WSPRC General Terms and Conditions.doc

These General Terms and Conditions (GT&C) are incorporated by reference into the Washington State Parks and Recreation Purchase Order.

DEFINITIONS

As used throughout this contract, the following terms shall have the meaning set forth below:

A. "State Parks" shall mean the Washington State Parks and Recreation Commission, any division, section, office, unit, or other entity of State Parks, or any of the officers or other officials lawfully representing that State Parks.

B. “Contract” shall mean a written and executed agreement between the parties. In the absence of an earlier-in-time executed contract, the Purchase Order and these embedded General Terms and Conditions will serve as the written and executed agreement and may also be referred to herein as “contract”.

C. "Contractor" shall mean that firm, provider, organization, individual, or other entity performing service(s) or providing good(s) under the Contract and if no contract, then under this Purchase Order and this Purchase Order. Contractor shall include all employees of the CONTRACTOR.

D. "Subcontractor" shall mean one not in the employment of the Contractor, who is performing all or part of those services under this contract under a separate contract with the Contractor. The terms "Subcontractor" and "Subcontractors" means Subcontractor(s) in any tier.

ACCESS TO DATA

In compliance with RCW 39.29.080, the Contractor shall provide access to data generated under this contract to State Parks, the Joint Legislative Audit and Review Committee, and the State Auditor at no additional cost. This includes access to all information that supports the findings, conclusions, and recommendations of the Contractor’s reports, including computer models and methodology for those models.

ADVANCE PAYMENTS PROHIBITED

No payments in advance of or in anticipation of goods or services to be provided under this contract shall be made by State Parks.

AMENDMENTS

This contract may be amended by mutual agreement of the parties. Such amendments shall not be binding unless they are in writing and signed by personnel authorized to bind each of the parties.

AMERICANS WITH DISABILITIES ACT (ADA) OF 1990, PUBLIC LAW 101-336, also referred to as the "ADA" 28 CFR Part 35

The Contractor must comply with the ADA, which provides comprehensive civil rights protection to individuals with disabilities in the areas of employment, public accommodations, state and local government services, and telecommunications.

ASSIGNMENT

Neither this contract, nor any claim arising under this contract, shall be transferred or assigned by the Contractor without prior written consent of State Parks.

ATTORNEYS’ FEES

In the event of litigation or other action brought to enforce contract terms, each party agrees to bear its own attorney fees and costs.

BILLING PROCEDURES AND PAYMENT

State Parks will pay Contractor upon acceptance of services provided and receipt of properly completed invoices, which shall be submitted to the Contract Manager not more often than monthly.

The invoices shall describe and document, to the State Parks’ satisfaction, a description of the work performed, the progress of the project, and fees. The invoice shall include the contract number at a minimum (see Purchase Order for any identifying contract number). If expenses are invoiced, provide a detailed breakdown of each type. A receipt must accompany any single expenses in order to receive reimbursement.

Payment shall be considered timely if made by the State Parks within thirty (30) calendar days after receipt of properly completed invoices. Payment shall be sent to the address designated by the Contractor.

State Parks may, in its sole discretion, terminate the purchase, contract, or withhold payments claimed by the Contractor for services rendered if the Contractor fails to satisfactorily comply with any term or condition of this contract.

No payments in advance or in anticipation of services or supplies to be provided under this contract shall be made by State Parks.

If this Purchase Order stems from a Contract, liquidated damages (if any) shall be as per the contract.

CLICK-THROUGH AGREEMENTS

Any Click-through, Click-wrap, Browse-wrap, or other online agreements “online agreements”, made in order to accomplish orders, payments, or other transactions shall be null and void and shall be expressly prohibited from modifying the terms and conditions of this agreement even if subsequently made. This agreement shall govern all purchases by customer under either a single or multiple purchase orders/credit-card purchases, and any subsequent online agreements shall continue to be null and void.

