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1. Acceptance: This purchase order becomes a binding contract between Buyer and Seller when accepted and acknowledged in writing by Seller or upon Sellers’ delivery of goods or performance of services hereunder. Acceptance of this purchase order is expressly limited to the terms and conditions set forth herein and on the reverse side hereof. Buyer shall have no obligation to pay for any goods or services until a correct invoice for the goods or services item is received at the “Bill To” address shown on the face of this purchase order. Payment terms commence upon receipt of a correct invoice. Invoicing for goods or services received must include reference to the purchase order number.
2. Complete Agreement: This purchase order, including the terms and conditions on the face and reverse side and any attachments hereto, contains the complete, exclusive and final agreement between Buyer and Seller and supersedes all proposals or prior agreements, oral or written. Reference to Seller’s bid or proposal, if noted on this purchase order, shall not affect terms and conditions hereof, unless specifically provided to the contrary herein. If Seller provides Buyer any document or order form that contains terms contrary or inconsistent with those set forth herein, the provisions of this purchase order shall control and prevail. This purchase order may not be varied, modified, changed or supplemented in any way, unless the change is incorporated into a written change order signed by an authorized representative of Buyer. Execution of change by the Seller will evidence acceptance.
3. Inspection: Notwithstanding payment or prior inspection, all goods shall be subject to inspection and approval upon a reasonable time after delivery. If specifications are not met, the goods may be returned at Seller’s expense and risk for all damages incidental to the rejection.
4. Substitutions: No substitutions shall be allowed unless expressly permitted by Buyer.
5. Warranty: Seller warrants title to all goods sold and services supplied shall be good and marketable and that goods shall be delivered free from any security interests, liens, and encumbrances. Seller expressly warrants that all goods, services, and labor will in all respects conform to applicable specifications, drawings, samples or other descriptions and be of good quality, material, workmanship and free of defects. Seller warrants that goods shall be merchantable and fit for the particular purpose to which Buyer intends to put them. These warranties shall be in addition to any express warranties made by Seller, any implied warranties made, any warranties deemed made pursuant to any federal or state law, and shall survive any inspection, delivery, and acceptance of payment. Time is of the essence to delivery and other performance required of Seller.
6. Warranty against Infringement: Seller warrants that the sale or use of goods of Seller’s design or patents covered by the purchase order either alone, or in combination with other materials, will not infringe or contribute to the infringement of any patents or trademarks or copyrights.
7. Packing: Each package shall contain an itemized packing slip with purchase order number and be properly prepared for shipment so as to meet carrier’s requirements unless otherwise specified in purchase order. No additional charges will be allowed Seller for packing, breaking, freight, express, cartage or insurance unless stated in the purchase order.
8. Compliance with Law: The performance of this purchase order by Seller shall be subject in all respects to and in compliance with all applicable federal, state and local laws, regulations and orders which now govern or may hereafter govern the manufacture, sale or delivery of the goods covered or services provided pursuant to this purchase order. Seller warrants that they have obtained or will obtain all licenses, permits and similar approvals required to manufacture, sell, deliver and, if applicable, install the goods and perform the services covered under the purchase order. Seller shall furnish a copy of such licenses, permits etc. to Buyer’s Compliance Department. Seller shall also comply with all safety rules and regulations prescribed by Buyer for any of Buyer’s premises at which goods will be delivered or services performed, and certifies to Buyer that Seller’s facilities and procedures comply with all applicable occupational, safety and health, and right-to-know rules and regulations, and Seller’s employees are properly trained as required by applicable law. Seller is solely responsible for determining the extent of any hazard involved in delivering the goods or performing the services and for providing its employees and agents with a safe place to work and pertinent safety information and equipment.
