PURCHASE ORDER STANDARD TERMS AND CONDITIONS
BY ACCEPTING THE PURCHASE ORDER AND/OR PERFORMING HEREUNDER, VENDOR AGREES TO COMPLY FULLY WITH THE TERMS AND CONDITIONS OF PURCHASE SET FORTH IN THIS DOCUMENT. ACCEPTANCE OF THE PURCHASE ORDER IS EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS OF THE PURCHASE ORDER, AND NONE OF VENDOR’S TERMS AND CONDITIONS WILL APPLY IN ACKNOWLEDGING THE PURCHASE ORDER OR IN THE ACCEPTANCE OF THE PURCHASE ORDER. ACCEPTANCE BY BUYER OF THE ITEMS, SERVICES OR WORK DELIVERED UNDER THE PURCHASE ORDER WILL NOT CONSTITUTE AGREEMENT TO VENDOR’S TERMS OR CONDITIONS. VENDOR MAY NOT SHIP UNDER RESERVATION.
These “Standard Terms and Conditions” supersede any terms, conditions or limitations in any Vendor’s invoice, confirmation shipping document or acceptance, and are part of any contract for the sale and delivery of goods and/or services ordered. Vendor and Buyer may be each called a “Party” or collectively, the “Parties” herein. To the extent that terms and conditions of an executed agreement between Vendor and Company conflict with the provisions herein, the terms of the agreement shall control.
1. Shipping, Risk of Loss: No charges will be allowed for boxing, packing or crating, unless agreed to in writing by Buyer. Shipping instructions contained herein must be strictly followed, and Vendor shall, upon shipment, send written notice of shipment to Buyer stating the number of the Purchase Order, the kind and amount of goods, the route and method by which the shipment is being made and the tracking information for the shipment. Vendor shall suitably pack, mark and ship all goods in a manner to secure the lowest transportation cost in accordance with the shipping instructions and requirements contained herein and the requirements of common carriers. Buyer and Vendor agree to use commercially reasonable efforts to assist each other in the prosecution of any claims against carriers. The risk of loss, damage, spoilage and deterioration and all other risks shall not pass to the Buyer until Buyer has actually inspected and accepted the goods. Acceptance of goods shall not be deemed to alter or qualify Vendor’s warranties contained herein or at law.
2. Timely Delivery: Timely delivery is of the essence for this Purchase Order by the date specified herein. Buyer may, at Buyer's option and at Vendor's expense, refuse to accept or return any goods delivered after the date specified in this Purchase Order. Buyer shall not be liable for the purchase of goods that is refused, returned, or rejected, as applicable, based upon late delivery or performance. If the job site for which any good s are intended is not ready for deliveries, Vendor, upon notice from Buyer, shall hold such goods for a reasonable period and at no cost to Buyer. Unless otherwise agreed by Buyer, all goods to be purchased hereunder shall be delivered in a single delivery.
3. Inspection: It is Vendor’s responsibility to ensure that the goods provided are of the highest quality and to expeditiously report all deficiencies noted to Buyer’s Purchasing Department. All goods specified in this Purchase Order are subject to Buyer's inspection within a reasonable time after final delivery or completion. If, upon inspection, any goods, in Buyer's sole judgment, is found to be unsatisfactory, defective or of inferior quality or workmanship, or fails to meet the specifications or any other requirements of this Purchase Order, Buyer may reject such goods and return such rejected goods at Vendor's sole expense. Payment for goods prior to inspection shall not be construed as an acceptance of unsatisfactory or defective goods. Upon the refusal or return of unsatisfactory or defective goods or the rejection of unsatisfactory goods, Vendor shall reimburse Buyer for any amounts paid by Buyer on account of such goods (including the cost to return any such goods to Vendor).
