INTRODUCTION. The following Standard Purchase Order Terms and Conditions (“Terms”) only apply to transactions completed through the SmartDocs Vendor Portal (the “System”) that do not have a written contract, duly executed by both parties. If there is such a contract, then those terms shall be the terms that govern or control the transaction and relationship of the parties. In the absence of such a written contract, duly executed by both parties, then you (“Seller”) agree that these Terms are legally binding and govern each purchase order (“Purchase Order”) between you and Century Casinos, Inc. or any of its operating subsidiaries and affiliates (each a “Casino”) (collectively, the “Buyer”) for the goods and/or services that are described on each Purchase Order.
PLEASE READ THESE TERMS AS YOU ARE AGREEING TO THESE TERMS IF YOU REGISTER THROUGH THE SYSTEM. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT REGISTER THROUGH THE SYSTEM.
1. ACCEPTANCE. The Purchase Order constitutes an offer by Buyer and becomes a binding contract when acknowledged in the System by Seller. Acceptance of the Purchase Order is expressly limited to the terms stated on the Purchase Order and Seller shall be bound thereby upon execution of the acknowledgment copy of the Purchase Order or commencement of performance hereunder. Buyer objects in advance to the inclusion of additional or different terms proposed by Seller unless such terms are accepted in writing and signed by an authorized officer of Buyer, and acceptance of the goods shall not be deemed an acceptance of such additional or different terms; no change in, modification of, or revision to the Purchase Order (collectively, including additional or different terms proposed by Seller, “Modifications”) shall be valid and no conditions imposed by Seller in acknowledging in the System the Purchase Order shall be binding on Buyer unless accepted in writing and signed by an authorized officer of Buyer. Buyer may reject, at Seller’s expense to recover and to promptly procure replacement goods for Buyer, goods shipped subject to a Purchase Order containing unauthorized Modifications.
2. PACKAGING. All packaging shall be in conformance with good commercial practice. All containers shall have attached identification, including the Purchase Order number and material descriptions. No charge shall be made for cartons, wrapping, packing, boxing, crating, delivery drayage or other costs, unless such charge is expressly approved by Buyer in writing.
3. SHIPMENTS. The goods shall be shipped by Seller in accordance with the shipment terms specified § 14 herein. The original bill of lading (referencing the Purchase Order number) and a packing list shall be delivered by Seller to Buyer at the “ship to” address on the Purchase Order as far in advance of the arrival of goods as possible. Buyer is relying on manufacture, shipment, delivery, installation, and acceptance of the goods based on the schedule on the Purchase Order. Time is of the essence in the processing and fulfillment of the Purchase Order. Seller shall not manufacture, ship or deliver goods in advance of any scheduled date without Buyer’s written consent. At Buyer’s option, Buyer may refuse or return at Seller’s expense all or any part of (a) shipments which do not conform to the shipping or delivery dates specified by Buyer (whether early or late); (b) shipments in excess of the quantities ordered or in lesser quantities than ordered; (c) shipments which contain defective goods or which fail to conform to the Purchase Order, or (d) goods which are not as represented or warranted. Any storage or warehouse charges or other costs incurred by Buyer due to Seller’s failure to comply with the terms specified in the Purchase Order will be at Seller’s expense.