9. Indemnity: Seller shall defend, protect, indemnify and hold harmless Buyer, its parent, subsidiaries and affiliated entities, and their respective officers, directors, employees, agents, underwriters, insurers, lenders involved with the project, successors and assigns (collectively “Buyer Group”) from and against any and all claims, demands and causes of action of any kind, including damages arising from personal injury or death and damage to real or personal property, and costs and expenses including attorney fees and costs of investigation and suit, arising directly or indirectly from the performance of work under this agreement by Seller, its employees, agents, or third parties brought on to the premises by Seller (collectively “Seller Group”), any alleged or actual breach thereof by Seller Group, or from any act or omission of Seller Group. Seller shall defend, protect, indemnify and hold harmless the Buyer Group notwithstanding the simple, gross, sole, joint or concurrent negligence of the Buyer Group and regardless of whether liability is due to strict liability, liability imposed by statute, defects in premises or equipment, or any other event or condition, regardless of whether it preexisted this agreement. In no event whatsoever shall Buyer be liable to Seller for any incidental or consequential damages, lost profits or punitive damages. This section shall survive termination of this purchase order.
10. Insurance: No performance under this purchase order shall begin until all required insurance referred to herein has been obtained by the Seller, and evidence thereof provided to Buyer. Seller shall secure, pay for and maintain the following insurance policies in full force and effect during the term of the agreement:
(a) Property Insurance covering all property used on Buyer’s Premises. Buyer bears no responsibility for any property of Seller, and Seller and its property insurance carrier agree to waive their rights to subrogate against Buyer in event of loss.
(b) Workers’ Compensation insurance coverage, subject to a limit of no less than $500,000 each employee,$500,000 each accident and disease and $500,000 policy limit.
(c) Commercial General Liability Insurance with limits not less than $1,000,000 per occurrence Bodily Injury and Property Damage combined, $1,000,000 per occurrence Personal and Advertising Injury, $2,000,000 Aggregate Products and Completed Operations Liability, including coverage for premises-operations and contractual liability, and $2,000,000 General Aggregate limit per location.
(d) Business Automobile Liability Insurance for Bodily Injury and Property Damage with combined single limits each accident not less than $1,000,000 combined and covering all owned, non-owned and hired vehicles.
(e) Upon request, Umbrella Coverage, in excess of General Liability and Automobile Liability and Employer’s Liability, of $5,000,000 (or some higher minimum limit based upon the type of Service and at the sole discretion of Buyer).
The liability policies shall be written on an occurrence basis with no deductible. The liability policies shall be endorsed to name Buyer, and its respective successors and assigns as Additional Insured and waiving all rights of subrogation. The definition of “Additional Insured” shall include Partners, Officers, Directors, Employees, Agents and Representatives of the named entities including any managing agent. Further, coverage for the “Additional Insured” shall apply on a primary basis, regardless of any other insurance, whether collectible or not. All policies noted above shall be written with insurance companies licensed to do business in the state where the Buyer’s premises are located and rated no lower than A 10 in the most current edition of A.M. Best’s Property-Casualty Key Rating Guide. All policies shall be endorsed to provide that in the event of cancellation, nonrenewal or material modification, Buyer shall receive thirty (30) days’ written notice. Seller shall furnish Buyer with certificates of insurance evidencing compliance with all insurance provisions noted herein prior to any services being performed, and shall provide Buyer with a certified copy of the above policies if so requested. All certificates or policy termination notices shall be delivered to: Craig L. Eaton, Esq., Executive Vice President and General Counsel, Twin River Management Group, Inc., 100 Twin River Road, Lincoln, RI 02865. All such insurance shall insure performance by Seller of the indemnity provisions of this purchase order but does not limit Seller’s obligation to indemnify.
11. Termination for Default: If Seller fails to comply with any material provisions of this purchase order, and such failure is deemed significant by Buyer in the exercise of its judgment, Buyer shall have the right to terminate further performance of this purchase order by Seller upon such notice, if any, to Seller as Buyer deems appropriate. In such circumstance, Buyer shall have no liability to Seller as a result of such termination.
