Purchase Order Terms and Conditions

Terms and Conditions. The terms and conditions set forth below (“Terms and Conditions”) govern the purchase of goods or services by Impax Laboratories, Inc. (“Impax”) from the entity or agency selling the goods or providing the services (“Vendor”) in connection with a purchase order issued by Impax to Vendor (the “Purchase Order”). These Terms and Conditions are hereby incorporated by reference in the Purchase Order. Issuance of the Purchase Order is expressly conditioned upon Vendor’s assent to the Terms and Conditions. Vendor’s acceptance and processing of the Purchase Order indicates that Vendor accepts and agrees to be bound by these Terms and Conditions. If Vendor does not accept these Terms and Conditions, Vendor must not accept and process the Purchase Order. Any additional or different terms from these Terms and Conditions which are not specifically agreed to in writing and signed by a duly authorized representative of Impax are hereby objected to. The Purchase Order is not an acceptance of any other terms. Vendor’s acceptance of the Purchase Order will be effective only if it contains no additional terms.

Entire Agreement. Except as expressly set forth in a writing executed by Impax or in a separate agreement between Impax and Vendor that specifically applies to the goods and/or services set forth in the Purchase Order (the “Master Agreement”), the Purchase Order incorporating these Terms and Conditions constitutes the entire agreement between the parties regarding its subject matter and supersedes all prior written or oral inquiries, proposals, agreements, negotiations or commitments regarding that subject matter. No amendments, modifications, substitutions, supplements or termination will be binding unless agreed to in writing and signed by a duly authorized representative of Impax. Any estimate or forecast furnished to Vendor by Impax before or during the term of the Purchase Order does not constitute a commitment of any kind except as expressly set forth in the Purchase Order. Impax is not obligated to purchase the goods or services exclusively from Vendor except as expressly set forth in the Purchase Order. No licenses, express or implied, under any patents are granted by Impax to Vendor under the Purchase Order.

Packaging and Shipping. If the Purchase Order includes the purchase of goods, all goods must be suitably packed or otherwise prepared for shipment so as to meet the carrier’s requirements. No charges will be allowed for packing, crafting or cartage, unless set forth in the Purchase Order. Each container must be marked to show quantity, order number, any Impax part number, contents, and the shipper’s name. A packing list showing this information must be included in each package. Failure to include such packing list may result in delay of payment. All shipments must be in accordance with the delivery schedule set forth in the Purchase Order and are FOB destination, freight prepaid. If a Purchase Order for goods is cancelled, in whole or in part, Impax may retain or return any goods received under such Purchase Order. Vendor must reimburse Impax for all costs of shipping or storing any returned goods and any amount previously paid by Impax for the returned goods.

Risk of Loss. If the Purchase Order includes the purchase of goods, Vendor will bear all risk of loss or damage to goods and materials ordered by Impax which occurs prior to acceptance by Impax, regardless of FOB shipping point. Vendor will bear all risk for goods and materials owned by Impax when in the custody or under control of Vendor. Impax will bear the risk of loss to the goods after Impax’s acceptance of the goods, except where the loss is related to latent defects or damage or the negligent or willful misconduct of Vendor or its agent, representative or subcontractor. Title of the goods will vest in Impax upon Impax’s acceptance of the goods. If the Purchase Order requires documents or deliverables to be delivered or provided to Impax, ownership in the documents and deliverables is vested in Impax at all times during performance of the Purchase Order. Vendor will bear the risk of loss to such documents and deliverables until they are received and accepted by Impax at the destination set forth in the Purchase Order.

Timing. Time is of the essence. Impax may reject goods and services delivered or furnished on dates other than the dates set forth in the Purchase Order. Vendor must immediately notify Impax of any actual or anticipated delay in shipment, delivery or performance and take all reasonable steps to meet the delivery or performance dates. No change in the scheduled delivery date or performance will be permitted without Impax’s prior written consent. No acceptance of goods or services after the scheduled delivery date will waive Impax’s rights with respect to such late delivery nor will it be deemed a waiver of future compliance with the terms of the Purchase Order or these Terms and Conditions.

