The following terms and conditions are part of the online request to use inflatables on university premises.
Wichita State University (WSU) and CONTRACTOR (collectively the "Parties") agree that the provisions set forth in these Wichita State University Inflatables Terms and Conditions, including the Wichita State University's Contractual Provisions Attachment (Form DA-146a) attached hereto (collectively referred to as "Terms and Conditions") are hereby incorporated into the University Inflatables Services Agreement by reference therein, and that any reference to the "Agreement" herein is inclusive of these Terms and Conditions and the University Inflatables Services Agreement. In the event of a conflict between the provisions of these Terms and Conditions and the University Inflatables Services Agreement, including any supplemental terms proposed or attached thereto by CONTRACTOR, the provisions of these Terms and Conditions shall control.
1. Term
The term of the Agreement shall be considered to begin on the date of the event on which the Services will be performed and to continue through the conclusion of performance of the Services as described in the University Inflatables Services Agreement, unless terminated earlier as provided in Section 2 of these Terms and Conditions.
2. Termination
2.1. Notwithstanding the right to immediate termination provided in Section 2.2, WSU may terminate the Agreement without limitation, upon the provision of ten (10) days written notice to CONTRACTOR. Upon such termination, CONTRACTOR shall return any pre-paid fees to WSU immediately but in no event later than fifteen (15) days from receipt of the notice of termination.
2.2. WSU may terminate the Agreement upon written notice to CONTRACTOR, and such termination shall be effective three calendar days from the date of delivery of such notice, should any of the following occur: (i) funds are not available for the Agreement, or if funds are not specifically appropriated for the Agreement in WSU's final budget; (ii) CONTRACTOR becomes insolvent or files for bankruptcy; (iii) CONTRACTOR fails to deliver the Services within the time specified by the Agreement or any written extension; (iv) CONTRACTOR fails to make progress or meet any of the progress deadlines, so as to endanger performance of the Agreement; or (v) if CONTRACTOR is in breach of any other term of the Agreement and CONTRACTOR fails to cure such breach within five (5) business days of receipt of notice of such breach or the day prior to the event, whichever occurs first; or (vi) if, in WSU's sole discretion, the Services provided by CONTRACTOR create a risk to the health and safety of WSU or the WSU community including, but not limited to students, staff and visitors. Upon such termination, CONTRACTOR shall return any pre-paid fees to WSU immediately but in no event later than fifteen (15) days from receipt of the notice of termination.
2.3. CONTRACTOR reserves the right to shut down any and all equipment due to inclement weather and/or high winds.
2.4. In the event of termination pursuant to Section 2.1 or shut down pursuant to Section 2.3, the Parties shall work in good faith to reschedule the Services; provided that WSU shall not be required to reschedule where WSU has determined that doing so is not feasible or the occasion for the services cannot be rescheduled, such as a holiday that has passed.
3. Services
3.1. CONTRACTOR will be responsible for the provision and operation of inflatable equipment as agreed to and set forth in the University Inflatables Services Agreement signed by the Parties for a specified event ("Services").
3.2. CONTRACTOR shall not perform any Services outside of those set forth in the University Inflatables Services Agreement signed by the Parties, except as approved in advance and in writing by WSU.
3.3. CONTRACTOR shall perform all Services in accordance with the Agreement, WSU Policies and Procedures (https://www.wichita.edu/about/policy/index.php), including WSU Policy 11.13 / Use of Inflatables on University Premises (https://www.wichita.edu/about/policy/ch_11/ch11_13.php), and in accordance with the Kansas Amusement Rides Act (K.S.A. 44-1601, et seq.) and Amusement Ride Regulations (K.A.R. 49-55-1, et seq.).
4. Payment for Services
In consideration of the Services rendered to WSU by CONTRACTOR, WSU will pay CONTRACTOR according to the terms of compensation and payment set forth in the University Inflatables Services Agreement. Payment made by WSU is inclusive of any expenses agreed to by WSU and CONTRACTOR as specified in the Agreement, including but not limited to, travel, meal, and overnight accommodation expenses; and other authorized expenses that are incurred in the performance of Services under the Agreement. Changes to CONTRACTOR's rate must be approved in writing by WSU before any work commences. Invoices shall be sent to the Hosting Unit Contact listed in the University Inflatables Services Agreement. Invoices should reference the date and event for which Services were provided. Unless indicated otherwise in the University Inflatables Services Agreement, WSU shall make payment not later than thirty (30) days from the event or from receipt of the invoice by WSU, whichever occurs later.
