Purchase Orders

UPDATED June 14, 2023


Vendor agrees that the following Terms and Conditions (“Terms and Conditions”) are incorporated into and govern all purchase orders (the “Purchase Order”) between Vendor and Company (as identified on the face of the Purchase Order). In case of any conflict between the Purchase Order or any other document referenced herein and these Terms and Conditions, the terms of these Terms and Conditions shall control. Vendor agrees that Company is not subject to any other terms and conditions set forth in any other purchase order, confirmation or other communication from Vendor that would supplement or vary these Terms and Conditions.

1. ACCEPTANCE AND AGREEMENT MODIFICATIONS.
This Purchase Order becomes a binding contract upon the terms and conditions set forth herein when Vendor commences performance or delivery. This Purchase Order and any documents referred to herein contain all of the terms and conditions of this transaction. Additional or different terms proposed by Vendor and understandings modifying the terms and conditions are objected to and rejected and shall not be valid unless the same are in writing and signed by Company.

2. PURCHASE ORDER NUMBERS
Purchase Order numbers must appear on all documents and correspondence, including, without limitation, all quality certifications, packaging sheets, and invoices.

3. TAXES.
Unless otherwise expressly set forth on the Purchase Order or required by applicable law, all prices shown on the Purchase Order include all applicable taxes and duties. Vendor agrees to pay any federal, provincial or local sales/use tax, transportation tax or other excise tax which may be imposed upon the article ordered hereunder or by reason of their sale, use or delivery. Company is considered the end‐user for all tangible personal property covered by this Purchase Order. Vendors registered with the State of Nevada Department of Taxation must invoice sales tax at the applicable rate and remit the same. Company may accrue and remit applicable taxes with respect to Vendors who are not registered.

4. PAYMENT & INVOICING.
A. Company shall pay Vendor’s undisputed invoices for any accepted materials, software license, or any other materials or services (i) within thirty (30) days by ACH or forty-five (45) days if by check, of receipt of an accurate and approved invoice; and (ii) upon completion of the services or delivery of the goods specified in the Purchase Order and upon Acceptance by Company. Vendor shall set forth on each invoice the following: (a) Purchase Order number; (b)number of cartons in shipment; (c) Vendor’s invoice number; (d) Vendor store number; (e) taxes, if applicable; and (f) make, model number, serial number and type of product or (g) type of service. Company may return for revision any invoice that is not in the proper form and the discount period and payment term will be extended until the revised invoice is received.

Vendor shall comply with Company’s billing and routing instructions contained herein or otherwise communicated to Vendor by Company, or pay any extra expense incurred by Company because of Vendor’s failure to do so. Until Company receives Vendor’s invoice, and product or services are completed and Accepted by Company, no prompt payment time limits shall commence. For Services to be performed by Vendor, Company shall pay Vendor at completion of Services and Acceptance unless otherwise agreed by the Parties.

B. In no event shall Company be liable to Vendor for interest or other late payment charge. Purchase orders paid within fifteen (15) days shall be entitled to a two percent (2%) discount.

C. Company shall not be billed at prices higher than stated on this Purchase Order unless authorized by a Purchase Order Change Notice issued and signed by Company. Vendor represents that the price charged for the items or services covered by this Purchase Order are the lowest prices by the Vendor to purchasing agents, under conditions similar to those specified in this Purchase Order and that prices comply with the applicable government regulations in effect at time of quotation, sale, and delivery.

D. Vendor agrees that any price reductions made in merchandise covered by this Purchase Order subsequent to the placement of this Purchase Order will be applicable to this Purchase Order. Vendor shall invoice Company for the goods at the time of final shipment unless otherwise provided in this Purchase Order.

E. Vendor agrees to refund to Company an amount equal to the price charged for any returned spools, reels, barrel drums, or other type of containers upon their return by Company.

F. Company shall have the right at any time to set‐off any amount owing by Vendor to Company or any of Company’s affiliated companies against any amount due and owing to Vendor on this Purchase Order.

G. Company, including its agents or employees, shall, at all times, have access to the Work, including materials, and to all of Vendor’s books, vouchers, memoranda, records, data, and other documents relative to the Work, including materials for inspection, audit, or reproduction. Vendor shall preserve these records for six years after final payment, during which time the Company shall have the right to perform and audit, inspection or reproduction it may desire. If discrepancies or questions arise, the records shall be preserved until an agreement is reached between Company and Vendor. The Company reserves the right to recover any overcharges or incorrect charges from Vendor. Any audit conducted by the Company shall be at its expense expect that if it is determined that Vendor knowingly overcharged or incorrectly charged the Company, the Vendor shall be liable to Company for all damages, including the amount of the overcharge or incorrect charge and cost of audit or other investigation, including reasonable costs incurred in collection of such damages. Title to all Work covered by an application for payment shall pass to Company no later than at time of payment.

H. All such Work, including materials, shall be free and clear of any liens, claims, unsatisfied demands, and notices of intention, stop notices, unsatisfied judgments, security interests, or other encumbrances in favor of the Vendor or any other person or entity. Such passing of title shall not be deemed to constitute the Company’s acceptance on non‐conforming Work, including materials.