CONFIDENTIALITY/SAFEGUARDING OF INFORMATION

The Contractor shall not use or disclose any information concerning State Parks, or information that may be classified as confidential, for any purpose not directly connected with the administration of this contract, except with prior written consent of State Parks, or as may be required by law.

CONFLICT OF INTEREST

Notwithstanding any determination by the Executive Ethics Board or other tribunal, State Parks may, in its sole discretion, by written notice to the Contractor terminate this contract if it is found after due notice and examination by the State Parks that there is a violation of the Ethics in Public Service Act, Chapter 42.52 RCW; or any similar statute involving the Contractor in the procurement of, or performance under this contract.

In the event this contract is terminated as provided above, State Parks shall be entitled to pursue the same remedies against the Contractor as it could pursue in the event of a breach of the contract by the Contractor. The rights and remedies of State Parks provided for in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law. The existence of facts upon which the State Parks makes any determination under this clause shall be an issue and may be reviewed as provided in the “Disputes” clause of this contract.

COPYRIGHT PROVISIONS

Unless otherwise provided, all materials produced under this contract shall be considered "works for hire" as defined by the U.S. Copyright Act and shall be owned by State Parks. State Parks shall be considered the author of such materials. In the event the materials are not considered “works for hire” under the U.S. Copyright laws, Contractor hereby irrevocably assigns all right, title, and interest in materials, including all intellectual property rights, to State Parks effective from the moment of creation of such materials.

Materials means all items in any format and includes, but is not limited to, data, reports, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or sound reproductions. Ownership includes the right to copyright, patent, register and the ability to transfer these rights.

For materials that are delivered under the contract, but that incorporate pre-existing materials not produced under the contract, Contractor hereby grants to State Parks a nonexclusive, royalty-free, irrevocable license (with rights to sublicense others) in such materials to translate, reproduce, distribute, prepare derivative works, publicly perform, and publicly display. The Contractor warrants and represents that Contractor has all rights and permissions, including intellectual property rights, moral rights and rights of publicity, necessary to grant such a license to State Parks.

The Contractor shall exert all reasonable effort to advise State Parks, at the time of delivery of materials furnished under this contract, of all known or potential invasions of privacy contained therein and of any portion of such document that was not produced in the performance of this contract.

State Parks shall receive prompt written notice of each notice or claim of infringement received by the Contractor with respect to any data delivered under this contract. State Parks shall have the right to modify or remove any restrictive markings placed upon the data by the Contractor.

COVENANT AGAINST CONTINGENT FEES

The Contractor warrants that no person or selling staff 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 maintained by the Contractor for securing business.

State Parks shall have the right, in the event of breach of this clause by the Contractor, to annul this contract without liability or, in its discretion, to deduct from the contract price or consideration or recover by other means the full amount of such commission, percentage, brokerage, or contingent fee.

DISALLOWED COSTS

The Contractor is responsible for any audit exceptions or disallowed costs incurred by its own organization or that of its Subcontractors.

DISPUTES

When a dispute arises the parties agree to meet to attempt to resolve the dispute through direct negotiation. The parties agree that direct negotiation shall precede any action in a judicial or quasi-judicial tribunal (under WA law and in Thurston County, WA). Nothing in this contract shall be construed to limit the parties’ choice of a mutually acceptable alternative resolution method such as mediation, a dispute resolution board, or arbitration.

DUPLICATE PAYMENT

State Parks shall not pay the Contractor, if the Contractor has charged or will charge the State of Washington or any other party under any other contract or agreement, for the same services or expenses.

FUNDING, FISCAL YEAR AND BIENNIUM (REFUSAL OF DELIVERY OR PAYMENT REQUEST)

State Parks may only expend funds under the authority of legislation and law. Washington State operates under well-established fiscal cycles, and in most instances, State Parks cannot pay for services or goods that are not completed by or delivered by June 30th of any year. As such, Contractor understands that State Parks may refuse to pay for services rendered after June 30th and may refuse the delivery of goods that arrive after June 30th. The Contractor shall hold harmless, save harmless, indemnify and defend State Parks should this occur or be necessary.