5. Relationship of Parties and Independent Contractor Status
The Parties agree that CONTRACTOR undertakes the furnishing of Services pursuant to the terms of the Agreement as an independent contractor. The Parties agree that WSU shall not control or have the right to control what CONTRACTOR does and how CONTRACTOR performs the work. Nothing in the Agreement shall be construed as creating any type of employment, partnership, or affiliate relationship between the Parties. Neither Party has any responsibility nor liability for the actions of the other Party except as specifically provided in the Agreement. Neither Party has any right or authority to bind or obligate the other Party in any manner or make any representation of warranty on behalf of the other Party. CONTRACTOR shall receive no compensation except as set forth in the Agreement, and CONTRACTOR shall not be entitled to any of the benefits, perquisites or emoluments of employment normally provided to WSU employees.
6. Qualifications; Key Personnel; Subcontracting
6.1. CONTRACTOR warrants CONTRACTOR, and all personnel assigned by CONTRACTOR to perform any Services under the Agreement, are fully trained and qualified to perform the Services required and shall meet all personnel qualifications required by WSU, and in accordance with the Kansas Amusement Rides Act (K.S.A. 44-1601, et seq.) and Amusement Ride Regulations (K.A.R. 49-55-1, et seq.). CONTRACTOR shall be responsible to ensure all approved subcontractors adhere to the same personnel qualifications. WSU may, in its sole discretion and in furtherance of its best interests, refuse any person, including CONTRACTOR, CONTRACTOR employees, or subcontractors, the ability to perform Services under the Agreement or on WSU property, and may, upon written request, require any employee or subcontractor be replaced at any time, with or without cause. CONTRACTOR's failure to comply with any such directive or request shall be considered a failure to perform under the Agreement and subject to immediate termination as set forth in Section 2.2 of these Terms and Conditions.
6.2. CONTRACTOR shall provide to WSU prior to providing any Services a valid and current certificate of training for the individual(s) who will be operating the inflatable equipment, and shall have the same available for inspection at the location where the inflatable equipment is set up for operation (K.S.A. 44-1605).
6.3. CONTRACTOR shall not subcontract, assign, or transfer any interest in the Agreement without prior written approval of WSU. CONTRACTOR shall remain fully liable and responsible for the work to be done by subcontractor(s) and shall assure compliance with all requirements of the Agreement.
7. Equipment and Instructions
7.1 CONTRACTOR shall use its own equipment, tools, and supplies, except as required by WSU. CONTRACTOR shall only use equipment that has been maintained, tested, and inspected in accordance with the Kansas Amusement Rides Act (K.S.A. 44-1601, et seq.) and Amusement Ride Regulations (K.A.R. 49-55-1, et seq.). CONTRACTOR shall ensure that inspection certificates, and maintenance and inspection records are available for inspection at all times (K.S.A. 44-1602, 44-1603, 44-1608).
7.2 CONTRACTOR shall provide WSU proof of its valid and current certificate of inspection of inflatable equipment, and shall affix a copy of the current inspection results under a weatherproof covering in a conspicuous location on the inflatable equipment so that each participant can see the results before using the inflatable equipment (K.S.A. 44-1606, K.A.R. 49-55-7).
7.3 CONTRACTOR shall affix safety instructions for use of the inflatable equipment in a conspicuous location under a waterproof covering that allows each participant to read the instructions before using the inflatable equipment (K.S.A. 44-1606, K.A.R. 49-55-9).
7.4 CONTRACTOR shall ensure that all inflatable equipment shall be located, set up, used, operated, and removed in accordance with all Applicable Laws and WSU policies and rules, including WSU Policy 11.13 / Use of Inflatables on University Premises (https://www.wichita.edu/about/policy/ch_11/ch11_13.php).
