TERMS AND CONDITIONS – DGMB CASINO, LLC, d/b/a RESORTS CASINO HOTEL (“Purchaser”)

1. ACCEPTANCE – AGREEMENT.  All vendors responding to a request for quote or providing goods or services pursuant to a purchase order (hereinafter referred to as “Seller”) agree to be bound by the following Terms and Conditions (“Terms and Conditions”).  Seller’s commencement of work or delivery of goods subject to this purchase order shall be deemed an effective acceptance of these Terms and Conditions.  Any proposal by Seller for additional or different terms and conditions or any attempt by Seller to vary in any degree any of these Terms and Conditions in Seller’s acceptance is hereby objected to and rejected, and these Terms and Conditions shall be deemed accepted by Seller without said additional or different terms and conditions unless agreed to in writing by Purchaser.  If this purchase order shall be deemed an acceptance of a prior offer by Seller, such acceptance is limited to these express Terms and Conditions.  Purchase orders submitted by Purchaser through facsimile or electronic means shall be treated in all respects by Seller as a duly executed original purchase order and Seller’s agreement to be bound by these Terms and Conditions.
2. INVOICE.  Seller shall render a separate invoice for each shipment.  Invoices must be rendered not later than the day following shipment or completion of services rendered.  Bill of lading or express receipt if sale of goods is involved must accompany invoice.  All invoices, shipping paper and packages must be clearly marked with Order Number. Payment terms are Net 45 unless otherwise specified
3. TERMINATION FOR CONVENIENCE OF PURCHASER.  Purchaser reserves the right to terminate this purchase order or any part hereof for its sole convenience.  Notification of such termination shall be in writing and upon such notification; Seller shall immediately stop all work hereunder, and shall immediately cause any of its suppliers or subcontractors to cease such work.  Seller shall only be paid actual direct costs resulting from termination.  Seller shall not be paid for any work done after receipt of the notice of termination, nor for any costs incurred by Seller’s suppliers or subcontractors which Seller could reasonably have avoided.
4. TERMINATION FOR CAUSE.  In addition to the terms set forth under paragraph 3, Purchaser reserves the right to terminate this purchase order in the event Seller becomes insolvent, files a voluntary petition in bankruptcy, makes an assignment for the benefit of creditors, or in the event of the filing of an involuntary petition to have Seller declared bankrupt or the appointment of a receiver or trustee for Seller.  Purchaser may also terminate this purchase order or any part hereof for cause in the event of any default by Seller or if Seller fails to comply with any of the terms and conditions of this purchase order.  Late deliveries, deliveries of products which are defective or which do not conform to this purchase order, and failure to provide Purchaser, upon request, of reasonable assurances of future performance shall all be causes allowing Purchaser to terminate this purchase order for cause.  In the event of termination for cause, Purchaser shall only be liable to Seller for any goods and services accepted to the date of termination.  In no event shall prior Purchaser be liable for payments for non-conforming goods and/or services, and Seller shall be liable to Purchaser for any and all damages sustained by reason of the default which gave rise to the termination.
5. PROPRIETARY INFORMATION – CONFIDENTIALITY – ADVERTISING.  Seller shall consider all information furnished by Purchaser to be confidential and shall not disclose any such information to any other person, or use such information itself for any purpose other than performing its obligations under this purchase order, unless Seller obtains written permission from Purchaser to do so.  This paragraph shall apply to drawings, specifications, or other documents prepared by Seller for Purchaser in connection with this purchase order.  Seller shall not advertise or publish the fact that Purchaser has contracted to purchase goods or services from Seller, nor shall any information relating to the purchase order be disclosed without Purchaser’s written permission.  Unless otherwise agreed to in writing, commercial, financial or technical information disclosed in any manner or at any time by Seller to Purchaser shall be deemed secret or confidential and Seller shall have no rights against Purchaser with respect thereto except such rights as Seller may have under patent laws.  Seller’s obligations under this paragraph shall survive termination of this purchase order.
