FONTAINEBLEAU TERMS AND CONDITIONS
TO VENDOR PURCHASE ORDER

1. DEFINITIONS: As used herein, “Buyer” means Fontainebleau and “Seller” means the seller designated on the first page of the applicable vendor purchaser order (the “Purchase Order”) and includes the seller’s employees, agents, and representatives.

2. OFFER AND ACCEPTANCE.  This Purchase Order constitutes an offer to purchase by Buyer and becomes a binding contract when acknowledged by Seller.  If Buyer does not receive a signed acknowledgment copy of this Purchase Order within 15 days of the date set forth on the first page Buyer may, at its option, cancel this Purchase Order without any liability to Seller whatsoever. Acceptance of this order is expressly limited to the terms stated on both sides of this Purchase Order and Seller shall be bound thereby upon execution of the acknowledgement copy of this Purchase Order or commencement of performance hereunder.  Buyer objects in advance to the inclusion of additional or different terms proposed by Seller unless such terms are accepted in writing by an authorized officer of Buyer and acceptance of the goods shall not be deemed an acceptance of such terms.  No change in modification of or revision to this Purchase Order shall be valid and no conditions imposed by Seller in acknowledging this Purchase Order shall be binding on Buyer unless accepted in writing and signed by an authorized officer of Buyer.

3. PACKAGING.  All packaging shall be in conformance with good commercial practice.  All containers shall have attached identification, including the Purchase Order # and material descriptions.  No change shall be made for cartons, wrapping, packing, boxing, crating, delivery, drayage or other such charge is expressly provided in the Purchase Order.

4. SHIPMENTS.  The goods shall be shipped by Seller in accordance with the shipment terms specified on the reverse side of this Purchase Order.  The original bill of lading (referencing this Purchase Order #) and packing list shall be delivered by Seller to Buyer at the “ship to” address on the reverse side of this order as far in advance of the arrival of the goods as possible.  Buyer is relying on manufacture, shipment, delivery, installation and acceptance of the goods based on the schedule on the reverse side of this Purchase Order.  Time is of the essence of this Purchase Order.  Seller shall not manufacture, ship or deliver goods in advance of any scheduled date without Buyers written consent.  Buyer at Buyers option may refuse or return at Sellers expense all or any part of (1) shipments which do not conform to the shipping or delivery dates specified by Buyer (whether early or late); (2) shipments in excess of the quantities ordered or in lesser quantities than ordered; (3) shipments which contain defective goods or which fail to conform to this Purchase Order; or (4) goods which are not as represented or warranted.  Any storage or warehouse charges incurred by Buyer due to delivery or shipment prior to the dates specified in this Purchase Order will be at Seller’s expense.

5. INSPECTION AND REJECTION.  At Buyer’s option, Buyer may (1) approve in writing any plans and specifications for the goods prepared by Seller prior to Seller commencing manufacturer, assembly and/or production of the goods and (2) inspect the goods during manufacture assembly and/or production.  All goods are subject to final inspection and approval by Buyer as to quality of materials and workmanship conformance to specifications, drawings, notes, instructions, engineering notes, technical data an/or samples supplied by Buyer (“Specifications”) and general acceptability of goods. Final inspections shall be at the specified delivery site unless otherwise agreed in writing. Without limiting any other rights it may have, Buyer at Buyers option may (1) hold at Seller’s expense subject to Seller’s disposal, all rejected goods; (2) return all rejected goods to Seller at Seller’s expense, including transportation and handling costs; (3) require Seller to repair or replace at Seller’s expense, any rejected goods; (4) require Seller to refund the price of any rejected goods; or (5) repair defects and deduct the cost of replacement or rejection would otherwise result in cancellation of the order. Acceptance of any portion of the goods ordered shall not obligate Buyer to accept future shipments nor be deemed a waiver of Buyer’s right hereunder of under law.  Neither acceptance of any shipment nor payment of any contract price by Buyer shall constitute a waiver of damages or other remedies for any defects in any goods ordered hereby, failure to conform to Specifications, failure to meet any scheduled date or other breach of this Purchase Order.