8. Participant Waivers
CONTRACTOR shall ensure that prior to using any inflatable equipment, all participants sign the Wichita State University Release, Waiver, and Agreement Not To Sue ("Waiver"), and that all signed Waivers be provided to the Hosting Unit Representative listed in the University Inflatables Services Agreement.
9. Concessions
If applicable, the decision to sell or serve, and all rights associated with selling or serving, concessions in or about the event facility (including adjacent or nearby parking lots or open areas) are reserved by WSU and/or its third-party concessionaire. This includes all beverages consumed backstage. Accordingly, CONTRACTOR will not be permitted to sell or serve any food or beverages including, but not limited to soft drinks, alcohol, confections, or food for consumption in or about the facility (including adjacent or nearby parking lots or open areas) or at its event without prior written approval from WSU. Should CONTRACTOR be granted written permission to sell or serve food or beverages, such sale and/or service must be in accordance with WSU Policy 20.16 (https://www.wichita.edu/about/policy/ch_20/ch20_16.php) and any other written requirements provided by WSU and the Agreement. All income from any concessions sold by WSU and/or its third-party concessionaire shall be retained by WSU.
10. Insurance
CONTRACTOR must procure and maintain, at CONTRACTOR'S expense, during the term of the Agreement, the insurance described herein and as required under Kansas law (K.S.A 40-4802). Insurance must be with a company or companies qualified to do business in Kansas, as acceptable to WSU. CONTRACTOR must furnish certificates of insurance ("COI") to WSU showing the required limits, along with its submission of the University Inflatables Services Agreement for approval by WSU, and no less than annually thereafter. CONTRACTOR shall provide thirty (30) days' advance written notice to WSU of any intent to cancel or modify the insurance policy.
10.1. Liability Insurance. All liability insurance policies will name WSU and the Kansas Board of Regents, and when applicable, WSU Intercollegiate Athletic Association and WSU Union Corporation d/b/a Rhatigan Student Center, as additional insureds with respect to claims, demands, suits, judgments, costs, charges, and expenses arising out of, or in connection with, any loss, damage, or injury resulting from the negligence or other fault of CONTRACTOR, its agent, representatives, and employees. CONTRACTOR must furnish certificates of insurance to WSU in the following minimum limits prior to execution of an agreement:
10.1.1. Comprehensive General Liability Insurance. CONTRACTOR shall maintain comprehensive general liability insurance with limits not less than $1 million for each occurrence involving bodily injury and property damage, a general aggregate of $2 million and products-completed operation aggregate of $1 million. Such coverage must include: premises operations broad form property damage, completed operations, independent Contractors, and contractual and products liability.
10.1.2. Comprehensive Automobile Liability Insurance. If CONTRACTOR will drive on WSU property or drive in the performance of the Services including delivery of the inflatable equipment, CONTRACTOR shall maintain comprehensive automobile liability insurance with limits not less than $500,000 for bodily injury and property damage combined, and must cover all owned, non-owned or hired vehicles of CONTRACTOR.
10.1.3. Worker's Compensation Insurance. CONTRACTOR shall maintain worker's compensation insurance as required by Kansas law.
10.1.4. Property Insurance. CONTRACTOR shall maintain insurance in an amount of not less than $500,000 to cover all sums, which CONTRACTOR will legally be liable to pay be reason of liability for damages to or destruction of WSU property, including the loss of use thereof.
10.1.5. Child Molestation Insurance. CONTRACTOR shall maintain child molestation insurance coverage with limits not less than $25,000 for each occurrence, for any event at which minors will participate. Such coverage may be maintained under a comprehensive general liability policy or under a stand-alone policy.
11. Travel
CONTRACTOR understands and agrees that travel to and from WSU and third-party facilities, and between such facilities, may be necessary for completion of project or scope of work. Such travel shall not be subject to reimbursement except as agreed to in advance by the parties, and specifically stated in the University Inflatables Services Agreement.
12. Indemnification and Hold Harmless
12.1. CONTRACTOR shall indemnify and hold harmless, and (at WSU's request) defend WSU, its officers, directors, faculty, students, agents, and employees against any and all loss or damage to the extent arising out of or related to CONTRACTOR's performance of Services under the Agreement or in any way incidental to or arising out of the occupancy, use, service, operations or performance of work under the Agreement. Such indemnification shall extend to both criminal and civil actions and shall include any and all losses, liabilities, damages, suits, claims, judgment, penalties, costs, court costs and attorney's fees incurred by WSU.
