SC-1  

Revised 1_2013  

G6’s Terms and Conditions of Purchase  

By acceptance of this Purchase Order, the Supplier agrees that the Terms and Conditions of  Purchase as specified in this Agreement shall apply to all Purchase Orders received from G6  Hospitality LLC on behalf of its subsidiaries (“G6”). Should G6 order by facsimile or other  electronic means, the Terms and Conditions of Purchase shall be fully integrated into the order as  if fully and completely printed on the order. Should any provision of Supplier’s bid or invoice be in  conflict with the attached Terms and Conditions of Purchase, the conflicting provisions of  Supplier’s bid or invoice will be considered null and void.  

The Supplier agrees to the following terms and conditions:  

1) Definitions. As used in the Purchase Order (including, without limitation, these Terms and  Conditions) the following terms shall have the respective meanings set forth below:  

“Goods” means the materials, supplies, equipment, and/or services covered by the Purchase  Order of which these Terms and Conditions are a part.  

“Purchase Order” means this purchase order; all references herein to “Purchase Order” shall  include (without limitation) these Terms and Conditions.  

“Purchase Price” means the purchase price of the goods as specified in the Purchase Order,  which shall be inclusive of all costs of packaging and storage. The Purchase Price will not  include transportation costs to the Destination unless agreed to by both parties.  

“Buyer” means G6 and/or any of its subsidiaries.  

“Buyers Acceptance” means the delivery, examination and approval of Goods at the  Destination by Buyer, so long as conducted and completed within a reasonable time, not to  exceed 14 business days from the Delivery Date, or if installation is included in the Purchase  Order, within 14 business days of the completed installation.  

“Destination” means the address that Supplier is required to deliver Goods as specified in the  Purchase Order.  

“Specifications” means all descriptions, explanations, requirements, designs, drawings,  industry standards, quantities, performance criteria, samples, and instructions, in respect of  the Goods furnished or provided by Buyer to Supplier, including, without limitation, all  descriptions, quantities, performance criteria and requirements included in the Purchase  Order.  

“Shipment” means the date that Goods are made available by Supplier to a common carrier  for delivery to the Destination.  

“Due Date” means the date specified in the Purchase Order for delivery of Products to the  Destination.  

2) Supplier’s Acceptance.Supplier’s Acceptance can be effected only by Supplier either (i)  acknowledging the Purchase Order to Buyer by fax, email or other written instrument which  affirmatively accepts the Purchase Order or (ii) making Shipment or (iii) failing to deliver to  Buyer written notification of its intent to reject the Purchase Order within five (5) days of the  date of the Purchase Order. This Purchase Order is subject to, and expressly conditioned  upon, Supplier’s unconditional acceptance of the Purchase Order in its entirety, and neither  the face of the Purchase Order nor any of these Terms and Conditions may be varied or altered in any manner or to any extent, except by a written instrument executed by a duly  authorized representative of Buyer.  

3) Shipping and Billing Instructions.Method of shipment cannot be changed without  approval of Buyer. Packing slips must accompany Shipment to Destination. The original  invoice copy must show the Purchase Order number and itemized prices, and must be  mailed to billing address specified on Purchase Order on date Shipment is made. The  invoice discount period will begin on the date the Shipment is received at the destination  specified on the Purchase Order. Separate invoices must be furnished for each shipment  showing point of shipment and routing. Attach to invoice original bill of lading and express bill  for any prepaid express or freight shipment.  

Goods must be delivered in standard commercial containers acceptable by carrier for safe  transportation at the lowest rate to Destination. No charges will be allowed for handling,  blocking or packaging, except as otherwise specified in the Purchase Order.  

Each package, carton, roll or box must be clearly marked with (i) Buyer’s Facility number, (ii)  Buyer’s Purchase Order #, line item number & Shipment number, (iii) Supplier’s name, (iv)  sequence number of the box or carton for that Shipment (i.e., 1 of 2, 2 of 2), (v) Location of  the packing slip (mark the carton that contains the packing slip), and (vi) yardage included in  roll or carton (carpet, carpet pad, vinyl and cover base only).  

The above instructions apply whether shipment is made by Supplier or sub-vendor.  

4) Shipment. Before Shipment of non-custom manufactured Goods, Buyer may cancel a  Purchase Order, in whole or in part, without liability to Buyer. Before Shipment or before  Supplier incurs costs of manufacturing for custom Goods, Buyer may at its sole discretion,  cancel an Order, suspend or reroute the Shipment within 5 days of the Purchase Order Due  Date, in whole or in part, without liability to Buyer. After Shipment and without liability, Buyer  may cancel a Purchase Order in whole or part for Supplier’s failure to comply with the  Purchase Order’s terms or conditions. Buyer’s cancellation will be without prejudice to  Buyer’s right to assert any claim it may have against Supplier for Supplier’s breach.  

Without liability or obligation, Buyer may elect not to accept deliveries or to not pay Supplier  for (i) untimely Good deliveries (includes deliveries where the Delivery Date is before or after  the Due Date), (ii) excess or under Shipment of Goods, (iii) Goods that do not conform to  Specifications or warranties, or (iv) Goods that are defective. At Buyer’s option, all such  Goods in a Shipment, in whole or in part, at Buyer’s sole option, may be returned to Supplier  or held for disposition at Supplier’s expense and risk.  