FUNDING, LOSS OF OR REDUCTION IN

The Washington State Parks and Recreation Commission reserves the right to terminate the Purchase Order and the services and/or goods specified in the Purchase Order for loss of or reductions in funding stream. The Contractor shall hold harmless, save harmless, indemnify and defend State Parks should this occur or be necessary.

GOVERNING LAW

This contract shall be construed and interpreted in accordance with the laws of the State of Washington, and the venue of any action brought hereunder shall be in the Superior Court for Thurston County.

INDEMNIFICATION

To the fullest extent permitted by law, Contractor shall indemnify, defend, and hold harmless State, agencies of State and all officials, agents and employees of State, from and against all claims for injuries or death arising out of or resulting from the performance of the contract. “Claim,” as used in this contract, means any financial loss, claim, suit, action, damage, or expense, including but not limited to attorney’s fees, attributable for bodily injury, sickness, disease, or death, or injury to or destruction of tangible property including loss of use resulting therefrom.

Contractor’s obligations to indemnify, defend, and hold harmless includes any claim by Contractor’s agent, employees, representatives, or any subcontractor or its employees.

Contractor expressly agrees to indemnify, defend, and hold harmless the State for any claim arising out of or incident to Contractor’s or any subcontractor’s performance or failure to perform the contract. Contractor’s obligation to indemnify, defend, and hold harmless the State shall not be eliminated or reduced by any actual or alleged concurrent negligence of State or its agents, agencies, employees and officials.

Contractor waives its immunity under Title 51 RCW to the extent it is required to indemnify, defend, and hold harmless State and its agencies, officials, agents or employees.

INDEPENDENT CAPACITY OF THE CONTRACTOR

The parties intend that an independent contractor relationship will be created by this contract. The Contractor and his or her employees or agents performing under this contract are not employees or agents of State Parks. The Contractor will not hold himself/herself out as or claim to be an officer or employee of State Parks or of the State of Washington by reason hereof, nor will the Contractor make any claim of right, privilege or benefit that would accrue to such employee under law. Conduct and control of the work will be solely with the Contractor.

INDUSTRIAL INSURANCE COVERAGE

The Contractor shall comply with the provisions of 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, State Parks may collect from the Contractor the full amount payable to the Industrial Insurance accident fund. State Parks may deduct the amount owed by the Contractor to the accident fund from the amount payable to the Contractor by State Parks under this contract and transmit the deducted amount to the Department of Labor and Industries, (L&I) Division of Insurance Services. This provision does not waive any of L&I’s rights to collect from the Contractor.

INSURANCE

The Contractor shall provide insurance coverage as set out in this section. The intent of the required insurance is to protect the state should there be any claims, suits, actions, costs, damages, or expenses arising from any negligent or intentional act or omission of the Contractor or subcontractor, or agents of either, while performing under the terms of this contract.

The Contractor shall provide insurance coverage, which shall be maintained in full force and effect during the term of this contract, as follows:

1. Commercial General Liability Insurance Policy. Provide a Commercial General Liability Insurance Policy, including contractual liability, in adequate quantity to protect against legal liability arising out of contract activity but no less than $1,000,000 per occurrence. Additionally, the Contractor is responsible for ensuring that any subcontractors provide adequate insurance coverage for the activities arising out of subcontracts.

2. Automobile Liability. If services delivered pursuant to this contract involve the use of vehicles, either owned or unowned by the Contractor, automobile liability insurance shall be required. The minimum limit for automobile liability is $1,000,000 per occurrence, using a Combined Single Limit for bodily injury and property damage.

The insurance required shall be issued by an insurance company/ies authorized to do business within the state of Washington, and shall name the state of Washington, its agents and employees as additional insureds under the insurance policy/ies. All policies shall be primary to any other valid and collectable insurance. Contractor shall instruct the insurers to give State Parks thirty (30) calendar days advance notice of any insurance cancellation.

