- COMPLETE AGREEMENT: These Terms and Conditions (“Terms and Conditions”) together with the purchase order document (howsoever titled) to which they are attached, form a complete and final agreement between Peninsula Pacific Entertainment, LLC, which shall include Colonial Downs Group, LLC; Lago Resort & Casino, LLC; SCE Partners, LLC; Legends Gaming, LLC; and their affiliates (individually and collectively referred to as “Buyer,”) and the undersigned and/or party identified in the purchase order or any associated document as providing the relevant goods, materials, services or property (the “Seller”). Such agreement, as described in the foregoing sentence, is sometimes referred to herein as the “Agreement.” This Agreement may not be varied, modified, changed or supplemented in any way, unless the change is incorporated into a written amendment or change order signed by the parties. The provisions of these Terms and Conditions will supersede and govern to the extent of any inconsistency with any provisions of documentation provided by the Seller.
- ACCEPTANCE: Any purchase order becomes a general binding contract between Buyer and the Seller once accepted and acknowledged by the Seller. Acceptance of a purchase order is based on net forty-five (45) payment terms with the exception of early payment discounts and any conditions set forth herein.
- INSPECTION: Notwithstanding payment or prior inspection, all goods and material shall be subject to inspection and approval upon a reasonable time after delivery. If specifications are not met, goods/materials may be returned at Seller’s expense and risk for all damages incidental to the rejection.
- WARRANTY: Seller expressly warrants that all goods, materials, 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. This warranty shall be in addition to any express warranties made by the Seller, any implied warranties, and shall survive any inspection, delivery, or acceptance of payment.
- WARRANTY AGAINST INFRINGEMENT: Seller warrants that the sale or use of goods or material 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 to any patents or trademarks or copyrights.
- PACKING: Each package shall contain an itemized packing slip and shall be properly prepared for shipment so as to meet carrier’s requirement 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.
- COMPLIANCE WITH THE LAW AND GAMING COMPLIANCE: The performance of any purchase order by Seller is, and shall be, subject in all respect to, and in compliance with, all applicable federal, state and local laws, regulations and orders, including all racing and gaming regulations which now govern or may hereafter govern the manufacture, sale or delivery of the goods covered by the 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. Upon request, Seller shall furnish a copy of such licenses, permits, etc., to Buyer.
Seller acknowledges that Buyer and/or its parent company, subsidiaries, or affiliates (collectively referred to as the “P2E Group” for purposes of this Section) hold gaming licenses, liquor licenses and/or other privileged licenses in various jurisdictions (“Privileged Licenses”) and that P2E Group’s Privileged Licenses are of vital importance to P2E Group’s business. In this regard, Seller agrees to timely comply with all requests made by the Buyer for information concerning Seller’s background, which may include, without limitation, completion by Seller of the Buyer’s standard forms of background questionnaires. Seller agrees, at all times during the Term, to obtain and maintain any licenses required for Seller by any regulatory commission (and any of Seller’s owners, interest holders, agents and employees as may be required) and otherwise comply with the requirements of any other similar organization having jurisdiction over Buyer at Seller’s sole cost and expense. Buyer may terminate this Agreement upon Buyer’s determination, in its sole and absolute discretion, that continued association with the Seller could jeopardize the good standing of any P2E Privileged License held or sought by any member of P2E Group.
This paragraph applicable for Iowa vendors: The parties acknowledge and agree that if this Agreement is a “Qualifying agreement” as defined in Regulation 5.4(8) (or any successor provision) of the rules of the Iowa Racing and Gaming Commission (the “IRGC”), then this Agreement will be submitted to the IRGC for approval, which submittal may be made by the Buyer, and the parties, in good faith, will cooperate towards pursuit of prompt IRGC approval. The Parties further acknowledge that in accordance with IRGC regulations, the Parties may perform under this Agreement pending such approval, so long as this Agreement contains a written acknowledgment that it is subject to IRGC approval. The Parties further agree that if the IRGC declines to approve this Agreement for any reason, then the Parties will comply with all instructions or requirements of the IRGC regarding this Agreement and/or the business relationship.