5. RELEASE OF LIENS.
A. In consideration of any payments, whether full, partial or disputed, made under this Purchase Order, Vendor hereby waives and forever releases Company and its real property from any past, present, or future lien notices, lien claims, liens, encumbrances, security interests, or other lien rights of any kind based, in whole or in part, on any work, services, material, or equipment provided, under these Terms and Conditions. In the event that any claims or liens are filed against the Company or its property by any of Vendor’s subcontractors or suppliers of Vendor, or their subcontractors, which in whole or in part, are based on any work, services, material, or equipment provided or to be provided under these Terms and Conditions, then Vendor, at no cost or expense to the Company, the Vendor shall immediately: (i) pay the claimant and obtain a discharge of lien claim from the claimant, or (ii) cause the lien claim to be discharged by filing a surety bond or making a deposit of funds as required by law, and (iii) take any and all other steps which may be necessary to resolve and discharge any lien claims or liens within five (5) days of notice of claim or lien to Vendor or by Company to Vendor.

B. Vendor shall defend, indemnify and hold harmless the Company from and against all liabilities, losses, damages, claims, judgments, penalties, fees, costs, or expenses (including reasonable attorney’s fees) due to any and all lien notices, claims, liens, encumbrances, security interests, or other encumbrance of any kind filed by Vendor, or any of Vendor’s subcontractors or suppliers, or by subcontractors or suppliers of Vendor’s subcontractors, which in whole or in part, are based on any work, services, material, or equipment provided, or to be provided under the Purchase Order and these Terms and Conditions.

C. In the event that any claims, liens or notices of liens are filed against the Company or its property by Vendor, or any of Vendor’s subcontractors or suppliers or by any subcontractors or suppliers of Vendor’s subcontractors, the Company shall have the right to withhold and pay the amount of the claim or lien directly to the claimant and deduct such amount from any amounts owed the Vendor.

6. DELIVERY.
A. All products and services must be delivered as specified in the Purchase Order. In the absence of specific shipping instructions, shipment shall be routed via the most economical mode of commercially reasonable transportation available. Time is of the essence with respect to delivery of products or services listed in the Purchase Order. Vendor must immediately advise Company if any product or service cannot be delivered as ordered by the stated date in Purchase Order.

B. Company shall be liable only for the shipping charges identified on the face of the Purchase Order. If Company is responsible for some or all of the shipping charges, shipping terms and rates must be agreed upon in advance. If Vendor elects a more expensive shipping method to meet a required delivery date, Vendor will be responsible for any increased shipping expense. No COD shipments or freight collect shipments will be accepted. Copies of freight bills must accompany invoices to receive payment. No service charges may be added to freight bills.

C. PARTIAL SHIPMENT/PERFORMANCE: At Company’s option, in the event of shipment or receipt of less than all products or services ordered, Company may either accept shipment or pay only for the products or services received, pro rata based on the unit price of the item ordered, or reject the entire shipment.

D. LATE SHIPMENT/PERFORMANCE: Company reserves the right to cancel the Purchase Order or any portion thereof if delivery is not made, or services not performed, when and as specified. Company may charge Vendor for any loss sustained as a result of such cancellation, including, but not limited to, shipping charges. Further, Company may reject the late delivery or performance without cancellation of the Purchase Order as to other subsequent required deliveries. Each shipment/performance required under the Purchase Order may be considered separately, and Company’s right to reject a late delivery shall not be affected by acceptance of other late deliveries/performance by Vendor. All such cancelled shipments shall be returned to Vendor at Vendor’s expense. Company reserves the right without liability, in addition to its other rights and remedies, to terminate this Purchase Order by notice effective when received by Vendor, as to stated items not yet shipped or services not yet rendered and to purchase substitute items or services elsewhere and charge Vendor with any loss incurred. Any provisions herein for delivery of articles or the rendering of services by installments shall not be construed as making the obligations of Vendor severable.

E. EARLY SHIPMENT: Vendor shall not, without the Company’s written consent, manufacture or procure materials in advance of Vendor’s normal flow time or deliver in advance of schedule. In the event of termination or change order, no claim will be allowed for any such manufacture or procurement in advance of such normal flow time, unless there has been such prior written consent. Company may, at its option, either retain items received in advance of the delivery schedule or return to Vendor at Vendor’s expense. The goods shall be shipped by Vendor in accordance with the shipment terms specified in this Purchase Order. The original bill of lading (referencing this Purchase Order #) and a packing list shall be delivered by Vendor to Company at the “ship to” address on this Purchase Order as far in advance of the arrival of the goods as possible. Company 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 of this Purchase Order. Vendor shall not manufacture, ship, or deliver goods in advance of any scheduled date without Company’s written consent. Company, at Company’s option, may refuse or return at Vendor’s expense all or any part of: (i) shipments which do not conform to the shipping or delivery dates specified by Company (whether early or late); (ii) shipments in excess of the quantities ordered or in lesser quantities than ordered; (iii) shipments which contain defective goods or which fail to conform to this Purchase Order; or (iv) goods which are not as represented or warranted. Any storage or warehouse charges incurred by Company due to delivery or shipment prior to the dates specified in this Purchase Order will be at Vendor’s expense.

F. INSPECTION AND TESTING: All products and services shall be subject to inspection and approval by Company after delivery or completion. Company reserves the right to reject any products or services that it deems non‐conforming, defective, stale, unsafe, unfit or in any other way unsuitable for its purposes. Company reserves the right to require replacement of rejected products or services as well as payment of damages, at Vendor’s expense. Rejected products or services in quantities in excess of the required order will be returned at Vendor’s risk and expense. Vendor shall use its best efforts to complete all punch lists and warranty work in a prompt and efficient manner, and so as to avoid any unnecessary disruption to Company’s operations.

