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SMSC Gaming Enterprise Standard Terms and Conditions Purchase of Goods and Services

These Terms and Conditions govern any project proposal issued to the Shakopee Mdewakanton Sioux Community Gaming Enterprise (the “Gaming Enterprise”) by a Vendor (“You” or “Your”) providing good and services to the Gaming Enterprise, any Purchase Order issued to You by the Gaming Enterprise, and any related attachments, instructions, specifications, or requirements provided to You by the Gaming Enterprise (collectively, the “Contract”).

These Terms and Conditions are subject to change without prior notice; however, the version of the Terms and Conditions posted on the Website at the time the Purchase Order was placed will govern unless otherwise agreed in writing.

Proposal: You will provide the Gaming Enterprise with a proposal describing all goods and services to be provided in connection with a project (each, a “Proposal”).

Purchase Order: The Gaming Enterprise’s commitment to purchase Your goods and services arises only upon the Gaming Enterprise’s issuance of a Purchase Order to You. Forecasts, commitments, projections or other estimates between the parties are not binding.

Acceptance, Validity, Terms: You will be deemed to have accepted the Contract when the Gaming Enterprise receives written notification from You of its acceptance or You take any action to fulfill the terms of a Gaming Enterprise Purchase Order. Your acceptance is limited to the terms of the Contract. Additional or different terms included in any Proposal are void. In the event of a conflict between any term included in these Terms and Conditions and any term in Your applicable Proposal, these Terms and Conditions control.

Pricing and Payment: Prices included in an applicable Purchase Order are complete. No additional charges may be added without the Gaming Enterprise’s express written consent. The Gaming Enterprise will issue payment on all invoices within the number of days specified in the applicable Purchase Order.

Sales and Use Tax Exemption: The Gaming Enterprise is a governmental department of a federally recognized Indian tribe and retains certain inherent sovereign rights. As a matter of federal law, no Minnesota State or county sales and use tax may be imposed on any Contract purchase made by the Gaming Enterprise.

Delivery of Goods and Services: You will deliver goods purchased under the terms of the Contract in the quantities and on the dates specified in the applicable Proposal or Purchase Order. You will provide services to the Gaming Enterprise as described, and in accordance with the schedule set forth, in the applicable Proposal. You acknowledge that time is of the essence with respect to Your obligations under the terms of the Contract and the timely delivery of the goods and services, including all performance dates, timetables, project milestones, and any other Contract requirements.

Title and Risk of Loss: Title and risk of loss passes to the Gaming Enterprise upon delivery of goods at the Gaming Enterprise’s specified delivery point.

Inspection and Rejection of Non-Conforming Goods: The Gaming Enterprise has the right to inspect all goods on or after the delivery date. The Gaming Enterprise may reject all or any portion of the goods it determines, in its sole discretion, are nonconforming or defective. If the Gaming Enterprise rejects any portion of the goods, the Gaming Enterprise has the right to: (i) rescind the Contract in its entirety; (ii) accept the goods at a reasonably reduced price; or (iii) reject the goods and require replacement of the rejected goods. If the Gaming Enterprise requires replacement of defective goods, You will, at Your expense, promptly replace the nonconforming or defective goods and pay for all related expenses, including, but not limited to, transportation charges for return of the defective goods and the delivery of replacement goods.

The Gaming Enterprise’s inspection, testing, payment for, or retention of goods does not: (i) constitute an acceptance of goods not in compliance with the Contract; (ii) affect the Gaming Enterprise’s right to reject or return goods; or (iii) constitute a waiver by the Gaming Enterprise of any warranty or any rights or remedies the Gaming Enterprise is entitled to under the terms of the Contract.

Cancellation: The Gaming Enterprise may cancel a Purchase Order at any time prior to shipment of the goods. If the Gaming Enterprise cancels a Purchase Order, the Gaming Enterprise’s liability to You will be limited to the unit price of goods accepted prior to cancellation or the unit price of custom goods in production prior to cancellation.

Service Obligations: You will: (i) before the date on which the services are to start, obtain, and at all times during the term of the Contract, maintain, all necessary licenses and consents and comply with all relevant laws, regulations, and standards (including safety standards) applicable to provision of Your services to the Gaming Enterprise; (ii) comply with all applicable Gaming Enterprise rules, regulations, and policies, including systems and data security procedures, building security procedures, and general health and safety practices and procedures; (iii) ensure that all persons, including employees, agents, subcontractors, or any other person acting on Your behalf, are properly licensed, certified, or accredited as required by applicable law and are suitably skilled, experienced, and qualified to perform the services, and (iv) ensure all Your equipment used in the provision of services is in good working order and suitable for the purposes for which it is to be used, and conforms to all relevant legal standards and any standards specified by the Gaming Enterprise.

Warranties: You represent and warrant Your goods: (i) are free from any defects in workmanship, material, and design; (ii) conform to applicable Contract specifications; (iii) are merchantable; (iv) are fit, sufficient and safe for their intended purpose and for the particular purpose for which purchased, if You knows or reasonably should know of that purpose; (v) are free of any third party claim; (vi) do not infringe or misappropriate any third party’s patent or other intellectual property rights; and (vi) are genuine and in their original manufactured condition. You warrant You will perform all Contract services using personnel of required skill, experience, and qualification and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. You warrant You will devote adequate resources to meet Your Contract obligations.

