Purchase Order
GENERAL CONDITIONS
1. APPLICABILITY: In the event of a conflict between the terms of this Purchase Order and a valid preferred vendor agreement, separately signed by Parties, the terms of the valid preferred vendor agreement shall prevail. In the event a Master Purchase Agreement is in place between BUYER and VENDOR, the Master Purchase Agreement shall govern and the remaining portion of these General Conditions shall be void with respect to the Purchase Order. VENDOR shall be deemed to have accepted this Purchase Order, including the General Conditions, upon the earliest of: (a) VENDOR’s shipping the Goods to BUYER or invoicing BUYER for such Goods, (b) VENDOR’s providing the Goods, or (c) VENDOR’s acceptance of this Purchase Order by other commercially acceptable means.
2. DEFINITIONS: “Purchase Order” means this purchase order consisting of these General Conditions, together with the terms and conditions on the face of the purchase order, and any attachments and exhibits, specifications, drawings, notes, instructions and other information, whether physically attached or incorporated by reference. “Goods” means the equipment, materials, articles, supplies, drawings, data, work, processes and all other property and services, including design, expediting, inspection, delivery, training, and testing required to be furnished by VENDOR to BUYER under this Purchase Order. “Services” mean the services provided under this Purchase Order. If this Purchase Order is issued in support of a contract (“Contract”) between BUYER and its customer(s) (“Customer”), then such Contract is incorporated herein by reference as it applies to the Goods under this Purchase Order. To the extent that BUYER is not the ultimate consumer of the Goods being herein purchased, all rights, benefits and remedies conferred upon BUYER by this Purchase Order shall also accrue and be available to and are for the express benefit of Customer.
3. VENDOR FORMS: This Purchase Order shall constitute the sole and exclusive agreement between BUYER and VENDOR regarding the sale by VENDOR and purchase by BUYER of the Goods and Services covered hereunder. VENDOR may use its standard business forms to administer its work under this Purchase Order, but use of such forms is for VENDOR’s convenience only and does not alter this Purchase Order. BUYER shall not be bound by and specifically objects to, any terms or conditions that are different from, inconsistent with, or in addition to this Purchase Order, unless BUYER (a) specifically agrees to such term or condition in a writing signed by BUYER and (b) acknowledges in that writing that such term or condition replaces, or is in addition, to the terms or conditions in this Purchase Order.
4. PRICE AND PAYMENT: Unless expressly stated in the Purchase Order, the price specified in the Purchase Order is inclusive of all applicable taxes, freight, packaging, crating, insurance, handling, permits, approvals, licenses and other charges. Prices are not subject to increases or additional charges for any reason without prior written approval. Payment shall be made as set forth in this Purchase Order; however, payment may be withheld, or portions thereof may be deducted or setoffs may be made against VENDOR should the Goods fail to conform to any applicable requirements, specifications or warranties. VENDOR’s original invoice to BUYER must state all applicable taxes separately and meet the requirements for a compliant tax invoice.
5. PERFORMANCE; TRANSFER OF TITLE: Time is of the essence in VENDOR’s performance under this Purchase Order. VENDOR shall deliver the specified quantity of Goods to BUYER at the “ship to” address no later than the specified “delivery date”. VENDOR promptly shall advise BUYER in writing of any delay, circumstance or development that impairs VENDOR’s ability to provide the Goods by the required delivery date. If delivery of the Goods is delayed beyond the agreed or established schedule, VENDOR shall be liable for all damages suffered by BUYER as a result of such delay. An unreserved acceptance of delayed deliveries does not imply a waiver of BUYER’s right to claim damages as a result of such delay.
VENDOR shall properly package the Goods to protect against damage and theft during shipment, handling and storage. VENDOR shall coordinate with BUYER to assure timely and efficient unloading of the Goods. VENDOR shall reimburse BUYER for all costs BUYER may incur due to VENDOR’s failure to coordinate the delivery and the unloading of the Goods.
Unless otherwise explicitly specified in the Purchase Order, title of the Goods shall pass to BUYER upon delivery of conforming Goods to the “ship to” address. Upon BUYER’s acceptance of the Goods, VENDOR shall cease to bear the risk of loss or damage; provided however, that any loss or damage, whenever occurring, which results from VENDOR’s nonconforming packaging or crating shall be borne by VENDOR.
6. BARE RENTAL: Unless otherwise agreed in writing, if any of the Goods furnished by VENDOR includes bare rental equipment (“Equipment”), VENDOR shall deliver the Equipment to the “ship to” address at its own expense and risk. BUYER shall supply trained operators and maintain insurance for the Equipment. The rent commencement date shall be on the later of: (a) the date specified in the Purchase Order, or (b) the date such Equipment is delivered to the “ship to” address for the benefit of BUYER. The Equipment shall be in operable condition. No rent or other charges shall accrue on any Equipment which is or becomes inoperable unless such condition is caused by the sole negligence of BUYER. BUYER shall inspect the Equipment as soon as practical and notify VENDOR of any deficiencies. An unreserved acceptance of the Equipment shall not constitute an acknowledgment by BUYER that the Equipment has been inspected, accepted and determined to be in good operating condition. Unless the notice of termination states otherwise, on receipt of such notice, VENDOR shall immediately demobilize the Equipment. BUYER shall immediately cease to bear the risk of loss or damage unless such loss or damage is solely caused by BUYER.
