete (or with approval from Lottery, substantially complete) and Lottery shall inspect, accept, and pay for the same in accordance with this Contract. Unless directed by Lottery to the contrary, Contractor shall not process any orders after notice of suspension or termination inconsistent therewith.

15. PUBLIC INFORMATION & PUBLIC RECORDS DISCLOSURE REQUESTS.

15.1. WASHINGTON’S PUBLIC RECORDS ACT. Unless statutorily exempt from public disclosure, this Contract and all related records are subject to public disclosure as required by Washington’s Public Records Act, chapter 42.56 RCW.

15.2. CONTRACTOR’S OBLIGATION. Contractor shall identify and mark the precise portion(s) of the relevant page(s) of any records provided to Lottery that Contractor believes are statutorily exempt from disclosure and identify the precise statutory basis for exemption from disclosure. In addition, if, in Contractor’s judgment, certain portions of such records are not statutorily exempt from disclosure but are sensitive because particular portions of Contractor’s records (NOT including pricing) include highly confidential, proprietary, or trade secret information (or the equivalent) that Contractor protects through the regular use of confidentiality or similar agreements and routine enforcements through court enforcement actions, Contractor shall identify and mark the precise portion(s) of the relevant page(s) of any records that include such sensitive information.

15.3. LOTTERY’S OBLIGATION. In the event that Lottery receives a public records disclosure request pertaining to records that Contractor has submitted and marked either as (a) statutorily exempt from disclosure; or (b) sensitive, Lottery, prior to disclosure, will do the following: Lottery Public Records Officer will review any records marked by Contractor as statutorily exempt from disclosure. In those situations, where the designation comports with the stated statutory exemption from disclosure, Lottery will redact or withhold the record(s) as appropriate. For records marked ‘sensitive’ or for records where Lottery determines that no statutory exemption to disclosure applies or is unable to determine whether the stated statutory exemption to disclosure properly applies, Lottery will notify Contractor, at the address provided in the Contract, of the public records disclosure request and identify the date that Lottery intends to release the record(s) (including records marked ‘sensitive’ or exempt from disclosure) to the requester unless Contractor, at Contractor’s sole expense, timely obtains a court order enjoining Lottery from such disclosure. In the event Contractor fails to timely obtain a court order enjoining such disclosure, Lottery will release the requested record(s) on the date specified. Contractor’s failure to properly identify exempted or sensitive information or timely respond after notice of request for public disclosure has been given shall be deemed a waiver by Contractor of any claim that such records are exempt or protected from public disclosure.

16. GENERAL PROVISIONS.

16.1. TIME IS OF THE ESSENCE. Time is of the essence for each and every provision of this Contract.

16.2. COMPLIANCE WITH LAW. Contractor shall comply with all applicable law. Contractor shall obtain all necessary permits and approvals and give all stipulations, certifications, and representations that may be required for it to perform this Contract.

16.3. ENTIRE AGREEMENT. This Contract constitutes the entire agreement and understanding of the parties with respect to the subject matter and supersedes all prior negotiations, representations, and understandings between them. There are no representations or understandings of any kind not set forth herein.

16.4. AMENDMENT OR MODIFICATION. Except as set forth herein, this Contract may not be amended or modified except in writing and signed by a duly authorized representative of each party.

16.5. AUTHORITY. Each party to this Contract, and each individual signing on behalf of each party, hereby represents and warrants to the other that it has full power and authority to enter into this Contract and that its execution, delivery, and performance of this Contract has been fully authorized and approved, and that no further approvals or consents are required to bind such party.

16.6. NO AGENCY. The parties agree that no agency, partnership, or joint venture of any kind shall be or is intended to be created by or under this Contract. Neither party is an agent of the other party nor authorized to obligate it.

16.7. INDEPENDENT CONTRACTOR. The parties intend that an independent contractor relationship is created by this Contract. Contractor and its employees or agents performing under this Contract are not employees or agents of Lottery. Contractor shall not have authorization, express or implied, to bind Lottery to any agreement, liability, or understanding, except as expressly set forth herein. Contractor and its employees and agents are not entitled to unemployment insurance or worker’s compensation benefits through Lottery, or the State of Washington and Lottery and the State of Washington will not pay for or otherwise provide such coverage for Contractor and its employees and agents.

