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PO Terms and Conditions

Park Place Technologies, LLC (“Buyer”) – Purchase Order Terms and Conditions

1. ACCEPTANCE; PURCHASE ORDER CONSTITUTES ENTIRE AGREEMENT – This Purchase Order is Buyer’s offer to purchase the goods and/or services described on the face of the Purchase Order from Seller. Buyer’s placement of this Purchase Order with Seller is expressly conditioned upon Seller’s acceptance of all of the terms and conditions of purchase contained on or attached to this Purchase Order. Any additional or different terms or conditions which may appear in any communication from Seller or in any other agreement in connection with any goods or services purchased by Buyer (including any shrink-wrap, click-wrap or similar license agreement or terms of use that accompany or appear on use or installation of such goods or services) are hereby expressly objected to and shall not be effective or binding unless specifically agreed to in writing by Buyer’s authorized representative, and no such additional or different terms or conditions in any printed form of Seller shall become part of this contract despite Buyer’s acceptance of goods or services, unless such acceptance specifically recognizes and assents to their inclusion. Any objection by Seller to the terms and conditions hereof shall be ineffective unless Buyer is advised in writing thereof within ten days of the date of this Purchase Order. Seller accepts this Purchase Order and by shipment of any goods or performance of any work/services under this Purchase Order forms a contract with Buyer.

2. ELECTRONIC TRANSMISSION – If this Purchase Order is transmitted by email or by other means of electronic transmission, such transmission shall have the legal significance of a duly executed original delivered to the Seller.

3. CHANGES – Buyer shall have the right at any time to make changes in this Purchase Order by written notice to Seller, and Seller agrees to comply with such changes. If such changes cause a material increase or decrease in Seller’s costs or time of performance of this Purchase Order, Seller shall notify Buyer immediately and negotiate an adjustment.

4. TERMINATION FOR CONVENIENCE –

a) Buyer may, at any time with thirty (30) days’ written notice to Supplier, terminate all or any part of the Purchase Order for Buyer’s convenience.  Buyer shall have no obligation to make any further payments to Supplier. In no event shall the previous payments made under the Purchase Order exceed the total Purchase Order value shown on the face of the Purchase Order.

b) Any pre-payment of fees for services shall be reimbursed based on the effective date of termination for those services paid for but not utilized. Supplier shall submit to Buyer all refunds resulting from such termination within thirty (30) days after Supplier’s receipt of Buyer’s notice of termination.  Buyer shall have, upon reasonable advanced notice, the right to inspect Supplier’s records, facilities, work, and materials relating to performance of the Purchase Order for purposes of evaluating Supplier’s reconciliation.

5.  TERMINATION FOR DEFAULT –

a)  Buyer may, by written notice, terminate this entire Purchase Order or any part of the Purchase Order for default in the following circumstances:

  • (i) Supplier fails to deliver the items or perform the services required by the Purchase Order and these Purchase Order Terms and Conditions within the time specified in the Purchase Order, or any extension granted by Buyer in writing; or
  • (ii) Supplier fails to perform under any of the other provisions of the Purchase Order and these Purchase Order Terms and Conditions or fails to make progress so as to endanger performance of the Purchase Order in accordance with its terms and Supplier does not cure, or submit to Buyer a plan to cure, such failure to Buyer’s reasonable satisfaction within a period of ten (10) calendar days after receipt of notice from Buyer specifying the failure; or
  • (iii) Supplier becomes insolvent or makes a general assignment for the benefit of creditors, or files or has filed against it a petition of bankruptcy or reorganization, or pursues any other remedy under any other law relating to relief for debtors, Buyer deems that Supplier is insolvent or in the event a trustee or receiver is appointed for Supplier’s property or business.

b) Supplier will continue the performance of the Purchase Order to the extent not terminated. Supplier will not be liable for any additional costs if Supplier notifies Buyer in writing within ten (10) days of the existence of the cause that Supplier’s failure to perform the Purchase Order arises out of causes beyond the control and without the fault or negligence of Supplier. These causes may include, but are not restricted to, acts of God or of the public enemy, acts of a government in its sovereign capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather; or

c) Payment for completed items delivered to and accepted by Buyer, and for the protection and preservation of property, will be in an amount agreed upon by Supplier and Buyer.  Buyer may withhold from amounts otherwise due Supplier for such completed items or Contract Materials such sums as Buyer determines to be necessary to protect Buyer against loss because of outstanding liens or claims; and/or

d) If, after notice of termination under this section, it is determined that Supplier was not in default, or that the default was excusable, the rights and obligations of the parties will be the same as if the notice of termination had been issued pursuant to the section entitled “Termination for Convenience.”