G. ACCEPTANCE BY VENDOR: Acceptance of the Purchase Order shall be evidence of Vendor’s written notice of acceptance or by Vendor’s commencement of performance. Vendor acknowledges that it is familiar with the project requirements presented under this Purchase Order and understands the end use of the Project and Work. Vendor shall deliver an end product that functions for its intended end use and includes all labor, materials, equipment and services to fulfill the Vendor’s obligations, as stated or reasonably inferable from this Purchase Order.

Vendor shall be held to have inspected the premises where the work is to be performed before submitting its proposal to do the work described in the Purchase Order, and to have satisfied itself as to the conditions under which it will be obliged to operate, or that in any manner could affect the work under this Purchase Order.

It is the obligation of the Vendor to ascertain all the facts concerning conditions to be found at the location of the work, including all physical characteristics above, on, and below the surface of the ground, to consider fully these and all other matters which could in any way affect the work to be provided and to make the necessary investigations relating thereto.

H. ACCEPTANCE BY COMPANY: Acceptance of any work, system, software, or other goods set out under the Purchase Order shall be considered accepted by the Company once subject matter of Purchase Order is, including, but not limited to, shipped, received by Company and installed and tested and approved by the Company and fully operational or functional as required by Company.

I. REJECTIONS: Company reserves the right to reject and receive full credit for any articles or services which are defective as to material, workmanship, quality, or otherwise, or which are not in conformity with the specifications, drawings, or the sample approved by Company. If Company so chooses, without extra cost to Company, Vendor will immediately, upon receipt of written instruction from Company, replace all rejected material, including material damaged because of unsatisfactory workmanship by Company. If Company so chooses, without extra cost to Company, Vendor will immediately, upon receipt of written instruction from company, repay Company all amounts paid, including but not limited to all shipping, costs, fees taxes, and rental charges for damaged or defective materials rejected by Company. If Vendor wants rejected or damaged materials returned to Vendor by Company, Vendor shall make all arrangements for pickup and pay all costs of such return. Rejected articles shall not be resubmitted for acceptance without concurrent notice of their prior rejection. Vendor will be notified of defective material or material not in accordance with specifications of Company and such material will be returned to Vendor at Vendor’s expense.

J. PACKAGING: All packaging shall be in conformance with good commercial practice and industry standards. All containers shall have attached identification, MSDS label, including the Purchase Order # and material descriptions. No charge shall be made for cartons, wrapping, packing, boxing, crating, delivery, drayage or other costs, unless such charge is expressly provided in this Purchase Order. All items shipped must be clearly side‐marked as stated on the Purchase Order. Failure to side‐mark will result in back charges or penalties.

7. CHANGES. 
Company reserves the right, at any time prior to shipment, to make changes as to: (i) specifications; (ii) methods of shipment, packaging, or performance; (iii) place of delivery or performance; (iv) schedule of delivery or performance; or (v) the quantities of products/services ordered. If any such changes cause an increase or decrease in the cost of or the time required for performance of a Purchase Order, an equitable adjustment may, in the Company’s sole discretion, be made in the contract price and/or the delivery schedule. Any claim by Vendor for adjustment under this clause shall be deemed waived unless asserted in writing within ten (10) days from receipt by Vendor of the change. If the cost of property or services is made obsolete, or excessive as a result of such change is paid for by Company, Company shall prescribe the manner of disposition of such property. Nothing contained herein shall excuse the Vendor from proceeding without delay in performing this Purchase Order as changed.

8. CANCELLATION. 
Company may, after giving written notice to Vendor, cancel the Purchase Order:

A. If Vendor becomes insolvent, a petition is filed for reorganization of Vendor or for its adjudication as a bankrupt, Vendor makes an assignment for the benefit of its creditors, or a receiver or trustee is appointed for any of Vendor’s assets or any other type of insolvency proceeding or formal or informal proceeding for dissolution, liquidation or winding down of the affairs of the Vendor is commenced, Company may cancel this Purchase Order and seek damages from Vendor in accordance with law. In the event of any cancellation hereunder, Vendor shall cease any work or delivery and observe any instruction from Company as to work in progress.

B. Company reserves the right to terminate this Purchase Order or any part hereof for its sole convenience. In the event of such termination, Vendor shall immediately stop all work hereunder and shall immediately cause its suppliers or subcontractors to cease work. Vendor shall be paid for actual and verifiable work performed prior to the notice of termination. Vendor shall not be paid for any work done after receipt of the notice of termination, nor for any costs incurred by Vendor’s suppliers or subcontractors that which Vendor could reasonably have avoided. In no event shall Company be liable for attorneys’ fees incurred by Vendor.

C. If Vendor breaches or violates this Purchase Order, Company may, at its option: (i) terminate the Purchase Order as of the date of the breach; (ii) allow Vendor limited time to cure the breach; or (iii) pursue any other right or remedy to which Company may be entitled to in law or equity. Company’s pursuit of one of the above-described options does not limit or otherwise waive any other option under this Purchase Order at any law or equity.  Additionally, late deliveries, deliveries of products which are defective or which do not conform to this Purchase Order, and failure to provide Company, upon request, reasonable assurances of future performance shall each be cause allowing Company to terminate this Purchase Order for cause. In the event of termination for cause, Company shall not be liable to Vendor for an amount, and Vendor shall be liable to Company for any and all damages, including attorneys’ fees, sustained by reason of the default that gave rise to the termination.