16.8. ASSIGNMENTS. Contractor may not assign its rights under this Contract without Lottery’s prior written consent and Lottery may consider any attempted assignment without such consent to be void; Provided, however, that, if Contractor provides written notice to Lottery within thirty (30) days, Contractor may assign its rights under this Contract in full to any parent, subsidiary, or affiliate of Contractor that controls or is controlled by or under common control with Contractor, is merged or consolidated with Contractor, or purchases a majority or controlling interest in the ownership or assets of Contractor. Unless otherwise agreed, Contractor guarantees prompt performance of all obligations under this Contract notwithstanding any prior assignment of its rights.

16.9. BINDING EFFECT; SUCCESSORS & ASSIGNS. This Contract shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.

16.10. ASSIGNMENT OF ANTITRUST RIGHTS REGARDING PURCHASED GOODS/SERVICES. Contractor irrevocably assigns to Lottery, on behalf of the State of Washington, any claim for relief or cause of action which Contractor now has or which may accrue to the Contractor in the future by reason of any violation of state or federal antitrust laws in connection with any goods and/or services provided in Washington for the purpose of carrying out the Contractor’s obligations under this Contract, including, at Lottery’s option, the right to control any such litigation on such claim for relief or cause of action.

16.11. FORCE MAJEURE. Except for payment of sums due, neither party shall be liable to the other or deemed in breach under this Contract if, and to the extent that, such party's performance of this Contract is prevented by reason of force majeure. The term “force majeure” means an occurrence that causes a delay that is beyond the control of the party affected and could not have been avoided by exercising reasonable diligence. Force majeure shall include acts of God, war, riots, strikes, fire, floods, epidemics, pandemics, or other similar occurrences. If either party is delayed by force majeure, said party shall provide written notification within forty-eight (48) hours. The notification shall provide evidence of the force majeure to the satisfaction of the other party. Such delay shall cease as soon as practicable and written notification of same shall likewise be provided. So far as consistent with the rights reserved below, the time of completion shall be extended by Contract amendment for a period of time equal to the time that the results or effects of such delay prevented the delayed party from performing in accordance with this Contract. Notwithstanding any provision to the contrary, in the event that a Contractor-declared force majeure event lasts for more than thirty (30) days, Lottery shall have the right to terminate the Contract and/or purchase the goods and/or services set forth in this Contract; Provided, however, that in such event, Contractor shall not be liable to Lottery for any price difference for such goods and/or services.

16.12. FEDERAL FUNDS. To the extent that Lottery uses federal funds to purchase goods and/or services pursuant to this Contract, Lottery shall specify any applicable requirement or certification that must be satisfied by Contractor as a condition of payment and Contractor shall adhere to such applicable federal requirements and/or certifications.

16.13. SEVERABILITY. If any provision of this Contract is held to be invalid or unenforceable, such provision shall not affect or invalidate the remainder of this Contract, and to this end the provisions of this Contract are declared to be severable. If such invalidity becomes known or apparent to the parties, the parties agree to negotiate promptly in good faith in an attempt to amend such provision as nearly as possible to be consistent with the intent of this Contract.

16.14. WAIVER. Failure of either party to insist upon the strict performance of any of the terms and conditions hereof, or failure to exercise any rights or remedies provided herein or by law, or to notify the other party in the event of breach, shall not release the other party of any of its obligations under this Contract, nor shall any purported oral modification or rescission of this Contract by either party operate as a waiver of any of the terms hereof. No waiver by either party of any breach, default, or violation of any term, warranty, representation, contract, covenant, right, condition, or provision hereof shall constitute waiver of any subsequent breach, default, or violation of the same or other term, warranty, representation, contract, covenant, right, condition, or provision.

16.15. SURVIVAL. All representations, warranties, covenants, agreements, and indemnities set forth in or otherwise made pursuant to this Contract shall survive and remain in effect following the expiration or termination of this Contract, Provided, however, that nothing herein is intended to extend the survival beyond any applicable statute of limitations periods.

16.16. GOVERNING LAW. The validity, construction, performance, and enforcement of this Contract shall be…