Purchase Order Terms & Conditions
1. Acceptance of Terms. These terms and conditions of purchase, together with IMPAKT’s purchase order (collectively, this “Order”) are the only terms which govern the purchase of Goods, by A-1 Machine Manufacturing Inc. dba Impakt (“IMPAKT”) from Vendor (the stipulated provider of Goods). Any acceptance herein of an offer of Vendor, or any confirmation herein of a prior agreement between IMPAKT and Vendor, is expressly made conditional on IMPAKT’s written assent to the additional or different terms contained herein. Any other such terms are expressly rejected and this Order shall supersede. This Order may be accepted by Vendor by commencement of work, shipment of goods, or furnishing of services hereunder. Dispatch of Vendor’s acknowledgement form or other written document will also act as an acceptance if it agrees with this Order with respect to the description, amount, price and time of delivery of the Goods ordered. Notwithstanding any waiver in any instance, or any oral agreement, or any instructions, terms and conditions that may be contained in any quotation, acknowledgement, invoice or other written document of Vendor, no addition to, waiver for the future or modification of, any of the provisions herein contained shall be of any force or effect unless made in writing and executed by IMPAKT.
2. Governing Law. This Order shall be construed in accordance with the laws of the state of California. The parties agree that any controversy arising under this Order shall be determined exclusively by the federal or state courts located in Santa Clara, California, and Vendor hereby submits to and consents to the exclusive jurisdiction of said courts.
3. Price. The price shall not be higher than that appearing on this Order, or if no price appears thereon, then no higher than that last price quoted to IMPAKT by Vendor for similar articles, materials, goods, parts, services, or other deliverables (collectively, “Goods”). Prices of the Goods shall not exceed Vendor’s lowest prices in effect at the date of shipment for comparable Goods in comparable quantities.
4. Packaging and Shipment. No charge will be allowed for packing, crating, cartage or storage unless otherwise designated in this Order. Goods shall be suitably packed to secure the lowest transportation costs and conform to the requirements of common carriers and any applicable specifications. With respect to each shipment, Vendor shall provide a certificate of conformance certifying the Goods meet all required specifications (“Certificate of Conformance”), and each shipment shall be made in accordance with IMPAKT’s instructions provided in this Order. Vendor shall place this Order number on the outside of each shipment hereunder and on all documents relating to such shipment. Vendor’s serial numbers must be shown on all shipping papers and invoices, where applicable. Vendor shall be liable to IMPAKT for any increase in transportation charges resulting from Vendor’s failure to utilize the specified method of shipment or carrier.
5. Warranty. Vendor warrants that all Goods furnished pursuant to this Order will be (i) free of all claims, liens, or encumbrances; (ii) new and of merchantable quality, not used, rebuilt or made of refurbished material unless approved in writing by IMPAKT; (iii) free from all defects in design, material and workmanship; (iv) provided in conformity with the requirements of this Order, including all drawings and specifications; (v) fit for the particular purpose for which such Goods are intended; and (vi) performed in a competent, safe, and professional manner in accordance with the highest standards and best practices of Vendor’s industry. IMPAKT’s approval of Vendor’s design or material shall not be construed to relieve Vendor of its warranty obligations set forth herein. Without limitation of any rights which IMPAKT may have at law by reason of any breach of warranty, Goods which fail to meet the warranties set forth herein may at any time within twelve (12) months after delivery be returned to Vendor at Vendor’s expense. IMPAKT, at its option, may require Vendor either to replace such Goods at no additional cost (and Vendor shall pay all repacking, transportation and handling charges both ways) or to refund to IMPAKT the purchase price and any charges incurred by IMPAKT in connection therewith. The foregoing warranties shall apply to IMPAKT, its successors, assigns and the users of the Goods covered by this Order.
6. Inspection and Acceptance. IMPAKT reserves the right to inspect all Goods prior to shipment by Vendor. Vendor shall permit employees or representatives of IMPAKT and/or IMPAKT’s customers (collectively “Representatives”) to have access to Vendor’s facilities in order to perform said inspections at all reasonable hours provided that written notice is provided 24 hours in advance. At the time of inspection, Vendor shall make available to such Representatives copies of all drawings, specifications, other technical data and any other relevant records applicable to the Goods ordered. Notwithstanding the provisions of this Section 6, all Goods shall be received subject to final inspection and acceptance by IMPAKT within 60 days after delivery at IMPAKT’s designated destination (the “Delivery Location”). Following any inspection, IMPAKT may reject delivery of any non-conforming Goods and, at IMPAKT’s direction and Vendor’s expense, Vendor shall accept return of the non-conforming Goods for refund, credit or replacement. At IMPAKT’s option, inspection may be performed on a statistical sampling basis. If the number of defects in the selected sample exceeds the allowable defects, as determined by IMPAKT, the entire lot of Goods may be rejected by IMPAKT. The rejected Goods may at IMPAKT’s option be 100% inspected at Vendor’s expense. IMPAKT’s inspection, lack of inspection, or acceptance shall not affect any express or implied warranties, nor shall IMPAKT waive any rights to return Goods that contain latent defects discovered in the testing of IMPAKT’s products containing such Goods.