4. INSPECTION & REJECTION. At Buyer’s option, Buyer may (a) approve any plans and specifications for the goods prepared by Seller prior to Seller commencing manufacture, assembly and/or production of the goods and (b) inspect the goods during manufacture, assembly and/or production. All goods are subject to final inspection and approval by Buyer as to quality of material and workmanship; conformance to specifications, drawings, notes, instructions, engineering notes, technical data and/or samples supplied by Buyer (“data”); and general acceptability of goods. Final inspection shall be at the specified delivery site unless otherwise agreed in writing. Without limiting any other rights it may have, Buyer, at Buyer’s option, may (a) hold, at Seller’s expense subject to Seller’s disposal, all rejected goods, (b) return all rejected goods to Seller at Seller’s expense, including transportation and handling costs, (c) require Seller to repair or replace at Seller’s expense any rejected goods, (d) require Seller to refund the price of any rejected goods, or (e) repair defects and deduct the cost of replacement or rejection that would otherwise result in cancellation of the order. Acceptance of any portion of the goods ordered shall not obligate Buyer to accept future shipments nor be deemed a waiver of Buyer’s warranty or other rights hereunder or under law. Neither acceptance of any shipment nor payment of any contract price by Buyer shall constitute a waiver of damages or other remedies for any defects in any goods ordered hereby, failure to conform to data, failure to meet any scheduled date, or any other breach of the Purchase Order or these Terms.
5. INVOICES / INSTRUCTIONS. Seller shall invoice Buyer for the goods at the time of final shipment unless otherwise provided in the Purchase Order. Invoices shall show the Purchase Order number for each separate Purchase Order and the code number for each item purchased. Buyer may return for revision any invoice that is not in proper form and the discount period and payment term will be extended until the revised invoice is received. Seller shall comply with Buyer’s billing and routing instructions contained herein or otherwise communicated to Seller by Buyer, or pay any extra expense incurred by Buyer because of Seller’s failure to do so.
6. PRICES. Buyer shall make net payment to Seller in accordance with the price and these Terms, including all charges for freight and insurance, if applicable. Under no circumstance shall a Purchase Order be filled at a price higher than shown on the Purchase Order. Seller represents that the price charged for the goods and services covered by the Purchase Order is the lowest price charged by Seller to buyers of a class similar to Buyer under conditions similar to those specified in the Purchase Order. If Seller reduces its prices for such goods and/or services during the term of an applicable Purchase Order prior to items being shipped or services being rendered. Seller shall correspondingly reduce the prices of goods and/or services sold on an applicable Purchase order and thereafter to Buyer. If no price is set forth on the Purchase Order, the goods or services will be billed at the price last quoted or at the prevailing market price, whichever is lower, and, in any event, goods and services ordered under this Purchase Order will not be billed at a higher price than last quoted or invoiced without Buyer's specific written authorization. No extra charges of any kind will be allowed unless specifically agreed to in writing by the Buyer.
7. COMPLIANCE WITH LAW. Seller warrants that (a) it has obtained all licenses, permits and similar approvals required to manufacture, sell, deliver and, if applicable, install the goods, use them, and perform the services required hereunder and (b) the purchase by Buyer hereunder and the services performed by Seller hereunder shall be in compliance with applicable local, state and federal laws, rules, regulations, ordinances and directives. If applicable, Seller shall, at its sole cost and expense, receive and maintain during the term of the applicable Purchase Order any and all permits required by gaming regulators having jurisdiction over Buyer or any Casino. If Seller fails to obtain or maintain such permits, Buyer may immediately terminate the applicable Purchase Order and the parties shall have no further obligation or liability hereunder. Seller acknowledges that Buyer and its vendors must comply with regulatory requirements imposed upon them due to Buyer’s involvement in the gaming operations in numerous jurisdictions. Seller acknowledges that this transaction may be subject to review by a regulatory agency and that it may be required to supply information to a regulatory agency in connection with this transaction. Seller agrees that it will respond to all requests from regulatory agencies in a timely manner and will perform its obligations in compliance with all applicable laws. Notwithstanding anything to the contrary, Buyer shall have the sole and exclusive right to terminate the applicable Purchase Order without further liability, by written notice upon the occurrence of either of the following events: (1) Seller’s failure to timely apply for, obtain or maintain any and all licenses, permits and approvals which may be required from the applicable gaming regulatory agency; or (2) an order or recommendation by the applicable gaming regulatory agency requiring or recommending termination of the Seller’s and Buyer’s business relationship. Buyer may immediately terminate the applicable Purchase Order and the parties shall have no further obligation or liability hereunder.
