PURCHASE AND SERVICE ORDER TERMS AND CONDITIONS
This Purchase and Service Order (the “Order”) constitutes the entire agreement between the parties. Vendor refers to the seller of materials or the provider of services (“Vendor”). Acceptance is limited to the terms hereof and no revision or assignment of this Order or any of its terms and conditions, shall be effective (whether in Vendor’s acknowledgment, proposal, bid or other form) unless agreed to in writing by Buyer’s authorized representative. Shipment of any of the materials, equipment and any other articles purchased by this Order (the “Materials”) and performance of any part of the work hereunder (the “Services”) constitutes acceptance of all the terms and conditions hereof whether or not Vendor has acknowledged the Order. All specifications, drawings and data submitted to Vendor with this Order are incorporated herein. Vendor may hire subcontractors with Buyer’s consent and Vendor shall ensure that its subcontractors shall abide and be bound by this Order.
This Order shall not be filled at higher prices than specified herein. If price is omitted, the Materials and Services shall be billed at the lower of the price last quoted or paid, or at the prevailing market price at the time of delivery. Except as provided herein, prices include all taxes not expressly imposed by law on the Buyer. Vendor represents that the prices charged under this Order are the lowest prices charged by the Vendor to buyers of a class similar to Buyer under conditions similar to those specified in this Order, and that such prices comply with applicable federal, state and local laws, orders, rules, regulations and requirements, including all gaming regulations and acts (“Governmental Requirements”) in effect at time of quotation, sale, delivery and performance. Vendor agrees that any price reduction made in Materials or Services covered by this Order prior to Buyer’s acceptance of the Materials or Services will be applicable to this Order. Unless otherwise specified, Buyer will receive a two percent (2%) cash discount for payments made on or prior to the 30th day following date of invoice.
Performance of Services
Vendor shall furnish all necessary labor, supervision, services, materials, supplies, tools and equipment, and shall complete the Services hereunder in compliance with the terms and specifications of this Order. Vendor represents that it is familiar with the premises, nature of the Services and conditions relating to performance of the Services prior to signing this Order. Vendor shall perform the Services so as to require minimum shut downs, if any, of Buyer's operations and any such shut-downs are to be scheduled by Buyer. All materials shall be suitable for the purpose intended and shall be new unless otherwise specified. Vendor shall at all times keep the premises free from waste material resulting from its operations and upon completion, shall remove all surplus materials and leave the premises broom clean. While providing Services, Vendor shall take every precaution against the possibility of fire and any other hazard to persons or property and shall comply with all health, safety and environmental laws and instructions of Buyer pertaining thereto. Vendor will not permit any attachment or lien to be imposed upon Buyer's property. Vendor Payment shall only be due after acceptance of Materials and/or Services by Buyer, and upon receipt by Buyer of an invoice which will provide for not less than thirty (30) days to pay. Orders issued on a cost plus basis shall include, for the benefit of the Buyer, all refunds, rebates, credits, trade discounts, prompt payment discounts and insurance premium dividends to which Vendor is entitled. Buyer will not be responsible for the cost of any labor, equipment, material, supplies or services not invoiced to Buyer within 60 days from the end of the month in which the charge was incurred unless otherwise agreed to in writing by Buyer prior to the start of performance of Services. All invoices must be accompanied by proper documentation, including subcontractors' invoices and reference Buyer’s purchase order number.