If the Gaming Enterprise gives You notice of noncompliance with any warranty, You will, at Your own cost and expense, promptly: (i) replace or repair the defective or nonconforming goods and pay for all related expenses, including, but not limited to, transportation charges for return of the defective or nonconforming goods to You and the delivery of repaired or replacement goods to the Gaming Enterprise, and, if applicable, (ii) repair or re-perform the applicable services.

Indemnification and Defense of Gaming Enterprise: You will defend, indemnify and hold harmless the Gaming Enterprise, its directors, officers, employees, contractors and agents harmless from and against any liabilities, losses, claims (including claims related to patent, design, trade name, trademark, or copyright rights), suits, damages, costs and expenses (including reasonable attorneys’ fees and expenses) arising out of, or occurring in connection with, the goods and services purchased from You or Your negligence, willful misconduct or breach of Contract. The Gaming Enterprise may participate in the defense of any claim, at the Gaming Enterprise’s expense.

Limitation of Liability: Your liability for fraud, personal injury, or death caused by Your negligence or willful misconduct will not be subject to any limitation of liability.

Insurance: You will maintain in full force and effect insurance coverage in accordance with Schedule A to these Terms and Conditions.

Confidentiality: All non-public, confidential, or proprietary information exchanged by the parties, including but not limited to, financial information; business and marketing plans; trade secrets (as defined in Minn. Stat. 325C.01, subd. 5); supplier information; work in progress; formulas, developmental, or experimental work; know-how, methods, and processes; shop practice; software and firmware documents or source codes; designs, plans, and samples; business or governmental operations information; customer lists; pricing; prize payouts or marketing incentives, whether disclosed orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” is confidential (“Confidential Information”). Confidential Information is to be used solely for the purpose of fulfilling Contract obligations and may not be disclosed or copied unless authorized in advance by the disclosing party, in writing. Upon the disclosing party’s request, the receiving party will promptly return all Confidential Information received from the disclosing party. The disclosing party is entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (i) in the public domain; (ii) known to the receiving party at the time of disclosure; or (iii) rightfully obtained by the receiving party on a non-confidential basis from a third party.

Compliance with Law: At all times during the term of the Contract, You will comply with all applicable laws, regulations, ordinances, and standards. You will maintain in effect all registrations, licenses, permissions, authorizations, consents, and permits required to fulfill Your Contract obligations. The Gaming Enterprise will notify You of any applicable Shakopee Mdewakanton Sioux Community (“Community”) laws, regulations, ordinances, and standards prior to the Contract effective date.

Notice: Any notice to the Gaming Enterprise must be addressed as follows: Shakopee Mdewakanton Sioux Community Gaming Enterprise, 2400 Mystic Lake Boulevard, Prior Lake, Minnesota 55372. Attention: Contract and Compliance Administrator.

Assignment: You may not assign, transfer, delegate or subcontract any of Your Contract rights or obligations without the Gaming Enterprise’s prior written consent. Any assignment or delegation in violation of this Section is null and void.

Relationship of the Parties: You will serve as an independent contractor for the Gaming Enterprise. Nothing contained in this Contract may be construed to create any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties. Neither party will have the authority to contract for or bind the other party in any manner whatsoever.

Governing Law, Consent to Tribal Court Jurisdiction: The Contract will be governed by and interpreted pursuant to the laws of the Community, without regard to conflicts of laws rules. The Community Tribal Court will have exclusive jurisdiction over any disputes that may arise between the parties.

Severability: If any Contract term or provision is held to be invalid, illegal, or unenforceable, its invalidity, illegality, or unenforceability will not affect any other Contract term or provision.

 

SMSC Gaming Enterprise Standard Terms and Conditions Purchase of Goods and Services SCHEDULE A

You will maintain insurance coverage of the following minimum coverage amounts and limits of liability:

• Worker’s Compensation. Sufficient to satisfy the State of Minnesota statutory limit;

• Employer’s Liability. up to a limit of $1,000,000 each occurrence, and $2,000,000 aggregate;

• Commercial General Liability. up to a limit of $2,000,000 each occurrence, and $2,000,000 aggregate;

• Errors & Omissions Insurance including cyber liability and data breach coverage up to a limit of $1,000,000 each (limits shown separately) (if applicable)

• Commercial Auto Liability. up to a limit of $1,000,000 each occurrence, and $1,000,000 aggregate for all owned, hired, and non-owned automobiles.

• Employer’s Liability, Commercial General Liability, and Commercial Auto Liability insurance may be arranged under single policies for full minimum limits required, or by a combination of underlying policies with the balance provided by an Excess or Umbrella Liability policy.

You will maintain in effect all insurance coverage required under this Section at Your sole expense and with insurance companies rated “A” or higher. You will name the Gaming Enterprise as an additional insured on Your liability policy(ies) and will provide a standard ACORD 25 Certificate of Liability Insurance, a standard ACORD 23 Automobile Certificate of Insurance, or equivalent, and evidence of Worker’s Compensation Insurance prior to execution of the Contract. The Gaming Enterprise may also request updated certificate(s) of insurance from You, and You will provide the updated certificate(s) within five business days of the Gaming Enterprise’s request. The Gaming Enterprise’s acceptance of Your insurance certificate(s) will not be considered a limitation of Your liability under the terms of the Contract, agreement by the Gaming Enterprise to assume liability in excess of the amounts stated on the certificate(s), or agreement by the Gaming Enterprise to assume liability for risks not insured against.