1. General This Purchase Order is an offer by Woodbine Entertainment Group or an affiliated entity of Woodbine Entertainment Group (“Buyer”) to the seller listed on the accompanying Purchase Order (“Seller”) and acceptance is limited to its provisions without additions, deletions, or other modifications. Buyer will not be responsible for goods or services delivered without issuance of its standard Purchase Order. Where there is an executed agreement between the parties related to the subject of this Purchase Order (an “Agreement”), the terms of the Agreement shall govern to the extent that there is an inconsistency between the terms of the Agreement and the terms of this Purchase Order. 2. Acceptance This Purchase Order may be accepted by delivering the goods or services by the specified delivery date. This Purchase Order is limited to the terms and conditions: (i) specified herein; (ii) specified on the face of the accompanying Purchase Order; and (iii) if applicable, specified in Buyer’s written agreement with Seller. Acceptance of all or part of the goods or services shall not (i) waive Buyer’s right to cancel or return all or any portion of the goods or services that do not conform to the Purchase Order; (ii) bind Buyer to accept future shipments of goods or services; or (iii) preclude Buyer from making any claim for damages or breach of warranty. All purchases are subject to inspection and rejection by Buyer notwithstanding prior payment. Rejected goods will be returned at Seller’s expense for transportation both ways and all related labor and packing costs. No goods returned as defective by Buyer shall be replaced by Seller without written permission of Buyer. 3. Title Title conveyed to Buyer by Seller shall be good and merchantable and its transfer rightful. The goods and services shall be delivered free and clear of any lien, security interest, claim or encumbrance whatsoever. 4. Hold Harmless Seller agrees to defend, indemnify and hold harmless Buyer, its officers, directors, shareholders, affiliated entity, employees, agents, representatives, successors and assigns (“Indemnitees”) from all losses, liabilities, damages, and/or expenses which may be sustained or claimed against an Indemnitee: (i) arising out of defective goods or negligent services hereby ordered; (ii) arising from injury to Seller employees while in the course of providing goods or services to Buyer; (iii) arising from Seller’s use of automobiles, trucks, or heavy equipment; or (iv) based on a claim that the goods or services supplied by Seller infringe a patent, copyright, or trademark or misappropriate a trade secret of a third party. Seller shall, at the request of Buyer, defend any such claim, action or lawsuit. If the goods or services become, or in Seller’s opinion, are likely to become the subject of any infringement claim, Seller shall do one of the following at Seller’s option and expense: (i) procure for Buyer the right to continue using the goods or services; (ii) replace or modify the goods or services so that they become non-infringing without losing functionality; or (iii) terminate Buyer’s right to use the goods and/or services, whereupon Seller will refund to Buyer all amounts paid for such goods or services. The indemnity under this Paragraph 5 shall survive delivery and acceptance of goods and services and termination or expiration of this Purchase Order and/or Buyer’s written agreement with Seller, if applicable. 5. Price The price for goods and services ordered hereby shall be the price stated on the accompanying Purchase Order. Price is inclusive of freight, all packaging and handling, transportation, and insurance unless explicitly indicated on the face of this Purchase Order or agreed to in writing by Buyer. 6. Taxes Any tax, tariff or duty which is imposed upon Seller by any governmental authority and included by the Seller in the price shall be separately stated on Seller’s invoice(s). 7. Delivery All risk of loss shall remain with Seller until goods and services have actually been received and accepted by Buyer at the applicable destination according to the terms and conditions of this Purchase Order. The goods or services ordered must be received no later than the delivery date specified. 8. Quantities Quantities of goods or services ordered may not be changed without the prior written approval of Buyer. If the total or any portion of the goods received either exceeds or falls below the quantities ordered, Buyer shall have the right to reject and return any such shipments or portions thereof at Seller’s expense for transportation both ways and all related labor and packing costs. 9. Packaging and Shipping All shipping containers shall be packed and packaged to: (i) ensure safe arrival to final destination; (ii) secure the lowest transportation costs; (iii) comply with requirements of common carriers; (iv) meet Buyer’s written instructions; and (v) meet the requirements of all applicable laws, ordinances, rules and regulations. Each package or container shall be marked clearly to show the Purchase Order number, ship date, and name of consignee and consigner. An itemized packing list shall be included in each container. 