Casino Rama Resort Standard Purchasing Terms and Conditions

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    These terms and conditions, together with any contracts or agreements resulting or arising from the issuance and acceptance of this purchase order, and all attachments, exhibits, specifications, drawings, notes and instructions applicable to the purchase of the products and/or services described herein are hereby incorporated and made a part of this purchase order (collectively the “Purchase Order”).

    1.       Acceptance:   Seller’s acknowledgment of this Purchase Order or commencement of performance hereunder shall constitute Seller’s acceptance of all of the terms and conditions herein. Any acknowledgment which states terms additional to or different from those set forth in this Purchase Order will not operate as an acceptance unless such terms are agreed to in writing by Purchaser. This Purchase Order contains the complete and exclusive statement of the terms of the agreement and supersedes and replaces any and all prior agreements, negotiations, understandings or representations. No other agreement, understanding or proposal which modifies or changes any term or condition of this Purchase Order shall be binding unless accepted in writing by Purchaser. Purchaser may insist upon strict compliance with the terms of this Purchase Order despite any previous custom, practice or course of dealing to the contrary.

    2.       Order of Precedence: In the event of a conflict in terms or inconsistency between or among the terms and conditions of this Purchase Order, the following order of precedence shall be used to resolve same: {I} these Terms and Conditions; {II} documents incorporated by reference on the face of this Purchase Order; {III} terms and conditions provided with this Purchase Order by Seller and accepted in writing by Purchaser; {IV} Statement of Work; and {V} drawings and/or specifications incorporated by reference (Purchaser’s specifications shall prevail over Seller’s specifications).

    3.       Gaming Control Act, 1992:  Seller must obtain and maintain, at its sole expense, the applicable registration (or exemption) with the Alcohol and Gaming Commission of Ontario (“AGCO”) under the Gaming Control Act, 1992, S.O. 1992, c.24 and the Regulations thereto, as amended (collectively the “Act”). Notwithstanding any other provision of this Purchase Order, Purchaser shall have no liability toward Seller, and no payments shall be made to Seller pursuant to this Purchase Order (or otherwise) unless it is validly registered in the appropriate category under the Act. Seller will have no recourse of any kind against Purchaser, OLG, their subsidiaries, affiliates, successors or assigns, nor their respective directors, officers, employees and agents if nonpayment or nonperformance by Purchaser is due to the fact that Seller is not validly registered in the appropriate category under the Act.

    4.       Price:  This Order shall not be filled at higher prices than specified herein. Invoices must bear exact same prices and terms herein. Acceptance of the purchase order, or shipment of any part of it will constitute an agreement to all of its specifications as to terms, delivery and price. Any changes thereto, must be authorized by Buyer in writing prior to shipping. No waiver by Buyer of a breach or default of any provision hereof shall constitute a waiver of any further or other breach or default.

    5.       Electronic Purchase Data Transfer:  Seller is not to act on (provide goods and services) purchase orders transmitted electronically or faxed without being in possession of a valid signed Casino Rama Electronic Purchase Data Transfer agreement. If vendor exceeds terms and conditions of this agreement he does so at his own risk.

    6.       Shipment and Inspection:  All goods must be delivered to the Casino Rama warehouse and be received by the Receiving Department unless otherwise specified by the Purchasing Department. If goods are not shipped to and received by our Receiving Department, the vendor accepts that the goods will be returned and the order cancelled. Approval from the Purchasing Department (only) to bypass the Receiving Department and have goods delivered elsewhere (as an exception) must be received prior to delivery. The terms and routing of shipment shall be as provided on the face hereof. Buyer shall have the right to inspect any or all of the goods upon Buyers receipt, which right shall be exercisable notwithstanding Buyer’s having paid for the goods prior to inspection. Goods not in accordance with specifications will be rejected and held at Seller’s risk awaiting disposal. Defective goods may be returned to the Seller for full credit and replacement at the Seller’s risk and expense, including transportation charges both ways, but no defective goods shall be replaced without formal replacement order signed by Buyer. Buyer, by reason of its failure to inspect the goods, shall not be deemed to have accepted any defective goods or goods which do not conform to the specifications thereof, or to have waived any of Buyer’s rights or remedies arising by virtue of such defects or non-conformance. Packing slips must accompany all shipments.