Inspection and Rejection. If the Purchase Order includes the purchase of goods, Impax may inspect or test the goods at all reasonable times and places prior to final acceptance, at no additional cost to Impax. Vendor will provide safe and convenient access to the location of the goods for inspection or testing by Impax or an Impax representative. Impax will not be liable for any reduction in value to any sample used in connection with an inspection or test. Vendor will pay for any additional cost of inspection or testing if Vendor fails to provide the requested testing samples or supplies when the inspection or test is requested or if re-inspection or re-testing is necessary because of a prior rejection of the samples or supplies. Impax’s failure to exercise its inspection and testing right does not relieve Vendor of its obligation to furnish conforming goods and imposes no liability on Impax. Impax may reject any non-conforming goods without further cost or liability to Impax. Impax may require repair or replacement of non-conforming goods at no additional cost to Impax. Vendor must make any repairs or replacement within the lead time for the goods. Acceptance or payment does not constitute a waiver by Impax of any rights and will not void or limit any warranties provided by Vendor pursuant to these Terms and Conditions or law. Impax reserves the right to return, at Vendor’s expense for transportation both ways and any storage costs incurred, goods or materials shipped in excess of the Purchase Order or defective goods or materials not meeting Impax’s specifications and standards, whether paid for or not. No replacement or substitution may be made unless so authorized in writing by Impax.

Installation of Goods. If Vendor is responsible for the installation of goods, Vendor must at all times: (a) ensure the presence at the installation site of competent supervisory personnel; (b) keep the installation site clean and safe from debris and hazards; (c) be responsible for the safe and timely performance of the installation in accordance with all federal, state and local government requirements and Impax’s compliance, safety and security policies; and (d) cooperate with Impax and comply with Impax’s hours, working conditions and jobsite policies. Vendor agrees to take such steps that Vendor reasonably deems necessary in hiring and retaining Vendor’s employees, subcontractors and agents to ensure they are qualified, honest, trustworthy, reliable, and non-violent and will not pose a risk of harm to others while performing work in connection with the installation. In addition, Vendor must repair or replace to Impax’s satisfaction any property which is damaged or destroyed by Vendor or its employees, subcontractors and agents and, upon completion of the installation, remove all of Vendor’s equipment and unused material from the installation site, thoroughly clean up all refuse and debris, and leave the site neat, orderly and in good condition.

Work, Labor and Services. If the Purchase Order requires the performance of services by Vendor, Vendor will be responsible for furnishing all labor, supervision, machinery, equipment, materials, supplies, licenses, permits and all other requirements necessary or required to complete the services to Impax’s satisfaction and in compliance with applicable laws and the Purchase Order. Impax may at any time and for any reason request replacement of any of Vendor’s representatives. All documentation, including without limitation drawings and specifications, that Vendor submits under the Purchase Order must meet Impax’s content and format requirements. Vendor will be responsible to inquire, inspect and acquaint itself with all jobsite conditions. Impax has the right to stop Vendor’s activities on Impax’s premises whenever conditions are observed which would threaten the environment, people, project, real property, structures or equipment. Vendor will bear the cost of any such stoppage and resultant standby time. The presence of such conditions or Vendor’s failure or refusal to correct such conditions will constitute a default under the Purchase Order and Impax will have the right to terminate the Purchase Order, in whole or in part.

Price. If price is not set forth in the Purchase Order, Vendor will bill Impax for the goods or services at the price last quoted to Impax, the price last paid by a customer of Vendor, or the prevailing market price, whichever is lower. Vendor warrants that prices charged against the Purchase Order will conform to the provisions of the Robinson Patman Act of 1936 and all other government price regulations in effect during the period required to complete the transaction.

Taxes. The purchase price set forth in the Purchase Order is inclusive of any and all taxes and other government charges, imposed at the time of issuance of the Purchase Order or later becoming effective, upon the production, sale, shipment, use or erection of the goods, materials or services specified in the Purchase Order. Vendor is responsible for all penalties, interest, additional taxes or other charges that are demanded from, levied or assessed against Impax as a result of any delay or failure to pay a tax, file a return or provide information required by law or the Purchase Order. Vendor will indemnify Impax against, and reimburse Impax for, any expenditure Impax may be required to make on account of Vendor’s failure to pay such taxes and other governmental charges. Impax will provide Vendor with any applicable state sales or use tax exemption certificates.