6. INVOICES/INSTRUCTIONS.  Seller shall invoice Buyer for the goods at the time of final shipment unless otherwise provided in this Purchase Order.  Invoices shall be rendered in duplicate and shall show the Purchase Order number for each separate Purchase Order and the code number for each item purchased.  Buyer may return for revision any invoice that is not in the proper form and the discount period and payment term will be extended until the revised invoice is received. Seller shall comply with Buyer’s billing and routing instruction contained herein or otherwise communicated to Seller by Buyer or pay any extra expenses incurred by Buyer because of Seller’s failure to do so.

7. PRICES. Buyer shall make net payment to Seller in accordance with the terms stated on the reverse side of this Purchase Order.  The price specified on the reverse side of the Purchase Order includes all charges for freight and insurance if applicable.  The price shall not be changed without Buyer’s prior written agreement. Seller represents that the price changed for the goods and services covered by this Purchase Order is the lowest price charged by Seller to buyers of a  class similar to Buyer under conditions similar to those specified in this Purchase Order.

8. COMPLIANCE WITH LAW.  Seller warrants that (1) 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 (2) the goods purchased by Buyer hereunder and the services performed by Seller hereunder shall be in compliance with applicable local, state and federal laws, rules, regulations, ordinances and directives.

9. TAXES. Seller shall pay any sales use, excise, income, property, unemployment, social security or other governmental tax, surcharge or tariff now or hereafter made or levied by any local state or federal government on the goods an/or services including installation covered by the Purchase Order or the consignment or sale contemplated by it and the price of the goods stated in this Purchase Order shall not be increased by such taxes.

10. GENERAL WARRANTIES.  Seller warrants that all goods furnished hereunder whether supplied by Seller or by someone else will (1) be new and of that quality; (2) be free from defects in materials and workmanship; (3) conform to applicable Specifications; (4) be free from design and specification defects whether or not manufactured to Buyer’s Specifications; (5) be fit for the purpose for which intended; (6) be of merchantable quality and fit and safe for consumer use; and (7) be free and clear of all liens and encumbrances at the time of shipment.  All warranties hereunder shall run to Buyer, its successors, assigns customers and the ultimate users or consumers of such goods.  The express warranties contained herein shall not be deemed to limit diminish, reduce or waive any duties, warranties or guaranties given separately by Seller or in law (express or implied).  All warranties contained in this Purchase Order shall be construed as consistent with one another and with all warranties in law or given separately by Seller.  In the event of a breach of any warranty in this Purchase Order, Buyer shall have all rights and remedies available at law or in equity.

11. CHANGES. Buyer may at any time by written notice to Seller, make changes in this Purchase Order, including without limitations, changes in the specification of the goods, quantities, method of shipping or packing, place of inspection, acceptance, point of delivery, delivery schedule or other terms of the Purchase Order.  If any such change increases or decreases the cost of goods or the time required for performances of such order.  Seller shall notify Buyer within 5 days after receipt by Seller of the request for change is acceptable to Buyer then Buyer and Seller shall execute a change order approving the same.  No such change shall be effective without an executed change order.

12. INDEMNIFICATION/INSURANCE.  (a)  Seller agrees to indemnify and defend Buyer, its officers, employees, agents, successors and assigns for, from and against any and all claims, demands, actions, obligations, liabilities, fines, penalties, damages, losses, costs, expenses and attorney’s fees arising from or connected with the goods purchased and services rendered hereunder including but without limitation, any of the following: (1) breach of express or implied warranty strict liability or other liability arising from any defect in the goods purchased or the methods utilized in performing the order; (2) the acts or omissions of Seller or any party under Sellers control; (3) any claim of infringement of patent, trademark, tradename, copyright, trade secret or other similar claim of right now of hereafter existing under the laws of any state or county relating to the manufacture, sale or use of the goods; (4) any claim for royalties, unfair competition or the like arising from any license or like agreement between Seller and third parties regarding such goods; or (5) The delivery and/or installation of any good by Seller or any party under Seller’s control on property owned, leased, occupied or controlled by Buyer.  (b)  Seller shall maintain and provide Buyer with proof that it maintains primary and non-contributing products liability insurance with minimum limits of $1,000,000 for bodily injury and $500,000 for property damage and blanket broad form vendor’s coverage (or such other limits as may be specified by Buyer), designating prior written notice to Buyer in the event of cancellation or material reduction of coverage. Seller shall also maintain workers compensation insurance in the form and amount required by applicable law covering any employees or agents of Seller performing services hereunder or employed by Seller.  