This paragraph applicable for New York State vendors: Notwithstanding anything in the Agreement to the contrary, any purchase order, contract or other agreement entered into shall be subject to, where applicable, Seller’s ability to obtain a required vender license from the New York State Gaming Commission. In addition, Seller shall furnish an executed copy or, if a written copy is not in existence, evidence of any agreement, written or otherwise, that concerns the realty, construction, maintenance or business of the del Lago Resort & Casino, without regard to whether del Lago is a party to such agreement, and such agreement shall be subject to the review of the New York State Gaming Commission for their approval.
Seller represents, warrants and covenants to Buyer as follows: (1) all information furnished by Seller to Buyer in connection with Buyer’s due diligence and compliance review process is complete and accurate; (2) Seller shall, in connection with this agreement, (i) maintain complete and accurate books and records and (ii) comply with all applicable laws, rules and regulations, including, but not limited to, those relating to anti-corruption, anti-money laundering, competition, licensing and registration; and (3) Seller has not offered or paid, and will not offer or pay, directly or indirectly, (a) anything of value to any public official or candidate for political office, or any relative or agent thereof, for purposes of obtaining any official action or benefit relating in any way to this agreement or (b) any commission or finder’s or referral fee to any person or entity in connection with this agreement or any activities on behalf of Seller.
Seller currently is not and will not become a Federally Prohibited Person or a Gaming Prohibited Person.
“Federally Prohibited Person” means any Person: (i) listed in the Annex to, or otherwise subject to the provisions of, Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, and relating to Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (the “Executive Order”) and/or a Person who is identified as or affiliated with a Person designated as a terrorist, or associated with terrorism or money laundering pursuant to regulations promulgated in connection with the USA PATRIOT Act; (ii) that is owned or controlled by, or acting for or on behalf of, any Person that is listed in the Annex to, or is otherwise subject to the provisions of, the Executive Order; (iii) with whom a regulated lender is prohibited from dealing or otherwise engaging in any transaction by any terrorism or money laundering law, including the executive order; (iv) who commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order; (v) that is named as a “specially designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website, http://www.treas.gov.ofac/tllsdn.pdf or at any replacement website or other replacement official publication of such list; or (vi) who is an Affiliate of or affiliated with a Person listed above.
“Gaming Prohibited Person” means: (i) a Person who is identified by any Governmental Authority as “unsuitable” to be associated with a Gaming facility; (ii) a Person who has been denied a Gaming license in any jurisdiction as a result of an “unsuitability” or similar determination, or (iii) a Person who has been subject to a suspension or revocation of a Gaming license in any jurisdiction.
8. INDEMNITY AND INSURANCE:
- Seller shall defend, protect, indemnify and hold harmless Buyer and its affiliated entities, officers, directors, agents, employees, underwriters, insurers, and any lender involved with the project (collectively “Buyer Group”) from and against all claims, demands, losses and/or causes of action for damages, and/or injury, illness or death of any person, including Seller’s employees, agents, and those of any third parties brought onto Buyer’s premise by Seller, which arise, or are alleged to have arisen, directly or indirectly from the performance or non-performance of any services or work of Seller and/or any of its contractors, agents and the like, or from products supplied by Seller, or Seller’s Suppliers and/or Distributors under this or any other agreement. The defense and indemnity of the Buyer Group includes all damages, losses, expenses and costs, including but not limited to attorney fees. Seller shall defend, protect, indemnify and hold harmless the Buyer Group notwithstanding the simple, 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 pre-existed this agreement; however, this indemnification shall not apply to the intentional gross negligence of the Buyer Group.
- Seller shall carry and maintain (i) comprehensive general liability coverage, including products/completed operations coverage and blanket contractual liability with limits acceptable to Buyer, but in no event less than $1,000,000.00 per occurrence and $2,000,000.00 general aggregate and (ii) automobile combined single limit coverage including coverage for all owned, non-owned and hired autos with limits acceptable to Buyer, but in no event less than $1,000,000.00. The policy shall name Peninsula Pacific Entertainment, LLC; Colonial Downs Group, LLC; Lago Resort & Casino, LLC; SCE Partners, LLC; Legends Gaming, LLC; and their subsidiaries, affiliated, allied and/or proprietary companies, corporations, trusts, joint ventures and/or joint partnerships as are now or may hereafter be constituted or acquired as additional insured. Seller’s policy shall contain a waiver of subrogation in favor of the Buyer Group and be primary and non-contributory with any insurance of the Buyer Group.