Invoices and Discount. All invoices must be sent to Accounts Payable at Impax via email at APdesk@impaxlabs.com or mail at 121 New Britain Boulevard, Chalfont, Pennsylvania 18914. All invoices must include (a) the Purchase Order number, (b) a breakdown of the goods and/or services and the fees related to each item, (c) the total amount due for all goods and/or services, and (d) Vendor’s tax identification number. Each invoice must be sent on the date appearing on the invoice. Invoices must be rendered by the person, firm or corporation for which the Purchase Order is issued. If unable to comply, Vendor must return the Purchase Order to Impax and advise Impax of the name and address under which the invoice will be rendered. Payment terms are 2%, net 45 days after Impax’s receipt of a complete and accurate invoice from Vendor. The discount date will be established from the date on which Vendor has complied with all requirements of the Purchase Order and Impax has received a complete and accurate invoice. Vendor’s failure to submit a complete and accurate invoice may result in delay of payment. Payment by Impax does not constitute acceptance of the goods or services. Impax may deduct any amount owed to Impax by Vendor under the Purchase Order or any other agreement or order between the parties from any amount due to Vendor, without waiver or limitation of any other rights or remedies.

Change Notification. Impax may make reasonable changes in the general scope of the Purchase Order by providing written notice to Vendor at any time before completion of performance. If Vendor believes that an adjustment to Vendor’s compensation or the delivery date is justified as a result of the Impax-directed change, Vendor must immediately notify Impax in writing and provide substantiating documentation for the adjustment within ten calendar days of the notice. Any adjustment agreed to by the parties must be reflected in an amendment to the Purchase Order signed by Impax and Vendor. Vendor must continue with performance of the Purchase Order while any request for adjustment is pending. Vendor waives its rights to any adjustments not requested in accordance with these Terms and Conditions. Impax may delay or suspend all or any part of the delivery of any Purchase Order by providing written notice to Vendor. A delay or suspension of any portion of the Purchase Order by Impax does not constitute a delay or suspension of the entire Purchase Order. Vendor’s obligations to Impax under the Purchase Order will remain in full force and effect despite the delay or suspension of any Purchase Order. Vendor agrees to notify Impax, in writing, no less than ninety days in advance, of any change to the goods, including but not limited to changes in process, raw material, manufacturing location, packaging configuration, container size and container material, or services. Vendor will not execute or implement any change without Impax’s permission and in no event will a change be implemented prior to Impax receiving regulatory approval, if applicable, of such change.

Termination or Cancellation. Impax may terminate or cancel goods or services ordered under the Purchase Order in whole or in part at any time by written or telephonic notice to Vendor. Upon the effective date of the termination, Vendor must (a) stop all specified work and preserve all work in progress, (b) notify and cause its suppliers and subcontractors to stop all specified work and preserve all of their work in progress, and (c) take all reasonable steps to mitigate any additional costs or expenses. Termination or cancellation will be without prejudice to any claims which one party may have against the other party for goods and materials supplied and services performed up to the date of termination or cancellation. In no event will Impax be liable to Vendor for any direct, indirect, special or consequential damages, lost profits, penalties or costs arising out of any termination.

Force Majeure. Impax has the right to terminate or extend the Purchase Order, in whole or in part, by providing written notice to Vendor if delivery or other performance is delayed by acts of God, civil or military authority, epidemics, civil disobedience, war or riot, fire, explosion, flood, accident, interruption of, or delay in, transportation, labor trouble, or other events which are beyond Impax’s reasonable control. In no event will Vendor be entitled to any additional compensation for any delay or excused from any performance except where an alternate source, acceptable to Impax, is available for supply of the goods, materials or services, and then only to the extent Impax has expressly released Vendor from Vendor’s remaining obligations. Failure of Impax to take shipment or accept services under the Purchase Order, if occasioned by a force majeure event, or if occasioned by partial or complete suspension of operations at any of Impax’s plants or facilities, will not subject Impax to any liability to Vendor because of the force majeure event. At Impax’s option, (a) if the Purchase Order includes the purchase of goods, (i) the total quantity of goods covered by the Purchase Order may be reduced by the extent of omitted shipments, or (ii) the specified delivery period may be extended by a time equal to the period during which shipments were omitted and such shipments will be made during the period of extension; and (b) if the Purchase Order includes the purchase of services, (i) the scope of services covered by the Purchase Order may be reduced by the extent services were not performed during the force majeure event, or (ii) the timing for performance of the services may be extended by a time equal to the period during which services were not performed due to the force majeure event and such services will be performed during the period of extension. Vendor will be excused for delays in delivery or performance by reason of the same force majeure causes as stated above, provided they are beyond the control and without fault or negligence of Vendor, if Vendor notifies Impax in writing of the cause of such delay within a reasonable time.