All Materials delivered pursuant to this Order are warranted by Vendor to be free and clear of all liens and encumbrances. Vendor warrants it has good and marketable title to all Materials delivered. Title to all Services completed or in the course of construction, including all artwork, written materials, drawings, models and designs, shall be in Buyer. Title to and risk of loss of Materials purchased shall remain with Vendor until such Materials are delivered F.O.B. at the Buyer’s place of business, or such other point specified in this Order. If delivery is by barge or ship, title and risk of loss will pass when the Materials are unloaded into Buyer’s tanks, bins or other storage facilities. Materials are subject to inspection and approval at the Buyer’s destination. Buyer reserves the right to reject delivery of any shipment or delivery not made in all respects in accordance with this Order (including time of shipment or delivery). In this event, Buyer may treat this Order as repudiated by Vendor and cancel any outstanding deliveries hereunder, without prejudice to Buyer’s right to claim damages or to enforce any other remedy provided by law, including the right to purchase substitute Materials and charge Vendor for any loss incurred. All expenses of inspection, transportation and storage, if any, resulting therefrom shall be paid by Vendor. Buyer’s failure to inspect and/or Buyer’s acceptance of the Materials shall not relieve Vendor of its obligations and warranties hereunder. Shipments sent C.O.D. without Buyer’s prior written consent will not be accepted and will be at Vendor’s sole risk and expense. It is Vendor’s responsibility to determine the applicable delivery rules and restrictions. The acceptance of any substitute goods does not constitute a waiver of the right to demand delivery of the actual Materials ordered. If a certain brand name is specified in this Order, Vendor may not substitute a different brand name or any generic product without the written consent of Buyer. Buyer may delay delivery or acceptance of Materials by written notice to Vendor. Vendor shall hold the Materials pending Buyer’s direction, and the Buyer shall be liable only for direct increased costs incurred by Vendor by reason of Buyer’s instructions. No partial shipments will be accepted unless approved by Buyer.
All delivered Materials must be accompanied by a detailed, itemized packing list or detailed invoice. No additional charges will be allowed Vendor for packing, breaking, freight, express, cartage or insurance unless stated in this Order. This Order Number must be shown on each corresponding package, packing slip and invoice. A MSDS sheet must accompany each shipment if warranted
Compliance with Government Requirements
Vendor warrants that all Materials furnished to Buyer and Services performed (including the construction, packaging, labeling and registration) have been and will be produced and delivered in compliance with and subject to all Governmental Requirements. Vendor represents and warrants that it will procure and keep valid all necessary business licenses or other permits or approvals, including a Supplier’s License from any applicable gaming regulator. As a holder of a privileged gaming license, Buyer is required to adhere to strict laws and regulations regarding vendor and other business relationships. If at any time Buyer determines, at its sole discretion, that Vendor, its principals or any key employees have or may violate any applicable statutes and regulations regarding prohibited relationships with gaming companies, Buyer may immediately terminate this Order. Vendor agrees to comply with Buyer’s Due Diligence Policy, upon Buyer’s request. Vendor warrants and represents that it is not aware of any pending restrictions that would prevent it from entering into the Order and shall immediately notify Buyer of any investigation of Vendor by any governmental agency, including but not limited to, law enforcement, licensing agencies or the security and exchange commission.
Vendor shall be solely responsible for the handling, transportation, storage, treatment, disposal or other disposition of any and all materials, including, but not limited to, any hazardous, special or solid waste, generated or otherwise produced as a result of this Order. If the Materials purchased or used in the performance of Services are of an explosive, flammable, toxic, reactive, corrosive, hazardous or otherwise dangerous nature, Vendor shall be solely responsible for the manufacture, sale, transportation, handling and disposal thereof prior to the completion of unloading at Buyer’s location or receiving place, or completion of the Services if work is performed, regardless of passage of title or responsibility for risk of loss.
It is understood that the information developed by or communicated to Vendor in the performance of this Order is of a highly confidential nature and Vendor agrees that it will make no oral or written disclosure of such information whether during or after the term of this Order without Buyer’s prior consent. This restriction does not apply to information which is in the public domain
If any software is necessary to operate the Materials or perform the Services, Vendor hereby grants to Buyer a perpetual, irrevocable and transferable license to use such software and any accompanying manuals. Vendor shall provide Buyer with any updates, changes or modifications to such software and user manuals at no additional charge than what, if any, is reflected on the Order. Vendor warrants that Vendor has the right, title, and authority to license any such software and that such software does not infringe on any other parties’ intellectual property rights.
