RFQQ236- Exhibit D- Contract.docx

CONTRACT

NO. K236

FOR

MERCHANDISE INSTALLER

By and Between

WASHINGTON’S LOTTERY

and

____________________ Comment by Tolbert, Greg (DES): Insert legal name for awarded Contractor

Dated _____________________, 2025

CONTRACT NO. K236 – MERCHANDISE INSTALLER 27

(Rev. 2024-07-05)

CONTRACT

NO. K236

FOR

MERCHANDISE INSTALLATION SERVICES

This Contract (“Contract”) is made and entered into by and between the Washington’s Lottery, a Washington State governmental agency (“the Lottery”) and ____________________, a ________________ (“the Contractor”) and is dated and effective as of _______________ __, 2025.

R E C I T A L S A. Pursuant to Legislative direction codified in chapter 39.26 RCW, the Lottery is authorized to solicit and award contracts, through a competitive procurement process, to obtain Goods and/or Services for its use, including Merchandise Installation Services. Comment by LaCourse, Cody (LOT): Question?

In the competitive solicitation document I removed “goods” from “Goods and/or Services” since this is a service based contract. But in attempting to remove it in document it starts to not make sense to me.

Should I add Goods back in/ or should I rewrite where it doesn’t make sense? Comment by Weeks, Kristi (LOT): Either way is fine. Goods and/or services can be either or both, so it’s not incorrect and probably easier. Just make sure you are consistent. For example, here “goods and/or services” is not capitalized but in 2.1(c) it is. Pick. (I vote for capitalized because they are defined terms.)

B. The Lottery issued Competitive Solicitation #RFQQ236 dated __________, 2025, for the purpose of obtaining a contractor for Merchandise Installation in accordance with its authority under chapter 39.26 RCW C. The Lottery evaluated all responses to the Competitive Solicitation and identified the Contractor as the apparent successful bidder.

D. The purpose of this Contract is to enable the Lottery to purchase the Services as set forth herein.

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 two (2) years (24 months), commencing _____________, 2025 and ending _____________, 2027; Subject to mutual agreement, the term of the Contract may be extended for up to 3 years (36) additional months. Such extension amendment shall be on the same terms and conditions as set forth in this Contract.

2. SCOPE – INCLUDED GOODS AND/OR SERVICES AND PRICE.

2.1. CONTRACT SCOPE. Pursuant to this Contract, the Contractor is authorized to sell and provide only those Merchandise Installer (“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 pursuant to this Contract.

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

(c) Specifications. Where applicable, specifications for the Goods and/or Services is detailed in this Contract or Exhibit thereto. Unless otherwise specified, all Goods and/or Services provided shall be new, unused, and of the latest model or design.

2.2. THE LOTTERY’S ABILITY TO MODIFY SCOPE OF CONTRACT. Subject to mutual agreement between the parties, the 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 the Contractor may offer lower prices to the Lottery, during the term of this Contract, the Contractor guarantees to provide the Goods and/or Services at no greater than the prices set forth in Exhibit B – Prices for Goods/Services (subject to economic or other adjustment as set forth herein).

3. CONTRACTOR REPRESENTATIONS AND WARRANTIES. The 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, the Contractor cannot make such representations and warranties, the Contractor shall not perform and shall, within three (3) business days, notify the Lottery, in writing, of such breach.

3.1. QUALIFIED TO DO BUSINESS. The Contractor represents and warrants that the 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. The Contractor represents and warrants that the Contractor is current, in full compliance, and has paid all applicable taxes owed to the State of Washington.

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

3.4. SUSPENSION & DEBARMENT. The Contractor represents and warrants as previously certified in the Contractor’s Bidder’s Certification, that neither the Contractor nor its principals or affiliates presently are 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. The Contractor represents and warrants as previously certified in the 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, the 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. The Contractor represents and warrants that the 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.

3.7. EXECUTIVE ORDER 18-03 – WORKERS’ RIGHTS [IF APPLICABLE]. The Contractor represents and warrants, as previously certified in the Contractor’s Bidder’s Certification, that the 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. The Contractor further represents and warrants that, during the term of this Contract, the 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]. The Contractor represents and warrants, as previously certified in the Contractor’s Bidder’s Certification, that the Contractor qualifies as a Washington Small Business as defined and set forth in the Contractor’s Bidder’s Certification.