Obligations. Vendor must (a) provide and maintain inspection and quality control systems that are acceptable to Impax and keep all inspection records intact; (b) maintain accurate records of all matters relating to Vendor’s performance under the Purchase Order; (c) maintain any records relating to financial matters in a format consistent with general accepted accounting practices; and (d) during the performance of the Purchase Order and for a period of five years thereafter make all records available to Impax upon request for inspection and audit purposes at any time during normal business hours.

Warranties. In addition to all warranties, express or implied, established by statues or common law or set forth in the Purchase Order, Vendor expressly warrants, any other representation or agreement to the contrary notwithstanding, that all goods and services covered by the Purchase Order will (a) conform to all specifications, drawings, samples and any other description set forth in the Purchase Order, in any descriptive literature or catalog provided by Vendor, or otherwise furnished or adopted by Vendor, and (b) be of the best quality and fit and sufficient for the purpose intended, merchantable, of good material and workmanship and free from all patent and latent defects. Vendor warrants all goods against any defects in material and workmanship for a period of not less than twelve months from the date of Impax’s final acceptance or for Vendor’s standard warranty period, whichever is greater. If Impax discovers any defect in material or workmanship during the warranty period, upon receipt of notice from Impax, Vendor will at a minimum, remedy the defect or replace the goods promptly, at no additional cost to Impax. Vendor will bear all costs incidental to the repair or replacement of the goods, including but not limited to shipping, removal, redesign, disassembly, reinstallation, reconstruction, re-testing and re-inspection. If Vendor refuses or is unable to repair or replace a defect, Impax may retain a third party to correct the deficiencies in Vendor’s goods, and Vendor must pay the full cost of the correction. Impax’s failure to give notice to Vendor of any breach of any warranty will not discharge Vendor’s liability for any breach. The warranties of Vendor together with its service warranties and guaranties, if any, will run to Impax, its customers and any other third parties. The warranties are not sole or exclusive and are in addition to any other express or implied warranties set forth in the Purchase Order or provided by law.

Laws and Regulations. Vendor represents and warrants that any good, material or service delivered or performed pursuant to the Purchase Order will be produced, sold, delivered and/or furnished to Impax in compliance with all applicable federal, state and local laws and regulations. Vendor further represents and warrants that, if the Purchase Order includes the purchase of goods, (a) no food, drug or cosmetic bearing the name or authentic label of Vendor will, at the time of shipment and delivery, be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act, as amended (the “FDCA”), and Vendor will make a statement to that effect on its invoices; (b) any food, drug or cosmetic shipped or delivered by Vendor may be introduced into interstate commerce in compliance with Sections 404 and 505 of the FDCA; and (c) any goods delivered pursuant to the Purchase Order, and described in the invoice applying to the shipment, were produced in strict compliance with the Fair Labor Standards Act of 1938. Vendor will indemnify, defend and hold Impax harmless against any liability resulting from Vendor’s breach of its representations and warranties in this section.

Executive Orders. In accordance with Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans Readjustment Assistance Act of 1974, Vendor will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin, or because of physical or mental handicap with regard to any position for which the employer or applicant is qualified. Vendor will take affirmative action to assure that equal employment opportunity is implemented in employment, upgrading, promotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection and training including apprenticeship. All applicable provisions of the rules and regulations received by the Office of Federal Contract Compliance under Executive Order 11246 and issued by the Secretary of Labor pursuant to Section 503 of the Rehabilitation Act of 1973 and pursuant to the Vietnam Era Veterans Readjustment Assistance Act of 1974 are incorporated herein by reference and made part of these Terms and Conditions. Vendor will adhere to the applicable provisions of The Small Business Act of 1952 (Public Law 95-107), as amended, relating to small business concerns, small disadvantaged business concerns and women-owned small businesses and will submit such periodic reports and Standard Forms 294 and/or 295 as may be required by various agencies of the federal government.