6. WARRANTY.  Seller expressly warrants that all goods or services furnished under this purchase order shall conform to all specifications and appropriate standards, will be new, and will be free from defects in material or workmanship.  Seller warrants that all such goods or services will conform to any statements made on the containers or labels or advertisements for such goods or services, and that any goods will be adequately contained, packaged, marked, and labeled.  Seller warrants that all shipments of hazardous materials under this purchase order shall comply with current U.S. Department of Transportation regulations as published in 49 CFR 100-185 and the labeling shall meet the current U.S. Occupational Safety and Health Administration regulations as published in 29 CFR 1910.1200 for the transporting and labeling of hazardous materials.  Seller warrants that Material Safety Data Sheets shall be supplied with the first shipment of all hazardous materials, and these sheets shall be resubmitted if any changes or updates, as required, are made.  Seller warrants that all goods or services furnished hereunder will be merchantable, will be safe and appropriate for the purpose for which goods or services of that kind are normally used, and will be free from defects.  If Seller knows or has reason to know the particular purpose for which Purchaser intends to use the goods or services, Seller warrants that such goods or services will be fit for such particular purpose.  Seller warrants that goods or services furnished will conform in all respects to samples.  Seller warrants that such goods or services do not infringe any patents, trademarks or copyrights.  Inspection, test, acceptance or use of the goods or services furnished hereunder shall not affect the Seller’s obligation under this warranty, and such warranties shall survive inspection, test, acceptance and use.  Seller’s warranty shall run to Purchaser, its successors, assigns and customers, and users of products sold by Purchaser.  Seller agrees to replace or correct defects of any goods or services not conforming to the foregoing warranty promptly, without expense to Purchaser, when notified of such nonconformity by Purchaser, provided Purchaser elects to provide Seller with the opportunity to do so.  In the event of failure of Seller to correct defects in or replace nonconforming goods or services promptly, Purchaser, after reasonable notice to Seller, may make such corrections or replace such goods and services and charge Seller for all reasonable costs incurred by Purchaser in doing so.
7. PRICE WARRANTY.  Seller warrants that the prices for the articles sold Purchaser hereunder are not less favorable than those currently extended to any other customer for the same or similar articles in similar quantities.  In the event Seller reduces its price for such article during the term of this order, Seller agrees to reduce the prices hereof correspondingly.  Seller warrants that prices shown on this purchase order shall be complete, and no additional charges of any type shall be added without Purchaser’s express written consent.  Such additional charges include, but are not limited to, shipping, packaging, labeling, custom duties, taxes, storage, insurance, boxing, crating, and fuel surcharges.
8. FORCE MAJEURE.  Purchaser may delay delivery or acceptance occasioned by causes beyond its control.  Seller shall hold such goods at the direction of the Purchaser and shall deliver them when the cause affecting the delay has been removed.  Purchaser shall be responsible only for Seller’s direct additional costs in holding the goods or delaying performance of this agreement at Purchaser’s request.  Causes beyond Purchaser’s control shall include an act of God, war, civil disorder, job action, strike, lockout, material or labor restrictions by any governmental authority, unusually severe weather, flood, fire, limitations of access imposed by order of civil authority or any other cause beyond the reasonable control of Purchaser (each, a “Force Majeure Event”).  In the alternative, Purchaser may terminate the purchase order upon a Force Majeure Event and shall not be liable to Seller for any damages or for any goods or services not already accepted by Purchaser.
9. PATENTS AND TRADEMARKS.  Seller agrees upon receipt of notification to promptly assume full responsibility for defense of any suit or proceeding which may be brought against Purchaser or its agents, customers, or other vendors for alleged patent, trademark or copyright infringement, as well as for any alleged unfair competition resulting from Purchaser’s use of any of Seller’s goods and services, including but not limited to, similarity in design, trademark or appearance of goods, or services furnished hereunder, and Seller further agrees to indemnify Purchaser, its agents and customers against any and all expenses, losses, royalties, profits and damages including court costs and attorneys’ fees resulting from any such suit or proceeding, including any settlement.  Purchaser may be represented by and actively participate through its own counsel in any such suit or proceeding if it so desires, and the costs of such representation shall be paid by Seller.  Seller’s obligations under this section shall survive termination of this purchase order.
10. INDEPENDENT CONTRACTOR.  In the event that Seller’s obligations hereunder require or contemplate performance of services by Seller’s employees, or persons under contract to Seller, to be done on Purchaser’s property, or property of Purchaser’s customers, the Seller agrees that all such work shall be done as an independent contractor and that the persons doing such work shall not be considered employees, agents or representatives of the Purchaser.  Seller shall have no authority to assume or create any commitment or obligation on behalf of Purchaser or to bind Purchaser in any respect whatsoever.  Subject to the requirements of these terms, Seller shall have sole control, supervision, direction and responsibility over its employees.  Neither Seller nor its employees shall be entitled to any of the benefits to which employees of Purchaser may be entitled.
