PURCHASE ORDER TERMS AND CONDITIONS
RIH ACQUISITIONS NJ, LLC
d/b/a THE ATLANTIC CLUB CASINO HOTEL
("Purchaser")
ACCEPTANCE – AGREEMENT. Seller's commencement of work on the goods subject to this purchase order or shipment of such goods, whichever occurs first, shall be deemed an effective mode of acceptance of this purchase order. Any acceptance of this purchase order is limited to acceptance of these terms and conditions. Any proposal by Seller for additional or different terms or any attempt by Seller to vary in any degree any of the terms of this offer in Seller's acceptance is hereby objected to and rejected, but such proposals shall not operate as a rejection of this offer unless such variances are in the terms of the description, quantity, price or delivery schedule of the goods, but shall be deemed a material alteration thereof, and this offer shall be deemed accepted by Seller without said additional or different terms. If this purchase order shall be deemed an acceptance of a prior offer by Seller, such acceptance is limited to these express terms and conditions. Additional or different terms or any attempt by Seller to vary in any degree any of the terms of this purchase order shall be deemed material and are objected to and rejected but this purchase order shall not operate as a rejection of Seller's offer unless it contains variances in the terms of the description, quantity, price or delivery schedule of the goods. Purchase orders submitted by Purchaser through facsimile or electronic means shall be treated in all respects by Seller as a duly executed original purchase order.
INVOICE. Seller shall render a separate invoice for each shipment. Invoices must be rendered not later than the day following shipment or completion of services rendered. Bill of lading or express receipt if sale of goods is involved must accompany invoice. All invoices, shipping paper and packages must be clearly marked with Order Number. Payment terms are Net 45 unless otherwise agreed in writing.
TERMINATION FOR CONVENIENCE OF PURCHASER. Purchaser reserves the right to terminate this purchase order or any part hereof for its sole convenience. Notification of such termination shall be in writing and upon such notification; Seller shall immediately stop all work hereunder, and shall immediately cause any of its suppliers or subcontractors to cease such work. Seller shall be paid a reasonable termination charge consisting of a percentage of the order price reflecting the percentage of the work performed prior to the notice of termination, plus actual direct costs resulting from termination. Seller shall not be paid for any work done after receipt of the notice of termination, nor for any costs incurred by Seller's suppliers or subcontractors which Seller could reasonably have avoided.
TERMINATION FOR CAUSE. In addition to the terms set forth under Paragraph 3, Purchaser reserves the right to terminate this purchase order in the event Seller becomes insolvent, files a voluntary petition in bankruptcy, makes an assignment for the benefit of creditors, or in the event of the filing of an involuntary petition to have Seller declared bankrupt or the appointment of a receiver or trustee for Seller. Purchaser may also terminate this purchase order or any part hereof for cause in the event of any default by Seller or if Seller fails to comply with any of the terms and conditions of this purchase order. Late deliveries, deliveries of products which are defective or which do not conform to this purchase order, and failure to provide Purchaser, upon request, of reasonable assurances of future performance shall all be causes allowing Purchaser to terminate this purchase order for cause. In the event of termination for cause, Purchaser shall not be liable to Seller for any amount, and Seller shall be liable to Purchaser for any and all damages sustained by reason of the default which gave rise to the termination.
PROPRIETARY INFORMATION - CONFIDENTIALITY - ADVERTISING. Seller shall consider all information furnished by Purchaser to be confidential and shall not disclose any such information to any other person, or use such information itself for any purpose other than performing under this purchase order, unless Seller obtains written permission from Purchaser to do so. This paragraph shall apply to drawings, specifications, or other documents prepared by Seller for Purchaser in connection with this purchase order. Seller shall not advertise or publish the fact that Purchaser has contracted to purchase goods from Seller, nor shall any information relating to the purchase order be disclosed without Purchaser's written permission. Unless otherwise agreed in writing, no commercial, financial or technical information disclosed in any manner or at any time by Seller to Purchaser shall be deemed secret or confidential and Seller shall have no rights against Purchaser with respect thereto except such rights as may exist under patent laws. Seller's obligations under this paragraph shall survive termination of this purchase order.