12.2. WSU shall not be precluded from receiving the benefits of any policy coverage or proceeds that an insurance CONTRACTOR may carry which provides for indemnification for any loss or damage to property in CONTRACTOR's custody and control, where such loss or destruction is to WSU property. CONTRACTOR shall do nothing to prejudice WSU right(s) to recover against third parties for any loss, destruction or damage to WSU property.
13. Standards; Compliance with Laws and Policy
CONTRACTOR will use its best efforts, skill, judgment, and abilities to perform the Services and to further the interests of WSU in accordance with the highest standards of CONTRACTOR's profession or business. CONTRACTOR shall, at its own expense, comply with all WSU regulations, rules, practices, and policies (https://www.wichita.edu/about/policy/index.php), including WSU Policy 11.13 (https://www.wichita.edu/about/policy/ch_11/ch11_13.php), and with all applicable municipal, state, and federal laws and regulations (collectively "Applicable Laws"), including but not limited to the Kansas Amusement Rides Act (K.S.A. 44-1601, et seq.), the Amusement Ride Regulations (K.A.R. 49-55-1, et seq.). Without limiting the foregoing, CONTRACTOR will comply, and cause its employees, representatives, agents, and subcontractors to comply, with all municipal, state, and federal laws, in addition to any WSU policies or rules, related to personal health, disease control, security, environmental quality, safety, fire prevention, noise, smoking, parking and access restrictions. Any violations of Applicable Laws or WSU policies, rules, and regulations shall be deemed a failure to perform under the Agreement and subject to immediate termination as set forth in Section 2.2 of these Terms and Conditions.
14. Licenses, Registrations and Permits
CONTRACTOR warrants, represents, and agrees that CONTRACTOR and all individuals and subcontractors assigned to provide Services will obtain and maintain, at CONTRACTOR's own cost, any and all approvals, licenses, filings, registrations and permits required by Applicable Laws for the performance of the Services for the duration of the Agreement. This includes, but is not limited to, an operation permit issued by the Kansas Department of Labor (K.S.A. 44-1616). CONTRACTOR must provide to WSU prior to providing any Services proof of its valid and current operation permit in accordance with WSU Policy 11.13 (https://www.wichita.edu/about/policy/ch_11/ch11_13.php).
15. Safety, Security and Background Checks
Prior to commencement of Services or at any time during the term of the Agreement, WSU may, in its sole discretion, require CONTRACTOR, CONTRACTOR's employees and any approved subcontractors providing Services in support of the Agreement, to submit to and pass security screening and background checks including, but not limited to sex offender and criminal checks. WSU may, in its sole discretion and in furtherance of its best interests, refuse any person, including CONTRACTOR and CONTRACTOR's employees or subcontractors, the ability to perform Services under the Agreement or on the premises, and may, upon written request, require CONTRACTOR, CONTRACTOR's employees, or any subcontractor be replaced at any time, with or without cause. CONTRACTOR's failure to comply with this paragraph shall be considered a material breach of the Agreement and subject to immediate termination under Section 2.2 of these Terms and Conditions.
16. Employment Eligibility, Nondiscrimination and Workplace Safety
CONTRACTOR agrees to abide by all federal, state and local laws, rules and regulations regarding (i) employment eligibility and verification, including I-9 and immigration compliance; (ii) prohibiting discrimination in employment; (iii) workplace safety; (iv) sanitation; and (v) food service and equipment. Any violations of Applicable Laws, rules and regulations shall be deemed a failure to perform under the Agreement and subject to immediate termination as set forth in Section 2.2 of these Terms and Conditions.
17. Care of, Use of and Access to WSU Property
CONTRACTOR shall be responsible for the proper care and custody of any WSU property and real property furnished for CONTRACTOR's use in connection with the performance of the Agreement, and CONTRACTOR will reimburse WSU for such property's loss or damage caused by CONTRACTOR, normal wear and tear excepted.