7. Non-Conforming Goods. Following inspection pursuant to Section 6 above, non-conforming Goods found by IMPAKT may be reported to the Vendor on a serialized Discrepant Material Report (DMR) form. Where the non-conformity requires rework to bring the Goods into conformity with the requirements of this Order, IMPAKT may at its discretion either perform the necessary rework to be charged back to Vendor at an hourly rate of $60 (USD) or return the Goods to Vendor to be reworked at its cost.
When returning reworked Goods to IMPAKT, the DMR number shall be referenced on the packing slip and a copy of the DMR shall be attached to expedite IMPAKT handling. If a corrective action request (“Corrective Action Request”) is issued to Vendor, a response shall be completed by Vendor and delivered to IMPAKT within fourteen (14) calendar days from Vendor’s receipt of the Corrective Action Request. If Vendor fails to timely respond to a Corrective Action Request, IMPAKT may, without liability, refuse to accept further delivery of Goods until an adequate response is provided. Reasonable extensions of time may be granted by IMPAKT when valid written requests are provided by the Vendor.
8. Delivery and Risk of Loss. Time is of the essence, with respect to IMPAKT’s deliveries of the Goods. Vendor’s failure to deliver the quantities of Goods, on the required delivery date, and to the Delivery Location, as specified by IMPAKT, shall constitute a default under this Order, and Vendor shall be responsible and liable for all damages incurred or suffered by IMPAKT as a result of such default. Vendor shall also be responsible and liable for all premium logistics cost resulting from Vendor’s inability to meet the delivery schedule(s). This includes all premium costs incurred by IMPAKT in obtaining the Goods. Vendor agrees to notify IMPAKT immediately in the event Vendor is (or may be) unable to meet the delivery schedule, and shall set forth the reasons for the delay (actual or potential), the steps being taken to remedy the delay, and the new delivery schedule that Vendor shall be able to meet.
IMPAKT’s receipt of Vendor’s notification shall not constitute approval of the delay, the proposed revised delivery schedule, or a waiver of the delivery schedule in the Order. Unauthorized advance shipments and shipments other than for the quantity ordered may be returned to Vendor at Vendor’s expense. Delivery shall not be deemed complete until the Goods have been received by IMPAKT at its Delivery Location. Title and risk of loss for the Goods shall pass from Vendor to IMPAKT at IMPAKT’s Delivery Location. All shipments shall be shipped using DDP INCOTerms and Vendor shall be responsible and liable for appropriately insuring the Goods during transport. The cost of all return shipments shall be borne by Vendor. Unless otherwise agreed in writing, Vendor shall not make any Goods commitments or production arrangements in excess of the ordered quantities or in advance of the time necessary to meet IMPAKT’s delivery schedule, except at Vendor’s own risk.
9. Taxes. Except as may be otherwise provided in this Order, the price includes all applicable national, provincial, federal, state and local taxes. If and where sales tax is not specifically included as a part of this Order, it is a resale purchase and sales tax does not apply. If the Vendor does not have an applicable copy of IMPAKTs’ resale certificate, the Vendor shall notify IMPAKT to obtain it.
10. Changes. IMPAKT may at any time, by written direction, make changes in the drawings, specifications, quantities, delivery schedules, method of shipment or packaging, and/or Delivery Location. Should any such change increase or reduce the cost of, or the time required for performance of, an Order, an equitable adjustment, as mutually agreed, will be made in the Order price or delivery schedule. Any requests for an increase in the Order price or an extension in delivery schedule must be made within one (1) business day from the date of IMPAKT’s written direction. Failure of the parties to agree upon an equitable adjustment shall not relieve the Vendor from proceeding without any delay in performance under this Order, as changed. Where any Good is made obsolete or in excess as a result of any change for which Vendor makes a claim, IMPAKT shall have the right to prescribe the manner of disposition of such Goods.
11. Confidentiality. Vendor shall not, without first obtaining written consent of IMPAKT, advertise, publish or issue any news release or make any public announcement or denial or confirmation concerning the fact that the Vendor has furnished or has contracted to furnish to IMPAKT the Goods. All drawings, specifications and data furnished by IMPAKT to Vendor shall remain the property of IMPAKT and shall be disclosed to third parties by Vendor only as (and to the extent) required for Vendor’s performance of this Order, and provided such third parties are bound by obligations of confidentiality to Vendor. Vendor shall be responsible and liable for any failure of such third parties to comply with this Section 11. Upon completion of this Order, or at any time upon IMPAKT’s request, Vendor shall return any such drawings, specifications and/or data together with all copies and shall make no further use either directly or indirectly of any such drawings, specifications, data or information derived therefrom without IMPAKT’s prior written consent.