8. TAXES. All applicable taxes shall be delineated in the price set forth in the applicable Purchase Order and/or quote provided to Buyer and the price shall not be increased for any additional taxes not included in the price set forth in the applicable Purchase Order and/or quote. All monies paid by Buyer to Seller are inclusive of all taxes and fees. Seller shall have the sole responsibility of remitting all taxes collected from Buyer to the appropriate governmental and/or tribal authorities.
9. GENERAL WARRANTIES. Seller warrants that all goods furnished hereunder, whether supplied by Seller or by someone else, will (a) be new and of first quality, (b) be free from defects in materials and workmanship for one (1) year, (c) conform to applicable specifications, (d) be free from design and manufacturing defects whether or not manufactured to Seller’s specifications, (e) be fit for the purpose for which intended, (f) be of merchantable quality and fit and safe for consumer use, and (g) be free and clear of all liens and encumbrances at the time of shipment. Seller also warrants that all services furnished hereunder, whether supplied by Seller or by someone else will (x) be provided with promptness and diligence and in a professional and workmanlike manner in accordance with applicable laws, and (y) be performed under all necessary licenses, permits, consents or approvals from or by, and under necessary notices to, all governmental authorities with jurisdiction over the services. All warranties hereunder shall run to Buyer, its successors, assigns, customers and the ultimate users or consumers of such goods. The express warranties contained herein shall not be deemed to limit, diminish, reduce, or waive any duties, warranties, or guarantees given separately by Seller or in law (expressed or implied). All warranties contained in the Purchase Order shall be construed as consistent and cumulative with one another and with all warranties in law or given separately by Seller. In the event of a breach of any warranty in the Purchase Order, Buyer shall have all rights and remedies available at law or in equity.
10. CHANGES. Buyer may at any time, prior to items being shipped or services being rendered, by written notice to Seller, make changes in any Purchase Order, including without limitation, changes in the specification of the goods or services, quantities, method of shipping or packing, place of inspection, acceptance, point of delivery, schedule, or other terms of the Purchase Order. If any such change increases or decreases the cost of goods or services or the time required to perform of such order, Seller shall notify Buyer within five (5) days after receipt by Seller of the request for change and, if such change is acceptable to Buyer, then Buyer and Seller shall execute a written change order or modification to the Purchase Order approving the same. No change or modification to a Purchase Order shall be effective unless said change or modification is summarized in a writing signed by both parties.
11. INDEMNIFICATION / INSURANCE.
a. Indemnification. Seller agrees to hold harmless, indemnify and defend Buyer and Buyer’s executives, officers, employees, agents, successors and assigns, from and against any and all claims, actions, obligations, liabilities, fines, penalties, damages, losses, costs, expenses and attorney’s fees arising from or connected with the goods purchased and services rendered hereunder, including without limitation, any of the following: (i) breach of express or implied warranty, strict liability, or other liability arising from any defect in the goods purchased, services rendered, or the methods utilized in performing the order, (ii) the acts or omissions of Seller or any party under Seller’s control, (iii) any claim of infringement, misappropriation or other violation of any patent, trademark, trade name, copyright, trade secret, or other similar claim of right now or hereafter existing under the laws of any state or county relating to the manufacture, sale or use of the goods or performance of the services, (iv) any claim for royalties, unfair competition, or the like, arising from any license or like agreement or arrangement between Seller and third parties regarding such goods or services, or (v) the delivery and/or installation of any goods or rendering of the services by Seller or any party under Seller’s control on property owned, leased, occupied, or controlled by Buyer. The amount and type of insurance coverage requirements below will in no way be construed as limiting the scope of the indemnification in this paragraph. The obligation of this indemnification provision shall survive any termination, cancellation or fulfillment of the Purchase Order.
