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ATRUE COPY
<br />FWC A6&WLWr MCNgT�-AST PAGE
<br />J.R. SMITH, CLERK
<br />and the Contractor is liable for any additional costs incurred by The Commission as a result of the
<br />termination of this Purchase Order.
<br />34. FORCE MAJEURE AND NOTICE OF DELAY FROM FORCE MAJEURE.
<br />Neither Party shall be liable to the other for any delay or failure to perform under this Agreement if such
<br />delay or failure is neither the fault nor the negligence of the Party or its employees or agents and the delay
<br />is due directly to acts of God, wars, acts of public enemies, strikes, fires, floods, or other similar cause
<br />wholly beyond the Party's control, or for any of the foregoing that affects subcontractors or suppliers if no
<br />alternate source of supply is available. However, in the event of delay from the foregoing causes, the Party
<br />shall take all reasonable measures to mitigate any and all resulting delay or disruption in the Party's
<br />performance obligation under this Agreement. If the delay is excusable under this paragraph, the delay will
<br />not result in any additional charge or cost under the Agreement to either Party. In the case of any delay the
<br />Grantee believes is excusable under this paragraph, Grantee shall notify the Commission's Grant Manager
<br />in writing of the delay or potential delay and describe the cause of the delay either: (1) within ten (10)
<br />calendar days after the cause that creates or will create the delay first arose, if Grantee could reasonably
<br />foresee that a delay could occur as a result; or (2) within five (5) calendar days after the date Grantee first
<br />had reason to believe that a delay could result, if the delay is not reasonably foreseeable. THE
<br />FOREGOING SHALL CONSTITUTE GRANTEE'S SOLE REMEDY OR EXCUSE WITH
<br />RESPECT TO DELAY. Providing notice in strict accordance with this paragraph is a condition precedent
<br />to such remedy. The Commission, in its sole discretion, will determine if the delay is excusable under this
<br />paragraph and will notify Grantee of its decision in writing. No claim for damages, other than for an
<br />extension of time, shall be asserted against the Commission. Grantee shall not be entitled to an increase in
<br />the Agreement price or payment of any kind from the Commission for direct, indirect, consequential,
<br />impact, or other costs, expenses or damages, including but not limited to costs of acceleration or inefficiency
<br />arising because of delay, disruption, interference, or hindrance from any cause whatsoever. If performance
<br />is suspended or delayed, in whole or in part, due to any of the causes described in this paragraph, after the
<br />causes have ceased to exist, Grantee shall perform at no increased cost, unless the Commission determines,
<br />in its sole discretion, that the delay will significantly impair the value of the Agreement to the Commission
<br />or the State, in which case, the Commission may do any or all of the following: (1) accept allocated
<br />performance or deliveries from Grantee, provided that Grantee grants preferential treatment to the
<br />Commission with respect to products or services subjected to allocation; (2) purchase from other sources
<br />(without recourse to and by Grantee for the related costs and expenses) to replace all or part of the products
<br />or services that are the subject of the delay, which purchases may be deducted from the Agreement quantity;
<br />or (3) terminate the Agreement in whole or in part.
<br />35. TIME IS OF THE ESSENCE.
<br />Time is of the essence regarding the performance obligations set forth in this Agreement. Any additional
<br />deadlines for performance for Grantee's obligation to timely provide deliverables under this Agreement
<br />including but not limited to timely submittal of reports, are contained in the Scope of Work, Attachment A.
<br />36. ENTIRE AGREEMENT.
<br />This Agreement with all incorporated attachments and exhibits represents the entire Agreement of the
<br />Parties. Any alterations, variations, changes, modifications or waivers of provisions of this Agreement
<br />shall only be valid when they have been reduced to writing, and duly signed by each of the Parties hereto,
<br />unless otherwise provided herein. In the event of conflict, the following order of precedence shall prevail;
<br />this Agreement and its attachments, the terms of the solicitation and the Grantee's response to the
<br />solicitation.
<br />GRANT - GOVERNMENTAL ENTITY June 2019 Page 19 of 20
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