Buyer will not be obligated to pay any portion of the Purchase Price until Buyer’s Acceptance.  

5) Inspection of Material.The Supplier agrees to inspect all articles covered by this Purchase  Order which are manufactured or assembled by the Supplier. The articles will also be subject  to inspection by Buyer and Buyer’s location. In the event any articles are found to be of  inferior workmanship or defective, or fail otherwise to comply with this Purchase Order, the  Buyer shall have the right to return them to the Supplier and either to reduce the quantity  covered by this Purchase Order by the number of defective articles, or to require the Supplier  to replace the defective articles, or, at Supplier’s expense, to remedy their defects. All  transportation costs in connection with returned articles and replacement shall be borne  solely by the Supplier. Supplier shall be obligated to expedite, at its sole cost and expense,  the Shipment of any replacement goods. All costs associated with such shipment shall be  the sole responsibility of the Supplier. 

6) Passage of Title and Risk of Loss.Before Buyer’s Acceptance, title to Goods will remain  with Supplier, including but not limited to all risks of damage, injury, or loss. Upon Buyer’s  Acceptance of Goods, title and risk of loss will pass to Buyer.  

7) Representations and Warranties of Supplier.Unless otherwise stated in the Purchase  Order, Supplier represents and warrants with respect to Goods (a) Supplier has good and  merchantable title to Goods, and on Acceptance, Buyer will receive good and merchantable  title to Goods, free and clear of all liens, security interests, patent, trademark, or copyright  infringements or encumbrances of any nature; (b) Goods will be manufactured, fabricated,  produced, and assembled in a good and workmanlike manner, and that only new and unused  material and equipment will be used or provided under the Purchase order; (c) Goods fully  conform to and meet federal, state, and local laws and regulations; (d) Good meet or exceed  Specifications then in effect; (e) Goods are free from defects in workmanship or materials and  Goods are covered by warranties available to Buyer by Supplier or Manufacturer; (f) Goods  are produced, packaged, labeled, transported as well as stored, used and sold in compliance  with applicable laws and regulations; and (g) Goods are fit for their intended and particular  uses and purposes, including as described in Supplier’s or Manufacturer’s Good literature.  The warranties under this Purchase Order will be in addition to and cumulative with all other  warranties, express, implied, or statutory. Payment for inspection, testing or receipt of Goods  will not constitute a waiver of any breach of Supplier’s or Manufacturer’s warranty,  representation, or covenant.  

8) Supplier’s Indemnity.Supplier will indemnify, defend and hold harmless G6, and its  employees, officers, directors, principals, affiliates successors, assigns, or agents, , past or  present (“Indemnified Parties”) from all claims, suits, actions and proceedings (“Claims”)  whatsoever which may be brought or instituted against any Indemnified Party to recover  losses, injuries, including death, damages, costs or expenses (including reasonable  attorney’s fees and other costs of defending against, investigating and settling the Claims)  arising from Supplier’s activities on or around, or use of any Indemnified Party’s premises as  well as arising from any Goods provided by Supplier, its officers, directors, employees,  contractors or agents, INCLUDING WITHOUT LIMITATION ANY CLAIMS RELATED TO OR  RESULTING FROM THE NEGLIGENCE OR FAULT OF ANY INDEMNIFIED PARTY. 

9) Insurance. Without limiting any other obligation or liability of Supplier under this Purchase  Order, Supplier agrees that upon execution of the Purchase Order and throughout its entire  effective period, Supplier will procure and maintain insurance coverage, at its sole cost and  expense, with limits and conditions not less than those specified below.  

1. a) Commercial General Liability Insurance. Supplier will obtain Commercial General  Liability insurance written on an occurrence form, including but not limited to premises operations, broad form property damage, products/completed operations, contractual  liability, independent contractors, personal injury and advertising injury and liability assumed  under an insured contract, with limits of at least $1,000,000 per occurrence and $2,000,000  general aggregate and products/completed operations aggregate of $2,000,000. Coverage  will be primary and non-contributory to any other insurance available to G6. Supplier will be  liable for the payment of any deductible amount under Supplier’s insurance policies  maintained pursuant to this Section provided, however, Supplier’s insurance deductible will  not exceed One Thousand and 00/100 Dollars ($1,000.00) or an amount approved by G6  and such amount shall be evidenced on the certificate of insurance.  
2. b) Workers Compensation/Employers Liability Insurance. Supplier will obtain  Worker’s Compensation insurance with benefits afforded under the laws of the state in which  any part of the Purchase Order is to be performed and Employer’s Liability insurance with  minimum limits of $1,000,000 for Bodily Injury – each accident, $1,000,000 for Bodily Injury  by disease – policy limit and $1,000,000 for Bodily Injury by disease – each employee. 
   
