COMMERCIAL ITEMS OR SERVICES CONTRACT
GENERAL PROVISIONSCALIFORNIA ASSOCIATION FOR RESEARCH IN ASTRONOMY dba W. M. KECK OBSERVATORY (“WMKO”)
1. OFFER AND CONTRACT
The following terms, together with any supplemental terms,
statement of work, plans, specifications, or other documents
attached or incorporated by reference as set forth in thispurchase order (“PO”), constitute WMKO’s offer to Supplier andshall, when accepted, constitute the entire agreement(“Contract”) between WMKO and Supplier. Supplier shall
include Supplier and its subcontractors or sub-suppliers at any
level. In the Contract documents, Supplier may be alternatively
referred to as contractor, vendor, or consultant, and theseterms may be used interchangeably.
WMKO gives notice of its objection to any different or
additional terms. This Contract is valid only as written. If price,terms, shipping date, or other expressed conditions of thisContract are not acceptable, WMKO must be notified and any
variation must be accepted in writing prior to shipment ordelivery. This Contract shall be deemed to have been accepted(a) absent written notification of non-acceptance by Supplierwithin a reasonable time (b) upon timely delivery of the
products identified to the shipping address specified in the PO.
Supplier will provide the goods and services to be furnishedunder the Contract (“Services”) as an independent contractor
and furnish all equipment, personnel, and material sufficient toprovide the Services expeditiously and efficiently. Supplier will
devote only its best-qualified personnel to work under theContract. Should WMKO inform Supplier that anyone providing
the Services is not working to this standard, Supplier will
immediately remove such personnel from providing Services
and he or she will not again, without WMKO’s written
permission, be assigned to provide Services.
2. TIME OF DELIVERYTime is of the essence in this Contract. If delivery or otherperformance dates cannot be met, Supplier must notify WMKO
immediately. Such notification shall not, however, constitute achange to the terms of this Contract except as the PO may be
modified in writing by WMKO.
3. IMPROPER DELIVERY
In addition to other remedies provided by law, WMKO
reserves the right to refuse any goods or services and to cancel
all or any part of this Contract if Supplier fails to deliver all or
any part of the goods or services in accordance with the terms
and conditions of this Contract. Acceptance of any part of thisorder shall not bind WMKO to accept any future shipments nor
deprive it of the right to return goods already accepted.

4. ASSIGNMENT, AMENDMENT, AND WAIVER
Supplier shall have no right to assign or subcontract thisContract or any benefits from this Contract without WMKO’sprior written consent. This Contract may only be amended by awriting signed by each of the parties’ authorized
representatives. Waiver or non-enforcement by either party ofa provision of the Contract will not constitute a waiver or nonenforcement of any other provision or of any subsequent
breach of the same or similar provision.
5. AUTHORITY OF WMKO REPRESENTATIVES AND REQUIREDNOTICES; COUNTERPARTS(a) No PO, amendment, notice, or direction received by
Supplier shall be binding unless issued or ratified in writing by
the WMKO Purchasing Agent, Contracts and Purchasing Officer(“CPO”), or by representatives designated in writing by either ofthem.
(b) This Contract may be signed in counterparts. Facsimile(fax) or electronic signature copies of contract documents are
just as binding as originally-executed documents.
6. CHANGESWMKO may, at any time by written order to Supplier, makechanges within the general scope of this Contract in:(a) drawings, designs, or specifications; (b) method of shipment
or packing; and (c) place of delivery. If any such change causes
an increase or decrease in the cost of, or the time required for,the performance of any part of the work under this Contract, an
equitable adjustment shall be made in the price or delivery
schedule or both, and the Contract shall be modified in writing
accordingly. Any claim by Supplier for adjustment under thisSection must be asserted within 30 days from the date ofreceipt by Supplier of the notification of change. If WMKO
decides that the facts justify such action, it may receive and act
upon any such claim asserted at any time prior to final payment
under this Contract. Nothing in this clause shall excuse Supplierfrom proceeding with this order as changed.
7. FORCE MAJEURE
Neither party shall be liable for damages arising out of
failure to deliver nor any delay in delivery caused by strikes,
lockouts, fires, war, or acts of God. Supplier shall notify WMKO
in writing as soon as it is reasonably possible after thecommencement of any event triggering a delayed delivery or
inability to deliver.

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8. COPYRIGHTABLE WORK
Supplier hereby assigns to WMKO the entire copyright, title,
and interest in copyrightable work generated in theperformance of this Contract.