In addition to all warranties prescribed by law, Vendor warrants that all Materials furnished hereunder will be merchantable; Materials and Services will be of good quality and free from defects in design, workmanship and material and will be in full conformity with Buyer’s specifications, designs and data or Vendor’s samples; and that Materials furnished and Services performed hereunder will be fit for the purpose intended by Buyer. Vendor warrants that the Materials and/or Services do not violate any third party Intellectual Property rights. Vendor’s warranty shall extend to Buyer, its successors, assigns, customers and users of Materials and Services. Vendor shall extend all warranties it receives from its vendors and subcontractors to Buyer. Buyer shall notify Vendor of any nonconformity and Vendor agrees to replace or correct any non-conforming Materials or Services. If Vendor fails to correct defects or replace nonconforming Materials or correct nonconforming Services within ___ days of notice by Buyer, Buyer may make such corrections or replace such Materials or Services and charge Vendor for the cost incurred by Buyer in doing so. Vendor agrees that this warranty shall survive inspection, delivery, completion, acceptance and payment of the Materials or Services. Said warranties shall be in addition to any implied warranties and any warranties of additional scope given to Buyer by Vendor.
Vendor hereby agrees to indemnify, defend and hold harmless Buyer and its affiliates, assigns, customers, officers, directors and employees from any and all liability, responsibility, claim, suit, cost, loss, damage or other expense, including without limitation, attorneys’ fees, consultants’ expenses, toxic torts, third party allegations of Intellectual Property infringement, contamination of or adverse effect on the environment or any violation of Governmental Requirements, (“Claims”) of whatever nature and asserted by any person whomsoever, arising out of, in connection with, or in any way related to the Materials or Services, Vendor’s performance of this Order, any negligent act or omission, any breach of warranty or any other breach of this Order by Vendor including Claims resulting from infringement or alleged infringement or the like (except to the extent to which detailed specifications were furnished by Buyer); or any lien or other encumbrance against the premises on account of debts or claims alleged to be due from Vendor to any person including other vendors, subcontractors, suppliers or employees or agents of Vendor, and any penalty, damage, or governmental fine incurred by reason of Vendor's failure to obtain any required permits or licenses or to comply with any applicable laws, rules or regulations. Vendor shall be solely responsible for all Claims for injury to or death of any person, or damage to or destruction of property arising out of the performance of this Order. The foregoing obligations shall survive completion of or termination of this Order. Vendor also agrees that it, its employees, agents and subcontractors, will comply with all Buyer’s safety and other rules covering outside vendors while on Buyer’s premises.
Vendor agrees to obtain and maintain at its own expense, for such period as is necessary to cover any Claims which may be made in connection with this Order, Commercial General Liability Insurance, including, without limitation, Owned (if any), Hired and Non Owned Auto Liability, and Umbrella Liability coverage for Personal Injury, Bodily Injury, Death, Accident and Property Damage, contractual and product liability, providing in combination no less than One Million Dollars ($1,000,000) combined single limit per occurrence and in the annual aggregate, per location. Vendor will ensure that all subcontractors and their employees are fully insured as described herein. Each policy of insurance required by this paragraph must name, as additional insured, Buyer, its Lender, its affiliates and their officers, employees, agents and assigns. Vendor shall provide Worker’s Compensation Insurance to the extent required, and in the amounts required by applicable law covering Vendor and its employees at the site and Longshoremen's and Harbor Workers' Compensation Act Insurance, if applicable. Vendor shall provide Buyer with proof of all insurance. All insurance policies shall be issued by an insurer or insurers with an A.M. Best rating of A:IX or better or equivalent rating acceptable to Buyer. Each insurance policy shall contain a provision whereby the insurer agrees that so long as the policy is in force, such policy shall not be canceled or fail to be renewed, lapsed or materially changed without, in each case, at least thirty (30) days prior written notice to Buyer.