11. INSURANCE. Seller shall maintain all necessary insurance coverages, including public liability/general commercial liability insurance, including automobile liability insurance, in the minimum amount of $2 million, workers’ compensation insurance as required by law and such other insurance as is customary and appropriate for organizations engaged in the type of work described herein.  All insurance shall contain a thirty (30) day cancellation clause, and Seller shall provide Purchaser with certificates of insurance upon request. If requested by Purchaser, the above referenced insurance certificate shall also name Purchaser as an additional insured.
12. INDEMNIFICATION.  Seller shall defend, indemnify and hold harmless Purchaser against all damages, claims or liabilities and expenses (including attorneys’ fees) arising out of or resulting in any way from (i) any defect in the material, workmanship or the goods or services purchased hereunder, or from any act or omission of Seller, its agents, employees, contractors or subcontractors; (ii) any actual or alleged breach of any of the warranties, representations or other obligations set forth in this purchase order; (iii) any injury to person or property occurring during the installation of any work or the performance of any services rendered pursuant to this purchase order or arising out of the use or consumption of goods purchased thereon; or (iv) any recalls of the goods, whether voluntary or involuntary, (v) any actions taken to comply with all laws, regulations, rules, guidelines, ordinances and standards governing the casino industry; or (vi) failure of the goods and services delivered to conform to all specifications and appropriate standards, any statements made on the containers or labels or advertisements for such goods or services or samples delivered to Purchaser.  This indemnification shall be in addition to the warranty obligations of Seller.  Seller’s obligations under this section shall survive termination of this purchase order.
13. CHANGES.  Purchaser shall have the right at any time to make changes in drawings, designs, specifications, materials, packaging, time and place of delivery and method of transportation.  If any such changes cause an increase or decrease in the cost, or the time required for the performance, an equitable adjustment shall be made and this agreement shall be modified in writing accordingly.  Seller agrees to accept any such changes subject to this paragraph.
14. INSPECTION/TESTING.  Payment for the goods delivered or services rendered hereunder shall not constitute acceptance thereof.  Purchaser shall have the right to inspect such goods and servicesand to reject any or all of said goods and services which are, in Purchaser’s sole judgment, defective or nonconforming.  Goods rejected and goods supplied in excess of quantities called for herein may be returned to Seller at Seller’s expense and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods.  In the event Purchaser receives goods whose defects or nonconformity is not apparent on examination, Purchaser reserves the right to require replacement or revoke its prior acceptance, as well as require Seller to pay any actual damages.  Purchaser may also purchase substitute goods or services elsewhere and charge Seller with any loss incurred.  Nothing contained in this purchase order shall relieve in any way the Seller from the obligation of testing, inspection and quality control
15. IDENTIFICATION, RISK OF LOSS, TITLE.  Identification of the goods under Section 2-501 of the Uniform Commercial Code, as enacted in the state Purchaser is located, shall occur at the moment this purchase order is accepted by Seller.  Title to the goods shall pass to Purchaser as soon as the goods are identified.  Risk of loss, however, shall remain with the Seller until the goods are received and accepted by Purchaser, in accordance with the provisions set forth in Section 14 above.
16. EQUIPMENT.  Seller shall provide, at its expense all manpower, equipment, materials and supplies required by Seller to complete its performance hereunder, except for manpower, equipment, material and supplies, if any, specifically referred to be provided or paid for by Purchaser.  Seller acknowledges and agrees that Purchaser shall not be held liable for any loss of or damage to any equipment or other property belonging to or rented by Seller or its employees or agents which is used, or to be used in connection with this purchase order, except to the extent attributable to the gross negligence or willful misconduct by Purchaser or its employees or agents.
17. COMPLIANCE WITH LAWS.  Seller shall, in the performance of work of services hereunder, fully comply with all applicable federal, state or local laws, rules, regulations or ordinances, including, without limitation, Fair Labor Standard Act and vendor registration or licensure requirements under the New Jersey Casino Control Act, and shall hold Purchaser harmless from any liability resulting from Seller’s failure to do so.  Seller shall, at it’s expense,  procure and maintain all permits or licenses which may be required at any time in connection with the performance of work hereunder, or as may be required for the procurement, storage or use of related equipment, materials or supplies, unless otherwise agreed to in writing by both parties.
18. GOVERNING LAW, ATTORNEY’S FEES, FORUM.  This purchase order and all transactions hereunder shall be venued in, governed by and construed in accordance with the laws of the State of New Jersey.  In the event Purchaser brings an action in connection with this purchase order, it shall be entitled to payment of its reasonable attorneys’ fees by Seller.  Any action to enforce the terms hereof must be brought in the Superior Court of New Jersey in Atlantic County, New Jersey or the U.S. District Court for the District of New Jersey.