12. Indemnity Clause. Vendor agrees to indemnify, hold harmless and defend IMPAKT from and against any and all suits, claims, damages, costs, and attorneys’ fees arising out of or in connection with an infringement or claimed infringement of any patent, trademark or copyright in the manufacture, use, sale, or resale of any Good furnished under this Order. In case said Good in such suit, or in final adjudication elsewhere, is held to constitute infringement, and the use thereof is enjoined, Vendor shall, at its own expense, either procure for IMPAKT the right to continue using said Good, or at the option of IMPAKT either replace same with an equally efficient non-infringing Good, or modify said Good without impairing its efficiency so it becomes non-infringing, or remove said Good and refund the purchase price and the transportation and installation costs thereof.
13. Compliance with Laws. Vendor is and shall remain ISO 9001:2015 certified (as amended or replaced from time to time), and shall, upon acceptance of this Order (or at any time upon IMPAKT’s request), provide to IMPAKT an electronic copy of Vendor’s valid ISO certificate of registration (“Certificate of Registration”). Following any expiration of Vendor’s Certificate of Registration, Vendor shall promptly provide to IMPAKT an electronic copy of its new Certificate of Registration and the associated expiration date. In addition, Vendor shall comply, and shall cause all Representatives to comply, at no expense to IMPAKT, with all applicable laws, ordinances, regulations and codes, including the identification and procurement of required permits, certificates, licenses, insurance, approvals and inspections (collectively “Laws”) in performance under this Order. Upon IMPAKT’s request, Vendor agrees to provide to IMPAKT a certificate signed by an officer of Vendor affirming Vendor’s compliance with this Section 13 and applicable Laws. Vendor further agrees to indemnify and hold harmless IMPAKT from and against any loss or expense arising from Vendor’s noncompliance with any applicable Law.
14. Environmental Matters. Vendor represents and warrants that none of the Goods supplied under this Order contain minerals or chemicals, the use of which is restricted in any jurisdiction to which Vendor delivers, the Goods are to be shipped, unless in amounts permitted by the applicable jurisdiction. Vendor shall: (i) if and as requested by IMPAKT, include with shipments of Goods the material composition data related to all homogenous material contained within such Goods; and (ii) assist IMPAKT, as necessary in IMPAKT’s reasonable opinion, in IMPAKT’s attempts to comply with its obligations, if any, under applicable Laws.
15. Force Majeure. Neither party shall be held responsible for any delay or failure in performance of any part of this Order to the extent such delay or failure is caused by flood, strike, civil, governmental or military authority, act of God, or other similar causes beyond its control and without the fault or negligence of the delayed or nonperforming party or its subcontractors provided that (i) such party gives the other party prompt notice of the reason for delay or failure of performance and (ii) takes reasonable steps to mitigate the duration of the delay or failure of performance. In the event a party’s delay or non-performance continues for a period of at least fifteen (15) days, IMPAKT may terminate this Order without liability.
16. Termination for Convenience. In addition to all other rights and remedies, IMPAKT shall have the right to terminate this Order, in whole or in part, without cause, upon notice in writing to the Vendor.
IMPAKT shall have no liability for termination of this Order provided that IMPAKT gives written notice (which may be electronic) to Vendor at least one (1) business day prior to the scheduled shipment date of Goods.
In the event IMPAKT fails to give notice within the applicable time period provided above, Vendor shall immediately cease work, terminate any subcontracts, and deliver to IMPAKT all completed and partially completed Goods and/or raw material and work-in-process, or otherwise dispose of such Goods, work in process and raw material in accordance with IMPAKT’s instructions. In such case, IMPAKT’s liability to Vendor shall be limited to: (i) The price provided in this Order for all Goods which have been completed prior to termination and which are accepted by IMPAKT, if produced in no greater amounts than to satisfy the delivery schedule requirements in the this Order; plus (ii) to the extent commercially reasonable and approved by IMPAKT, actual expenditures on the uncompleted portion of this Order including cancellation charges paid by the Vendor on account of commitments made under this Order; provided that Vendor has immediately upon notice of termination taken all reasonable steps to mitigate costs resulting from termination. Vendor shall submit to IMPAKT within ten (10) days of notification of the termination any and all costs resulting from IMPAKT’s termination. No cost submitted beyond that date shall be compensable to Vendor.