Relationship of Parties
Vendor and/or its employees, subcontractors or agents are independent contractors herein, and shall not be considered under this Order as having any employee status of Buyer. Neither Vendor nor any of its employees, subcontractors or agents shall have any benefits or any employee status of Buyer. Neither Party has any authority to act for or bind the other Party as an agent, partner, or joint venturer as a result of the Order. This Order shall not be construed as creating or constituting a partnership or joint venture between any of the Parties.
The rights and remedies of Buyer hereunder shall not be exclusive, but shall be cumulative and in addition to any other rights and remedies provided by this Order, including, but not limited to, the right of Buyer to set off amounts payable to Vendor hereunder against any amounts otherwise owed to Buyer by Vendor. No waiver by Buyer of any breach or any term, covenant or condition contained herein shall be deemed a waiver of the same or any subsequent breach or any other term, covenant or condition. No term, covenant or condition of this Order shall be deemed waived by Buyer unless waived in writing and signed by a duly authorized officer of Buyer.
Limitation on Vendor’s remedies
In no event shall Buyer be liable for damages of any kind, including anticipated profits, special or incidental or consequential damages. Buyer’s liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from this Order or from the performance or breach hereof, shall in no case exceed the price allocated to the Materials and Services which gives rise to the claim. Buyer shall not be liable for penalties of any kind. Any action resulting from any breach on the part of Buyer as to the Materials delivered or Services performed hereunder must be completed within one year after the cause of action accrued. In the event Buyer authorizes Vendor to use Buyer’s technology, machinery, equipment, tools, etc., Vendor hereby agrees that Buyer makes no representations or warranties whatsoever concerning the condition or quality of any of Buyer’s technology, machinery, equipment, tools, etc. and Vendor accepts same from Buyer “as is” and assumes full responsibility for the safe condition of same before using. Vendor agrees to indemnify and hold Buyer and its employees harmless from and against any and all claims arising out of any use by Vendor of Buyer’s technology, machinery, equipment, tools, etc. Vendor shall store tools, equipment, materials and supplies located on Buyer’s premises only at places designated by Buyer, and Buyer assumes no liability for loss of or damage to same.
Right to Audit
If this Order is other than a lump sum fixed price, Vendor shall maintain complete and accurate books and records in accordance with generally accepted accounting principles and practices and in sufficient detail to reflect the actual cost of performing the Services under this Order. Buyer shall have the right to inspect the books and records and facilities of Vendor at all reasonable times and/or request statements of actual costs from Vendor, for the purpose of determining Vendor’s compliance with the provisions of this Order.
Buyer may terminate this Order, in whole or in part, without prejudice to any other remedy, by written notice to Vendor at any time, and Buyer will be relieved of any obligations to purchase Materials or Services not yet accepted by Buyer.
Services in Casino
In the event Vendor performs any delivery, or Services for Buyer in its casino or gaming areas, Vendor shall only allow employees or subcontractors who have reached the legal age for presence in a casino in the state where the delivery, work or Services are performed.
Vendor shall provide such information and assistance as Buyer may from time to time reasonably request (e.g. identity, source, composition and quantity of Materials supplied, materials and personnel used in Services performed, progress of work reports, Vendor’s licensing and authority). In the event of conflict with these printed terms and conditions, the provisions filled in on the face of this Order by Buyer, or in any specifications, drawings, or data submitted to Vendor by Buyer, shall prevail. The validity, construction and interpretation of the Order shall be governed by the laws of the state where Buyer is located and the Services are performed without reference to conflict of laws of provisions of that state. If any of the provisions of this Order are held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. Time is of the essence in performance of this Order. Services shall be completed and Materials delivered on or before the date set forth on this Order, unless renegotiated and agreed to in writing by both Parties. The prevailing party in any dispute arising out of this Agreement shall be entitled to an award of costs and attorneys’ fees. Both Parties warrant that the individual signing this Order is authorized and has the authority to execute this Order.