4. Price, Payment, Set-off: Undisputed payment shall be made by Buyer within forty five (45) days after receipt of the invoice. The price herein includes all federal, state and municipal taxes due on or in connection with this transaction, except such sales or use taxes as are required by law to be paid by the Buyer. It is agreed that the price specified in this Purchase Order is Vendor’s current and standard price for all goods sold and/or services provided, less any discount expressly given to Buyer. Buyer shall also receive the benefit of any price reduction made by Vendor prior to the delivery of goods or services covered by this Purchase Order. Buyer shall also receive the full benefit of all discounts, premiums and other favorable terms of payment customarily offered by Vendor to any other buyer of such goods or services. The price herein shall be C.I.F., and includes the cost of goods, the insurance, and the freight to Buyer’s place of delivery. If Buyer or any of its affiliates has any claim against Vendor arising hereunder or under other transactions, Buyer or any of its affiliates may set off the amount of such claim against any amounts due or becoming due hereunder.
5. Cancellation: This Purchase Order may be cancelled by Buyer upon written notice to Vendor at any time, provided that Buyer shall reimburse Vendor for any parts/items ordered in reliance on this Purchase Order up to the date of cancellation, subject to adequate proof thereof, which reimbursement shall not exceed the price listed herein. If Vendor is unable to deliver all or part of the items shown on this Purchase Order or such delivery will be later than contracted for, Buyer is to be notified at once. Partial inability of Vendor to deliver or deliver on time will permit and justify Buyer’s immediate cancellation of this Purchase Order in its entirety at Buyer’s sole discretion, and at no cost to Buyer.
6. Waiver of Liens: Vendor hereby waives (and upon request of Buyer, it shall be a condition to payment that Vendor execute a waiver, in form satisfactory to Buyer) any mechanics, laborers or material men’s or other liens against Buyer’s premises, the goods purchased, or any part thereof, as well as any of Vendor’s security interest in the goods, on account of goods furnished under this Purchase Order or any additions or extras thereto. If requested by Buyer, Vendor shall provide similar lien waiver agreements from Vendor's contractors or suppliers.
7. Warranty: Vendor warrants that (i) all goods shall be properly labeled, of merchantable quality, free of defects and shall conform to all applicable laws and regulations governing such goods, including with respect to labeling, packaging, and promotional materials provided by Vendor, and (ii) all services will be performed in a first class, timely, workmanlike and professional manner. Should any defect in goods manifest themselves within one (1) year after the final delivery and acceptance by Buyer, Vendor shall immediately replace or repair same at Vendor's sole cost (including packaging, shipping, installation and any other costs). Should any defect in services manifest themselves within one (1) year after the final delivery and acceptance by Buyer, Vendor shall correct such services at no cost to Buyer, or if Vendor fails to make such corrections in a timely manner, Buyer may correct the defective services and hold Vendor liable for all costs, expenses and damages, including attorney fees and litigation costs, incurred by Buyer to correct such defective services. Vendor warrants that it has good and valid title to the goods, free and clear of all liens and encumbrances whatsoever. Vendor shall insure that all warranties of manufacturers remain in full force. The warranties contained herein are in addition to any warranties afforded to Buyer by law or by any manufacturer, seller or other person or entity. All warranties shall be in favor of and may be enforced by the Party to whom the goods are shipped (and by the Buyer).
8. Intellectual Property Rights: Vendor warrants that the goods and/or services provided by Vendor in connection with this Purchase Order do not infringe on, violate or misappropriate any United States or foreign intellectual property rights, including but not limited to any inventions, methods, processes, improvements, ideas, formulas, manufacturing technology, developments, products, designs, materials, copyrightable works of art, copyrights, writings, trademarks, logos, domain names, discoveries, trade secrets and any other proprietary rights that Vendor may make, conceive, or reduce to practice, whether solely or jointly with others, copyrightable, patentable or unpatentable (collectively, “Intellectual Property Rights”). Buyer shall own as its sole and exclusive property all right, title and interest in and to any and all Intellectual Property Rights that (i) were owned by Buyer prior to the date of this Purchase Order, (ii) relate generally to Buyer’s business, and/or (iii) are created or developed by any party pursuant to this Purchase Order (collectively, “Buyer Intellectual Property Rights”), and Vendor agrees to and hereby does assign, transfer, and convey to Buyer and or its authorized nominees any and all such Buyer Intellectual Property Rights. Vendor, by this Purchase Order, shall have no right to, or interest in, the name “Caesars” or any other Buyer Intellectual Property Rights or Intellectual Property Rights of Buyer’s affiliates. Vendor shall not, in any manner, use the Buyer Intellectual Property or Intellectual Property Rights of Buyer’s affiliates in the promotion of or otherwise in connection with Vendor’s business, nor shall Vendor manufacture, distribute or otherwise dispose of any goods bearing or otherwise using the Buyer Intellectual Property or Intellectual Property Rights of Buyer’s affiliates other than the goods expressly ordered, in accordance with this Purchase Order.