6. TAXES – Buyer is exempt from paying State and Federal Excise Taxes. A certificate will be furnished upon request. The Seller is responsible for complying with all tax exemption requirements. The Seller is responsible for payment of all tax obligations that arise from the Seller’s failure to comply with exemption requirements. Unless otherwise designated, all charges are exclusive of all import duties, customs, federal, state, municipal, or other government excise sales, use, occupational, or like taxes which shall be the responsibility of the Customer.

7. PRICE – If the price of the goods or services is not stated on this Purchase Order, it is agreed that the goods or services shall be billed at the price last quoted by Seller, or paid by another customer of Seller, or the prevailing market price, whichever is lowest.

8. SUBSTITUTIONS – All substitutions, partial deliveries and back orders shall require notification to, and the written consent of, the Buyer.

9. SHIPPING INSTRUCTIONS – All goods shall be shipped FOB shipping point, unless otherwise agreed. Buyer’s Purchase Order(s) will specify Buyer’s preferred carrier. Noncompliance by Seller to these shipping instructions will result in freight back-charges to the Seller. Buyer reserves the right to reject C.O.D. shipments. Seller shall not insure the goods for Buyer’s account during shipment except upon Buyer’s written request, or where the shipping mode is parcel post. Every package or other shipping unit, bill of lading, shipping memorandum and invoice must be marked with Buyer’s Purchase Order Number. Time is of the essence under this Purchase Order.

10. DELAY/FORCE MAJEURE – If all or any material portion of Seller’s performance of this Purchase Order is delayed for a period exceeding ten days, Buyer may terminate this Purchase Order without liability to Seller.

11. PACKING LIST – A packing list must be furnished with each shipment, clearly indicating customer part and Purchase Order numbers. Each item must be labeled and identified with the appropriate part number corresponding to that on the Purchase Order.

12. REJECTION – All goods purchased hereunder are subject to Buyer’s inspection and approval. Goods rejected by Buyer for whatever reason shall be held, transported and/or stored at Seller’s sole expense. Seller shall promptly reimburse Buyer for any such expenses. No material or equipment returned to Seller as defective shall be replaced except upon Buyer’s formal authorization.

13. ASSIGNMENT – Neither this Purchase Order nor any interest therein nor any claim arising hereunder shall be transferred or assigned by Seller without the prior written consent of Buyer. Buyer may transfer or assign the benefits of this agreement, in whole or in part, including without limitation, the Seller’s warranty, without the approval of Seller.

14. WARRANTY – Seller warrants that:

a) all goods or services furnished pursuant to this Purchase Order will be provided to Buyer free and clear of any liens, encumbrances or other restrictions (including any restrictions on Buyer’s resale or distribution of such goods or services), will be free from defects in material or workmanship, and will be in conformity with the requirements of this Purchase Order, including drawings and specifications, if any, and reasonably fit for the purpose disclosed in this Purchase Order or in such drawings and specifications, and Seller further warrants that such goods or services will be merchantable and fit for the purpose for which they are sold.

b) Seller exclusively owns or otherwise has the right to sell and transfer all goods or services furnished pursuant to this Purchase Order.

c) Seller has obtained all consents, waivers, approvals, authorizations and made all notifications required to be made or obtained in connection with the sale and transfer of the goods and services furnished to Buyer under this Purchase Order.

d) The execution and delivery of this Purchase Order by Seller and the performance by Seller of its obligations hereunder and the consummation of the transactions contemplated herein does not and will not result in a breach of, or constitute a default under, or give rights to any rights of termination or loss of benefit under any contract to which Seller is a party or by which any of the assets or properties of Seller is bound or affected.
Without limitation of any rights which Buyer may have at law by reason of any breach of warranty, goods which are not as warranted may at any time within ninety (90) days after delivery be returned at Seller’s expense. Buyer at its option may require Seller either to replace such goods at no increase in price (Seller must pay all repacking, transportation and handling charges both ways) or to refund the purchase price and any charges in connection therewith.

15. GOVERNING LAW – The contract arising from this Purchase Order shall inure to the benefit of and be binding upon the parties hereto, their respective transferees, representatives, successors, heirs, assigns and affiliates and shall be governed by and construed in accordance with the laws of the State of Ohio. Each party hereto agrees that all disputes or disagreements that may arise out of or in connection with this Purchase Order shall be adjudicated in the Cuyahoga County Court of Common Pleas, Cuyahoga County, Ohio or the United States District Court for the Northern District of Ohio and each party consents to such jurisdiction and agrees to waive any right that it might have.