LICENSING, ACCREDITATION AND REGISTRATION

The Contractor shall comply with all applicable local, state, and federal licensing, accreditation and registration requirements/standards, necessary for the performance of this contract.

LIMITATION OF AUTHORITY

Only the Parties authorized representatives shall have the express, implied, or apparent authority to alter, amend, modify, or waive any clause or condition of this contract. Furthermore, any alteration, amendment, modification, or waiver or any clause or condition of this contract is not effective or binding unless made in writing and signed by each parties representative. NOTE: RCW 1.80 authorizes assent by means other than wet-ink signature (pen-to-paper). Assent may be made via Electronic mail unless the State Parks document requires hardcopy wet-ink signature (pen-to-paper).

NONCOMPLIANCE WITH NONDISCRIMINATION LAWS

In the event of the Contractor’s non-compliance or refusal to comply with any nondiscrimination law, regulation, or policy, this contract may be rescinded, canceled, or terminated in whole or in part, and the Contractor may be declared ineligible for further contracts with State Parks. The Contractor shall, however, be given a reasonable time in which to cure this noncompliance. Any dispute may be resolved in accordance with the "Disputes" procedure set forth herein.

NONDISCRIMINATION

During the performance of this contract, the Contractor shall comply with all federal and state nondiscrimination laws, regulations, and policies.

ORDER OF PRECEDENCE AND INCORPORATION OF DOCUMENTS

Each of the exhibits listed below is by this reference hereby incorporated into this contract. In the event of an inconsistency in this contract, the inconsistency shall be resolved by giving precedence in the following order:

1. Applicable federal and state of Washington statutes and regulations

2. Amendments to the Contract (if any)

3. The Contract’s (if any) (in this order):

a. General Terms and Conditions

b. Clarifications (if any)

c. Competition Amendments

d. Competition Document

e. Bidder’s Bid Response.

4. If no Contract, then the Purchase Order and the Purchase Order’s General Terms and Conditions.

OVERPAYMENTS AND ASSERTION OF LIEN

In the event that the State establishes overpayments or erroneous payments made to the Contractor under this contract, the State may secure repayment, plus interest, if any, through the filing of a lien against the Contractor's real property, or by requiring the posting of a bond, assignment or deposit, or some other form of security acceptable to WSPRC, or by doing both.

PRIVACY

Personal information including, but not limited to, “Protected Health Information,” collected, used, or acquired in connection with this contract shall be protected against unauthorized use, disclosure, modification or loss. Contractor shall ensure its directors, officers, employees, subcontractors or agents use personal information solely for the purposes of accomplishing the services set forth herein. Contractor and its subcontractors agree not to release, divulge, publish, transfer, sell, or otherwise make known to unauthorized persons personal information without the express written consent of State Parks or as otherwise required by law.

Any breach of this provision may result in termination of the contract and the demand for return of all personal information. The Contractor agrees to indemnify and hold harmless State Parks for any damages related to the Contractor’s unauthorized use of personal information.

PUBLICITY

The Contractor agrees to submit to State Parks all advertising and publicity matters relating to this contract wherein State Parks’ name is mentioned, or language used from which the connection of State Parks’ name may, in State Parks’ judgment, be inferred or implied. The Contractor agrees not to publish or use such advertising and publicity matters without the prior written consent of State Parks.

RECORDS MAINTENANCE

The Contractor shall maintain books, records, documents, data, and other evidence relating to this contract and performance of the services described herein, including, but not limited to accounting procedures and practices that sufficiently and properly reflect all direct and indirect costs of any nature expended in the performance of this contract.

Contractor shall retain such records for a period of six years following the date of final payment. At no additional cost, these records, including materials generated under the contract, shall be subject at all reasonable times to inspection, review, or audit by State Parks, personnel duly authorized by State Parks, the Office of the State Auditor, and federal and state officials so authorized by law, regulation, or agreement.