    7.       Delivery:  The purchase order number must appear on all packing slips, acknowledgements, and invoices. Delivery of goods without purchase order number being referenced on the packing/delivery slips will be deemed invalid and delivery will not be accepted.

    8.       Payment:  The time period allowed for payment as indicated on the face hereof, shall commence upon receipt of Seller’s invoice or upon receipt of the goods, whichever is later.

    9.       Standards:  Seller shall perform services or provide goods in compliance with (collectively, the “Standards”): (a) the Ontario Gaming Control Act and the regulations thereto, as amended; (b) all applicable laws; (c) such other standards or specifications as Buyer may advise Seller from time to time; and (d) all implied conditions and warranties as to fitness for purpose on merchantability which exist or may exist at law.

    10.   Risk of Loss:  Notwithstanding any provision hereof to the contrary, title to, and risk of loss of, the goods shall remain with Seller until the goods are delivered at the F.O.B. point specified in the Purchase Order, or if no such point is specified, then, when the goods are delivered to Buyer.

    11.   Representations and Warranties:  Seller represents and warrants to Buyer as follows and acknowledges that the Buyer is relying upon these representations and warranties (which shall survive all inspections and acceptance) in connection with the services or goods contemplated by this Purchase Order: (a) all materials covered by the Purchase Order comply with applicable federal, state, provincial, and municipal regulations, by-laws, orders, directions, and policies including those affecting the productions, processing, packaging, labelling, contents, adulteration, or shipment of food products in Canada and the United States of America from time to time. Without restricting the generality of the foregoing, such materials are not adulterated or misbranded within the meaning of applicable law, including the Food and Drug Act (Canada), not an article which may not be introduced into inter-provincial or international trade and not adulterated or misbranded within the meaning of the food or drug laws or the ordinances of any province, state, of city which are applicable to such a shipment or delivery, to the extent such laws are applicable to the goods sold or services provided pursuant to the Purchase Order; (b) the goods or services covered by the Purchase Order shall be free from defects in material and workmanship, shall be merchantable, shall conform to all applicable plans, specifications, requirements, and samples and shall be suitable for the use intended. Seller shall provide a full and comprehensive labour and material warranty for the goods and services provided pursuant to this Purchase Order for the period of thirteen (13) months from the date of delivery; (c) the goods furnished or services provided under this Purchase Order do not infringe any patent, trademark, trade name, copyright, or other intellectual property rights; (d) the goods furnished or services provided under this Purchase Order are free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, or other claims whatsoever.

    12.   Insurance:  At all times during the term of this Agreement, Seller shall maintain the insurances at their sold cost and expense. Insurance must be for the mutual benefit of Seller and Purchaser: 
                    (a)  Comprehensive or commercial general liability insurance of not less than Five Million Dollars ($5,000,000.00) for each occurrence against all claims for personal injury, death, or property damage arising out of the performance, products, and services provided by Seller of its obligations pursuant to this Agreement.
                    (b)  Product liability/completed operations insurance of not less than Five Million Dollars ($5,000,000.00) for each occurrence against all claims for personal injury, death, or property damage occurring as a result of the use, services, delivery, or other utilization of any Seller products sold or transferred by Seller pursuant to this Agreement. The policy shall contain a cross-liability and severability of interest clause and shall be on an occurrence basis. Seller shall name Purchaser as an additional insured on such policy or policies.
                    (c)  Errors and omissions insurance to a limit of at least One Million Dollars ($1,000,000.00) per claim. (If applicable).
                    (d)  Automobile insurance of not less than Two Million Dollars ($2,000,000.00) for each occurrence and policy will be on an occurrence basis. (If applicable).
                    (e)  Workers Compensation coverage as required by law in the jurisdiction or Province in which Seller is operating. (If applicable)..