13. SUPPLEMENTARY INFORMATION/EQUIPMENT.  (a)   Any Specifications referred to in this Purchase Order or provided by Buyer to Seller shall be deemed to be incorporated herein by reference as if fully set forth.  If any discrepancies exist in such Specifications, Seller shall refer such matter to Buyer for instruction or interpretation.   (b)  Buyer shall retain title to all Specifications and information supplied to any person or entity other than the Seller’s employees, subcontractors or government inspections. Unless requested earlier, Seller shall promptly return all such Specifications and information to Buyer upon completion of this order.  (c)  Any equipment or tools purchased or manufactured specifically for the production, manufacture or assembly of Buyer’s goods shall be delivered to Buyer at the earlier of completion of work or cancellation of this Purchase Order and no additional purchase prices shall be charged to Buyer for such equipment or tools.

14. WORK AT SITE.  When the Purchase Order requires installation or work at site: (1) all work, whether on or off site shall be done in strict accordance with any union regulations; (2) insurance satisfactory to the Buyer shall be obtained and certificates evidencing such insurance shall be furnished before work is started; (3) prior to payment of the purchase price, Seller shall furnish lien waivers, releases, affidavits and other documents to keep Buyer’s premise lien fee; and (4) Seller shall comply with all of Buyer’s requirements relating to job procedures, formalities, payroll, etc.

15. RESPONSIBILITY FOR GOODS AND RISK OF LOSS.  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 Seller until goods have been received and accepted by Buyer or received, installed and accepted by Buyer, whichever is applicable.

16. ASSIGNMENT. The Purchase Order may not be assigned and no duty or right hereunder may be delegated by Seller without the prior written consent of Buyer, which consent may be given or withheld in Buyer’s sole discretion.

17. LICENSE. If any software is necessary to operate the goods, Seller hereby grants to Buyer a perpetual irrevocable and transferable license to use such software and any accompanying manuals. Seller shall provide Buyer with any updates changes or modifications to such software and user manuals at no additional charge.  Seller warrants that Seller has the right title and authority to license any such software and that such software does not infringe on any other party’s copyright, patent, trade secret or other intellectual property rights.

18. CANCELLATION.  (a)  In addition to all other rights and remedies provided for hereunder or under law (including without limitation, damages) Buyer may cancel all or any part of this Purchase Order (1)  if Seller breaches any of the terms, warranties or provisions hereof;  (2) upon the occurrence of any event entitling Buyer to reject the goods; or (3) if any insolvency proceeding is instituted by or against Seller.  (b)  Buyer in Buyer’s sole discretion may cancel this Purchase Order at any time as to the goods not then delivered.  (c)  Buyer shall not be deemed to have cancelled this Purchase Order unless it notifies Seller of it’s intent to do so in writing.  Upon receipt of such notice, Seller will immediately stop work and notify any other parties performing any part of the work and will protect property Seller’s possession in which Buyer has or may acquire an interest.  (d)  Unless the Buyer exercises its right to cancel because of the events described in paragraph (a)  above or because of other event or condition caused by or under the control of Seller, Seller may claim (1)  reimbursement for actual out-of-pocket costs incurred by Seller as a result of such cancellation (exclusive of costs for materials that Seller can use on other orders) and (2) a reasonable profit on the work performed by Seller prior to cancellation.  Such claim must be made within twenty (20) days of the notice of cancellation and the total amount of such claim shall not exceed the purchase price for the completed goods.