If any litigation, claim, or audit is started before the expiration of the six (6) year period, the records shall be retained until all litigation, claims, or audit findings involving the records have been resolved.

REGISTRATION WITH DEPARTMENT OF REVENUE

The Contractor shall complete registration with the Washington State Department of Revenue and be responsible for payment of all taxes due on payments made under this contract.

RIGHT OF INSPECTION

The Contractor shall provide right of access to its facilities to State Parks, or any of its officers, or to any other authorized agent or official of the state of Washington or the federal government, at all reasonable times, in order to monitor and evaluate performance, compliance, and/or quality assurance under this contract.

SAVINGS

In the event funding from state, federal, or other sources is withdrawn, reduced, or limited in any way after the effective date of this contract and prior to normal completion, State Parks may terminate the contract under the "Termination for Convenience" clause, without the ten-day notice requirement, subject to renegotiation at State Parks’ discretion under those new funding limitations and conditions.

SEVERABILITY

The provisions of this contract are intended to be severable. If any term or provision is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of the contract.

SITE SECURITY

While on State Parks premises, Contractor, its agents, employees, or subcontractors shall conform in all respects with physical, fire or other security policies or regulations.

SUBCONTRACTING

Neither the Contractor nor any Subcontractor shall enter into subcontracts for any of the work contemplated under this contract without obtaining prior written approval of State Parks. In no event shall the existence of the subcontract operate to release or reduce the liability of the contractor to the Department for any breach in the performance of the contractor’s duties. This clause does not include contracts of employment between the contractor and personnel assigned to work under this contract.

Additionally, the Contractor is responsible for ensuring that all terms, conditions, assurances, and certifications set forth in this agreement are carried forward to any subcontracts. Contractor and its Subcontractors agree not to release, divulge, publish, transfer, sell, or otherwise make known to unauthorized persons personal information without the express written consent of State Parks or as provided by law.

SURVIVABILITY

The terms and conditions contained in this contract which by their sense and context, are intended to survive the completion, cancellation, termination, or expiration of the contract shall survive.

SUSPENSION OF PERFORMANCE AND RESUMPTION OF PERFORMANCE

In the event contract funding from state, federal, or other sources is withdrawn, reduced, or limited in any way after the effective date of this contract and prior to normal completion, the State may give notice to Contractor to suspend performance as an alternative to termination. The State may elect to give written notice to Contractor to suspend performance when the State determines that there is a reasonable likelihood that the funding insufficiency may be resolved in a timeframe that would allow performance to be resumed prior to the end date of this contract. Notice may include notice by facsimile or email to Contractor’s representative. Contractor shall suspend performance on the date stated in the written notice to suspend. During the period of suspension of performance each party may inform the other of any conditions that may reasonably affect the potential for resumption of performance.

When the State determines that the funding insufficiency is resolved, the State may give Contractor written notice to resume performance and a proposed date to resume performance. Upon receipt of written notice to resume performance, Contractor will give written notice to THE STATE as to whether it can resume performance, and, if so, the date upon which it agrees to resume performance. If Contractor gives notice to THE STATE that it cannot resume performance, the parties agree that the contract will be terminated retroactive to the original date of termination. If the date Contractor gives notice it can resume performance is not acceptable to THE STATE, the parties agree to discuss an alternative acceptable date. If an alternative date is not acceptable to THE STATE, the parties agree that the contract will be terminated retroactive to the original date of termination.

TAXES

All payments accrued because of payroll taxes, unemployment contributions, any other taxes, insurance, or other expenses for the Contractor or its staff shall be the sole responsibility of the Contractor.

TERMINATION FOR CAUSE

In the event State Parks determines the Contractor has failed to comply with the conditions of this contract in a timely manner, State Parks has the right to suspend or terminate this contract. Before suspending or terminating the contract, State Parks shall notify the Contractor in writing of the need to take corrective action. If corrective action is not taken within 30 calendar days, the contract may be terminated or suspended.