    Coverage will be evidenced in the form of a certificate of insurance or certified copy of the policy to be furnished by Sell to Purchaser automatically on an annual basis or at the request of the Purchaser. Any acceptance of delivery of said certificates does not constitute approval or agreement by Purchaser that the insurance requirements have been met or that the insurance policies shown in the certificates of insurance are in compliance with the requirements and shall not diminish the Purchaser’s right under this Agreement.
    All policies are to be taken out, and on forms with an insurer licensed to do business in the Province of Ontario and with an AM Best rating of A-, VII, or better and will be on a primary and non-contributory basis and not in excess of any insurance Purchaser has available to it. All policies shall contain a provision that precludes invalidation as respect to the interests of the Purchaser by reason of any breach or violation of warranties, representation, declarations, or conditions contained in the policies. All policies shall contain an undertaking by the insurers that no material changes, non-renewals, cancellations or terminations of any policies will be made unless the purchaser has received not less than thirty (30) days prior written notice of the change, delivered according to the provisions of this Agreement.
    In the event that Seller does not meet the above obligations, then Purchaser shall have no obligation to pay Seller for products or services delivered until Seller meets the outstanding obligation. Seller will also provide any other forms of coverage or limits required from time to time by Purchaser, acting reasonably, in amounts and for insurance risks against which a prudent Supplier of the same nature or business would insure. Any dispute concerning the amount or types of any of the foregoing coverage shall be conclusively determined by an independent qualified insurance broker approved by both Seller and Purchaser.

    13.   Indemnification and Remedies:  Indemnification and Remedies: Notwithstanding any breach whether fundamental or otherwise, Seller assumes the entire responsibility and liability for, and agrees to indemnify, defend and hold harmless Buyer, its officers, agents, employees, successors, assigns, customers, and users of the goods or services purchased hereunder, from and against any and all losses, expenses (including, without limitation, legal and professional fees), costs, damages (including direct, indirect, consequential and incidental damages), demands, liabilities, suits, and claims (including in connection with or arising out of any actual or alleged personal injury including death) of damage or destruction to property (including loss of use) by whomsoever suffered, sustained, or alleged to have been sustained by reason of (a) any act, error, or omission, whether negligent of not, of Seller and its agents, employees, suppliers, subcontractors, and consultants, (b) any defect, whether latent or apparent, in any product of Seller which was sold to Buyer hereunder; (c) any breach of warranty, any term or condition of this Purchase Order, or any obligation of Seller in the Purchase Order; or (d) the goods furnished or services provided under this Purchase Order are free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances or other claims whatsoever.

    14.   Force Majeure:  In the event of interruption of our business in whole or in part by reason of fire, flood, windstorm, earthquake, war, strike, embargo, acts of God, government action, or any causes beyond our control, Buyer shall have the option of cancelling undelivered orders in whole or in part.

    15.   Workers Compensation and Public Liability:  When work is to be performed hereunder on Buyer’s premises by Seller’s employees, Seller acknowledges and agrees that it is the employer of such employees for the purpose of the Workplace Safety and Insurance Act (Ontario), as amended, and for all other purposes and Seller agrees that it shall comply with the provisions of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, as amended, as the case may be, in relation thereto, Seller agrees to carry at Seller’s own expense: Contractor’s Liability Insurance and, for all vehicles employed by the seller for such work, Vehicle Liability Insurance, each with a single limit of at least $1,000,000 for injury to one or more persons, resulting from one accident and $1,000,000 for property damage resulting from one accident, or such larger amounts and such larger amounts and such additional coverage as may be required by Buyer. Certificates of such coverage with thirty (30) day cancellation or amendment notice shall be submitted to Buyer prior to work being stated.

    16.   Workplace Safety:  When services or on-site activities are being performed on Purchaser’s premises by employees of Seller, Seller acknowledges and agrees that it is the employer of such employees for all purposes, including but not limited to the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, as amended, and Seller shall take such steps as are reasonably necessary to prevent personal injury or property damage by any employee, agent or subcontractor of Seller. Construction Work: Purchaser shall require and Seller agrees to maintain, at Seller’s sole cost and expense, a valid clearance number under the WSIA when applicable construction work is being performed on Purchaser’s premises by employees or subcontractors of Seller. In case of failure by Seller to maintain a valid WSIB clearance number, or to comply with Purchaser’s safety programs and any other Ontario health and safety guidelines, Purchaser may terminate this Agreement forthwith, without liability. Seller will have no recourse of any kind against Purchaser, OLG, their subsidiaries, affiliates, successors or assigns, nor their respective directors, officers, employees and agents if nonpayment or nonperformance by Purchaser is due to the fact that Seller does not have a valid clearance number, as required.