9. Default and Remedy: Failure to comply with the terms and conditions set forth herein shall constitute an event of default. Unless otherwise specified herein, in such event the aggrieved Party shall give the other Party notice of such default and the other Party shall have ten (10) days from such notice within which to cure the default; provided, however, that Vendor shall have no such opportunity to cure any failure by Vendor to make timely delivery under this Purchase Order. Failure to cure the default within ten (10) days may result in immediate termination at the option of the non-defaulting Party, in addition to all other remedies such Party may have, at law or in equity. All remedies set forth in this Purchase Order are cumulative and in addition to and not to the exclusion of all other remedies available at law or in equity.
10. Confidentiality. In connection with any services provided under this Purchase Order, Vendor acknowledges that it may have access to Confidential Information (defined below) of the Buyer. Vendor will retain all Confidential Information in strictest confidence and will neither use it nor disclose it to anyone without the express written consent of Buyer except where required to disclose such Confidential Information pursuant to an order of a governmental agency or court of competent jurisdiction, provided that Vendor has given Buyer reasonable notice of the pendency of such an order and the opportunity to contest it. Vendor shall not release any information relating to this Purchase Order or its subject matter for publication, advertising or any other purpose without the prior written consent of Buyer. Vendor acknowledge that disclosure of any Confidential Information by Vendor will give rise to irreparable injury to Buyer or the owner of such information and, as a matter of law, such injury is inadequately compensable in damages. Accordingly, the Buyer or such other party may seek injunctive relief without bond against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. “Confidential Information” shall mean shall mean all information or material of Buyer, whether revealed orally, visually, or in tangible or electronic form, that is competitively sensitive material not generally known to the public that relates to the business of Buyer, or any of their respect interest holders, unless such information (a) was already rightfully known to the Vendor at the time of disclosure by Buyer; (b) is in or has entered the public domain through no breach of this Purchase Order or other wrongful act of Vendor; (c) has been rightfully received by Vendor from a third party not under obligation of confidentiality to Buyer and without breach of this Purchase Order; or (d) is independently developed by Vendor.
11. Indemnification: Vendor agrees to indemnify, defend and hold harmless Buyer, its parent and each affiliate, and each of those entities’ respective officers, directors, members, managers, partners, principals, licensees, employees and representatives from and against all actions, claims, judgments, losses, damages, fines, penalties, costs, expenses or any other liabilities (including court costs and attorney’s fees) arising out of or related in any way to (i) the acts or omissions of Vendor, its employees, agents, contractors or subcontractors in connection with this Purchase Order and performance or failure to perform hereunder, which are alleged have caused any loss, property damage, personal injury, or death to any individual or entity; (ii) the breach by Vendor of any of its representations, warranties, covenants or conditions contained in this Purchase Order; (iii) any claim by any individual retained by Vendor to provide services related to allegations concerning unpaid wages owed to any said individual; (iv) any claim, action or proceeding alleging violation of any state, local or federal law or regulation related to the goods or services; (v) any claim, action or proceeding brought against Buyer or any Buyer’s parties related to the use of the goods or services alleging infringement of patent, copyright, trademark, trade secret or other intellectual property rights; or (vi) any products liability claim related to or arising from a good. The indemnification set forth in this paragraph shall survive the termination or expiration of this Purchase Order. In the event that Buyer terminates this Purchase Order based upon any reason, matter or thing described in this paragraph, Vendor agrees that it releases Buyer, its parent and Affiliates and each of those entities’ officers, directors, agents, servants and employees from and against any claim of any kind or nature whatsoever arising out of or related to the entering into the Purchase Order or its termination and Vendor agrees that it shall defend and indemnify Buyer from and against any claim by any third party affiliated with or under contract with Vendor arising out of or related to said termination. The duty to defend and indemnify shall include payment to Buyer of all costs and attorneys’ fees incurred by it in the defense of any claim and Buyer shall control the defense of all such claims.