($2,000,000) in the aggregate for all deaths, injuries, andproperty damage arising from work performed under theContract.
(b) For the coverages stated above, WMKO may, at its sole
discretion, accept lower policy limits. Any such acceptance will
be documented separately in the Contract.
(c) Insurance Certificates and Endorsements. At WMKO’ssole discretion, before commencing work under this Contract,
Supplier shall furnish (i) certificates of insurance for thecoverages specified in paragraph (a) above, and (ii) an
additional insured endorsement naming WMKO as anadditional insured to the Contract for the coverage specified
above. WMKO may also require additional endorsement to the
California Institute of Technology for work on the summit of
Maunakea or at WMKO headquarters in Kamuela, Hawaii. Suchcertificates and the endorsement shall provide that any
cancellation or material change in the insurance policies shallnot be effective (i) for such period as the laws of the State inwhich this Contract is to be performed, or (ii) until 30 days after
the insurer or Supplier gives written notice to WMKO,
whichever period is longer. Also, such certificates and theendorsement shall (i) cover contractual liability assumed under
this Contract, and (ii) be primary and non-contributing to any
insurance procured by WMKO. Supplier agrees to permit
WMKO to examine its original policies. Should Supplier neglect
or refuse to provide the insurance required, or should suchinsurance be cancelled, WMKO may procure the same and thecosts shall be deducted from monies then due or to become due
to Supplier.

9. EXPORT COMPLIANCE(a) Licenses. Supplier shall comply with all U.S. export
control laws and regulations, including the International Trafficin Arms Regulations (ITAR), 22 CFR Parts 120 through 130, andthe Export Administration Regulations (EAR), 15 CFR Parts 730
through 799. Absent license exemptions/exceptions, Suppliershall obtain the appropriate licenses or other approvals, if
required, for exports of hardware, technical data, and software,or for the provision of technical assistance.
(b) Identification of Export-Controlled Items. Supplier shallnotify WMKO in writing prior to delivery if it will be providing
any items under this Contract that are controlled under ITAR
(i.e., hardware, software, technology, components, accessories,etc.). Any such item(s) or its packaging shall be properly marked
to alert WMKO of the ITAR restrictions upon delivery to WMKO.
10. DISPUTES AND GOVERNING LAW(a) Any dispute or claim arising out of, in connection with,or relating to this Contract shall be submitted for resolution toascending levels of management of the parties. If the disputecannot be resolved after such negotiations, either party may
pursue any appropriate legal recourse not inconsistent with theprovisions of this Contract.
(b) Pending any decision, judgment, or settlement of any
dispute, Supplier will proceed diligently with performing thisContract.
(c) This Contract and any document to which it is appended
shall be construed and enforced under the laws of the State of
Hawaii. Disputes will be adjudicated on the Island of Hawaii.

13. INDEMNIFICATION(a) Supplier agrees to indemnify and to hold WMKO, its
directors, agents, officers, and employees, harmless against all
costs, claims, liability, loss, damage, and expenses including
attorney’s fees, arising from: (i) a breach of this Contract; and(ii) any actual or claimed trademark, patent, or copyright
infringement and any litigation based thereon, regarding any
part of the goods and/or services covered by this Contract.
Supplier shall defend any such litigation brought against WMKO,
provided that WMKO notifies Supplier promptly of any such suit.
WMKO retains the right to participate in the defense against
any such claim or action and the right to consent to any
settlement, the consent of which will not be unreasonably
withheld. Supplier’s obligations shall survive acceptance of thegoods and payment by WMKO.
(b) Supplier agrees it will be responsible to WMKO for, andwill indemnify, immediately defend, and hold harmless WMKO,
its directors, agents, officers, and employees, from any loss,
cost, damage, expense, or liability, including attorney’s fees, or
any suit therefore, by reason of actual or alleged claims of any
kind, including but not limited to, property damage or personal
injury of whatever kind of character relating to the performanceof the work by Supplier or its lower-tier subcontractors,
however caused, including any resulting from any alleged or
actual negligent act or omission, regardless of whether such act
or omission is active or passive, but excepting only a duty to