3. c) Business Automobile Liability Insurance. Supplier will obtain Business  Automobile Liability insurance including coverage for owned, hired, and non-owned vehicles  with a combined single limit including bodily injury and property damage of not less than  $1,000,000 each accident.  
4. d) Excess Liability (Umbrella) Insurance. Supplier will obtain Excess Liability  (Umbrella) insurance with a minimum limit of $5,000,000 per occurrence. This policy will be  excess of the General Liability, Worker’s Compensation/Employer’s Liability and Automobile  Liability policies and follow the form or at least as broad in coverage.  

9.1) General Requirements.  

1. a) Supplier’s purchase of insurance will not in any way limit Supplier’s liability under this  Agreement. All coverages must be written on an occurrence basis (except for policy  identified, which will be on a claims made basis) and must be maintained without interruption  from the Effective Date until the termination date of this Agreement. Supplier will provided to  G6 30 days written notice of any intention not to renew any policy or to cancel, replace or  alter the same by reducing required coverage and will be sent to G6’s notice address under  this Agreement. The policies will be written with insuring company(ies) with AM Best  financial strength ratings of “A-” or higher and financial size categories of “VII” or greater.  The policies required by this Agreement will list G6 and its subsidiaries, affiliates, directors,  officers, employees, partners and agents as an additional insured and having the same  rights as a named insured.  
2. b) Notwithstanding anything to the contrary herein, to the extent permitted by law and  without affecting the coverage provided by insurance required to be maintained hereunder,  G6 and Supplier waive any right to recover against the other (and the other’s agents,  officers, directors and employees) on account of any and all claims it may have against the  other (and the other’s agents, officers, directors and employees) with respect to the  insurance actually carried, or required to be carried hereunder, to the extent of the proceeds  realized from such insurance coverage that are applied to such claim. The policies will  contain waivers of subrogation in favor of G6.  
3. c) The coverage amounts set forth above may be met by a combination of underlying  and umbrella policies so long as in combination the limits equal or exceed those required.  Supplier and any subcontractors will provide G6 with certificates of insurance evidencing the  insurance required within prior to commencing any services. Supplier will require its  subcontractors to maintain coverage not less than those specified above. When required by  G6, Supplier will furnish G6 certificates of insurance evidencing coverage for subcontractors.  Furnishing acceptable evidence of insurance as required hereunder will not relieve Supplier  or any subcontractor from any liability or obligation for which it is otherwise liable under the  terms of this Agreement, nor is liability limited to the amount of this Purchase Order.  

9.2) Restrictions. The above required coverage is intended to be primary and without right of  contribution from G6's policies of insurance. Notwithstanding anything to the contrary under  this Agreement, G6 shall under no circumstances be liable for any premiums or costs of  insurance or indemnification and defense incurred by Supplier to fulfill its obligations under  this Section.  

10) Patent, Trademark and Trade Secret Indemnity. Supplier represents and warrants that  sale or use of the Goods will not infringe any patent, copyright, trademark or other intellectual  property right of any third party and will, at its own expense, defend and indemnify the  Indemnified Parties from every claim which may be brought against any Indemnified Party  for any infringement of any patent, copyright, trademark or other intellectual property right of  any third party by reason of the sale or use of the Goods (collectively, “Infringement  Claims”)and shall pay all Claims related to such Infringement Claim.  

11) Cancellation.Before Shipment of non-custom manufactured Goods, Buyer may cancel a  Purchase Order, in whole or in part, without liability to Buyer. Before Shipment or before  Supplier incurs costs of manufacturing for custom Goods, Buyer may at is sole discretion,  cancel a Purchase Order, suspend or reroute the Shipment within 5 days of the Purchase  Order Due Date, in whole or part, without liability to Buyer. After Shipment and without  liability, Buyer may cancel this Purchase Order in whole or part for Supplier’s failure to  comply with the Purchase Order’s terms or conditions. Buyer’s cancellation will be without  prejudice to Buyer’s right to assert any claim it may have against Supplier for Supplier’s  breach. Buyer’s failure to insist on strict performance or observance by Supplier of the  Purchase Order will not constitute Buyer’s waiver of any performance or rights under the  Terms and Conditions.  

12) Modification.Any attempt by Supplier to alter, vary, or modify in any manner, or to any  extent, the Purchase Order without the written consent of Buyer (acting through a duly  authorized representative) shall be void and ineffective. In the event of any conflict between  the Purchase Order and any prior quotation, acknowledgment, or other document or  communication of Supplier in respect of the Goods, or the terms and conditions of the sale  thereof, the Purchase Order shall prevail. No oral agreement or understanding shall ever in  any manner or to any extent modify the Purchase Order, and no amendment, addition to,  alteration, modification, or waiver of any part of the Purchase Order shall be of any force or  effect unless in writing and signed by Buyer, through its duly authorized representative or any  other person designated by Buyer.  

13) Governing Law.The Purchase Order will be construed and enforced in accordance with the  laws of New York, without regard to choice of law principles.  

14) Survival of Representations, Warranties, and Covenant.All Supplier representations and  warranties will survive termination of this Purchase Order.  

15) Assignment.The Supplier may not assign this Purchase Order or otherwise convey any  rights or obligations under this Purchase Order, in whole or in part, without G6’s prior written  consent. This Purchase Order will inure to the benefit of and be binding upon the parties and  their respective successors and assigns