D. FORCE MAJEURE: Company reserves the right at its option to either suspend shipments of materials covered by this Purchase Order or cancel this Purchase Order, in whole or part at any time where such suspension or cancellation caused by government order or other requirements, embargoes, acts of civil or military authorities, acts of public enemy, inability to secure transportation facilities, strikes, differences with workers, accidents at plant of Company, or by other law, order or regulation or other contingency beyond control of Company.

9. RISK OF LOS. 
Unless otherwise provided in this Purchase Order, goods shall be shipped “F.O.B. delivery” and all risk of loss of goods covered hereby shall be borne by Vendor until goods have been received and accepted by Company or received, installed, and accepted by Company, whichever is applicable.

10. VENDOR REPRESENTATIONS AND WARRANTIES.
Vendor represents and warrants that: (a) Vendor owns all rights, title, license and interests in the products and services and has the legal authority to sell, license or otherwise transfer the right to use or sell such items to Company; (b) the products and services covered under the Purchase Order are of good and merchantable quality and free from defects in design, material, and workmanship, are safe and conform to applicable specifications, drawings, samples, descriptions, and associated documentation provided to Company in writing; (c) where applicable, any consumable products are fresh and suitable for human consumption; (d) the products and services, and the production and sale thereof, and all warranties, guarantees, representations by Vendor made or authorized to be made in connection therewith are in all respects in compliance with all applicable international (including applicable import and export regulations), federal, state, local laws, rules, and regulations; (e) the goods and services are fit for the use intended; (f) neither the products and/or services, nor their sale or use will infringe any patents, trademarks, copyrights, trade secrets, or similar intellectual property rights of any third party, (g) that the Vendor is in compliance with all applicable laws and regulations, and (h) that the Vendor will timely pay any and all fees or charges due to any subcontractor, sub‐Vendor, licensor or other party for which any services, products or other items are acquired for or made part of any work for Company. The foregoing representations and warranties shall survive termination of any Purchase Order. Vendor shall, at Company’s option, either (i) promptly repair or replace the defective goods or services at the Vendor’s cost, or (ii) issue a full refund (including shipping and any other expenses incurred by Company). If Vendor does not replace rejected goods or services within a reasonable time, Company may purchase substitute goods or services elsewhere. If the cost of purchasing such substitute goods or services exceeds the price stated in the order, then Vendor shall pay the difference to Company. This payment shall not prejudice any other rights Company may have against Vendor. Vendor must provide Material Safety Data Sheets (MSDS) for products as required by law. In the event Vendor is supplying, storing, using, or selling such products, materials or substances pursuant to the Purchase Order, Vendor shall provide property prepared MSDS to Company fifteen (15) days prior to (a) the delivery to and/or storage of such materials or substances at Company’s premises or (b) the commencement of any work to be performed in conjunction with the Purchase Order. All provisions and remedies of the Uniform Commercial Code relating to both implied and expressed warranties are herewith referred to and made a part of this Purchase Order. All warranties shall be construed as conditions as well as warranties and shall be in addition to all warranties implied by law. All warranties shall survive acceptance and payment and shall run to Company, its successors, assigns, customers, and their users of its products and services, and shall not be determined to be exclusive. This warranty is in addition to any warranties of additional scope given by Vendor to Company.

11. INDEMNIFICATION.
Vendor will indemnify, defend, and hold harmless Company, its officers, directors, employees, affiliates, and agents from all liabilities, claims of liability, or expenses (including attorneys’ fees and expert witness fees) arising directly or indirectly in connection with Vendor’s: (i) negligent acts, omissions or intentional wrongdoing; (ii) violation of any applicable laws, ordinances, regulations, or rules; and (iii) breach or alleged breach of these Terms and Conditions, including, but not limited to, the representations, warranties and covenants herein. In case of a claim for which Company is entitled to indemnity, Vendor shall assume the defense of the claim, conduct all proceedings or negotiations and take all other required or appropriate steps to settle or defend any such claim. Company shall have the right, but not the obligation, to employ separate counsel and participate in the defense thereof at its own expense. The provisions of this Section shall survive the expiration or earlier termination of this Purchase Order.

12. INTELLECTUAL PROPERTY INDEMNITY.
In the event that the software or intellectual property licensed hereunder (collectively, the “Licensed Property”) infringes any U.S. copyright, patent or trademark of a third party not affiliated with Company, Vendor shall defend and indemnify Company against any claim of such infringement and shall pay any monetary judgments, attorneys’ fees, and costs awarded to the third party for such infringement, provided that (i) Company promptly gives notice to Vendor of the claim against Company alleging such infringement; provided, however, that failure to provide such notification shall not relieve Vendor of its obligation except to the extent that such delay or failure materially and adversely prejudices Vendor’s ability to defend such claim, (ii) Company allows Vendor to control the defense and settlement of such claim, including any litigation, arbitration, mediation and settlement negotiations; provided, that Vendor shall not be permitted to enter into any settlement that constitutes an admission of guilt or wrongdoing on the part of Company or such claim imposes any obligation on Company other than a monetary payment for which Company is indemnified by Vendor hereunder, (iii) Company reasonably cooperates with Vendor in connection with the defense and settlement of such claim, and (iv) if requested by Vendor, Company ceases all use of the infringing Licensed Property and returns it to Vendor. If Company is enjoined from continued use of any infringing Licensed Property or if Company ceases use of any Licensed Property at the request of Vendor under (iv) above, then Vendor shall (at its option and expense) (a) obtain a license or right for Company to continue use of the infringing Licensed Property, (b) modify the infringing Licensed Property to eliminate the infringement (while having the same or additional functionality and comparable or improved performance characteristics) and provide such modified Licensed Property to Company, or (c) provide substitute non-infringing Licensed Property to Company (such substitute Licensed Property will for purposes of this Purchase Order replace and then constitute “Licensed Property” under this Purchase Order). The provisions of this Section shall survive the expiration or earlier termination of this Purchase Order.