WARRANTY. Seller expressly warrants that all goods or services furnished under this purchase order shall conform to all specifications and appropriate standards, will be new, and will be free from defects in material or workmanship. Seller warrants that all such goods or services will conform to any statements made on the containers or labels or advertisements for such goods or services, and that any goods will be adequately contained, packaged, marked, and labeled. Seller warrants that all shipments of hazardous materials under this purchase order shall comply with current U.S. Department of Transportation regulations as published in 49 CFR 100-185 and the labeling shall meet the current U.S. Occupational Safety and Health Administration regulations as published in 29 CFR 1910.1200 for the transporting and labeling of hazardous materials. Seller warrants that Material Safety Data Sheets shall be supplied with the first shipment of all hazardous materials, and these sheets shall be resubmitted if any changes or updates, as required, are made. Seller warrants that all goods or services furnished hereunder will be merchantable, will be safe and appropriate for the purpose for which goods or services of that kind are normally used, and will be free from defects. If Seller knows or has reason to know the particular purpose for which Purchaser intends to use the goods or services, Seller warrants that such goods or services will be fit for such particular purpose. Seller warrants that goods or services furnished will conform in all respects to samples. Seller warrants that such goods or services do not infringe any patents, trademarks or copyrights. Inspection, test, acceptance or use of the goods or services furnished hereunder shall not affect Seller's obligation under this warranty, and such warranties shall survive inspection, test, acceptance and use. Seller's warranty shall run to Purchaser, its successors, assigns and customers, and users of products sold by Purchaser. Seller agrees to replace or correct defects of any goods or services not conforming to the foregoing warranty promptly, without expense to Purchaser, when notified of such nonconformity by Purchaser, provided Purchaser elects to provide Seller with the opportunity to do so. In the event of failure of Seller to correct defects in or replace nonconforming goods or services promptly, Purchaser, after reasonable notice to Seller, may make such corrections or replace such goods and services and charge Seller for all reasonable costs incurred by Purchaser in doing so. Seller hereby assigns to Purchaser all assignable warranty rights with respect to the merchandise in each purchase order, including, without limitation, all rights of Seller under warranties of any manufacturer of any of the merchandise or any part or component thereof.
PRICE WARRANTY. Seller warrants that the prices for the articles sold Purchaser hereunder are not less favorable than those currently extended to any other customer for the same or similar articles in similar quantities. In the event Seller reduces its price for such article during the term of this order, Seller agrees to reduce the prices hereof correspondingly. Seller warrants that prices shown on this purchase order shall be complete, and no additional charges of any type shall be added without Purchaser's express written consent. Such additional charges include, but are not limited to, shipping, packaging, labeling, custom duties, taxes, storage, insurance, boxing, crating.
FORCE MAJEURE. Purchaser may delay delivery or acceptance occasioned by causes beyond its control. Seller shall hold such goods at the direction of Purchaser and shall deliver them when the cause affecting the delay has been removed. Purchaser shall be responsible only for Seller's direct additional costs in holding the goods or delaying performance of this agreement at Purchaser's request. Causes beyond Purchaser's control shall include an act of God, war, civil disorder, job action, strike, lockout, material or labor restrictions by any governmental authority, unusually severe weather, flood, fire or any other cause beyond the reasonable control of Purchaser (each, a "Force Majeure Event"). In the alternative, Purchaser may terminate the purchase order upon a Force Majeure Event and shall not be liable to Seller for any damages or for any goods or services not already accepted by Purchaser.
PATENTS. Seller agrees upon receipt of notification to promptly assume full responsibility for defense of any suit or proceeding which may be brought against Purchaser or its agents, customers, or other vendors for alleged patent infringement, as well as for any alleged unfair competition resulting from similarity in design, trademark or appearance of goods, or services furnished hereunder, and Seller further agrees to indemnify Purchaser, its agents and customers against any and all expenses, losses, royalties, profits and damages including court costs and attorneys' fees resulting from any such suit or proceeding, including any settlement. Purchaser may be represented by and actively participate through its own counsel in any such suit or proceeding if it so desires, and the costs of such representation shall be paid by Seller. Seller's obligations under this section shall survive termination of this purchase order.