b. Insurance Requirements. Seller shall at all times, provide and maintain the following insurance at Seller’s own expense. The following are the insurance thresholds/requirements that Seller must comply with, they are as follows: 1. Commercial General Liability Insurance shall be provided in accord with the standard Commercial General Liability insurance policy (“Occurrence Form”, edition 1998 or later) with Minimum Limits of Liability of (i) $1,000,000.00 - Each Occurrence, (ii) $2,000,000.00 - Products Completed Operations Aggregate, (iii) $1,000,000 - Personal Injury and Advertising Injury and (iv) $2,000,000.00 - General Aggregate. 2. Workers Compensation and Employer’s Liability requirements shall be provided as follows: Coverage A, Workers Compensation – Statutory benefits as required by the Workers Compensation Laws of the State in which this work/project/service/delivery is taking place, covering all employees; and Coverage B, Employer’s Liability Minimum Limits: $1,000,000.00 - Each Accident, $1,000,000.00 - Disease – Each Employee, and $1,000,000.00 - Disease – Policy Limit. Blanket Waiver of Subrogation, where permitted by state law. 3. Commercial Excess Liability Insurance shall be provided as follows: a) Following Form Basis of the underlying Commercial General Liability, Business Automobile Liability, and Employer’s Liability coverage; and b) Minimum Limit of Liability: $5,000,000.00. 4. Professional/Errors and Omissions Liability Insurance (if applicable) shall be provided as follows: if a Seller renders Professional Services, Professional/Errors and Omissions Liability Insurance in an amount not less than $1,000,000.00 Per Claim and $1,000,000.00 Aggregate shall be maintained. 5. Business Automobile Liability Insurance Covering All Owned, Non-Owned and Hired Automobiles shall be provided as follows: a) such insurance shall provide coverage not less than that of the standard Business Automobile Liability policy; and b) minimum Limits of Liability: $1,000,000.00 Per Accident for Bodily Injury and Property Damage Combined Single Limit. 6. Technology Errors & Omissions (if applicable). Seller shall purchase and evidence Technology Errors & Omissions (or technology professional liability coverage) insurance, including coverage for collection loss, theft or disclosure of confidential information and data, electronic data, media and content rights infringement and liability, network security failure and software copyright infringement liability with limits of $1,000,000.00 Each Occurrence, $1,000,000.00 – General Aggregate.
Seller’s certificate of insurance (the “COI”) shall include the insurance coverages listed above and the insurance requirements identified in clauses (1), (3) and (5), shall include an endorsement naming Buyer and Buyer’s respective executives, directors, officers, agents and employees as Additional Insureds (collectively, the “Additional Insureds”) as follows:
Century Casino, Inc., their subsidiaries and affiliated companies including their respective executives, directors, officers, agents and employees are named as additional insureds with respect to the general liability, auto liability and excess liability. These policies are primary and non-contributory. Waiver of subrogation applies to all. United States Longshore & Harbors Workers Act coverage and Maritime coverage under the Jones Act, when applicable.”
Seller shall provide a COI for all coverages as outlined above prior to executing any Purchase Order. Failure of Seller to provide evidence of its insurance with an acceptable COI will result in an incomplete vendor registration and could delay payment to Seller.
12. SUPPLEMENTARY INFORMATION / EQUIPMENT.
a. Any data referred to in the Purchase Order or provided by Buyer to Seller shall be deemed to be incorporated therein by reference as if fully set forth. If any discrepancies exist in such data, Seller shall refer such matter to Buyer for instructions or interpretation.
b. Buyer shall retain title to all data and information supplied to any person or entity other than the Seller’s employees, subcontractors, or government inspectors. Unless requested earlier, Seller shall promptly return all such data and information to Buyer upon completion of the Purchase Order.
c. Any equipment or tools purchased or manufactured specifically for the production, manufacture, or assembly of Buyer’s goods or performance of Buyer’s services shall be delivered to Buyer at the earlier of completion of work when invoice is issued or cancellation of the Purchase Order, and no additional purchase price shall be charged to Buyer for such equipment or tools.