16. INVOICES – All invoices shall be mailed to Buyer at its office at Park Place Technologies, LLC, Accounts Payable Dept., 5910 Landerbrook Drive, Cleveland, OH 44124-6500 or accountspayable@parkplacetech.com and will state Buyer’s Purchase Order Number clearly on the Invoice. Invoices shall be rendered for each order or for each shipment if more than one is made on an order. No invoice shall be delivered by Seller to any employee of Buyer. The payment discount period will date from receipt of the invoice and not from the date of the invoice. In case of errors on an invoice, the payment discount period will date from the receipt of corrected invoices. Buyer must receive invoice within ninety (90) days of receipt date of merchandise. Failure to invoice Buyer for merchandise or notify Buyer of non-payment of any invoice within ninety (90) days will result in cancellation of any liability payable by Buyer.

17. INDEMNITY – Seller will defend, indemnify and hold Buyer, its affiliates and their respective successors, assigns, agents, representatives customers, directors, managers, officers and employees (the “Buyer Indemnified Parties”) against and for any claim, action, suit, proceedings, loss, damage, liability, award, penalty, cost and expense (including attorneys’ fees and court costs, advanced as incurred) incurred by or asserted against any Buyer Indemnified Party which arises out of or is connected with any (a) breach by Seller, its employees or agents or anyone authorized to act on Seller’s behalf of an obligation, responsibility, representation, warranty or covenant made by Seller under this Agreement, (b) any act, or omission made by the Seller, or its employees or agents, (c) claim that the manufacture, use, sale, resale, distribution or other disposition of the goods or services provided to Buyer under this Purchase Order infringe or misappropriate any patent, copyright, industrial design right or other intellectual property right of a third party; (d) negligence by Seller in connection with the performance of this Purchase Order; (e) any claims brought by any subcontractor of Seller or (f) violation of applicable law by Seller. In case said goods or services infringe or allegedly infringe upon any intellectual property rights, Seller shall, at its own expense and in addition to its indemnification obligations hereunder, either procure for Buyer the right to continue using said goods and services, or at the option of Buyer either replace same with equally efficient non-infringing goods or services, or modify such without impairing their efficiency so they become non-infringing, or remove said goods and services and refund the purchase price and the transportation and installation costs thereof.

In the event any claim is asserted or any suit is filed against a Buyer Indemnified Party by a third party for which Seller is required to provide indemnification, as provided for under this Section 16, then the applicable Buyer Indemnified Party will promptly notify Seller of such claim or suit. In the event a Buyer Indemnified Party fails to provide Seller with prompt notice of a claim or suit, Seller will not be relieved of its indemnity obligation pursuant to this Section 16, however, Seller will not be liable for any legal fees or expenses incurred by the Buyer Indemnified Party prior to such notice. Subject to the terms of this Section 16, Seller will have sole control of the defense of any claim or suit. Seller will select reputable counsel, subject to the applicable Buyer Indemnified Party’s consent, which will not be unreasonably withheld. Seller agrees not to settle any claim or suit on behalf of the applicable Buyer Indemnified Party except upon terms and conditions approved, in writing, by such Buyer Indemnified Party. If Seller fails to defend a claim within a reasonable amount of time after receiving notice thereof, the applicable Buyer Indemnified Party will have the right, but not the obligation, and without waiving any of its other rights hereunder, to undertake the defense of and to compromise or settle such claim, on behalf of and at the risk and expense of Seller.

18. LIMITS OF LIABILITY. IN NO EVENT SHALL BUYER’S TOTAL LIABILITY TO SELLER OR ANY PARTY CLAIMING THROUGH OR UNDER SELLER UNDER THIS AGREEMENT, EXCEED THE AMOUNT OF FEES ACTUALLY PAID TO SELLER DURING THE ONE (1) YEAR PERIOD PRECEDING THE DATE THE CAUSE OF ACTION GIVING RISE TO THE LIABILITY AROSE. IN NO EVENT SHALL BUYER BE LIABLE IN CONTRACT LAW, TORT OR ANY OTHER THEORY OF LAW, TO SELLER OR ANY PARTY CLAIMING THROUGH OR UNDER SELLER FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES PERTAINING TO GOODS OR SERVICES PROVIDED HEREUNDER OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF REVENUE OR LOSS OF BUSINESS, IRRESPECTIVE OF HOW SUCH DAMAGES MAY BE CAUSED OR IF BUYER HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

19. CONFIDENTIALITY. “Confidential Information” includes all information designated by Buyer as confidential, the existence, and the terms and conditions of this Agreement, and including, but not limited to, all information or data concerning the Products and/or Services, general business plans, customers, costs, forecasts, and profits. Except as required by Supplier’s performance of this Agreement, Supplier shall not use or disclose any Confidential Information obtained from Buyer or otherwise prepared or discovered by either Supplier or Buyer and shall protect the confidentiality of Confidential Information with the same degree of care as Supplier uses for its own similar information, but no less than reasonable care.