In the event of termination or suspension, the Contractor shall be liable for damages as authorized by law including, but not limited to, any cost difference between the original contract and the replacement or cover contract and all administrative costs directly related to the replacement contract, e.g., cost of the competitive bidding, mailing, advertising and staff time.

State Parks reserves the right to suspend all or part of the contract, withhold further payments, or prohibit the Contractor from incurring additional obligations of funds during investigation of the alleged compliance breach and pending corrective action by the Contractor or a decision by State Parks to terminate the contract. A termination shall be deemed a “Termination for Convenience” if it is determined that the Contractor: (1) was not in default; or (2) failure to perform was outside of his or her control, fault, or negligence. The rights and remedies of State Parks provided in this contract are not exclusive and are, in addition to any other rights and remedies, provided by law.

TERMINATION FOR CONVENIENCE

Except as otherwise provided in this contract, State Parks may, by 10 calendar days written notice, beginning on the second day after the mailing, terminate this contract, in whole or in part. If this contract is so terminated, State Parks shall be liable only for payment required under the terms of this contract for services rendered or goods delivered prior to the effective date of termination.

TERMINATION PROCEDURES

Upon termination of this contract, State Parks, in addition to any other rights provided in this contract, may require the Contractor to deliver to State Parks any property specifically produced or acquired for the performance of such part of this contract as has been terminated. The provisions of the "Treatment of Assets" clause shall apply in such property transfer.

State Parks shall pay to the Contractor the agreed upon price, if separately stated, for completed work and services accepted by State Parks, and the amount agreed upon by the Contractor and State Parks for (i) completed work and services for which no separate price is stated, (ii) partially completed work and services, (iii) other property or services that are accepted by State Parks, and (iv) the protection and preservation of property, unless the termination is for default, in which case the State Parks shall determine the extent of the liability of State Parks. Failure to agree with such determination shall be a dispute within the meaning of the "Disputes" clause of this contract. State Parks may withhold from any amounts due the Contractor such sum as the State Parks determines to be necessary to protect State Parks against potential loss or liability.

The rights and remedies of State Parks provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law or under this contract.

After receipt of a notice of termination, and except as otherwise directed by the State Parks, the Contractor shall:

1. Stop work under the contract on the date, and to the extent specified, in the notice;

2. Place no further orders or subcontracts for materials, services, or facilities except as may be necessary for completion of such portion of the work under the contract that is not terminated;

3. Assign to State Parks, in the manner, at the times, and to the extent directed by the State Parks, all of the rights, title, and interest of the Contractor under the orders and subcontracts so terminated, in which case State Parks has the right, at its discretion, to settle or pay any or all claims arising out of the termination of such orders and subcontracts;

4. Settle all outstanding liabilities and all claims arising out of such termination of orders and subcontracts, with the approval or ratification of the State Parks to the extent State Parks may require, which approval or ratification shall be final for all the purposes of this clause;

5. Transfer title to State Parks and deliver in the manner, at the times, and to the extent directed by the State Parks any property which, if the contract had been completed, would have been required to be furnished to State Parks;

6. Complete performance of such part of the work as shall not have been terminated by the State Parks; and

7. Take such action as may be necessary, or as the State Parks may direct, for the protection and preservation of the property related to this contract, which is in the possession of the Contractor and in which State Parks has or may acquire an interest.

TREATMENT OF ASSETS

A. Title to all property furnished by State Parks shall remain in State Parks. Title to all property furnished by the Contractor, for the cost of which the Contractor is entitled to be reimbursed as a direct item of cost under this contract, shall pass to and vest in State Parks upon delivery of such property by the Contractor. Title to other property, the cost of which is reimbursable to the Contractor under this contract, shall pass to and vest in State Parks upon (i) issuance for use of such property in the performance of this contract, or (ii) commencement of use of such property in the performance of this contract, or (iii) reimbursement of the cost thereof by State Parks in whole or in part, whichever first occurs.