INDEPENDENT CONTRACTOR. In the event that Seller's obligations hereunder require or contemplate performance of services by Seller's employees, or persons under contract to Seller, to be done on Purchaser's property, or property of Purchaser's customers, Seller agrees that all such work shall be done as an independent contractor and that the persons doing such work shall not be considered employees, agents or representatives of Purchaser. Seller shall have no authority to assume or create any commitment or obligation on behalf of Purchaser or to bind Purchaser in any respect whatsoever. Subject to the requirements of these terms, Seller shall have sole control, supervision, direction and responsibility over its employees. Neither Seller nor its employees shall be entitled to any of the benefits to which employees of Purchaser may be entitled.
INSURANCE. Seller shall maintain all necessary insurance coverages, including public liability/general commercial liability insurance, including automobile liability insurance, in the minimum amount of $1 million, workers' compensation insurance as required by law and such other insurance as is customary and appropriate for organizations engaged in the type of work described herein. All insurance shall contain a ten (10) day cancellation clause, and Seller shall provide Purchaser with certificates of the insurance if required to do so. If requested by Purchaser, the above referenced insurance certificate shall also name Purchaser as an additional insured.
INDEMNIFICATION. Seller shall defend, indemnify and hold harmless Purchaser against all damages, including consequential claims or liabilities and expenses (including attorneys' fees) arising out of or resulting in any way from: (i) any defect in the goods or services purchased hereunder, or from any act or omission of Seller, its agents, employees, contractors or subcontractors; (ii) any actual or alleged breach of any of the warranties, representations or other obligations set forth in this purchase order; (iii) any injury to person or property occurring during the installation of any work or the performance of any services rendered pursuant to this purchase order or arising out of the use or consumption of goods purchased thereon; (iv) any recalls of the goods, whether voluntary or involuntary; or (v) any actions taken to comply with all laws, regulations, rules, guidelines, ordinances and standards governing the casino industry. This indemnification shall be in addition to the warranty obligations of Seller. Seller's obligations under this section shall survive termination of this purchase order.
CHANGES. Purchaser shall have the right at any time to make changes in drawings, designs, specifications, materials, packaging, time and place of delivery and method of transportation. If any such changes cause an increase or decrease in the cost, or the time required for the performance, an equitable adjustment shall be made and this agreement shall be modified in writing accordingly. Seller agrees to accept any such changes subject to this paragraph.
INSPECTION/TESTING. Payment for the goods delivered hereunder shall not constitute acceptance thereof. Purchaser shall have the right to inspect such goods and to reject any or all of said goods which are in Purchaser's judgment defective or nonconforming. Goods rejected and goods supplied in excess of quantities called for herein may be returned to Seller at Seller's expense and, in addition to Purchaser's other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods. In the event Purchaser receives goods whose defects or nonconformity is not apparent on examination, Purchaser reserves the right to require replacement or revoke its prior acceptance, as well as require Seller to pay any actual damages. Purchaser may also purchase substitute goods or services elsewhere and charge Seller with any loss incurred. Nothing contained in this purchase order shall relieve in any way Seller from the obligation of testing, inspection and quality control.
IDENTIFICATION, RISK OF LOSS, TITLE. Identification of the goods under Section 2-501 of the Uniform Commercial Code, as enacted in the state Purchaser is located, shall occur at the moment this purchase order is accepted by Seller. Title to the goods shall pass to Purchaser as soon as the goods are identified. Risk of loss, however, shall remain with Seller until the goods are received and accepted by Purchaser, in accordance with the provisions set forth in Section 14 above. Seller warrants that it has good title to the goods delivered pursuant to this purchase order and the right to transfer same free from any security interest, lien or encumbrances. Seller further acknowledges that Purchaser has not granted and does not grant to Seller any security interest in the goods purchased under this purchase order and Seller agrees that it is not authorized to file and shall not file any financing statements in connection with such goods.
EQUIPMENT. Seller shall provide, at its expense all equipment, materials and supplies required by Seller to complete its performance hereunder, except for equipment, material and supplies, if any, to be provided or paid for by Purchaser. Seller acknowledges and agrees that Purchaser shall not be held liable for any loss of or damage to any equipment or other property belonging to or rented by Seller or its employees or agents which is used, or to be used in connection with this purchase order, except to the extent attributable to the gross negligence or willful misconduct by Purchaser or its employees or agents.