3.9. CERTIFIED VETERAN-OWNED BUSINESS [IF APPLICABLE]. The Contractor represents and warrants, as previously certified in the Contractor’s Bidder Certification, that the Contractor qualifies as a Certified Veteran-Owned Business as defined and set forth in the Contractor’s Bidder’s Certification.

3.10. PUBLIC CONTRACTS AND PROCUREMENT FRAUD. The Contractor represents and warrants that, within the three (3) year period prior to this Contract, neither the 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. The Contractor represents and warrants that the Contractor complies fully with all applicable procurement ethics restrictions including, but not limited to, restrictions against the Contractor providing gifts or anything of economic value, directly or indirectly, to Washington State employees.

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

3.13. CONTRACT PROMOTION; ADVERTISING AND ENDORSEMENT. The Contractor represents and warrants that the Contractor shall use commercially reasonable efforts both to promote and market the use of this Contract with eligible Purchasers and to ensure that those entities that utilize this Contract are eligible Purchasers; provided, however, that the Contractor may rely on the representations of any Purchaser and Enterprise Services regarding such eligibility. The Contractor understands and acknowledges that neither the Lottery nor the State of Washington are endorsing the Contractor’s Goods and/or Services or suggesting that such Goods and/or Services are the best or only solution to their needs. Accordingly, the Contractor further represents and warrants that the Contractor shall make no reference to the Lottery or the State of Washington in any promotional material without the prior written consent of the Lottery.

3.14. CONTINGENT FEES. The 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. The Contractor represents and warrants that the 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. The Contractor represents and warrants, as previously certified in the Contractor’s Bidder’s Certification, that the Contractor has the operational and financial capability to perform the Contract.

3.17. ACCESS EQUITY – CONTRACT REPORTING (if utilizing subcontractors). The Contractor represents and warrants, as previously certified in the Contractor’s Bidder’s Certification, that the Contractor, if utilizing subcontractors to perform this Contract, shall register and report monthly, as the Contractor, through Access Equity, Washington’s secure online business diversity vendor management system (B2Gnow), which is managed by Washington’s Office of Minority and Women’s Business Enterprises (OMWBE), any payments to subcontractors pertaining to the Contract. The Contractor further represents and warrants, as previously certified in the Contractor’s Bidder’s Certification, that the Contractor shall use commercially reasonable efforts to ensure that such subcontractors also utilize Access Equity to verify such payment information as reported by Contractor.

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

4. QUALITY; WARRANTY; REMEDIES.

4.1. GOODS WARRANTY. The 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”). The Contractor further warrants that it has good and marketable title to the Goods and shall keep the Lottery property free of liens. If the Lottery receives notice of a lien caused by the Contractor, the Lottery may withhold any payment otherwise due the Contractor until the Contractor submits proof, in a form satisfactory to the 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 the Lottery’s election, the Contractor promptly shall remedy the defect by removing, repairing, correcting, or replacing, and/or reinstalling any defective Goods. The Contractor’s Goods Warranty support shall include, at the 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 the Lottery’s judgment, repair or replacement is inadequate, or fails of its essential purpose, the 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. SERVICES WARRANTY. The Contractor warrants that: (a) Services shall be performed in a timely, efficient, professional, and workmanlike manner; (b) all the Contractor personnel assigned to perform Services shall have the necessary skill and training; and (c) Services shall be performed in a manner consistent with the standard of care in the industry (“Services Warranty”). The Services Warranty shall survive for a period of twelve (12) months after the date when Services are completed (“Services Warranty Period”).

4.4. SERVICES REMEDY. If Services do not comply with the Services Warranty or are in any manner found to be nonconforming during the Services Warranty Period, the Contractor promptly shall remedy the non-conformance, or at the Lottery election, the Contractor shall re-perform or correct the nonconforming Services at no additional cost to the Lottery or refund the amounts paid for the Services.