20. DATA SECURITY AND PRIVACY. Supplier and Buyer will each comply with their obligations under relevant applicable legislation relating to the protection of personal data of individuals (“Data Protection Legislation”). Additionally, if Supplier processes personal data in respect of which Buyer is the data controller, Supplier shall:

a) Only process such personal data for the purposes of performing its obligations under the Agreement;

b) Act only on the instructions of Buyer in relation to such processing;

c) Maintain written records of all categories of personal data processing activities carried out on behalf of Buyer;

d) Not disclose or transfer any personal data to a third party, or otherwise outside of the country of origin, except with the prior written consent of Buyer. Where Supplier proposes to transfer the personal data outside of the European Economic Area, and Buyer consents to such transfer, Supplier undertakes to take all steps necessary to help Buyer comply with data transfer restrictions imposed by Data Protection Legislation;

e) Take such technical or organizational measures against unauthorized or unlawful processing of personal data, and against accidental loss or destruction of, or damage to, personal data, as would be appropriate to Buyer as data controller;

f) Permit Buyer to conduct audits of Supplier’s data processing procedures;

g) Within 48 hours of becoming aware, notify Buyer if it becomes aware of any actual, suspected, or attempted breach of this Section 19.

h) Upon Buyer’s reasonable request, securely destroy, or return such personal data;

i) Not retain any of the personal data for longer than is necessary to perform its obligation under the Agreement, and upon Buyer’s reasonable request, securely destroy or return such personal data;

j) In the Agreement, “personal data,” “data subject,” “data controller,” and “process” shall have the meanings given to these terms in the Data Protection Legislation. Supplier shall indemnify Buyer against any costs, loss, damages, fines, or expenses (including legal expenses) suffered or incurred by Buyer arising from Supplier’s failure to comply with this Section 19.

Buyer may collect and process personal data from, and of, Supplier to administer the contractual relationship, ensure compliance with applicable laws and regulations, and enable Buyer to provide its services and to manage its business. Supplier acknowledges and accepts that such personal data may be transferred or made accessible to all entities of Buyer’s group, wherever located, for the purposes stated above.

21. INSURANCE. Seller shall maintain throughout the term of this Purchase Order, at its sole cost, the following minimum insurance coverage, and such other insurance coverage as is requested by Buyer from time to time and shall name Buyer as additional insured on such insurance policy:

a) Workers’ Compensation covering its personnel in accordance with applicable Statutory requirements and Employer’s Liability Insurance in an amount of not less than $1,000,000 per accident for bodily injury by accident, $1,000,000 policy limit by disease and $1,000,000 per employee for bodily injury by disease.

b) Commercial General Liability Insurance written on an occurrence form including coverage for bodily injury, property damage, products and completed operations, personal injury, advertising injury and contractual liabilities arising out of any and all Services provided under this Agreement with minimum limits of $1,000,000 per occurrence and $2,000,000 annual aggregate.

c) Professional Liability/Errors and Omissions coverage of not less than $1,000,000 each claim and annual aggregate. If coverage is written on a claims-made basis, coverage with respect to any and all work performed in connection with this Agreement shall be maintained for a period of at least three (3) years after the expiration or termination of this Agreement.

d) Automobile Liability Insurance with a limit of not less than $1,000,000 per accident.

e) Umbrella/Excess Liability with policy limits of not less than $1,000,000 per occurrence and annual aggregate, as excess over general liability, automobile liability and employer’s liability.

All insurance policies shall be issued by companies licensed to do business in the states where the Services are delivered and will be rated “A-” or better by A.M. Best. All insurance policies shall apply as primary to and non-contributory with any other insurance. All insurance policies shall include coverage for defense costs and related expenses. Seller will, promptly upon request, deliver to Buyer current certificates of insurance demonstrating that all of the insurance required herein is in force and that Buyer is named as an additional insured under such policies. Seller will give Buyer fifteen (15) days’ notice prior to any alteration, cancellation or non-renewal of the policies required pursuant to this Purchase Order, provided that Seller will not be obligated to provide such notice if concurrently with such alteration, cancellation or non-renewal, Seller obtains similar or better coverage from the same or another qualified insurer, without a lapse in coverage.

22. SEVERABILITY AND WAIVER. The contract resulting from this Purchase Order is intended to be performed in accordance with and only to the extent permitted by applicable laws, ordinances, rules and regulations. If any of the provisions of this Purchase Order or the application thereof to any person or circumstance shall for any reason and to any extent be invalid or unenforceable, then the remainder of this Purchase Order and the application of such provisions to other persons or circumstances shall not be affected thereby, but shall be enforced to the greatest extent permitted by law.

23. SURVIVAL. The provisions of Sections 5, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 21 hereof shall survive any termination of this Purchase Order.