COMPLIANCE WITH LAWS. Seller shall, in the performance of work of services hereunder, fully comply with all applicable federal, state or local laws, rules, regulations or ordinances, including, without limitation, Fair Labor Standard Act and vendor registration or licensure requirements under applicable state gaming laws, and shall hold Purchaser harmless from any liability resulting from Seller's failure to do so. Seller shall, at it's expense, procure and maintain all permits or licenses which may be required at any time in connection with the performance of work hereunder, or as may be required for the procurement, storage or use of related equipment, materials or supplies, unless otherwise agreed to in writing by both parties.
GOVERNING LAW, ATTORNEY'S FEES, FORUM. This purchase order and all transactions hereunder shall be venued in, governed by and construed in accordance with the laws of the State of New Jersey. In the event Purchaser brings an action in connection with this purchase order, it shall be entitled to payment of its reasonable attorneys' fees by Seller. Any action to enforce the terms hereof must be brought in the state or federal court in New Jersey.
DISCOUNTS. If Seller's invoice is subject to any cash discount, the discount period will be calculated from the date the invoice is received by Purchaser.
ENTIRE AGREEMENT. This purchase order, and any documents referred to on the face hereof, constitute the entire agreement between the parties and shall supersede all prior oral or written representations or agreements between the parties with respect to such subject matter. This purchase order may not be modified except by written instrument signed by both parties. Seller and Purchaser agree that no other terms and conditions shall govern this purchase order, whether provided by either party before or after Seller's acknowledgement of these terms and conditions, unless such other terms and conditions are expressly accepted by both parties in writing as an amendment or replacement of these terms and conditions.
ASSIGNMENTS AND SUBCONTRACTING. No part of this purchase order may be assigned or subcontracted without prior written approval of Purchaser.
SET-OFF. All claims for money due or to become due from Purchaser shall be subject to deduction or setoff by Purchaser by reason of any counterclaim arising out of this or any other transaction with Seller.
TAX. All applicable federal, state or local sales/use tax, transportation tax or other excise tax which may be imposed upon the goods ordered hereunder shall be paid by Seller.
SHIPMENT. Seller shall arrange for shipment in accordance with Purchaser's instructions, which may be given orally or in writing. Goods shall be properly boxed, crated, packaged and shipped to the FOB point at Seller's sole expense. Packing slips must be included in all shipments and last copy must state "Order Completed." If in order to comply with Purchaser's required delivery date it becomes necessary for Seller to ship by a more expensive way than specified in this purchase order, any increased transportation costs resulting therefrom shall be paid for by Seller unless the necessity for such rerouting or expedited handling has been caused by Purchaser.
WAIVER. Purchaser's failure to insist in performance of any of the terms or conditions herein or to exercise any right or privilege or Purchaser's waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type. Seller shall obtain, at its sole cost and expense, all necessary waivers and releases for any liens recorded against Purchaser's real property as a result any work performed or goods delivered hereunder.
DELIVERY. Time is of the essence of this purchase order, and if delivery of items or rendering of services is not completed by the time promised, Purchaser reserves the right without liability in addition to its other rights and remedies to terminate this purchase order by notice effective when received by Seller as to items not yet shipped or services not yet rendered and to purchase substitute items or services elsewhere and charge Seller with any loss incurred. If Seller is unable to deliver any part or all of the merchandise in any purchase order, Seller agrees to notify Purchaser immediately. Such notice will not limit the remedies available to Purchaser or the liability of Seller for non-performance.
LIMITATION ON PURCHASER'S LIABILITY - STATUTE OF LIMITATIONS. IN NO EVENT SHALL PURCHASER BE LIABLE FOR LOST OR ANTICIPATED PROFITS OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. Purchaser's liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from this purchase order or from the performance or breach thereof shall in no case exceed the price allocable to the goods or services or unit thereof, which gives rise to the claim. Purchaser shall not be liable for penalties of any description. Any action resulting from any breach on the part of Purchaser as to the goods or services delivered hereunder must be commenced within one year after the cause of action has accrued.