13. WORK AT SITE. When the Purchase Order requires installation or work at Buyer’s site by Seller, (a) all work, whether on- or off-site, shall be done in strict accordance with union regulations, as applicable, (b) insurance satisfactory to the Buyer shall be obtained and certificates evidencing such insurance, as required under § 11 herein, shall be furnished before work is started, (c) prior to payment of the purchase price being issued, Seller shall furnish lien waivers, releases, affidavits, and other documents to keep all Buyer’s property lien free , (d) Seller shall comply with all of Buyer’s requirements relating to job procedures, formalities, payrolls, etc., and (e) Seller will take all necessary precautions to prevent any injury to persons or damage to property, including following any rules, procedures or other requirements of Buyer. The Seller is required to submit a complete inventory list and Material Safety Data Sheets for hazardous substances which will be used while performing work on the premises of Buyer’s. This information must be submitted to Buyer’s designated employee prior to the start of such work.
14. RESPONSIBILITY FOR GOODS & RISK OF LOSS. Unless otherwise provided in the Purchase Order, goods shall be shipped “F.O.B. Destination” and all risk of loss of goods covered hereby shall be borne by Seller until goods have been received and accepted by Buyer or received, installed, and accepted by Buyer, whichever is applicable. If Buyer rightfully rejects the goods, receives a non-conforming tender, or revokes its acceptance, risk of loss and title shall be deemed to have remained with Seller. The responsibility for freight damaged merchandise will be assumed by Seller. No charges for unauthorized transportation will be allowed.
15. LICENSE. If any software is necessary to operate the goods or receive the services, Seller hereby grants to Buyer a worldwide, perpetual, irrevocable, transferable and sublicensable license to use such software and any accompanying manuals solely in connection with such goods or services. Seller shall provide Buyer with any updates, changes or modifications to such software and user manuals at no additional charge. Seller warrants that Seller has the right, title and authority to license any such software and that such software does not infringe, misappropriate or otherwise violate any other party’s copyright, patent, trade secret or other intellectual property rights.
a. Buyer, in Buyer’s sole discretion, may immediately cancel all or any part of the applicable Purchase Order for convenience at any time prior to the items being shipped or services being rendered by providing written notice to Seller.
b. Buyer shall not be deemed to have cancelled the Purchase Order unless it notifies Seller of its intent to do so in writing. Upon receipt of such notice, Seller will immediately stop work and notify any other parties performing any part of the work and will protect property in Seller’s possession in which Buyer has or may acquire an interest.
c. If Buyer exercises its right to cancel, Seller may claim (i) reimbursement for actual out-of-pocket costs incurred by Seller as a result of such cancellation (exclusive of costs for materials that Seller can use on other orders) and (ii) a reasonable profit on the work performed by Seller prior to cancellation. Such claim must be made within twenty (20) days of the notice of cancellation. The total amount of such claim shall not exceed the purchase price for the completed goods and shall be reduced commensurate with any value Seller may reasonably recover from reuse or resale of the work performed prior to cancellation.
17. CHOICE OF LAW AND VENUE.These Terms and applicable Purchase Orders shall be governed by and construed in accordance with the laws of the state in which the Casino referenced on the Purchase Order is located without giving effect or regard to choice of law principles. Further, all litigation shall be venued and filed exclusively in, and Seller consents to personal jurisdiction of, the state and county in which the Casino referenced on the Purchase Order is located.
a. Overtime or Additional Extraordinary Costs. Any overtime or other additional extraordinary costs incurred by Seller to perform its obligations under or otherwise comply with the Purchase Order shall be borne by Seller.
b. Confidentiality. Except as may be necessary to ensure performance hereunder, Seller shall not disclose the terms or existence of a Purchase Order to any third party without Buyer’s prior written consent, which may be given or withheld in Buyer’s sole discretion. Seller shall keep strictly confidential and not use for any purpose other than in accordance with its obligations under these Terms and an applicable Purchase Order any information regarding Buyer’s business or operations directly or indirectly furnished in connection with a Purchase Order.