7. REPRESENTATIONS AND WARRANTIES: Unless otherwise explicitly specified in the Purchase Order, VENDOR represents and warrants that (a) the Goods are free from defects in design, materials, workmanship, liens and title; (b) the Goods are of good and suitable quality and that all materials and other items incorporated in the Goods shall be new, unused and suitable for their intended purpose; (c) the Goods do not, in whole or in part, violate, misappropriate or infringe any patent, trademark, trade secret, trade dress, copyright or other right of any third party; (d) the Goods conform to the applicable drawings, specifications, and descriptions provided to VENDOR, the requirements of this Purchase Order and are of comparable quality as any samples delivered to BUYER; (e) any Services shall be provided in a competent and workmanlike manner in accordance with the level of professional care customarily observed by highly skilled and experienced professionals rendering similar services; (f) the Goods comply with, and shall comply with after delivery and acceptance by BUYER, all applicable laws, rules regulations and other requirements of applicable governmental authorities, including all applicable health, safety and environmental regulations and all immigration and work status laws and regulations; (g) VENDOR shall hold and fully comply with all required licenses, permits and approvals to carry out and complete the requirements of this Purchase Order. BUYER ‘s inspection, failure to inspect or failure to discover any defect, or BUYER’s acceptance or payment shall not waive or limit any warranty, relieve VENDOR of any obligation hereunder or impair BUYER’s rights or remedies at law or in equity. BUYER shall have the right to reject or revoke acceptance of nonconforming goods, notwithstanding BUYER’s knowledge of any nonconformity, the substantiality of any nonconformity, or the ease of discovery of any nonconformity. These representations and warranties are cumulative and in addition to any other warranty provided by law or equity. If, anytime it appears that the Goods do not conform to their warranties or the specifications, and BUYER so notifies VENDOR within a reasonable time after its discovery, VENDOR shall promptly correct such nonconformity to the satisfaction of BUYER at VENDOR’s sole expense, failing which BUYER may reject or revoke acceptance and cover by purchasing substitute goods, or BUYER may proceed to make corrections or accomplish VENDOR’s work by the most expeditious means available, and the costs of cover or correction shall be borne by VENDOR.
8. CANCELLATION AND MODIFICATIONS: BUYER may terminate or modify all or any portion of this Purchase Order prior to shipment of any Goods at no charge and without liability by giving VENDOR written notice of such termination or modification. BUYER may terminate or modify this Purchase Order for any Goods after shipment and prior to BUYER’s acceptance of such Goods, and BUYER will pay only the shipping expenses for returning such Goods to VENDOR’s shipping location and incur no further charge or liability.
9. NON-WAIVER: Failure by BUYER to insist upon strict performance of any of the terms and conditions hereof, or failure or delay to exercise any rights or remedies provided herein or by law or to properly notify VENDOR in the event of breach, or the acceptance of, or payment of, for any Goods hereunder, or review of design, shall not release VENDOR from any of the warranties or obligations of this Purchase Order and shall not be deemed a waiver of any right of BUYER to insist upon strict performance hereof or any of its rights or remedies as to any such Goods, regardless when shipped, received, accepted, or as to any prior to subsequent default hereunder, nor shall any termination of this Purchase Order by BUYER operate as a waiver of any of the terms hereof.
10. APPLICABLE LAW AND DISPUTE RESOLUTION: This Purchase Order, and all actions (whether in contract, tort, statute or otherwise) that may be based upon, arise out of or relate to the Purchase Order shall be governed by and enforced in accordance with the laws of the state where the Goods are delivered. The Parties agree to timely notify each other of any claim or dispute arising under the Purchase Order. VENDOR shall continue working diligently during any dispute.
11. NONDISCLOSURE AND PROPRIETARY INFORMATION: VENDOR agrees not to divulge to third parties, without the prior written consent of BUYER, any information obtained from or through BUYER in connection with the performance of this Purchase Order. If so requested by BUYER, VENDOR further agrees to require its employees and its sub-suppliers and their employees to execute an appropriate nondisclosure agreement prior to performing any work under this Purchase Order. If BUYER requests that VENDOR specially manufacture, develop, or design the Goods for BUYER, VENDOR agrees that any resulting designs, drawings, blueprints, plans, specifications, business information, or other materials used to develop and design said Goods shall be owned by BUYER, including any intellectual property rights therein, and SELLER hereby assigns all of its right, title and interest in and to such Goods to BUYER.