4.5. FAILURE TO REMEDY. If the Contractor does not remedy a defect or nonconformity within ten (10) calendar days after receipt of written notice from the Lottery, or if an emergency exists rendering it impossible or impractical for the Lottery to have the Contractor provide a remedy, the 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, , in which case the Contractor shall reimburse the Lottery for its actual costs or, at the Lottery’s option, the Lottery shall offset the costs incurred from amounts owing to the Contractor.

5. SAFETY; SECURITY; THE CONTRACTOR REQUIREMENTS WHILE ON PREMESIS. The 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 the Contractor shall meet all applicable health, safety, and other federal, state, and/or local regulatory agency requirements applicable to the Goods and/or Services.

5.2. MATERIAL SAFETY DATA SHEETS. As applicable, the Contractor shall provide the Lottery with all appropriate current 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 the Contractor while performing Services pursuant to this Contract.

5.3. CLEAN-UP. If the Contractor, its agents, employees, or subcontractors perform onsite Services, the Contractor, at its cost, shall 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 the Contractor fail to clean up a site after completion of work, the Lottery shall have the right to remove the materials and set off the cost of clean up against amounts owed to the Contractor.

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

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

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

6. SUBCONTRACTORS.

6.1. THE CONTRACTOR RESPONSIBILITY. Notwithstanding any provision to the contrary, in the event the Contractor elects to utilize subcontractors to perform this Contract, the Contractor shall:

(a) Incorporate the 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 the Contractor obligation set forth in this Contract;

(c) Be the sole point of contact for the Lottery regarding all contractual matters;

(d) Ensure that such subcontractors are registered in WEBS;

(e) Ensure that such subcontractors comply with the Access Equity requirements applicable to subcontractors as set forth in this Contract; and

(f) Defend, indemnify, and hold the Lottery harmless in case of negligence, other tortious fault, or intentional misconduct by any such subcontractors (regardless of tier).

Prior to utilizing any subcontractor to perform this Contract, the Contractor shall provide written notice to the Lottery’s contract administrator. For each such subcontractor, such notice shall confirm that such subcontractor is:

· Registered in WEBS; and

· Identified by the Contractor in Access Equity.

6.2. ACCESS EQUITY. If the Contractor utilizes subcontractors to perform this Contract, this section applies. In such circumstances, this Contract is subject to compliance tracking using Access Equity, Washington’s online business diversity vendor management system (B2Gnow), which is managed by Washington’s Office of Minority and Women’s Business Enterprises (OMWBE). Access Equity is web-based and can be accessed at https://omwbe.diversitycompliance.com/. User guides and documentation related to the Contractor and subcontractor access to and use of Access Equity are available online at https://omwbe.wa.gov/access-equity-help-center. The Contractor may contact the Contract Administrator for technical assistance in using the Access Equity system.

(a) Contract Payment Reporting & Verification. TheContractor and any subcontractors utilized by the Contractor to perform this Contract shall utilize Access Equity to report and confirm receipt of payments made to the Contractor by the Lottery and to each subcontractor.

(b) The Contractor Requirements.

1. Registration. The Contractor, within fifteen (15) calendar days of the effective date of this Contract, shall register in Access Equity and enter all required subcontractor information. In the event the Contractor subcontracts to perform this Contract after the effective date of this Contract, the Contractor shall update Access Equity within fifteen (15) calendar days of such subcontract.

2. Training. The Contractor, within twenty (20) calendar days of the effective date of this Contract (or later engagement of a subcontractor), shall complete the required Access Equity user training (two (2) one-hour online sessions).

3. Subcontractors. The Contractor shall require any subcontractor(s) utilized by the Contractor to perform this Contract to:

· Register in Access Equity;

· Complete the required Access Equity user training;

· Use Access Equity to verify the amount and date of receipt of each payment from the Contractor or, if applicable, a higher tier subcontractor;

· Use Access Equity to report payments made by subcontractor to any lower tier subcontractor(s), if any, in the same manner as specified herein;

· Promptly respond to any requests or instructions from the Contractor or system-generated messages to check or provide information in Access Equity; and

· When necessary, promptly coordinate with the Contractor and/or the Lottery to resolve any discrepancies between reported and received payments.