17. Termination for Default. IMPAKT may terminate this Order, for default and without incurring any liability, if Vendor (i) fails to make any delivery in accordance with this Order, (ii) fails to comply with any of the other requirements or terms and conditions of this Order, or (iii) in IMPAKT’s reasonable determination, fails to make progress under this Order so as to endanger performance of this Order. In the event of termination for Vendor’s default and without limiting any other remedies available to IMPAKT at law or in equity, IMPAKT may procure elsewhere Goods that are similar to those terminated and on such terms as IMPAKT may deem appropriate, and Vendor shall be liable for excess re-procurement costs.
18. Limitation of Liability. IN NO EVENT SHALL IMPAKT BE LIABLE TO VENDOR FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR REVENUES, ARISING OUT OF, OR RELATING TO THIS ORDER, REGARDLESS OF (I) WHETHER SUCH DAMAGES WERE FORESEEABLE, (II) WHETHER OR NOT IMPAKT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (III) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
19. Assignment. None of the work to be performed under this Order shall be assigned nor shall Vendor subcontract for completed or substantially completed Goods called for by this Order without IMPAKT’s prior written consent.
20. Waiver and Severability. Failure of IMPAKT to insist upon performance of any terms of this Order or to exercise any right hereunder shall not be construed as a waiver or relinquishment of the future performance of any such term or condition or the future exercise of such right. If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Order or invalidate or render unenforceable such term or provision in any other jurisdiction.
21. Setoff. Vendor agrees that IMPAKT shall have the right to set-off against any amounts which may become payable by IMPAKT to Vendor under this Order or otherwise, any amounts which Vendor may owe IMPAKT.
22. Hold Harmless. Vendor shall to the fullest extent permitted by law, indemnify, defend and hold IMPAKT harmless from and against any and all claims, liabilities, demands, penalties, forfeitures, suits, judgments and the associated costs and expenses (including attorneys’ fees), which IMPAKT may hereafter incur, become responsible for or pay out as a result of death or personal injury (including bodily injury) to any person, destruction or damage to any property, contamination of or adverse effects on the environment and any clean-up costs in connection therewith, or any violation of governmental law, regulation, or orders, caused, in whole or in part, by (i) Vendor’s breach of any term or provision of this Order, (ii) any negligent or willful acts, errors or omissions by Vendor, its employees, officers, agents, representatives or subcontractors in the performance of this Order, or (iii) Vendor’s Goods. Notwithstanding Vendor’s immunities under applicable state worker’s compensation and industrial insurance acts, Vendor specifically undertakes to indemnify, defend and hold IMPAKT harmless from potential claims or liabilities asserted against IMPAKT by Vendor’s employees. Vendor shall maintain worker’s compensation insurance in the minimum amount of $500,000.00 (USD) per occurrence covering all such personnel while on IMPAKT’s premises.
23. IMPAKT’s Property. Except as otherwise specified by IMPAKT in writing, all tools, dies, gauges, fixtures and other items required by Vendor to execute this Order shall be supplied by Vendor. Any such items paid for by IMPAKT or furnished to Vendor without cost to Vendor, (i) shall be and remain the property of IMPAKT, subject to removal by IMPAKT at any item without cost upon demand, (ii) shall be used only in filling orders from IMPAKT, (iii) shall be kept separate from all of Vendor’s other materials or tools and (iv) shall be clearly identified as property of IMPAKT. Vendor assumes all liability for loss or damage to IMPAKT’s property save normal wear and tear. Vendor shall maintain full insurance coverage against loss or damage of such IMPAKT property shall (upon IMPAKT’s request) supply IMPAKT with a detailed statement of such property, and shall not remove, dispose or pledge as security any of IMPAKT’s property without IMPAKT’s prior written consent.
24. Payment. Invoices shall be paid on delivered Goods accepted by IMPAKT in accordance with this Order. Due dates for payment shall be computed from the later of the date on which (i) IMPAKT receives a correct invoice or (ii) IMPAKT accepts the Goods described in such invoice. Payment shall be deemed made (for the purpose of earning any discount offered by Vendor or otherwise) on the date IMPAKT’s check is mailed to Vendor. Payment of the invoice shall not constitute acceptance of the Goods and shall be subject to an appropriate adjustment for failure of Vendor to meet the requirements of this Order.
25. Gratuities. Vendor represents that neither it nor any of its employees, agents or representatives has offered or given any gratuity to IMPAKT, its employees, agents or representatives with a view towards securing favorable treatment with respect thereto.
26. Non-Discrimination and Government Contracts. Vendor agrees not to discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin or disability. This provision includes and is not limited to the following: employment, upgrading, demotion, or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeships. Further, in the event that the Goods ordered herein are to be used in whole or in part for the performance of government contracts, and where the dollar value of said Goods exceeds, or may in any one calendar year exceed, $50,000 (USD), the Vendor further agrees that in connection with the performance of its obligations under this Order, Vendor agrees to post, in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this non-discrimination clause.
Last Modified: October 2, 2018
Effective Date: October 2, 2018