- Seller shall carry Employers Liability in an amount not less than $1,000,000.00 and workers compensation coverage with the statutory limits as provided by law in the jurisdiction in which the project is being performed or services are being performed. The policy shall contain a waiver of subrogation in favor of the Buyer Group. In no event shall Buyer be liable for Seller not maintaining the required coverage.
- Seller shall maintain the insurance as required in 8(b) and 8(c) and provide Buyer with a certificate of insurance from its insurer within five (5) days of execution of these terms and conditions and annually thereafter upon expiration of the certificate of insurance. Seller shall also provide Buyer with thirty days advance notice of changes, nonrenewal or cancellation.
- Seller shall immediately notify Buyer, in writing, of all accidents or injuries to its employees, agents or third parties occurring on Buyer’s premises, or of claims made against it, related to goods and/or services being provided by Seller under terms of this or any other agreement between the parties. Buyer, nor its affiliates, shall have any liability of any type (including, but not limited to, contract, negligence, and tort liability), for any special, incidental, indirect, consequential, or punitive damages, including, but not limited to, loss of opportunity, loss of use, or loss of revenue or profit, in connection with or arising out of this agreement, or the services hereunder, even if such damages may have been foreseeable, except as may otherwise arise under applicable law. The collective, aggregate liability (including, but not limited to, contract, negligence and tort liability) of Buyer, together with its affiliates, under this agreement shall not exceed the amount of fees actually received by Seller from Buyer pursuant to the agreement for the services from which such liability arose.
9. TERMINATION FOR DEFAULT: If Seller fails to comply with any material provision of a 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 a 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. Buyer may immediately terminate this agreement or any purchase order without any further or ongoing duties, obligations, or liability of any kind beyond the date of termination of this agreement if (i) Seller fails to apply for or maintain any license that is required by any governmental authority or regulatory body having authority over the subject matter of this agreement, including but not limited to the any racing or gaming commission; (ii) Seller becomes a Federally Prohibited Person or a Gaming Prohibited Person; or (iii) Buyer is advised by its Compliance Committee or Counsel that the continued existence of this agreement would put Buyer or its affiliates in jeopardy of (i) losing a racing/gaming license then held by it, or (ii) being denied a racing/gaming license otherwise available to it, because of Buyer’s relationship to Seller.
10. ASSIGNMENT: Seller shall not assign any purchase order without the prior written consent of Buyer executed by its General Manager, Chief Financial Officer, or Chief Executive Officer.
11. GOVERNING LAW: Any purchase order shall be governed in accordance with the laws of the state in which the project is being completed, products are being delivered, and/or services are being performed. The Parties hereby agree to and submit to the exclusive jurisdiction and venue of federal and state district courts located in where the project is being completed and/or services are being performed with respect to any dispute or claim arising from or relating to this Agreement. The enumeration of certain rights does not exclude others which may be given by law.
12. EQUAL EMPLOYMENT OPPORTUNITY and MWBE: The provisions of Executive Order 11246 (as amended) by the President of the United States on Equal Employment Opportunity is incorporated in all purchase orders of Buyer, the rules and regulations issued pursuant thereto with which the Seller represents that it will comply unless exempt. Buyer (including Buyer’s affiliates) has adopted a policy that comports with the provisions of New York State Executive Law Article 15-A, which governs the minority and women-owned business enterprise (MWBE) program in New York. When applicable, Seller represents that it will comply with such MWBE program, including any MWBE contract goals that may be established for any purchase order.
13. WAGES AND HOURS: Seller warrants that in the performance of this act, Seller has complied with all of the provisions of the Fair Labor Standards Act of 1938 of the United States, as amended.
14. 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 modifications to such software and user manuals at no additional charge than what, if any, is reflected on the purchase order. Seller warrants that 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.