10. Invoices Seller shall issue a separate invoice for each separate shipment. Each invoice shall include: (i) the Purchase Order number; and (ii) quantities shipped. Undisputed amounts shall be paid within 30 days of receipt and acceptance of goods or services and a correct invoice. Delays in receipt of goods or services, acceptance of goods or services, or a correct invoice will be just cause for Buyer to withhold payment without losing discount privileges. Cash discounts, if any, shall be computed as commencing with receipt of the invoice or goods or services, whichever is later. 11. Warranties Seller warrants that the goods or services delivered, the packaging, labeling and sorting thereof, any installation, repair, and maintenance of goods, and any other performance pursuant to this Purchase Order, will: (i) be free of infringement of property rights of third parties, including without limitation, any patent, trademark, trade name, copyright or right of publicity, or misappropriate any trade secret or violate any license or any other rights; (ii) be free from defects in material and workmanship, be of even kind and quality and run without variation; (iii) be of merchantable quality; (iv) be fit for the intended use of the Buyer, Buyer’s customers and any other intended uses of such goods and shall be new and not refurbished; (v) be of grade and performance in conformity with all specifications, descriptions, instructions, and other items referred to in this Purchase Order; and (vi) be in compliance with all applicable laws. Seller shall maintain, solely at Seller’s cost and expense, all licenses, permits, approvals, and the like necessary to conduct its business and perform its obligations under this Purchase Order. 12. Inspection Buyer shall have the right to inspect and test the goods or services ordered at any time, including during the manufacture and construction, or preparation, notwithstanding any prior payment or inspection. Defective goods or services not in compliance with Buyer’s standards may at any time be rejected even though such goods or services may have previously been inspected and accepted. Without limiting any rights it may have, Buyer at its sole option may require Seller, at Seller’s expense to: (i) promptly repair or replace any or all rejected goods and/or services, or (ii) refund the fees paid for any or all rejected goods and/or services. All such rejected goods will be held for Seller’s prompt instruction and at Seller’s risk. Rejected goods will be transported for return to Seller or destroyed at Seller’s cost. Nothing contained herein shall relieve in any way Seller from the obligation of testing, inspection, and quality control. Payment for goods or services prior to inspection shall not constitute acceptance thereof and is without prejudice to any and all claims Buyer may have against Seller or any other party. 13. Limitation of Liability Buyer’s liability to pay any amount to Seller for any reason shall not exceed the amount Buyer has agreed to pay Seller for the goods or services. BUYER SHALL NOT BE LIABLE TO SELLER FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES OR COMMERCIAL LOSSES ARISING FROM THE PURCHASE OF GOODS AND/OR SERVICES REGARDLESS OF THE CAUSE OF ACTION OR THE FORM OF THE CLAIM FOR DAMAGES, AND EVEN IF BUYER IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. 14. Miscellaneous Seller shall not assign this Purchase Order or any rights, nor delegate any duties to any third party. Any attempt to do so will be void. This Purchase Order shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Each party is an independent contractor of the other party. 15. Deliverables All deliverables created by Seller in the course of the provision of services hereunder shall be and remain at all times the property of Buyer. 16. Workplace Safety Seller shall at all times comply with Buyer’s then current safety, environmental and security policies and procedures whenever on Buyer’s premises. 17. Waiver A waiver of any term, condition or default of this Purchase Order shall not be construed as a waiver of any other term, condition, or default. 17. Entire Agreement The Purchase Order represents the entire understanding between Buyer and Seller, shall supersede all prior understandings and agreements relating to the subject matter hereof, and may be amended only by written mutual agreement of the parties. Notwithstanding the foregoing, the provisions of this Purchase Order will not supersede any provisions of any other previously written agreement(s) that are currently in effect between the parties that govern the provision of the goods or services that are the subject of this Purchase Order. 18. Governing Law This Purchase Order shall be governed by and interpreted in accordance with the laws of the Province of Ontario.