12. INDEMNITY: VENDOR shall indemnify, defend and hold BUYER and other entities as required by the Contract harmless from any loss, damage, settlement, cost, expense and any other liability (including but not limited to reasonable attorney fees) arising out of any third-party claim arising from, related to or alleging (a) the design, manufacture, possession, ownership, use, sale or transfer of the Goods and Services, (b) breach of any of VENDOR’s representations, warranties or other obligations under this Purchase Order, (c) any act or omission of VENDOR related to the provision of the Goods and Services, except to the extent caused by the gross negligence or willful misconduct of BUYER as determined by a final, non-appealable order of a court having jurisdiction, (d) any personal injury, death or property damage arising out of, or incidental to, the Goods and Services, or otherwise caused by VENDOR. VENDOR’s duty to defend is independent of its duty to indemnify and VENDOR’s obligations under this Article are independent of any other obligation of BUYER under this Purchase Order.
13. INSURANCE: VENDOR shall obtain and maintain insurance, including at, a minimum, a Commercial General Liability policy, providing coverage for liabilities to third parties for bodily injury and damage to property in amounts sufficient to protect BUYER in the event of such injury or damage, and shall be in compliance with any and all laws, regulations or orders addressing the liabilities of an employer to its employees for injuries and disease suffered in connection with employment. VENDOR further shall obtain and maintain such additional types and limits of insurance as is customary for a company of similar size and similar operations to VENDOR in the jurisdictions in which VENDOR’s operations take place. If VENDOR or its employees or agents come onto BUYER’s premises or BUYER’s project location in connection with this Purchase Order, VENDOR shall obtain and maintain Auto Liability, Workers’ Compensation and Employer’s Liability insurance in conformity with the statutory mandated amounts. VENDOR shall, upon request of BUYER, furnish to BUYER certificates of insurance evidencing any such coverage prior to entrance on such premises.
14. COMPLIANCE OBLIGATIONS: VENDOR shall comply with all laws applicable to its performance of the Purchase Order. In addition to the above, VENDOR represents, warrants and agrees that: The provisions of 41 C.F.R. §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a) are incorporated herein by reference and VENDOR shall abide by these requirements. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.
Where applicable, the provisions of FAR 52.204-27 Prohibition on a ByteDance Covered Application are incorporated herein by reference and VENDOR shall abide by these requirements.
Where applicable, VENDOR shall abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the notice of employee rights under U.S. federal labor laws.
Where applicable, VENDOR represents and warrants that it has enrolled in and shall continue to be enrolled in E-Verify program and shall abide by the requirements set forth in FAR 52.222-54.
Where applicable, VENDOR shall abide by the requirements set forth in FAR 52.225 (“Buy American Act”) and shall provide proof of compliance.
VENDOR shall comply with all United States export control laws and regulations applicable to the Goods. VENDOR shall identify any Goods that are subject to United States export regulations and provide BUYER with the country of origin of the Goods, the export classification of the Goods, and notice of any classification change.
15. INVOICE SUBMISSION PROCESS: VENDOR agrees to invoice at the lower of the prices set forth on the face hereof or at the lowest price available to any buyer at the time of delivery. Invoices shall be made in accordance with the Goods included with the Purchase Order. All invoices and all backup documentation to support the invoice, which includes but is not limited to, shipping notices, bills of lading and receipts for the Goods must reference this Purchase Order number. Invoices with no or incorrect purchase order number, or with more than one purchase order number shall not meet the requirements of this invoice submission and shall be rejected without further review. The invoice payment terms will start upon BUYER’s receipt of the invoice and will not be based on VENDOR’s invoice date. Discounts shall be applicable to payments made within the stated period. Please send monthly statements to payables_proj@bergelectric.com.
BUYER is currently accepting invoices via 3 methods:
15.1 VENDOR is to submit all invoices via Transcepta, BUYER’s 3rd party invoice processor, once fully onboarded by Transcepta. Once onboarded, BUYER will not accept any invoices submitted via email or mail. VENDOR is responsible for correcting any rejected/failed invoices in Transcepta.
15.2 VENDOR is to submit invoices via email to payables_proj@bergelectric.com. Submission via email can only be performed if VENDOR is not onboarded with Transcepta and email is preferred over mailing a hardcopy of the invoice.
15.3 VENDOR is to submit invoices via mail to Bergelectric Corp, 3182 Lionshead Ave, Carlsbad, CA 92010. Mailing a hard copy of an invoice should only be used when a VENDOR has not been onboarded by Transcepta and does not have the ability to email a digital copy of the invoice.
BUYER may provide VENDOR with an exemption certificate or equivalent information acceptable to the relevant taxing authority, in which case, VENDOR shall not charge or collect the taxes covered by that certificate. If no milestones or schedules have been agreed, VENDOR shall invoice BUYER for each delivery of Goods under this Purchase Order.
16. SURVIVAL: Articles entitled REPRESENTATIONS AND WARRANTIES, NONDISCLOSURE AND PROPRIETARY INFORMATION, INDEMNITY, COMPLIANCE OBLIGATIONS shall remain in effect and be fully enforceable beyond VENDOR’s performance under this Purchase Order or termination or cancellation.