13. INSURANCE.
Vendor shall obtain and maintain in force the following insurance coverage from insurance companies authorized to do business in Nevada (or with an AM Best rating of A- VII or higher), covering the activities under this Purchase Order during the Term of this Purchase Order, which may be maintained through a combination of primary and umbrella coverage:

A. Workers’ Compensation Insurance. Vendor shall maintain workers’ compensation insurance with the statutory limits as required by State of Nevada with a minimum of $1,000,000.00 Employers Liability.

B. Automobile Liability Insurance. Vendor shall maintain automobile liability insurance for bodily injury and property damage liability of $1,000,000.00 combined single limit for any one accident covering any auto whether owned, non-owned and hired.

C. Commercial General Liability Insurance. Vendor shall maintain commercial general liability insurance with a combined single limit of $1,000,000.00 per occurrence for bodily injury, personal injury and/or property damage liability. If such policy includes a general aggregate limit, then the general aggregate limit shall not be less than $2,000,000.00. The commercial general liability insurance shall be written on an ISO occurrence form including bodily injury, personal injury, products liability, completed operations, blanket contractual liability, broad form property damage, third party property damage, broad-form additional insured language, and contain separation of insured language and shall not exclude cross suits by any insured, including additional insureds under the policy.

For all policies, Vendor agrees to have insurer provide thirty (30) days prior written notice of cancellation, non-renewal or modification of coverage to Company. Vendor further agrees that it will name Bowtie Hospitality LV LLC and its parent, subsidiary and affiliated companies and the officers, directors, agents, shareholders and employees of each as additional insured (together the “Additional Insureds”) in its policies. Vendor shall submit any and all appropriate insurance certifications to Company evidencing coverage, limits and naming the Additional Insureds to:

Bowtie Hospitality LV LLC
2777 South Las Vegas Blvd.
Las Vegas, NV 89109
Attn: General Counsel

All policies shall contain a Waiver of Subrogation in favor of the Additional Insureds, which shall be endorsed onto the policy.  Additionally, all of the required insurance policies will cover acts of terrorism or if such required insurance policies contain an exclusion for acts of terrorism, Vendor shall obtain a stand-alone policy that provides the same terrorism coverage as the insurance policies required would have if such exclusion did not exist.  

The consent of Company to the insurance and limits insured, as shown herein, shall not be considered as a limitation of Vendor’s liability under this Purchase Order or an agreement by Company to assume liability in excess of said amounts or for risks not insured against. All insurance required under this Purchase Order shall be primary and non-contributory to any other insurance of Company or any other party covering the same risk of loss. Under no circumstances shall this Purchase Order be interpreted to require that Company provide insurance coverage to Vendor or its employees, agents, or independent contractors.

14. LIMITATION OF LIABILITY.
A. Neither party shall be liable to the other for any special, incidental, punitive or consequential damages, including lost profits, income or goodwill, regardless of whether or not such party has been advised of the possibility of such damages, caused by or resulting from any breach of this Purchase Order or arising out of the performance of this Purchase Order, and each party hereby expressly waives such damages.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN THE PURCHASE ORDER OR OTHERWISE, IN NO EVENT SHALL VENDOR BE ENTITLED TO ANY PAYMENT ON ACCOUNT OF LOST PROFITS OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH ANY TERMINATION OF THE PURCHASE ORDER, OR OTHERWISE IN CONNECTION WITH THE PURCHASE ORDER AND THESE TERMS AND CONDITIONS. The provisions of this Section shall survive the expiration or earlier termination of this Purchase Order.

B. The Parties agree that the limitations of liability forth in subsection (a) above shall not apply to a Party’s (i) willful misconduct, (ii) gross negligence, (iii) breach of its confidentiality obligations herein, or (iv) indemnification obligations set forth herein, or (v) or to the extent such claims are covered by applicable insurance.