4. Reporting. The Contractor, quarterly shall report the amount and date of:

· All payments received from the Lottery; and

· All payments paid to subcontractor(s);

Provided, however, that the Contractor shall mark as “final” and report final subcontractor payments no later than thirty (30) calendar days after final payment is due to subcontractor(s).

5. Monitor & Respond. The Contractor shall 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.

6. Resolve Discrepancies. When necessary, promptly coordinate with subcontractor(s) and/or the Lottery to resolve any discrepancies between reported and received payments.

(c) Right to withhold Payment for Noncompliance. In the event the Contractor or subcontractors, if any, fails to comply with this section, the Lottery may, in addition to any other lawful remedy, upon written notice of such noncompliance, withhold payment to the Contractor until such time as such noncompliance is cured.

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

6.4. SUBCONTRACTOR REPRESENTATIONS AND CERTIFICATIONS. Any Contractor representations or certifications set forth in this Contract shall apply to subcontractors (at any tier) and the 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 the Lottery shall pay such subcontractor directly.

7. DELIVERY & INSTALLATION.

7.1. DELIVERY REQUIREMENTS. The Contractor must ensure that the Goods and/or Services are delivered or provided as required by this Contract or as otherwise mutually agreed in writing between the Lottery and the Contractor. The following apply to all deliveries:

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

(b) The Contractor shall ship all Goods and/or Services purchased pursuant to this Contract, freight charges prepaid by the Contractor, FOB to the Lottery’s specified destination with all transportation and handling charges included. the 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 the 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 the Lottery’s reasonable inspection, testing, and approval at the Lottery’s destination. The 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, the Lottery promptly shall notify the Contractor. At the Lottery’s option, and without limiting any other rights, the Lottery may require the Contractor to repair or replace, at the Contractor’s expense, any or all of the damaged Goods and/or Services or, at the Lottery’s option, the 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. PERFORMANCE OF SERVICES.

8.1. OWNERSHIP OF DELIVERABLES. Notwithstanding any provision to the contrary, the parties understand and agree that the Lottery shall own all rights to any plans, reports, or other deliverables provided to the Lottery pursuant to this Contract. The copyright in all works of authorship created pursuant to this Contract shall be owned by the State of Washington. All such works or portions of works created by the Contractor are hereby agreed to be "works made for hire" within the meaning of 17 U.S.C. § 201. If, however, the State of Washington is not able to obtain copyright ownership under the statutory provisions for "works made for hire," then the Contractor hereby assigns to State of Washington all right, title, and interest in: (a) the copyright to the Contractor’s work of authorship ("Work") and contribution to any such Work ("Contribution"); (b) any registrations and copyright applications, along with any renewals and extensions thereof, relating to the Contribution or the Work; (c) all works based upon, derived from, or incorporating the Contribution or the Work; (d) all income, royalties, damages, claims and payments now or hereafter due or payable with respect to the Contribution or the Work; (e) all causes of action, either in law or in equity, for past, present, or future infringement of copyright related to the Contribution or the Work, and all rights corresponding to any of the foregoing, throughout the world. In addition, to the extent any applicable law or treaty prohibits the transfer or assignment of any moral rights or rights of restraint the Contractor has in the Contribution or the Work, the Contractor waives those rights as to State of Washington, its successors, licensees, and assigns.

8.2. THE CONTRACTOR KEY STAFF CHANGES. Except in the case of a leave of absence, sickness, death, termination of employment or unpaid or paid leave of absence, agreed upon Key Staff must not be changed during the term of this Contract. Otherwise, any change in Key Staff must be agreed in writing between the parties. During the term of the Contract, the Lottery reserves the right to approve or disapprove of the Contractor and subcontractor Key Staff assigned to perform services as required by this Contract, or to require the removal or reassignment of any the Contractor or subcontractor Key Staff found unacceptable by the Lottery, subject to the Lottery’s compliance with applicable laws and regulations. The Contractor must provide the Lottery with a resume of any member of its Key Staff or a subcontractor’s Key Staff assigned to or proposed for any aspect of performance under this Contract prior to commencing any Services.

In the event that proposed the Contractor resources are unavailable to deliver the work, the Contractor must staff the project with resources with equal or greater skills and capabilities, subject to approval from the Lottery.