19. GENERAL.   (a)  Any overtime or other additional extraordinary costs incurred by Seller to perform its obligations under or otherwise comply with the Purchase Order shall be borne by Seller.  (b)  Except as may be necessary to insure performance hereunder,  Seller shall not disclose the terms or existence of this Purchase Order to any third party without Buyers prior written consent, which may be given or withheld in Buyer’s sole discretion.  Seller shall keep strictly confidential the Specifications and any other information regarding Buyer’s business or operations directly or indirectly furnished verbally or in writing in connection with the Purchase Order.  (c)  Seller’s sole remedy under the Purchase Order shall be recovery of monetary damages as provided herein.  Seller shall not be entitled to recover lost profits, consequential damages or any other special or indirect damages.  Buyer’s liability shall in no event exceed the purchase price for the goods set forth in this Purchase Order.  (d)  Seller shall provide adequate assurance of due performance of Seller’s obligations hereunder within three (3) business days of Buyer’s written demand for such assurance and failure to provide such assurance shall be deemed a default hereunder.  (e)  All representations and warranties shall survive the termination of this Purchase Order and/or the delivery and acceptance of the goods and the payment of the purchase price.  (f)  Forbearance or indulgence by either party shall not constitute a waiver of the terms and conditions of the Purchase Order.  (g)  In the event of a dispute between the parties arising out of this Purchase Order, the prevailing party shall be entitled to recover its reasonable attorney’s fees and court costs.  (h)  This Purchase Order constitutes the entire agreement between the parties and supersedes all prior contracts, representations, negotiations and letters pertaining to the goods, whether written or oral.  (i)  Seller acknowledges that Buyer, its parent or its affiliates conduct a business that is subject to and exists because of privileged licenses issued by governmental authorities in the State of Florida or elsewhere that regulate gaming and related matters.  Seller further acknowledges that such authorities may revoke, suspend, limit or restrict Buyer, its parent or its affiliates if found to be associated with an unsuitable person.  In the event any person or entity connected with Seller is found unsuitable by the appropriate authority or if Buyer or its affiliates are advised by the appropriate authority of concerns regarding such a relationship, or in the event Seller is found unsuitable by an appropriate governmental authority or if Buyer, its parent or affiliates, in its reasonable, good faith belief determines that its privileged licenses could be adversely affected by its association with Seller, Buyer shall have the right to terminate this Agreement, without further liability to or recourse by Buyer.  (j)  This Purchase Order shall be governed by and construed according to the laws of the State of Florida, without giving effect to choice of law principles.  Any action arising under or related to this Purchase Order shall be brought exclusively in a court of competent jurisdiction located in Miami-Dade County, Florida.

20. ARCHITECTURAL/ARTISTIC WORKS.  All of the results and proceeds of Seller’s works under this Purchase Order including, without limitation, the goods (“Works”) shall be considered as a work made for hire under the United States Copyright Act of 1976, with Buyer being deemed the author of the Works.  The parties acknowledge that under the terms of such arrangement, all such Works, all elements thereof (including development of research materials) and all rights related thereto are the sole and exclusive property of Buyer its successors and assigns, absolutely, for all copyright terms and renewal terms, throughout the world and for all uses and purposes whatsoever.  All subcontractors or materials providers of Seller shall be hired under a work mad for hire agreement suitable in form and content to Buyer.  Seller and all subcontractors and materials providers shall prepare all Works subject to the approval and under the creative direction and control of Buyer.  In the event any Work is deemed not to be a work made for hire, then the Seller agrees to and does hereby assign and transfer all right, title and interest in and to the Works throughout the world, including the copyrights and all works of authorship to Seller for good and valuable consideration, receipt of which Seller hereby acknowledges and Seller waives ant statutory equitable “moral”, or other rights that may accrue to it as a result of the production of the Works. To effectuate such assignment, Seller hereby grants Buyer an irrevocable power to attorney, coupled with an interest.  Buyer shall own all rights, title and interest (including copyrights and trade marks) in and to the  Works and shall have the right without any consent, notice of approval of any party, to add alter, revise, adapt or interpose other material in the Works or to destroy distort, mutilate or otherwise modify the Works.  Seller further agrees to promptly execute any further assignments as may be requested by Buyer to ensure Buyer’s ownership of the Works and any represents, warrants and covenants that the Works shall be delivered free and clear of any and all liens, claims, or rights of any type whatsoever, that the production or exploitation of  the Works in the exercise of Buyer’s rights hereunder will not violate or infringe upon any copyright, literary right, intellectual property right, trade mark, trade name, right of privacy or publicity, or any other right of any person or entity.  Seller will obtain a written release from any person required to make the representation and warranty true, complete and correct to otherwise permit Seller to assign all rights to the Works.