18. Prohibition of Gratuities
Neither CONTRACTOR nor any person, firm or corporation employed by CONTRACTOR in the performance of the Agreement shall offer or give any gift, money or anything of value or any promise for future reward or compensation to any WSU employee at any time.
19. Retention of Records
Unless a longer period is required by law, CONTRACTOR agrees to preserve and make available all of its books, documents, papers, records and other evidence involving transactions related to the Agreement for a period of five (5) years from the date of the expiration or termination of the Agreement. Matters involving litigation shall be kept for one (1) year following the termination of litigation, including all appeals, if the litigation exceeds five (5) years. CONTRACTOR agrees that authorized federal and state representatives, including, but not limited to, WSU personnel, independent auditors acting on behalf of WSU, WSU and/or federal agencies shall have access to and the right to examine records during the Agreement period and during the five (5) year post-Agreement period. Delivery and access to the records shall be at no cost to WSU.
20. Use of Marks, Logos and Marketing
CONTRACTOR shall not use the name, logos, insignias or trademarks of WSU, any affiliates of WSU, or any project member, in any publicity, advertising, promotional materials, news release or websites except as set forth in the Agreement or as authorized in writing by WSU in each instance. CONTRACTOR may use the name of WSU in a document required to be filed with, or provided to, any governmental authority or regulatory agency to comply with applicable legal or regulatory requirements. CONTRACTOR may also refer to WSU by name and reprint the WSU logo in any internal or governmental report or summary report prepared by CONTRACTOR as it relates to the services provided by CONTRACTOR to WSU.
21. Taxes
CONTRACTOR agrees to be responsible for any and all tax consequences of amounts paid to CONTRACTOR as an independent contractor by WSU. WSU will withhold no sums from amounts paid to CONTRACTOR, subject to applicable regulations of the Internal Revenue Service and/or the State of Kansas requiring withholding.
22. Encumbrances
CONTRACTOR hereby certifies that no assignment, sale, agreement or encumbrance has been or will be made or entered into by CONTRACTOR that would conflict with the Agreement.
23. Third Party Beneficiaries
The Agreement shall not be construed as providing an enforceable right to any third party.
24. Captions
The captions and headings in the Agreement are for reference only and do not define, describe, extend or limit the scope or intent of the Agreement.
25. Severability
If any provision of the Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, to any extent, the remainder of the Agreement shall not be affected and each provision of the Agreement shall be enforced to the fullest extent permitted by law.
26. Waiver of Term
Any waiver of any term or condition in the Agreement shall be in writing and provided to all other Parties. Failure to insist upon strict performance of any of the terms and conditions hereof, or failure or delay to exercise any rights provided herein or by law, shall not be deemed a waiver of any rights of any Party hereto.
27. Assignment
The Agreement may not be assigned by CONTRACTOR except upon the prior written consent of WSU, and which consent may be withheld or conditioned by WSU as necessary to prevent prejudice to its interests and entitlements hereunder. The Agreement and all rights, privileges and licenses granted hereunder may be assigned by WSU to WSU subsidiaries and WSU supporting organizations. The Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, legal representatives and assigns.
28. State of Kansas Terms
The Provisions found in Wichita State University's Contractual Provisions Attachment (Form DA-146a, Rev. 03-23), which is attached hereto as ATTACHMENT A, are hereby incorporated in the Agreement and made a part thereof.
29. Counterparts/Execution
The Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signature pages may be executed via "wet" signature, authorized signature stamp or electronic mark and the executed signature pages may be delivered using pdf or similar file type transmitted via electronic mail, cloud-based server, e-signature technology or other similar electronic means.
30. Entire Agreement
The Agreement (including all documents attached or referenced) is intended by the Parties as the final and binding expression of their agreement and as the complete and exclusive statement of its terms. The Agreement cancels, supersedes, and revokes all prior negotiations, representations, and agreements between the Parties, whether oral or written, relating to the subject matter of the Agreement, not-withstanding, any non-disclosure or confidentiality agreements directly relating to the Agreement.
Attachment A: Contractual Provisions Attachment, Wichita State University DA-146a
The DA-146a provisions are incorporated into the inflatables terms and conditions.
Wichita State University's Contractual Provisions Attachment (Form DA-146a)