15. CANCELLATION: The Buyer is privileged to cancel any 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 or conditions of the purchase order.
16. INDEPENDENT CONTRACTOR: If labor or services, as distinguished from goods and material, are covered by a purchase order, then it is understood and agreed that this is not a contract of employment, but insofar 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.
17. 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 product(s) or material covered by any purchase order for alleged infringement of invention or trademark rights arising from the sale or use of said product(s) and/or material, 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 product(s) and/or material covered by any purchase order.
18. TRANSPORTATION/DELIVERY: All goods and materials will be shipped FOB Buyer’s location, with freight or express charges to be prepaid by the Seller. Seller must pay transportation charges to and from destination on rejected product(s) and/or material.
19. TAXES: The 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 the production, sale of, or transportation of any material delivered hereunder, except if and as so noted on any purchase order.
20. SERVICES: In the event Seller performs any work or service for Buyer in its racing or gaming facility, Seller shall only allow employees who have reached the legal age for presence in a racing or gaming facility in the state where the services are performed.
21. STANDARD OF WORK: With respect to any services, labor or work being performed by Seller under this Agreement (the “Work”), Seller shall perform the Work with no less than the standard degree of skill and care exercised by members of the same profession currently practicing on similar projects and under similar circumstances and in compliance with all applicable national, federal, tribal, state, local and municipal laws, regulations, codes, ordinances, orders and with those of any other body having jurisdiction. Seller shall immediately correct upon notification all defects in materials used or Work performed as so designated by applicable governmental authorities or by the Buyer. Such correction shall be to the satisfaction of the Buyer and all interested governmental authorities and shall be completed without cost to the Buyer. In its conduct of the Work, Seller will cooperate with the Buyer’s representatives and contractors, with such cooperation to include, without limitation, log-in of all personnel, compliance with designated work schedules and compliance with any and all project site rules and regulations issued by the Buyer, its representatives or contractor. Seller’s Work shall be in strict accordance with the specifications, drawings, applicable state, local and tribal codes, including applicable local health regulations, and other terms and conditions for this Agreement. Work that is normally shown and expected or that can be reasonably inferred by the Seller utilizing its expertise and experience in the field is included in this Agreement. The Buyer will consider only specific written identifiable additions to Agreement for possible changes in Agreement price and/or time adjustments, which will require the parties to execute a change order.
22. BUYER INTELLECTUAL PROPERTY: Seller acknowledges that, as between Buyer and Seller, Buyer owns, or has the licensing rights to, the trademarks “Hard Rock Casino,” “Hard Rock Hotel,” “Colonial Downs Racetrack,” “Rosie’s Gaming Emporium,” as well as the name of any venue at Buyer’s facilities or any other business name used by the Buyer in its operations as may be updated or changed in the sole discretion of Buyer. All of the foregoing, as well as any and all other intellectual property that is proprietary to the Buyer, shall be referred to herein as “Buyer Intellectual Property.” If the Buyer has instructed the Seller to incorporate any Buyer Intellectual Property in the design of the goods that are subject to this agreement, or otherwise authorized the Seller in writing to use any Buyer Intellectual Property, then the Seller is authorized by the Buyer to use the Buyer Intellectual Property solely in connection with the design and manufacture of the goods that are subject to this Agreement, or otherwise in connection with the use expressly authorized by the Buyer in writing, and the Seller acknowledges that: (a) Buyer shall have the right to approve or disapprove the format, content, stylization and method of display and usage of Buyer Intellectual Property; (b) all usages of Buyer Intellectual Property will inure solely to the benefit of Buyer; (c) Seller disclaims any ownership or other right or interest in and to any Buyer Intellectual Property, and (d) any and all permitted and approved usages are personal to the Seller, and may not assign or grant to any third party any rights to copy, reproduce, or use Buyer’s Intellectual Property for any purpose without obtaining Buyer’s prior written consent.
23. GENERAL: The invalidity of any provision of any purchase order, as determined by a court or governmental body of appropriate jurisdiction, shall not impair the validity of any other provision. 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 any purchase order shall be deemed waived by the Buyer unless waived in writing and signed by the duly authorized officer of the Buyer.