15. WORK FOR HIRE.
Vendor and Company intend for this Purchase Order to constitute a contract for services. Vendor acknowledges and agrees that any work product created by Vendor pursuant to this Purchase Order or otherwise in the course of performing services for Company (collectively, the “Deliverables”) shall be a “Work Made for Hire” as that term is used under Section 101 of Title 17 of the United States Code (the Copyright Act) for works of intellectual property. The Deliverables shall include any work product created by Vendor under the direction, authority and control of Company prior to the effective date of this Purchase Order. Vendor acknowledges and agrees that the Deliverables (and all rights therein, including, without limitation, copyrights) belong to and shall be the sole and exclusive property of Company. If for any reason a Deliverable is not considered a Work Made for Hire under applicable law, Vendor does hereby sell, assign, and transfer to Company, its successors and assigns, effective as of the date of this Purchase Order or the date of the creation of the Deliverable (whichever is earlier), the entire right, title and interest in the Deliverable (including all copyrights therein) and any registrations and applications relating thereto and any renewals and extensions thereof, and in and to all works based upon, derived from, or incorporating the Deliverable, and in and to all income, royalties, damages, claims and payments now or hereafter due or payable with respect thereto, and in and to all causes of action, either in law or in equity for past, present, or future infringement based on the copyrights, and in and to all rights corresponding to the foregoing throughout the world. In addition, Vendor transfers, sets over, or otherwise fully assigns any residual federal or state statutory rights, and all artist’s moral rights or their equivalent that Vendor may have in the Deliverables, including without limitation, any right to prevent modification of the Deliverables, any rights to receive attribution of authorship, or any right to control the Deliverables. Vendor shall acquire no moral rights in the Deliverables by virtue of the services performed under this Purchase Order and hereby waives and forgoes any such right or claim. Vendor agrees to execute any documents and do other acts as may be reasonably necessary for Company to perfect and enforce its rights in the Deliverables. The provisions of this Section shall survive the expiration or earlier termination of this Purchase Order.

16. PREMISES.
Vendor must comply with all reasonable regulations and policies communicated by Company to Vendor concerning Vendor’s conduct on Company’s premises vendor warrants and represents they have communicated company policies and regulations with their subcontractors. Vendor shall review and be responsible for the safety programs for the work, as required by best practices and law for undertaking the work, require that all subcontractor’s comply with all Federal, State and local safety, health, equal opportunity and affirmative action, environmental protection and any other legal requirements. Vendor shall take all precautions necessary to protect from personal injury, death or occupational disease, all workers and all other persons who may be on or about that portion of the premises or site upon which the work is being done.

17. CONFIDENTIALITY.
Vendor agrees to keep confidential or proprietary information (“Confidential Information”) that it may receive from Company during the course or in the performance of this Purchase Order in strict confidence and shall not disclose such Confidential Information to any third party, except to Vendor’s employees who need to know such Confidential Information to perform their obligations hereunder, but only to the extent so needed. Confidential Information shall not include information that: (i) is in the public domain prior to execution of this Purchase Order or enters into the public domain after such execution without Vendor’s breach of this Purchase Order; (ii) is independently developed by Vendor hereunder; or (iii) Vendor is required to disclose pursuant to court order (provided however, that Vendor shall promptly notify Company of such court order, so that Company can take legal measures to protect such disclosure). The provisions of this Section shall survive the expiration or earlier termination of this Purchase Order.

18. COMPLIANCE WITH LAWS.
Vendor shall comply with all federal, state, provincial and local laws, regulations and code requirements applicable to its performance of its obligations hereunder. Vendor’s failure to comply with any such laws or regulations shall be a default by Vendor, and Company may, at Company’s option, terminate this Purchase Order for cause pursuant to the provisions hereof. Vendor warrants that (i) it has 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 required hereunder, and (ii) the goods purchased by Company hereunder and the services performed by Vendor hereunder shall be in compliance with applicable local, state and federal laws, rules, regulations, ordinances, directives and similar requirements.

19. ANTI-CORRUPTION REPRESENTATIONS.
A. Each party hereby represents and warrants that in carrying out such party’s responsibilities under the Purchase Order, neither party, nor any of its subsidiaries or affiliates, nor any director, officer, employee, or agent thereof, will offer, provide, or promise anything of value (including money, gifts, preferential treatment, and anything of value), either directly or indirectly, to a Government Official (defined below) for the purposes of influencing an act or decision in that Government Official’s official capacity, or inducing the Government Official to use his or her influence with a government to assist the party, its subsidiaries or affiliates, or anyone else, in obtaining or retaining business or securing an improper advantage.  A “Government Official” is defined to include officers, office holders, and employees, full or part time, regardless of rank, of any foreign or domestic governments, government agencies, companies owned or controlled by a government, and public international organizations.  “Government Official” also includes political parties, party officials, candidates for public office, and family members of Government Officials. This paragraph is intended to address and specifically prohibit any conduct that would constitute a violation of the Foreign Corrupt Practices Act, or any other federal, state, or local anti-corruption law, ordinance, or regulation, whether foreign or domestic.  

B. Each party further represents that, except as otherwise notified in writing to the other party at the time of the signing of this Purchase Order, none of its partners, employees, agents or contractors (as well as any partners, owners, principals, employees, and agents of the contractors) are a Government Official. 

C. In the event that either party has a reason to believe that a breach of any of the anti-corruption representations and warranties has occurred or will occur, said party will have the right to audit the other party in order to satisfy itself that no breach has occurred.  The parties shall fully cooperate in any such audit. 

D. In the event of a breach of any of the anti-corruption representations and warranties, this Purchase Order may be cancelled upon written notice by either party upon service of written notice upon the breaching party, and the non-breaching party shall have the right to disclose the details of such breach to the appropriate regulatory and law enforcement agencies, and shall also have the right to indemnification if the breaching party’s conduct causes the non-breaching party to incur expenses or sustain losses as a result of the breach.