c. Assurances of Performance. Seller shall provide adequate assurance of due performance of Seller’s obligations hereunder within three (3) business days of Buyer’s written demand for such assurance, and failure to provide such assurance shall be deemed a material default hereunder.
d. Attorney’s Fees. In the event of a dispute between the parties arising out of the Purchase Order, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs.
e. Intellectual Property of Buyer. Seller agrees not to use the intellectual property of Buyer, including but not limited to Buyer’s name, logo, or any other marks owned by or associated with the Buyer or the name of any representative of the Buyer, including in any sales promotion work or advertising, or any form of publicity.
f. Independent Contractor. Seller is, and shall perform its services under the Purchase Order, as an independent contractor, and shall not act, nor be deemed to be, an agent, member, employee, partner, joint venture or legal representative of Buyer. Seller has no authority to assume or create any commitment or obligation on behalf of Buyer or bind Buyer in any respect whatsoever. Seller may not assign or otherwise attempt to transfer its rights and obligations under the Purchase Order unless Seller obtains the prior written consent of the Buyer.
g. Severability. If any provision of this Order shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable, this provision shall not affect any other provision or provisions contained in this Order.
h. Paragraph Titles. The paragraph titles are solely for convenience of reference and shall not affect the meaning or construction of any provision of this Order. No provision of these Terms or an applicable Purchase Order shall be construed against or interpreted to the disadvantage of either party hereto by a court or other governmental or judicial authority by reason of such party having or being deemed to have structured or drafted such provision.
19. SURVIVAL. Seller’s obligations under Sections 4, 7, 8, 9, 11, 13, 14, 15, 17, 18, and 23 will survive any the cancellation, termination, or fulfillment of an applicable Purchase Order.
20. LIMITATION OF LIABILITY. BUYER'S AGGREGATE LIABILITY ARISING FROM OR RELATING TO AN APPLICABLE PURCHASE ORDER IS LIMITED TO THE AMOUNT PAID OR PAYABLE BY BUYER FOR THE GOODS AND/OR SERVICES. TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW, BUYER SHALL NOT BE LIABLE UNDER THIS PURCHASE ORDER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUES EVEN, IF BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
21. WAIVER; MODIFICATION. No claim or right arising out of a breach of this Purchase Order can be discharged in whole or in part by a waiver or renunciation of the claim or right unless supported by consideration and in a writing signed by the aggrieved party. The failure of Buyer to enforce at any time or for any period of time any of the provisions hereof will not be construed to be a waiver of such provisions or of the right of Buyer thereafter to enforce each and every such provision. This Purchase Order can be changed or modified only by a writing signed by authorized representatives from both parties.
22. NOTICES. All notices, consents, waivers, and other communications required or permitted to be given pursuant to an applicable Purchase Order, shall be in writing and shall be deemed to have been delivered either (i) on the delivery date, if personally delivered, or if delivered by confirmed facsimile or e-mail, (ii) one (1) business day after delivery to any national overnight courier directing delivery on the next business day, receipt requested, or (iii) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, with adequate postage affixed thereto. All notices to Buyer shall be sent to the Casino listed on the Purchase Order and to Seller at its address as set forth in an applicable Purchase Order, or at such other address as either party may designate in writing to the other party.
23. ENTIRE AGREEMENT. In the absence of a written contract currently in effect between the Buyer and Seller, these Terms together with the applicable Purchase Order constitutes the entire understanding between the parties and supersedes all prior contracts, representations, negotiations and terms pertaining to the goods and services, whether writteFn or oral. No course of prior dealings between the parties and no usage of the trade will be relevant to determine the meaning of the agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection.
24. SUBJECT TO CHANGE. All terms and conditions are subject to change. All changes will be reflected on the Vendor Portal terms and conditions.