The Lottery must be notified of any change in the Contractor Key Staff as soon as practicable but in no event less than five (5) working days after removal of such staff from their duties in support of this Contract. The Contractor must provide resumes and describe the roles and responsibilities of any replacement Key Staff to the Lottery as soon as practicable but in no event less than five (5) working days prior to the date that such Key Staff begin work under this Contract. The Lottery reserves the right, in its sole judgement, to approve or reject such replacement Key Staff. The Lottery’s approval of such staff shall not be unreasonably withheld.

9. INVOICING & PAYMENT.

9.1 THE CONTRACTOR’S INVOICE. The Contractor shall submit properly itemized invoices to the Lottery’s designated invoicing contact for Goods and/or Services delivered under this Contract. Such invoices shall itemize the following:

(a) Contract No. K236

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

(c) The Contractor’s Federal Tax Identification Number;

(d) Date(s) of delivery;

(e) Applicable Goods and/or Services;

(f) Invoice amount;

(g) Applicable taxes; and

(h) Payment terms, including any available prompt payment discounts.

9.2. PAYMENT. The Lottery’s obligation to pay invoices is subject to receipt of a timely and accurate invoice and conforming Goods and/or Services. Unless the Contractor has provided a prompt payment discount set forth in Exhibit B – Prices for Goods/Services, the Lottery’s payment is due within thirty (30) days of invoice. The Lottery retains the right of setoff for any amount due or owing to the Lottery. The Lottery may make payments electronically (e.g., ACH payments). The Contractor shall provide information necessary to facilitate electronic payments. If the Lottery fails to make timely payment(s), the Contractor may invoice the Lottery in the amount of one percent (1%) per month on the amount overdue or a minimum of $1. Payment shall not be considered late if a check or warrant is mailed within the time specified.

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

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

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

9.6. TAXES/FEES. THE 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, the Lottery shall pay applicable sales tax imposed by the State of Washington on purchased Goods and/or Services. The 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, the Contractor shall include federal excise taxes only if, after thirty (30) calendar days written notice to the Lottery, the Lottery has not provided the Contractor with a valid exemption certificate from such federal excise taxes.

10. CONTRACT MANAGEMENT.

10.1. 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 administration for this Contract. the Lottery’s contract administrator shall provide contract administrative oversight. The Contractor’s contract administrator shall be the 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) 8706096 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.

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

10.3. LEGAL NOTICES. Any legal 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: 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 if mailed, or, if emailed, upon transmission to the designated email address of said addressee.

11. RECORDS RETENTION & AUDITS.

11.1. RECORDS RETENTION. The 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. the 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.

11.2. AUDIT. The Lottery reserves the right to audit, or have a designated third-party audit, applicable records to ensure that the Contractor properly has invoiced the Lottery. Accordingly, the Contractor shall permit the Lottery and any other duly authorized agent of a governmental agency, to audit, inspect, examine, copy and/or transcribe the 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.

12. INSURANCE.

12.1. REQUIRED INSURANCE. The 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 and/or Services and no additional payment shall be made to the Contractor.

12.2. WORKERS COMPENSATION. The Contractor shall comply with applicable workers compensation statutes and regulations (e.g., Title 51 RCW, Industrial Insurance). If the 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, the 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 the Contractor. If the Contractor performs Services on the Lottery’s behalf in the State of Washington, and only to the extent of claims against the Contractor by the Lottery under the Indemnity obligations in this Contract, the Contractor expressly waives any immunity it may be granted under the Washington State Industrial Insurance Act, Title 51 RCW. The Contractor’s indemnification obligation shall 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.

13. CLAIMS.

13.1. ASSUMPTION OF RISKS; CLAIMS BETWEEN THE PARTIES. THE Contractor assumes sole responsibility and all risks of personal injury or property damage to itself and its employees and agents in connection with the Contractor’s operations under this Contract. the Lottery has made no representations regarding any factor affecting the Contractor’s risks. the Contractor shall pay for all damage to any of the Lottery’s property resulting directly or indirectly from the Contractor’s acts or omissions under this Contract.