12. No Assignment: Seller shall not assign this purchase order without the prior written consent of Buyer.
13. Governing Law: This purchase order shall be governed in accordance with the laws of the state where Buyer’s premises are located. The parties submit to the exclusive jurisdiction and venue of the state and federal courts in such state. The enumeration of certain rights does not exclude others which may be given by law.
14. Equal Employment Opportunity: Incorporated into the purchase order are the provisions of Executive Order 11246 (as amended) and the rules and regulations issued pursuant thereto with which the Seller represents the Seller will comply, unless exempt.
15. Wages and Hours: Seller warrants that in the performance of this order Seller has complied with all of the provisions of the Fair Labor Standards Act of 1938 of the United States, as amended.
16. License: If any software is necessary to operate the goods, Seller hereby grants to Buyer a perpetual, irrevocable and transferable license to use such software and any accompanying manuals. Seller shall provide Buyer with any updates, changes or modification to such software and user manuals at no additional charge than what, if any, is reflected on the purchase order. Seller warrants that the Seller has the right, title and authority to license any such software and that such software does not infringe on any other part, copyright, patent, trade secret or other intellectual property rights.
17. Cancellation: The Buyer may cancel this purchase order at any time upon written notice to the Seller without cost to the Buyer if a petition is filed by or against the Seller under the bankruptcy laws of the United States, or the Seller makes a general assignment for the benefit of their creditors, or if the Seller fails to meet their current obligations as they fall due, or if a receiver is appointed for any of the property of the Seller, or if the Seller fails to comply with any provisions of the General Terms and Conditions of the purchase order.
18. Independent Contractor: If labor services, as distinguished from goods, are covered by the purchase order, then it is understood and agreed that this is not a contract of employment, but in so far as the performance of services or labor ordered is concerned, Seller is an independent contractor. Seller shall have full control of the work and installation services, including the duty to supervise all workers and comply with all the laws and regulations concerning their work.
19. Patent and Trademark Indemnity: Seller agrees, at its own expense, to defend any suit or actions against Buyer, or against those selling or using the goods covered by this purchase order, for alleged infringement of invention or trademark rights arising from the sale or use of said goods, and to indemnify and save Buyer harmless from any loss, liability, cost and expenses paid or incurred by Buyer in connection with any suit or action, whether against Buyer or against those selling or using the goods covered by this purchase order.
20. Transportation Charges: Freight or express charges must be prepaid by the Seller when price is F.O.B. destination. Seller must pay transportation charges to and from destination on rejected goods.
21. Taxes: Seller shall pay all governmental taxes, excises, and/or any other charges (except taxes on or measured by net income) that Buyer may be required to pay with respect to production, sale of, transportation of any goods delivered hereunder, except if and as so noted to this purchase order.
22. Services in Facility: In the event Seller performs any work or services for Buyer in its facility, Seller shall only allow employees who have reached the legal age to be present within the facility.
23. Confidentiality: The terms and existence of this purchase order and everything supplied in connection with it by Buyer shall be held in confidence by Seller. Seller shall not publicly announce or disclose this purchase order or its contents without Buyer’s prior written consent. Seller shall not use Buyer’s name in any way, including without limitation a general or sample listing of Seller’s customers, without Buyer’s prior written consent. Any violation of this paragraph shall be deemed a material breach.
24. Force Majeure: Neither party shall be liable for failure to perform hereunder due to an act of God, weather, disasters such as floods, earthquakes, hurricanes, epidemics, or pandemics, government action or prohibitive governmental regulation, national or state emergency orders, quarantines, riot, war, strike, labor disturbance, civil disorder, terrorism, vandalism, or other cause beyond that party’s reasonable control.
25. General: The invalidity of any provision of this purchase order, as determined by a court or governmental body of appropriate jurisdiction, shall not impair the validity of any other provisions. No waiver by Buyer of any breach of any term, covenant or condition contained herein shall be deemed a waiver of the same, or any subsequent breach of the same, or any other term, covenant or condition. No term, covenant or condition of this purchase order shall be deemed waived by Buyer unless waived in writing and signed by the duly authorized officer of Buyer.