20. INDEPENDENT CONTRACTOR.
Vendor is and shall be at all times in the performance of its services hereunder an independent contractor. Vendor is not authorized to represent itself as Company’s agent and any expenditure incurred by Vendor on behalf of Company shall be pre-approved by Company. Vendor shall be solely responsible for, and agrees to comply with, all applicable laws regarding payment and withholding of state, local and federal taxes, fees or charges. Neither party shall be liable for any ad valorem, income, franchise, privilege, occupational or similar taxes of the other party.

21. SUBCONTRACTORS.
Vendor may use subcontractors in connection with its performance under these Terms and Conditions; provided, that Vendor shall (i) provide Fontainebleau with a list of current subcontractors immediately upon execution of these Terms and Conditions, (ii) provide Fontainebleau with any changes to the list of Subcontractors within thirty (30) days after such change occurs, (iii) ensure its subcontractors’ compliance with the these Terms and Conditions, (iv) Vendor shall be solely responsible for the acts and omissions of its subcontractors to the same extent as it would be responsible hereunder for its own acts and omissions, and (v) Vendor verifies that Vendor has done a background check on each of its subcontractors. In addition, Vendor shall be solely responsible for the management and payment of all of its subcontractors.

22. PUBILICITY.
Neither party shall make any public announcement of this Purchase Order or the business relationship between Vendor and Company. Vendor shall not acquire any right under this Purchase Order to use and shall not use, the name “Fontainebleau,” “Fontainebleau Las Vegas” or any other trademark, trade name or service mark of Company or any of its affiliates, in any advertising, publicity, promotion or otherwise without the expressed written consent of Company, which consent may be withheld in its sole and absolute discretion; nor shall Vendor express or imply any endorsement by Company of Vendor’s services or products in any other manner whatsoever (whether or not similar to the uses herein above specifically prohibited).

23. PRIVILEGED LICENSES.
Vendor acknowledges that Company and its affiliates are businesses that are subject to and exist because of privileged licenses issued by governmental authorities.  requested to do so by Company, Vendor shall obtain any license, qualification, clearance or the like which shall be requested or required of Vendor by any regulatory authority having jurisdiction over any parent, subsidiary or affiliate of Company. If Vendor fails to satisfy such requirements or if Company or any parent, subsidiary or other affiliate of Company is directed to cease business with Vendor by any such authority, or if Company shall in good faith determine, in Company’s sole and exclusive judgment, that Vendor or any of its officers, directors, employees, agents, designees or representatives (a) is or might be engaged in, or about to be engaged in, any activity or activities, or (b) was in or is involved in any relationship which could or does jeopardize Company’s business or such licenses, or those of its parent, subsidiaries or affiliates, or if any such license is threatened to be, or is, denied, curtailed, suspended or revoked, then Company shall have the right under this Section to immediately terminate this Purchase Order by written notice to Vendor without any further liability to Vendor; provided that Vendor shall be entitled to any amounts due at the time of such termination. In addition, Vendor and Company each hereby acknowledges that it is illegal for a denied license applicant or a revoked licensee (pursuant to the laws, rules and regulations of the Nevada and other gaming authorities), or a business organization under the control of a denied license applicant or a revoked licensee, to enter into, or attempt to enter into, a contract with the other party without the prior approval of the appropriate gaming authorities. Vendor and Company each hereby affirms, represents and warrants to the other party that it is not a denied license applicant, a revoked licensee or a business organization under the control of a denied license applicant or a revoked licensee, and Vendor and Company each hereby agrees that this Purchase Order is subject to immediate termination by the other party (without any liability to either party) if it should become a denied license applicant, a revoked licensee or a business organization under the control of a denied license applicant or a revoked licensee.

24. DUE DILIGENCE REVIEW.
Vendor understands and agrees that Company may conduct due diligence on Vendor and its affiliates, employees, agents, and independent contractors prior to execution, or during the course of, this Purchase Order. In connection therewith, Vendor agrees to provide Company with any and all documents and/or information requested for purposes of the due diligence review, and hereby releases any and all third parties that Company may contact or that otherwise provide information to Company in connection with the due diligence review. Vendor further understands and agrees that its performance, or continued performance, under this Purchase Order, or that of its affiliates, employees, agents or independent contractors, shall be subject to and conditioned upon the results of such due diligence review, which shall be determined in Company’s sole and absolute discretion.

25. AUDIT INSPECTION OF RECORDS.
Vendor shall keep adequate records of payable hours of direct labor and all costs of the performance of this Purchase Order, which shall be subject to audit by Company in the event of cancellation or with respect to any Purchase Order for which the price is based on time and cost of material.

26. NOTICE OF LABOR DISPUTES.
Whenever an actual or potential labor dispute is delaying or threatening to delay the timely performance of this Purchase Order, Vendor shall immediately give written notice thereof to Company.

27. PROPERTY FURNISHED TO VENDOR BY COMPANY.
Unless otherwise agreed in writing, all special dies, molds, patterns jigs, fixtures, and other property furnished to Vendor by Company, or specifically paid for by Company for use in the performance of this contract, shall be and remain the property of Company, shall be subject to removal upon Company’s instruction, shall be used only in filling Purchase Orders from the Company, shall be held at Vendor’s risk and shall be kept insured by Vendor at the Vendor’s expense while in its custody or control in an amount equal to the replacement cost thereof, with the loss payable to Company. Copies of policies or certificates of such insurance will be furnished to Company on demand. Vendor’s invoice for special tools, dies, jigs, fixtures, molds, patterns and the like shown as a separate item on the face of this Purchase Order will not be paid by Company until production quantities or samples are received from Vendor and are accepted by Company. Vendor shall give written notice to the landlord, if any, that property of Company has been placed on the Vendor’s leased premises and that such property is not subject to the landlord’s lien.