    17.   Withholding Tax:  Should the Buyer be required by a provision of the Income Tax Act (Canada) to withhold tax from any amount paid or credited to Seller, Buyer shall withhold the tax as required by law unless and until a waiver from the withholding requirement is obtained by Seller from Revenue Canada in a form satisfactory to Buyer. Seller shall have no right to recover any tax withheld from Buyer.

    18.   Foreign Supplies:  A copy of your commercial invoice or the fair market value must accompany all your shipments. Absence of an invoice at the border may require return of the shipment at the Seller’s expense.

    19.   Canada-U.S. Free Trade Agreement:  It is the Shipper’s (Exporter’s) responsibility to provide the Consignee (Importer) with a Certificate of Origin attesting that duty rate reductions apply only when satisfying one of the Free Trade Agreement Rules of Origin. 

    20.   Governing Law:   Regardless of the place of execution or performance, this Purchase Order shall be governed by, interpreted and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable in Ontario without giving effect to the principles of conflicts of laws thereof and the parties irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Ontario with respect to any dispute arising between them in relation to this Purchase Order. 

    21.   Dispute Resolution: If a dispute arises out of, or in connection with this Purchase Order, the parties agree to meet to pursue resolution through negotiation or other appropriate dispute resolution process before resorting to litigation.

    All information exchanged during this meeting or any subsequent dispute resolution process, shall be regarded as “without prejudice” communications for the purpose of settlement negotiations and shall be treated as confidential by the parties and their representatives, unless otherwise required by law. However, evidence that is independently admissible or discoverable shall not be rendered inadmissible or non-discoverable by virtue of its use during the dispute resolutions process.

    22.   Termination: 
                   
    (a) Notwithstanding any other provision contained in this purchase order (“PO”) including any terms and conditions attached hereto or incorporated by reference herein, the contracting parties to this PO acknowledge and agree that CHC Casinos (i) shall have the right to terminate this PO, in whole or in part, for convenience, without cause and without liability, upon thirty (30) days’ prior written notice to Seller (ii) may assign this PO in whole or in part, to any other person or entity without consent, whereas Seller may not assign this PO without the written consent of CHC Casinos; and (iii) may disclose this PO in whole or in part to Ontario Lottery and Gaming Corporation (“OLG”) and OLG may then disclose this PO in whole or in part to a third party, provided that such third party has entered into a confidentiality agreement with OLG pursuant to which it agrees to keep the terms of this PO confidential (subject to customary exceptions).
                    (b) Termination Upon Notice with Cause, Agreement forthwith without liability, and without limiting any of its other rights or remedies, upon written notice to the Seller if: (a) The Seller fails to register or is no longer registered, as appropriate, under the Alcohol and Gaming Control Act or regulations thereto, as amended, or is in violation of any of its obligations under the Alcohol and Gaming Control Act or regulations thereto, as amended, (b) The Seller is in breach of, or attempts to breach, any of its obligations under this Agreement, (c) The Seller is in breach of the Standards, (d) The Seller is in breach of any of its representations or warranties hereunder, (e) An action or claim against The Seller may in CHC Casinos Limited reasonable opinion, harm the continued business operations of the Seller, (f) The Seller is unable to pay its debts when due or is insolvent, is ordered or adjudged to be bankrupt, is placed in the hands of a receiver, enters into any scheme or compositions with its creditors, is dissolved, liquidated or wound up, or makes any assignment for the benefit of its creditors, (g) Either party is unable to carry out its obligations under this Agreement by reason of a Force Majeure, meaning any bona fide delay or state of affairs beyond the control of a party (other than as a result of financial incapacity) which shall cause any party to be unable to fulfil or to be delayed or restricted in the

    fulfillment of any obligation, (h) The Seller does not deliver the goods or services as provided in this Agreement by the specified delivery date.

    (c) If the appointment of CHC Casinos as the operator of Casino Rama is terminated, or if CHC Casinos ceases to be the operator of Casino Rama, Buyer may terminate or assign, without penalty or charge, to the Ontario Lottery and Gaming Corporation (“OLG”) or any subsequent operator of Casino Rama, at OLG’s option.