19. WAIVER OF JURY TRIAL..
20. DISCOUNTS.  If Seller’s invoice is subject to any cash discount, the discount period will be calculated from the date the invoice is received by the Purchaser or the delivery of the product, whichever is later.
21. ASSIGNMENTS AND SUBCONTRACTING.  No part of this purchase order may be assigned or subcontracted without prior written approval of Purchaser.
22. SET-OFF.  All claims for money due or to become due from Purchaser shall be subject to deduction or setoff by the Purchaser from amounts due to Seller from this or any other transaction with Seller.
23. TAX.  All applicable federal, state or local sales/use tax, transportation tax or other excise tax which may be imposed upon the goods ordered hereunder shall be paid by Seller.
24. SHIPMENT.  Seller shall arrange for shipment in accordance with Purchaser’s instructions, which may be given orally or in writing. Goods shall be properly boxed, crated, packaged and shipped to the FOB point at Seller’s sole expense. Packing slips must be included in all shipments and last copy must state “Order Completed.” If in order to comply with Purchaser’s required delivery date it becomes necessary for Seller to ship by a more expensive way than specified in this purchase order, any increased transportation costs resulting therefrom shall be paid for by Seller unless the necessity for such rerouting or expedited handling has been caused by Purchaser.
25. WAIVER.  Purchaser’s failure to insist in performance of any of the terms or conditions herein or to exercise any right or privilege or Purchaser’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type. Seller shall obtain, at its sole cost and expense, all necessary waivers and releases for any liens recorded against the Purchaser’s real property as a result any work performed or goods delivered hereunder.
26. DELIVERY.  Time is of the essence of this purchase order, and if delivery of items or rendering of services is not completed by the time promised, Purchaser reserves the right without liability in addition to its other rights and remedies to terminate this purchase order by notice effective when received by Seller as to items not yet shipped or services not yet rendered and to purchase substitute items or services elsewhere and charge Seller with any loss incurred.
27. LIMITATION ON PURCHASER’S LIABILITY – STATUTE OF LIMITATIONS.  IN NO EVENT SHALL PURCHASER BE LIABLE FOR LOST OR ANTICIPATED PROFITS OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.  Purchaser’s liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from this purchase order or from the performance or breach thereof shall in no case exceed the agreed upon price allocable to the goods or services or unit thereof, which gives rise to the claim. Purchaser shall not be liable for penalties of any description. Any action resulting from any breach on the part of Purchaser as to the goods or services delivered hereunder must be commenced within one year after the cause of action has accrued.
28. LABOR HARMONY.  With respect to any services to be performed at Purchaser’s premises or on property owned, leased or licensed by Purchaser, (i) Seller agrees, to engage the services of only such employees, contractors or subcontractors as will work in harmony and without causing any labor dispute with Purchaser’s employees, contractors and subcontractors, to avoid any disruption of Purchaser’s business operations or any construction occurring on Purchaser’s premises or property; and (ii) Seller shall use only those employees, contractors and subcontractors as have been duly licensed by the authority having jurisdiction over the appropriate profession or trade.
29. GAMING LAW COMPLIANCE.  Seller acknowledges that Purchaser is a casino licensee in the State of New Jersey subject to the provisions of the New Jersey Casino Control Act (“Act”) and regulations promulgated thereunder (“Regulations”). Seller acknowledges and agrees that this Agreement is subject to the Act and Regulations and agrees to provide such information as is necessary for the filing of a vendor registration form with the New Jersey Division of Gaming Enforcement (“DGE”) on its behalf, if it has not already done so; that Seller agrees to apply for a casino service industry license if required by the Division; and, in the event Purchaser is prohibited from doing business with Seller by order of the Division or New Jersey Casino Control Commission (“Commission”), that this Agreement shall be terminated in accordance with the provisions of Section 4 hereof, without any further liability on the part of Purchaser.
30. ENTIRE AGREEMENT.  This purchase order and any documents referred to on the face hereof, constitute the entire agreement between the parties and shall supersede all prior oral or written representations or agreements between the parties with respect to such subject matter. This purchase order may not be modified except by written instrument signed by both parties. Seller and Purchaser agree that no other terms and conditions shall govern this purchase order, whether provided by either party before or after Seller’s acknowledgement of these terms and conditions, unless such other terms and conditions are expressly accepted by both parties in writing as an amendment or replacement of these terms and conditions.