B. Any property of State Parks furnished to the Contractor shall, unless otherwise provided herein or approved by State Parks, be used only for the performance of this contract.

C. The Contractor shall be responsible for any loss or damage to property of State Parks that results from the negligence of the Contractor or which results from the failure on the part of the Contractor to maintain and administer that property in accordance with sound management practices.

D. If any State Parks property is lost, destroyed, or damaged, the Contractor shall immediately notify State Parks and shall take all reasonable steps to protect the property from further damage.

E. The Contractor shall surrender to State Parks all property of State Parks prior to settlement upon completion, termination or cancellation of this contract

F. All reference to the Contractor under this clause shall also include Contractor’s employees, agents, or Subcontractors.

WAIVER

Waiver of any default or breach shall not be deemed a waiver of any subsequent default or breach. Any waiver shall not be construed to be a modification of the terms of this contract unless stated to be such in writing and signed by authorized representative of State Parks.

END OF GENERAL TERMS AND CONDITIONS

SUPPLIER DIVERSITY

General

a) TIME IS OF THE ESSENCE. Time is of the essence for each and every provision of this Purchase Order.

b) COMPLIANCE WITH LAW. Supplier and Purchaser shall perform this Purchase Order in compliance with all applicable law. Supplier shall obtain all necessary permits and approvals and give all stipulations, certifications, and representations that may be required for it to perform this Purchase Order.

c) NONDISCRIMINATION

1) Nondiscrimination Requirement. During the term of this Purchase Order, Supplier, including any subcontractor, shall not discriminate on the bases enumerated at RCW 49.60.530(3). In addition, Supplier, including any subcontractor, shall give written notice of this nondiscrimination requirement to any labor organizations with which Supplier, or subcontractor, has a collective bargaining or other agreement.

2) Obligation to Cooperate. Supplier, including any subcontractor, shall cooperate and comply with Washington state agency investigation regarding any allegation that Supplier, including any subcontractor, has engaged in discrimination prohibited by this Purchase Order pursuant to RCW 49.60.530 (3).

3) Default. Notwithstanding any provisions to the contrary, Purchaser may suspend Supplier, including any subcontractor, upon notice of a failure to participate and cooperate with any state agency investigation into alleged discrimination prohibited by this Purchase Order, pursuant to RCW 49.60.530(3). Any such suspension will remain in place until Purchaser receives notification that the Supplier, including any subcontractor, is cooperating with the investigating state agency. In the event Supplier, or subcontractor, is determined to have engaged in discrimination identified at RCW 49.60.503(3), Purchaser may terminate this Purchase Order in whole or in part, and Supplier, subcontractor, or both, may be referred for debarment as provided in RCW 39.26.200. Supplier or subcontractor may be given a reasonable time in which to cure this noncompliance, including implementing conditions consistent with any court-ordered injunctive relief or settlement agreement.

4) Remedies for Breach. Notwithstanding any provisions to the contrary, in the event of Purchase Order termination or suspension for engaging in discrimination, Supplier, subcontractor, or both shall be liable for damages as authorized by law including, but not limited to, any cost difference between this Purchase Order and the replacement or cover contract and all administrative costs directly related to the replacement contract, which damages are distinct from any penalties imposed under Chapter 49.60, RCW. Purchaser shall have the right to deduct from any monies due to Supplier or subcontractor, or that thereafter become de, an amount for damages Supplier or subcontractor will owe Purchaser for default under this provision.

d) ENTIRE AGREEMENT. This Purchase Order contains the entire understanding of the parties regarding the subject matter o this Purchase Order and supersedes all prior and contemporaneous negotiations and agreements, whether written or oral, between the parties regarding the subject matter of this Purchase Order.

e) AUTHORITY. Each party to this Purchase Order, 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 Purchase Order and that its execution, delivery, and performance of this Purchase Order has been fully authorized and approved, and that no further approvals or consents are required to bind such party.