    23.   Sensitive Access: Seller is responsible for ensuring that all of Seller’s employees, or sub-contractors, that are working at Casino Rama Resort are:

                   (a) nineteen (19) years of age or older;

                   (b) capable of performing and will reliably perform Seller’s responsibilities, as set out in this Agreement; and

                   (c) in good standing with respect to criminal convictions. CHC Casinos has the right to ask for a police reference check from the Seller.

    24.   Confidentiality and Privacy: Seller agrees on behalf of its directors, officers, employees, agents and contractors that any confidential information or processes received from Purchaser which in any way relate to the performance of this Purchase Order shall be the property of Purchaser, shall be preserved in strict confidence by Seller and shall not be disclosed by Seller to third persons, except: {a} to professional advisors of Seller on a need-to-know basis; {b} if such information has entered the public domain (other than through the actions of Seller) or is Seller’s own confidential information; {c} with the prior written consent of Purchaser; or {d} as required by law. Seller warrants that it conducts its business in accordance with laws, regulations and industry guidelines relating to privacy, including (where applicable) the Personal Information Protection and Electronic Documents Act, S.C. 2000, c.5, as amended, to ensure the proper collection, use and disclosure of personal information and agrees not to use or disclose personal information collected from or provided by Purchaser in connection with this Purchase Order for any reason, except with Purchaser’s prior written consent, or as required by law.

    25.   Assignment and Delegation: Seller shall not assign any of its rights or interest (including the right to receive monies due) or delegate any of its duties or obligations under this Purchase Order without the prior written consent of Purchaser, and unless and until the proposed assignee or delegate is validly registered with the AGCO in the appropriate category under the Act. No assignment or delegation by Seller (with or without Purchaser’s consent) shall relieve Seller of any of its obligations under this Purchase Order or prejudice any of Purchaser’s rights against Seller, whether arising before or after the date of any assignment or delegation.

    26.   No Discrimination / Accessibility: Vendor shall not engage in discriminatory treatment of any kind in connection with, or to any person or class of persons for any reason whatsoever including discriminatory treatment based on race, creed, religion, or sex. In Addition, Vendor shall comply with accessibility standards applicable to Vendor pursuant to the Accessibility for Ontarians with Disabilities Act, 2005.

    27.   Time of the Essence: Time is of the essence of this Purchase Order and all provisions of it.

    28.   Miscellaneous: 

                   (a)  The waiver of any term, condition or provision hereof shall not be construed to be a waiver of any other such term, condition, or provision, nor shall such waiver be deemed a waiver of a subsequent breach of the same term, condition, or provision.

                   (b)  Seller shall not assign its rights or obligations under this Purchase Order without the prior written consent of Buyer.

                   (c)  Seller shall not insure the goods on Buyer’s account unless the terms of this Purchase Order so require.

                   (d)  Stenographic and clerical errors, whether in mathematical computations or otherwise, made by Buyer on this Purchase Order or any other forms delivered to Seller shall be subject to corrections.

                   (e)  The entire understanding and agreement of the parties with respect to the transactions contemplated herein is contained in this document, and any prior understandings, agreements, and representations, oral or written, shall be deemed superseded and merged herein. Any modification hereof, to be valid, must be in writing and executed by both parties.

                   (f)   Buyer may, upon notice to Seller without cause and without liability to Buyer, cancel this contract at any time in whole or in part and any outstanding deliveries hereunder. (1) as to standard products of Seller not then shipped hereunder, at any time prior to shipment, or (2) if (a) a receiver or trustee is appointed to take possession of all or substantially all of Seller’s assets, (b) Seller makes a general assignment for the benefit of creditors, (c) any action or proceeding is commenced by or against Seller under any insolvency or bankruptcy act, or under any other statute or regulation having as its purpose the protection of creditors, or (d) Seller becomes insolvent or commits an act of bankruptcy. If an event described in (2) of this section occurs, Buyer may at Buyer’s Sole election, pay Seller its actual direct out-of-pocket costs to date of cancellation, as approved by Buyer, in which event the goods shall be the property of Buyer and Seller shall safely hold the same, subject to receipt of Buyer’s shipping instructions.

                   (g)  These terms and conditions will be governed by and construed in accordance with the laws of the Province of Ontario without regard to choice of law principles. Venue and jurisdiction for any action or claim arising out of or relating to this Agreement shall be in Ontario and courts of competent jurisdiction located in Toronto, Ontario.


     

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