12. Compliance with Laws: Vendor, in performing its obligations hereunder, and all goods and services purchased hereunder, shall comply with all applicable laws. Vendor shall obtain and maintain, and submit to Buyer copies of, all applicable licenses and permits required for Vendor to operate legally under the terms and conditions of this Purchase Order.
13. Hazardous Materials: When providing services on Buyer’s property, Vendor shall not, without the prior written consent of Buyer, cause or permit, knowingly or unknowingly, any Hazardous Material (as defined below) to be brought or remain upon, kept or used in or about the Buyer property. “Hazardous Material(s)” shall mean any hazardous, toxic or radioactive substance, material, matter or waste which is or becomes regulated by any federal, state or local law, rule, regulation, code, ordinance or any other governmental restriction or requirement. Should Buyer consent in writing to Vendor bringing, using or storing any Hazardous Material in or upon the Buyer property, Vendor shall strictly obey and adhere to any and all federal, state or local laws, rules, regulations or ordinances which in any way regulates, governs or impacts Vendor’s possession, use, storage or disposal of said Hazardous Material. Prior to providing services, Vendor shall disclose in writing to Buyer the names and amounts of all Hazardous Materials which Vendor is intending to bring, use or store in or upon the Buyer property. In addition to and in no way limiting Vendor’s duties and obligations as set forth in this section, should Vendor breach any of its duties and obligations as set forth in this section, or, if the presence of any Hazardous Material in or upon the Buyer property results in contamination of the Buyer property, any land other than the Buyer property, the atmosphere, or any water or waterway (including groundwater), or if contamination of the Buyer property by any Hazardous Material otherwise occurs for which Vendor is otherwise legally liable to Buyer for damage resulting therefrom, Vendor shall indemnify, save harmless, and, at Buyer’s option, and with attorneys approved in writing by Buyer, defend Buyer, and its agents, employees, partners, officers, directors and mortgagees, if any, from any and all claims, demands, damages, expenses, fees, costs, fines, penalties, suits, proceedings, actions, causes of action and losses of any and every kind and nature, including, without limitation, diminution in value of the Buyer property, damages for the loss or restriction on use of the Buyer property, damages arising from any adverse impact on marketing space in the area of the Buyer property, and sums paid in settlement of claims and for attorney fees, consultant fees and expert fees, which may arise during or after the Term as a result of such contamination. This includes, without limitation, costs and expenses incurred in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision because of Hazardous Material present on or about the Buyer property or because of the presence of Hazardous Material anywhere else which came or otherwise emanated from Vendor or the Buyer property. Without limiting the foregoing, if the presence of any Hazardous Material on or about the Buyer property caused or permitted by Vendor results in any contamination of the Buyer property, Vendor shall, at its sole expense, promptly take all actions as are necessary to return the Buyer property to the condition existing prior to the introduction of any such Hazardous Material to the property; provided, however, that Buyer’s approval of such actions shall first be obtained in writing.
14. Suitability or Licensure by Gaming Regulatory Agency: Vendor acknowledges that Buyer (its parent and each of its affiliates) conducts a business that is subject to and exists because of privileged licenses issued by government authorities. 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, acting in its sole and absolute discretion, Buyer determines that Vendor, its parent or affiliates, or any of those entities’ officers, directors, agents, servants or employees violate any applicable statutes or regulations regarding prohibited relationships with gaming companies in any jurisdiction, or if Buyer determines (acting in its sole and absolute discretion) that Vendor, its parent or affiliates or any of those entities’ officers, directors, agents, servants, employees (or any individual or entity with whom Vendor has or has had any affiliation or relationship of any kind or nature whatsoever) is, may be, or is about to be engaged in any act that Buyer believes (acting in its sole and absolute discretion) does or could adversely impact or affect the business of Buyer, its parent or Affiliates, or any license held by those entities, or that Vendor’s relationship with Buyer or any other person or entity does or could have such impact or effect, Buyer shall have the right to terminate this Purchase Order immediately (without requirement of prior notice to Vendor) and with no further liability to Vendor.