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

g) 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 Purchase Order. Neither party is an agent of the other party, nor is either party authorized to obligate the other part except as expressly set forth herein or in this Purchase Order.

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

i) ASSIGNMENT. Supplier may not assign its rights under this Purchase Order without Purchaser’s prior written consent, which may be granted or withheld in Purchaser’s sole discretion, and Purchaser may consider any attempted without such consent to be void; Provided, however, that, if Supplier (a) provides written notice to Purchaser within Thirty (30) days of such event and (b) timely executes Purchaser’s Assignment, Assumption, and Consent Agreement, Supplier may assign it rights under this Purchase Order in full to any parent, subsidiary, or affiliate of Supplier that controls or is controlled by or under common control with Supplier, is merged or consolidated with Supplier, or purchases a majority or controlling interest of the ownership or assets of Supplier. Unless otherwise agreed, Supplier guarantees prompt performance of all obligations under this Purchase Order notwithstanding any prior assignment of its rights.

j) BINDING EFFECT; SUCCESSORS & ASSIGNS.

This Purchase Order shall be binding on the parties and their respective heirs, personal representatives, successors, and permitted assigns, and shall inure to their benefit.

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

l) SEVERABILITY. If any provision of this Purchase Order is determined to be invalid, illegal, or unenforceable, all other provisions of this Purchase Order shall remain in full force and effect provided that the economic or legal substance of this Purchase Order is not affected in a material way. If necessary to cure any invalidity, illegality or unenforceability, the parties shall negotiate in good faith to modify this Purchase Order to reflect as closely as possible the parties’ original intent.

m) WAIVER. No waiver shall bind either party unless it is made in writing and signed by the party making the waiver. A party’s waiver of a breach of provision of this Purchase Order does not constitute a waiver of any other provision of this Purchase Order or a waiver of a subsequent breach of the same Purchase Order provision. 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 a breach, shall not release the other party of any of its obligations under this Purchase Order.

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

o) FAIR CONSTRUCTION & INTERPRETATION. The provisions of this Purchase Order shall be construed as a whole according to their common meaning and not strictly for or against any party and consistent with the provisions contained herein in order to achieve objectives and purposes of this Purchase Order. Each party hereto and its counsel has reviewed and revised this Purchase Order and agrees that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be construed in the interpretation of this Purchase Order. Each term and provision of this Purchase Order to be performed by either party shall be construed to be both a covenant and a condition.

p) FURTHER ASSURANCES. In addition to the actions specifically mentioned in this Purchase Order, the parties shall each do whatever may reasonably be necessary to accomplish the transactions contemplated in this Purchase Order including, without limitation, executing any additional documents reasonably necessary to effectuate the provisions and purposes of this Purchase Order.

q) EXHIBITS/ATTACHMENTS. All exhibits and attachments referred to herein are incorporated in this Purchase Order in their entirety.

r) CAPTIONS & HEADINGS. The captions and headings in this Purchase Order are for convenience only and are not intended to, and shall not be construed to, limit, enlarge, or affect the scope or intent of this Purchase Order nor the meaning of any provisions hereof.

s) ELECTRONIC SIGNATURES. An electronic signature or electronic record of this Purchase Order or any other ancillary agreement has the same legal effect as delivery of an original executed copy of this Purchase Order or such other ancillary agreement for all purposes.

t) COUNTERPARTS. If signatures are required, this Purchase Order may be executed in any number of counterparts, each of which together are deemed an original and all of which together constitute one and the same instrument. Execution of this Purchase Order at different times and places by the parties shall not affect the validity thereof so long as all the parties hereto execute a counterpart of this Purchase Order.

WSPRC PURCHASE ORDER T&Cs (20201119); Page 16 of 17