28. TITLE TO NEW INVENTIONS. 
If this is a Purchase Order for experimental, developmental or research work, Vendor hereby assigns to Company all rights, title and interest for the entire world in and to any invention conceived or first actually reduced to practice during performance of this Purchase Order. Vendor will promptly furnish interest for the entire world in and to any invention conceived or first actually reduced to practice during performance of this Purchase Order. Vendor will promptly furnish Company written disclosure of any such invention and cause to be executed and acknowledged any document required to secure patent therefore.

29. WAIVER.
Failure of Company to insist upon strict performance of any conditions of this Purchase Order shall not constitute a waiver of such conditions or a waiver of any default.

30. REMEDIES.
In addition to remedies provided elsewhere herein or in the Purchase Order, Company shall have all other rights and remedies available to it under applicable law.

31. ATTORNEYS’ FEES.
In the event of any such action for breach of, to enforce the provisions of, or otherwise involving this Purchase Order, the court in such action shall award a reasonable sum as attorney’s fees to the party who, in the light of the issues litigated and the court’s decision on those issues was more successful in the action. The more successful party need not be the party who recovers a judgment in the action. If a party voluntarily dismisses an action, a reasonable sum as attorney’s fees shall be awarded to the other party.

32. NOTICE.
Any notice required or permitted to be given pursuant hereto shall be in writing and be deemed given when delivered personally or when deposited in a sealed envelope in the United States mail postage prepaid, addressed to the party’s mailing address listed on the Purchase Order or to such address as either party may direct by notice given to the other as provided by this sentence. Either party may change its address for notices from time to time by sending a written notice of the change to the other party as set forth herein.

33. FURTHER ASSURANCES.
Vendor will, whenever and as often as Vendor shall be requested to do so by Company, execute, acknowledge, and deliver, or cause to be executed, acknowledged, and delivered, any and all such further conveyances, assignments, approvals, consents and any and all other documents and to do any and all other acts as may be necessary to carry out the intent and purpose of this Purchase Order or any document referred to herein.

34. ASSIGNMENT AND SUCCESSORS. 
Vendor shall not assign rights or delegate duties under the Purchase Order or these Terms and Conditions, or subcontract any part of the performance required under the Purchase Order, without the express written consent of Company. No such consent shall be deemed to relieve Vendor of its obligations to comply fully with the requirements of the Purchase Order. Subject to the foregoing, the Purchase Order and these Terms and Conditions shall insure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.

35. GOVERNING LAW; VENUE; ATTORNEYS' FEES.
This Purchase Order shall be governed by, and construed in accordance with, the laws of the State of Nevada, without regard to choice of laws principles. Venue and jurisdiction of any suit brought to enforce the provisions of this Purchase Order shall lie exclusively in Clark County, Nevada. For all purposes, this Purchase Order shall be deemed to have been negotiated and executed in Las Vegas, Clark County, Nevada. Vendor hereby waives any and all objections to venue and jurisdiction of any dispute hereunder lying in Clark County, Nevada, and hereby consents to exclusive personal jurisdiction within Clark County, Nevada. In any litigation relating to this Purchase Order, the prevailing party shall be entitled to its reasonable attorney’s fees and costs.

36. SEVERABILITY.
If any provision of this Purchase Order is unenforceable for any reason, it shall be stricken from this Purchase Order but shall not affect the intention of the parties or any other provision of this Purchase Order.

37. COUNTERPARTS.
The parties agree that this Purchase Order can be signed in counterparts or in duplicate originals and that facsimile signatures have the same effect as original signatures. This Purchase Order may be executed by original signature or digital signature using digital software that electronically captures, or otherwise allows a signatory to adopt, an identifying mark such as a person’s signature to this Purchase Order and provides a means of authenticating such mark (e.g., DocuSign, Adobe Sign or similar software program).

38. CAPTIONS; CONSTRUCTION; DRAFTING AMBIGUITIES.
The captions in this Purchase Order are for convenience only and shall not be used in interpreting it. Each party has had equal bargaining power and has been represented (or has had the opportunity to be represented) by independent counsel of its own choosing. Any rule of construction that a document is to be construed against the drafting party shall not apply.

39. SURVIVAL.
The parties acknowledge and agree that any section of this Purchase Order that, by its nature, is intended to survive the expiration or termination of this Purchase Order so shall survive.

40. AMENDMENT; MODIFICATION. 
This Purchase Order may not be amended or modified without the prior written consent of both parties.

41. ENTIRE AGREEMENT.
The Purchase Order and these Terms and Conditions constitute the entire agreement and understanding between the parties with respect to the subject matter contained in the Purchase Order and these Terms and Conditions and Company shall not be bound by any other terms, including, without limitation, any terms that may be contained in any acknowledgement, contract, proposals, invoice form, Vendor’s website or correspondence, or other act of Vendor and notwithstanding Company’s purchasing department’s act of accepting or paying for any shipment or similar act of the purchasing department.