11. INSPECTION AND ACCEPTANCEWMKO may inspect the work and activities of Supplier
under this Contract in a reasonable and appropriate manner.
Final inspection shall be at WMKO’s premises unless otherwise
agreed in writing. Items rejected as not conforming to thisContract shall be, at WMKO’s option, returned at Supplier’s
expense, including transportation and handling fees, orcorrected or replaced by Supplier in a timely manner. UnlessSupplier removes, corrects, or replaces the goods or services
within the delivery schedule, WMKO may require its delivery
and make an equitable price reduction. WMKO may also opt
for a refund of the amount paid under this Contract.
12. INSURANCE(a) Supplier shall, at its own expense, provide and maintainduring the entire performance period of this Contract thefollowing insurance with a carrier licensed and admitted (oreligible to be admitted) in the State of Hawaii:(1) Workers' Compensation and Employer's Liability
Insurance at limits required by applicable Federal and State
workers' compensation and occupational disease statutes.
(2) Commercial General Liability Insurance andAutomobile Insurance of not less than One Million Dollars($1,000,000) per occurrence and Two Million Dollars
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indemnify to the extent such loss, cost damage, expense or
liability is:(i) Under any construction contract, attributable to theactive negligence or willful misconduct of WMKO, its directors,
agents, officers or employees; or(ii) Under any other contract for either goods orservices, attributable to the sole negligence or willful
misconduct of WMKO, its directors, agents, officers or
employees.
WMKO retains the right to participate in the defense
against any such claim or action, and the right to consent to any
settlement, which consent will not unreasonably be withheld.

(d) Payment for goods or services will not waive orotherwise affect WMKO’s right to inspect such goods or services
or to reject, or revoke acceptance of, nonconforming goods orservices.
(e) If Supplier becomes aware that WMKO overpaid on an
invoice payment, Supplier shall (i) remit the overpayment alongwith a description of the overpayment to WMKO’s Accounts
Payable Department including the (A) Circumstances of theoverpayment (e.g., duplicate payment, erroneous payment,
liquidation errors, date(s) of overpayment); (B) affected
contract number and delivery order number, if applicable; (C)affected contract line item or subline item, if applicable; and (D)Supplier point of contact; and (ii) provide a copy of theremittance and supporting documentation to WMKO’s
Purchasing Agent or CPO.

14. NEW MATERIAL
Unless this Contract specifies otherwise, Supplierrepresents that the goods and supplies are new and are not ofsuch age or so deteriorated as to impair their usefulness or
safety. If Supplier believes that furnishing other than newmaterial will be in WMKO’s interest, Supplier shall so notify the
Purchasing Agent or CPO in writing and request authority to use
such material.

17. USE OF NAME
Supplier agrees not to use the name or trademarks of
WMKO or any member its staff in sales promotional work or
advertising, or in any form of publicity, without the prior written
permission of WMKO.

15. ORDER OF PRECEDENCE
To the extent there is inconsistency among any documents
relating to this PO, the inconsistency will be resolved in thefollowing order of priority:(a) These General Provisions;(b) The details specified on the PO, including any
Supplemental Terms and Conditions, descriptions of products
or services, or any other attachment;(c) Supplier’s contract provisions.

18. TITLE AND RISK OF LOSS(a) Title to deliverables shall pass to WMKO upon formal
acceptance by WMKO, regardless of when or where WMKO
takes physical possession, unless the Contract specificallyprovides for earlier passage of title.
(b) Risk of loss shall not pass to WMKO until deliverables
have been actually received and accepted by WMKO at thedestination specified in the Contract. Supplier assumes all
responsibility for packing, crating, marking, transportation, andliability for loss or damage in transit, notwithstanding any
agreement by WMKO to pay freight, express, or othertransportation charges. Supplier agrees to trace lost or delayed
shipments at the request of WMKO.

16. PAYMENT(a) Invoices shall be submitted to the attention of WMKO’s
Accounts Payable Department at e-invoice@keck.hawaii.edu,
unless otherwise specified, and shall contain the following
information as applicable: (i) Contract or PO number, (ii) item
number, (iii) description of supplies or services, (iv) size, (v)quantity, (vi) unit price, (vii) extended totals, and (viii) any otherinformation that may be specified on the face of this Contract.
Any applicable state or Federal taxes shall be shown separately
on the invoice.
(b) WMKO shall pay Supplier, upon the submission ofproper invoices, the prices agreed upon in this Contract for
supplies delivered and accepted or services rendered andaccepted, less any deductions provided in this Contract.
(c) WMKO shall make its best effort to make payments
within the net period, if any, specified in the Contract,measured from the date of receipt of the goods or services atthe destination or the date of receipt of the invoice, whicheveris later. Discount time periods will be measured from the samedate. Payment shall be deemed to have been made on the datethe check is mailed or on the date on which an electronic funds
transfer was made. In no event will WMKO be liable for or pay
a surcharge, interest, or any kind of penalty as a result of
WMKO’s payment not being made within the net period, if any,
specified in the Contract or the date of payment by electronic
funds transfer.