COMPLIANCE COMMITTEE APPROVAL. Seller acknowledges that as a condition precedent and a continuing condition to the effectiveness thereof, Seller is subject to the approval of Purchaser's Gaming Compliance Committee. Seller, its principals, employees or agents of Seller shall cooperate with any requests for information, documentation and assurances by said Compliance Committee, prior to and during the term of this Agreement. In the event Seller shall fail to promptly comply, or cause compliance, with the foregoing obligation, or in the event Seller or this Agreement are at any time disapproved by said Compliance Committee in its absolute discretion, this Agreement shall immediately terminate without any liability whatsoever to Purchaser, or it subsidiaries, affiliates, officers of employees.
GAMING LAW COMPLIANCE. The purchase and sale transaction between Seller and Purchaser is subject to the New Jersey Casino Control Act and all applicable rules and regulations (collectively, "Gaming Laws") issued by the New Jersey Casino Control Commission and New Jersey Division of Gaming Enforcement ("Gaming Authority"). Seller agrees to apply for, obtain and maintain any and all licenses, permits, qualifications and approvals required of Seller under the Gaming Laws in order to enter into and perform its obligations under this purchase order. Seller agrees to comply with, and use its best efforts to cause its employees, officers, directors, members, shareholders and affiliates (collectively, "Seller Affiliate") to comply with, all requirements of the Gaming Laws, the Gaming Authorities and the Compliance Committee, including, but not limited to, any applicable reporting, licensing, qualification, vendor registration, women's business enterprise, minority business enterprise or equal employment opportunity requirements. In addition, it shall be the sole responsibility of Seller to ensure that all of its consultants, permitted subcontractors, vendors and suppliers, and all employees of each of them, comply with these requirements, where applicable. "Compliance Committee" is the committee responsible under the Gaming Laws for the oversight and regulation of the gaming activities of Purchaser and its affiliates.
INFORMATION REQUESTS. If any Gaming Authority and/or the Compliance Committee requests that Seller, or any Seller Affiliate, provide information to, file an application with or respond to written or oral questions or any other request from any Gaming Authority and/or the Compliance Committee, Seller agrees (and shall use its best efforts to cause any Seller Affiliate) to (i) provide the requested information, including without limitation, information regarding associations and affiliations; financial status and condition; litigation, indictments and criminal proceedings; and gaming licenses or permits held by Seller or a Seller Affiliate in other jurisdictions, in such form, and with such updates, as may be required by any Gaming Authority and/or Compliance Committee, (ii) file applications for licenses, registrations, vendor registrations, approvals or findings of suitability as requested or required by any Gaming Authority and/or Compliance Committee, and (iii) cooperate with and consent to the performance of any background investigation that may be required by any Gaming Authority and/or Compliance Committee, including without limitation thereto, an investigation of any criminal record of Seller or a Seller Affiliate and make such appearances before any Gaming Authority and/or Compliance Committee as may be necessary or required. Seller or a Seller Affiliate, as applicable, agrees to provide to Purchaser written notice of any information request from any Gaming Authority and agrees to keep Purchaser reasonably informed as to the status of such requests from and actions taken by any Gaming Authority with respect thereto.
EARLY TERMINATION. Notwithstanding anything to the contrary in any contract between Seller and Purchaser, upon the occurrence of any one of the following events: (i) Seller or any Seller Affiliate failing to abide by the provisions of Paragraph 1 above; (ii) Seller is found by any Gaming Authority and/or Compliance Committee to be unsuitable or unqualified for any license, registration, approval or finding of suitability, or otherwise to be associated with Purchaser; (iii) the Compliance Committee determines in its sole discretion and judgment that Seller's or Seller Affiliate's continued association with Purchaser may result in the loss or non-reinstatement of any license, registration, approval, finding of suitability or franchise from any Gaming Authority held by Purchaser or any subsidiary or affiliate thereof to conduct any portion of the business of Purchaser or any subsidiary or affiliate thereof; (iv) the commission by Seller of any act or anything that is or shall be an offense involving moral turpitude under federal, state, or local laws, or which brings into public disrepute, contempt, scandal or ridicule, or which insults or offends the community; then Purchaser shall have the right to cancel and terminate this purchase order and Purchaser shall not have any liability to Seller or any Seller Affiliate under such contract for any costs, expenses, loss of anticipated profits, consequential damages, or otherwise as a result of the termination and cancellation thereof.