15. Vendor Employees: Vendor shall, at all times, be responsible for the actions of its employees in connection with its obligations under this Purchase Order. If applicable, Vendor’s employees shall comply with Buyer’s security procedures as communicated by Buyer, and Buyer may exclude any employee or other representative of Vendor from the property of Buyer or any Affiliate for any reason at any time, in its sole discretion. Vendor shall be responsible for reasonable and customary background screening of any employees with responsibilities related to Vendor’s performance hereunder, including, but not limited to, those employees with access to the property or confidential information of Buyer or any Affiliate. Vendor shall assist and cooperate with any (a) third party audit, (b) any criminal investigation or investigation by a regulatory agency, or (c) internal investigation by Buyer’s security involving any of Vendor’s employees. Vendor shall, at all times, be responsible for all salaries, employee benefits, social security taxes, federal and state unemployment insurance and any and all similar taxes relating to its employees and for worker’s compensation coverage with respect thereto pursuant to applicable laws. Vendor shall be responsible for verifying its employees’ work authorizations under all federal applicable laws, including, without limitation, any necessary employment verification process under the Immigration Reform and Control Act of 1986, as amended, before such employees or contractors perform services at the Buyer property. Buyer shall have no control over Vendor’s employment practices, except as specifically provided herein. Vendor shall not cause or permit its employees or contractors to enter upon those areas of the Buyer property that are designated “Employees Only” and the Parties acknowledge that for the purpose of this sentence, “Employees” refers to the employees of Buyer and its other licensees, tenants and occupants, as applicable, and not to the employees or contractors of Vendor. Vendor’s employees and contractors shall enter and exit the Buyer property wherever reasonably specified by Buyer.
16. Books, Records and Premises: Buyer shall have the right to inspect the books and records and facilities of Vendor at all reasonable times for the purpose of determining Vendor's compliance with the provisions of this Purchase Order.
17. Notices: All notices required or permitted by this Purchase Order shall be given and served in writing, delivered personally or sent by certified or registered mail, postage prepaid, facsimile, or sent via nationally recognized overnight courier, addressed to the respective Parties at the addresses set forth on the first page of Purchase Order
18. Force Majeure: Neither Party shall be liable for any delay or failure to perform its obligations due to (i) a force majeure event (including, without limitation, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, civil unrest, terrorism, labor conditions, earthquakes, or any other cause); (ii) or any material condition beyond such Party’s reasonable control (whether foreseeable or not); provided, however, that this paragraph does not excuse any breach of the terms contained herein (a) governing the use, reproduction, disclosure or transfer of any confidential information of a Party; or (b) for failure to pay for goods or services delivered and accepted. If due to a force majeure event Vendor is unable to provide the goods or services, or Buyer is unable to accept the goods or services for a period of thirty (30) consecutive days, either Party may terminate this Purchase Order, and neither Party shall be deemed in default. In the event of any such delay or failure to perform, (A) the Party claiming such delay shall seek and use (to the extent available) economically reasonable and comparable substitutes or alternatives for performance reasonably approved by the other Party, and (B) the Party claiming such delay shall promptly give the other Party written notice of the occurrence of such delay, and upon the termination thereof, the termination of such delay. If the Party claiming such delay fails to give notice to the other Party of the occurrence and termination of such delay as provided herein within five (5) business days from the date such Party has actual knowledge of such delay and/or the date of termination of such delay, as the case may be, the Party claiming such delay shall be deemed to have waived its right to an extension hereunder on account of such delay.