19. TAXES
Except as may be otherwise provided in this Contract, thecontract price includes all applicable Federal, State, and local
taxes and duties. Regarding transactions for which WMKO may
be exempt from any tax or duty, WMKO will provide, uponrequest, evidence to support its claim to such exemption. Prior
to receiving payment from WMKO, Supplier shall complete andprovide to WMKO copies of the Internal Revenue Service
Request for Taxpayer Identification Number and Certification,
Form W-9 for businesses in the United States, or Form W-8 (i.e.,
W-8BEN-E, W-8ECI, or W-8IMY) for foreign entities doing
business in the United States, as appropriate. If Supplier is anindividual, Supplier shall provide the relevant IRS Form W-8BEN
or IRS Form 8233 depending on the appropriate tax withholding
treatment. Supplier shall be solely responsible for completingthe appropriate IRS Forms under this Section and WMKO will
not provide Supplier with tax or legal advice regarding thecompletion of these forms. WMKO may withhold any payments
under this Contract until Supplier provides the appropriate
relevant forms to WMKO under this Section.

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20. TERMINATION(a) For Cause. WMKO may terminate this Contract, or any
part of it, for cause in the event of any default by Supplier, or if
Supplier violates any Contract terms and conditions, or fails tocure any failures or deficiencies within a reasonable time period,or fails to provide WMKO, upon request, with adequate
assurances of future performance. In the event of termination
for cause, WMKO shall not be liable to Supplier for any amountfor supplies or services not accepted, and Supplier shall be liable
to WMKO for such damages as would give WMKO the benefitof the bargain, put WMKO in the same position that it would
have been in if Supplier had not breached the Contract and any
and all rights and remedies provided by law. If it is determinedthat WMKO improperly terminated this Contract for cause, suchtermination shall be deemed a termination for convenience.
(b) For Convenience. WMKO reserves the right toterminate this Contract, or any part, for its sole convenience. Ifsuch termination occurs, Supplier shall immediately stop all
work and shall immediately cause all of its subcontractors tocease work. Subject to the terms of this Contract, Supplier shallbe paid a percentage of the Contract price reflecting thepercentage of the work performed prior to the notice oftermination, plus reasonable charges Supplier can demonstrate
to the satisfaction of WMKO, using its standard record keeping
system, have resulted from the termination and are noncancellable. Supplier shall not be paid for any work performed
or costs incurred which reasonably could have been avoided.
(c) Survival. Upon expiration or termination of thisContract, the following provisions will survive: EXPORTCOMPLIANCE; DISPUTE AND GOVERNING LAW; WARRANTIES;COPYRIGHTABLE WORK; INDEMNIFICATION; USE OF NAME;
AND CONFIDENTIALITY.

reference and WMKO shall be entitled to all rights under suchwarranty.
(b) Permits and Licenses. Supplier agrees to procure allnecessary permits and licenses and abide by all applicable laws,
regulations and ordinances of the United State and of the state,
territory, and political subdivision, or any other country in which
the services are provided.
(c) Warranty and Quiet Employment. Supplier warrantsthat Supplier has the right to use all intellectual property thatwill be needed to provide goods or services.
22. OCCUPATIONAL SAFETY AND HEALTH ACT
By accepting this Contract, Supplier certifies that all
products and services provided conform to current OSHA
requirements and that Supplier will comply with any sitespecific safety rules.
23. BANKRUPTCY(a) If Supplier enters bankruptcy proceedings, whether
voluntary or involuntary, Supplier shall furnish written
notification of the bankruptcy to WMKO’s Purchasing Agent or
CPO within five days of the initiation of the proceedings. This
notification will include the date on which the bankruptcy
petition was filed and the identity of the court in which thebankruptcy petition was filed.
(b) Supplier shall to the maximum extent permitted by law:(1) continue to ensure that WMKO has the right of access to allareas of the facilities and records involved in this order; and (2)provide WMKO access to documents delivered in place or heldat Supplier’s facility, or provide electronic copies thereof.
Supplier shall ensure that the trustee, receiver, liquidator, andcourt, knows of this access requirement.
(c) These obligations remain in effect until final payment
under this order.