13.1. THIRD-PARTY CLAIMS; GENERAL INDEMNITY. To the fullest extent permitted by law, the Contractor shall defend, indemnify, and hold the 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”) to the extent arising out of the Contractor’s or its successors’, agents’ and subcontractors’ negligence, other tortious fault, or intentional misconduct under this Contract. The parties agree that if there are any limitations of the Contractor’s liability, including a limitation of liability clause for anyone for whom the the Contractor is responsible, such limitations of liability shall not apply to injuries to persons (including death) damages to property, data breach, and/or intellectual property infringement. The Contractor shall take all steps needed to keep the Lottery’s property free of liens arising from the Contractor’s activities and promptly obtain or bond the release of any such liens that may be filed.

13.2. INTELLECTUAL PROPERTY INDEMNITY. To the fullest extent permitted by law, the Contractor shall defend, indemnify, and hold the Lottery and its 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 and/or Services provided, or the use of the Goods and/or Services under this Contract. If the Lottery’s use of the Goods and/or Services provided by the Contractor is enjoined based on an intellectual property infringement claim, the Contractor shall, at its own expense, either procure for the Lottery the right to continue using the Goods and/or Services or, after consulting with the Lottery and obtaining the Lottery’s consent, replace or modify the Goods and/or Services with substantially similar and functionally equivalent non-infringing Goods and/or Services.

14. DISPUTE RESOLUTION. 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.

15. SUSPENSION; EXPIRATION; TERMINATION; REMEDIES.

15.1. 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) above without further liability by written notice to the breaching party. A termination for breach shall not affect rights or obligations accrued or owed before the effective date of the termination notice.

15.2. TERMINATION FOR NONAPPROPRIATION OR REDUCTION OF FUNDS OR CHANGES IN LAW. the Lottery may suspend or terminate this Contract, at the sole discretion of the Lottery or, as applicable, if the 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 the Lottery’s ability to pay the 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, the Lottery shall reimburse the 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, the Lottery shall have no obligation or liability to the Contractor.

15.3. TERMINATION FOR PUBLIC CONVENIENCE. The Lottery, for public convenience, may terminate this Contract; Provided, however, that such termination for public convenience must, in the 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 the 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, the Lottery shall not have any obligation or liability to the Contractor.

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

15.5. EXPIRATION OR TERMINATION – The CONTRACTOR’S OBLIGATIONS. Upon expiration or termination of this Contract, the Contractor shall: (a) continue to fulfill its warranty obligations with respect to any Goods and/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 the Lottery all keys, badges, and other materials supplied by the Lottery pursuant to this Contract.

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

(a) The Contractor fails to perform or comply with any of the terms or conditions of this Contract or the Exhibits incorporated by reference;

(b) The Contractor fails to maintain the insurance coverages specified herein or timely provide to the Lottery the Certificate of Insurance and updates thereto specified herein;

(c) The Contractor breaches any representation or warranty provided herein; or

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

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

15.8. REMEDIES FOR DEFAULT.

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

(b) In the event of termination for default, the Lottery may exercise any remedy provided by law including, without limitation, the right to procure replacement Goods and/or Services. In such event, the Contractor shall be liable to the 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.

15.9. 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 shall 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.

15.10. 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, the Contractor shall deliver to the Lottery all Goods and/or Services that are complete (or with approval from the Lottery, substantially complete) and the Lottery shall inspect, accept, and pay for the same in accordance with this Contract. Unless directed by the Lottery to the contrary, the Contractor shall not process any orders after notice of suspension or termination inconsistent therewith.

16. PUBLIC INFORMATION & PUBLIC RECORDS DISCLOSURE REQUESTS.

16.1. 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.

16.2. THE CONTRACTOR’S OBLIGATION. The Contractor shall identify and mark the precise portion(s) of the relevant page(s) of any records provided to the Lottery that the Contractor believes are statutorily exempt from disclosure and identify the precise statutory basis for exemption from disclosure. In addition, if, in the Contractor’s judgment, certain portions of such records are not statutorily exempt from disclosure but are sensitive because particular portions of the Contractor’s records (NOT including pricing) include highly confidential, proprietary, or trade secret information (or the equivalent) that the Contractor protects…