19. Governing Law and Venue; Attorney’s Fees: This Purchase Order shall be governed by, construed in and enforced exclusively in accordance with the laws of the state where the Buyer is located without regard to its conflict of laws provisions. Any action or proceeding arising out of or relating to this Purchase Order or the matters contemplated herein shall be brought exclusively in the state or federal courts in the state and county in which Buyer is located. The Parties agree that the choice of this exclusive forum for dispute resolution shall not prohibit the enforcement of any judgment or other Court Order in any other forum. Vendor hereby consents and submits to the personal jurisdiction of the state or federal court in the state and county in which Buyer is located. Vendor further agrees to accept and not to contest the propriety of service of process made in accordance with the notice section of this Purchase Order. In the event either Party is required to bring an action against the other or otherwise to enforce the terms, covenants and conditions of this Purchase Order, or to defend an action brought by the other Party, the prevailing Party in such action shall be reimbursed by the other Party for such reasonable costs as may be incurred in such action, including any successful appeal there from, including reasonable attorney’s fees, and costs as determined by the judge overseeing such proceeding.
20. Miscellaneous: Buyer’s failure to insist on strict performance or failure to exercise any right to take any action on a breach by Vendor shall not be deemed a waiver thereof. If any provision herein is rendered inoperative or illegal by operation of law or otherwise, all other provisions contained herein shall remain in full force and effect, and in such cases the principle of severability shall govern. This Purchase Order and any warranty extended by Vendor constitute the entire agreement between Buyer and Vendor (except as may be expressly provided in a separate written agreement signed by Vendor and Buyer) and cannot be orally changed, modified or discharged in whole or in part. Any change or modification or discharge to be effected must be in writing with the Parties’ authorized signatures. In the event of the delivery by Vendor to the Buyer of any document or order form which shall contain terms contrary or inconsistent with those set forth herein, the provisions of this Purchase Order shall control and prevail. Any of these terms and conditions which by their nature extend beyond the termination or expiration of this Purchase Order remain in effect until fulfilled. Vendor may not assign its rights or delegate the performance of any duty under this Purchase Order without the prior written consent of Buyer, which may be withheld in its sole discretion. Vendor is an independent contractor. At no time will either Party represent itself as an agent, employee, lessee, sub-lessee, partner or joint venture partner of the other Party, and no employer-employee relationship shall exist between either Party and any employee or agent of the other Party. Neither Party hereto shall have the express or implied right or authority to assume or create any obligation on behalf or in the name of the other Party or to bind the other Party in regard to any contract, agreement or undertaking with any third party. Each of the Parties to the Purchase Order warrants that he/she is authorized and has authority to execute this Purchase Order on behalf of his/her respective entity or as agent thereof.
21. eProcurement: Vendor shall submit to Company, correct, itemized invoices of all charges for the products or services. Vendor shall establish an electronic Vendor account through such third party internet-based platform as Company may require from time to time, through which Vendor will submit invoices to, and receive Purchase Orders from, Company (the “eProcurement System”). If Company has established an eProcurement system applicable to this Agreement, Company will not pay any invoice unless Vendor has submitted such invoice the eProcurement system. Vendor agrees to reference the Company Purchase Order number or Contract number on all invoices, packing slips, boxes, containers, etc., if such Purchase Order number or Contract number has been provided to Vendor. Vendor further agrees that failure to include this information on an invoice may result in significant delay in payment. Vendor agrees to deliver goods to the location indicated on the Purchase Order, or without a Purchase Order reference, all goods will be delivered to an authorized Company receiving dock. Vendor further agrees that failure to make deliveries to the designated location may result in significant delay in payment.
22. Subcontracting and Equal Employment Opportunity: Vendor agrees, to the extent applicable, to comply with Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, as amended, the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, and the implementing regulations for each found at 41 CFR Part 60. Vendor incorporates into this agreement, as applicable, the Equal Opportunity clauses found at 41 CFR § 60-1.4(a), 60-300.5(a), 60-741.5(a), and will likewise incorporate the clauses into all applicable subcontracts as required by 41 CFR § 60-1.4(d).
PLEASE ACKNOWLEDGE THIS PURCHASE ORDER IMMEDIATELY, GIVING PRICE AND FREIGHT, IF NOT SPECIFIED ON THIS PURCHASE ORDER. A MONTHLY STATEMENT OF ACCOUNT IS REQUIRED PROMPTLY AFTER THE END OF EACH MONTH. DISCOUNTS WILL BE TAKEN FROM DATE OF INVOICE OR RECEIPT OF GOODS OR SERVICES, WHICHEVER IS LATER.