21. WARRANTY
In addition to any other warranties set forth in the Contract,
Supplier makes the following warranties. Supplieracknowledges that failure to comply with any of the warranties
in the Contract will constitute a material breach of the Contractand WMKO will have the right to terminate the Contract
without damage, penalty, cost or further obligation.
(a) General Warranties. Supplier agrees that the goods andservices furnished under the Contract will be covered by themost favorable warranties Supplier gives to any customer forthe same or substantially similar goods and services, or suchother more favorable warranties as specified in the Contract.
The rights and remedies so provided are in addition to and do
not limit any rights afforded to WMKO by any other provision of
the Contract. Supplier expressly warrants all goods and services
delivered under this Contract to be free from defects in material
and workmanship and to be of the quality, size, and dimensions
ordered. This express warranty shall not be waived by reasonof the acceptance of the goods or services or payment by
WMKO. Supplier shall provide WMKO with a copy of any
standard warranty which is normally offered on a commercial
product deliverable under this Contract. The commercial
product warranty shall be deemed to be incorporated by

24. NO THIRD-PARTY RIGHTS
Nothing in this Contract is intended to make any person orentity that is not a signer to this Contract a third-party
beneficiary of any right created by this Contract or by operationof law.
25. CONFIDENTIALITY
Supplier will use its best efforts to keep confidential any
information provided WMKO and marked “Confidential
Information,” or any oral information conveyed to Supplier by
WMKO and followed by a written communication within thirty(30) days that the information is Confidential Information. This
non-disclosure provision will not apply to any of the following:(a) Information which Supplier can demonstrate by written
records was known to Supplier prior to the effective date of thisContract (unless covered by a separate confidentiality
obligation between such parties);(b) Is currently in, or in the future enters, the public domain
other than through a breach of this Contract or through otheracts or omissions of Supplier;(c) Is obtained lawfully from a third party, or;(d) Is required to be disclosed by legal process.
Supplier acknowledges that money damages would not be a
sufficient remedy for any breach of this Confidentiality
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provision, and that in addition to all other remedies, andnotwithstanding any provision in this Contract to the contrary,
WMKO is entitled to specific performance and to injunctive orother equitable relief as a remedy for any breach of thisConfidentiality provision. The Supplier must, upon terminationof this Contract or at any earlier time upon the request of
WMKO, immediately return all Confidential Information
received from WMKO, and all information developed there
from and copies thereof, to WMKO and must retain none for its
files, unless otherwise agreed to in writing and signed by WMKO
and the Supplier. This Section expressly survives expiration or
earlier termination of this Contract.

to speak for, represent or obligate the other party hereto in any
way without either the express prior written consent of or
written ratification by the other party. WMKO shall not be
responsible for any federal, state, local or foreign tax on, or
measured by, the net income of Supplier, or any fines, penalties,
or interest imposed as a result of the misconduct or negligenceof Supplier. WMKO shall not be liable for and shall not be
obligated to withhold any federal, state or local income tax, orFICA, FUTA, or SUI contributions on behalf of any individualassigned by Supplier who provides services under this Contract.

26. SEVERABILITY
If a provision of this Contract becomes, or is determined tobe illegal, invalid, or unenforceable, that will not affect thelegality, validity, or enforceability of any other provision of theContract or of any portion of the invalidated provision thatremains legal, valid, or enforceable.
27. LIENS
Supplier agrees that at any time upon request of WMKO,
Supplier will submit a sworn statement setting forth the work
performed or material furnished by sub-suppliers and materialmen, and the amount due and to become due to each, and that
before the final payment called for under this Contract, will
upon WMKO’s request submit a complete set of vouchers
showing what payments have been made for such work
performed or material furnished. Supplier will promptly notify
WMKO in writing of any claims, demands, and causes of action,
liens, or suits brought to its attention that arise out of thisContract. WMKO will not be obligated to make final payment
until Supplier, if required, delivers to WMKO a complete releaseof all liens arising out of this Contract, or receipts in full in lieu
thereof, as WMKO may require, and if required in either case,an affidavit that as far as it has knowledge or information, thereceipts include all the labor and materials for which a lien could
be filed; but Supplier may, if any sub-supplier refuses to furnish
a release or receipt in full, furnish bond satisfactory to WMKO
to indemnify it against any claim by lien or otherwise. If any lienor claim remains unsatisfied after all payments are made,Supplier will refund all monies that WMKO may be compelled
to pay in discharging such lien or claim, including all costs andreasonable attorneys’ fees.
28. COMPLIANCE WITH APPLICABLE STATE AND FEDERAL LAW
By accepting this Contract, Supplier certifies that it isapprised of and shall comply with any other applicable state orfederal law.
29. INDEPENDENT CONTRACTOR
Supplier is an independent contractor and shall not be deemed
an employee of WMKO. Neither party shall be responsible forthe acts or omissions of the other party hereto nor the acts oromissions of the employees of the other party hereto, except
for acts or omissions of the other party or such other party’s
employees caused by the grossly negligent or willful acts oromissions of such party. Neither party shall have the authority
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