Representations. Vendor represents and warrants that (a) it will perform its obligations under the Purchase Order in compliance with all applicable laws; (b) it possesses a high level of expertise in the business, administration, management and supervision required to undertake its obligations under the Purchase Order and these Terms and Conditions; (c) it will perform any services required by the Purchase Order in accordance with the highest professional standards of diligence, care, timeliness, trust, dependability, safety, efficiency, economy and skill applicable to the type of services; (d) it is fully experienced and properly licensed, qualified, equipped, organized and financed to perform its obligations under the Purchase Order and these Terms and Conditions; (e) all goods, materials and services supplied pursuant to the Purchase Order will comply with all applicable laws; (f) to the extent its obligations under the Purchase Order are impacted by conditions at a site owned or operated by Impax, including without limitation seasonal weather and climate conditions, ongoing and/or adjacent operations, and the availability and cost of materials, labor, utilities and site access, Vendor has familiarized itself with respect to such site conditions and has reflected such conditions in its pricing, fees, schedule and other obligations under the Purchase Order; (g) the execution, delivery and performance of the Purchase Order do not and will not breach, conflict with or default under any other agreement; (h) any deliverable or material to be provided by Vendor to Impax do not and will not infringe any patent, copyright, trade secret or other proprietary right of any third party; and (i) neither Vendor nor any of its employees, representatives, or subcontractors is an excluded individual or entity as set forth on the “List of Excluded Individuals/Entities” maintained by the United States Department of Health and Human Services Office of Inspector General and does not and will not employ or associate with an individual or entity that is so excluded.

Confidential Information. In connection with the performance of its obligations under the Purchase Order, Vendor may obtain, through observation or otherwise, Confidential Information of Impax. “Confidential Information” means all information concerning Impax, unless specifically identified by Impax as non-confidential. During the term of the Purchase Order and for five years thereafter, Vendor must (a) keep all Confidential Information strictly confidential and not disclose Confidential Information to anyone except for Vendor’s employees who have a need to know to perform Vendor’s obligations under the Purchase Order, and (b) not use the Confidential Information, and ensure its employees do not use the Confidential Information, for any purpose except to perform Vendor’s obligations under the Purchase Order. Vendor will be liable for any violation of this section by any of its employees. Vendor must return to Impax all Confidential Information in tangible form, including without limitation all copies, translations, interpretations, derivative works and adaptations thereof, immediately upon request by Impax or upon the end of the term of the Purchase Order. The obligations of confidentiality will not apply to Confidential Information which (i) is or later becomes generally available to the public through no act or omission of Vendor, or (ii) Vendor possessed prior to the date of the Purchase Order without being subject to an obligation to keep such information confidential. In the event Vendor is legally compelled to disclose any Confidential Information, it must immediately notify Impax prior to any disclosure in order to afford Impax the opportunity to seek a protective order or other appropriate remedy to protect the confidentiality of the Confidential Information, and Vendor must cooperate with Impax in connection therewith. Vendor acknowledges that remedies at law may be inadequate to protect Impax against a breach or threatened breach of this section and, without prejudice and in addition to any other rights and remedies otherwise available to Impax, Vendor agrees that specific performance and injunctive or other equitable relief will be granted in favor of Impax, without proof of actual damages, for any breach or threatened breach of this section.

Publicity. Vendor may not use the names of Impax, its affiliates or its products or any signs, markings or symbols from which a connection to Impax may, in Impax’s sole judgment, be reasonably inferred or implied, in any manner whatsoever without Impax’s prior written consent, which may be withheld in Impax’s sole discretion.

Intellectual Property Rights. Except for Vendor’s property that has been independently developed without the benefit of any information or materials provided by Impax, (a) data, images, information, documents, designs, specifications, deliverables, and records, in each case in any form, that are obtained, developed, recorded, or compiled in connection with any services to be provided in accordance with the Purchase Order or based on Confidential Information of Impax (collectively “Impax Data”), and (b) information, inventions, discoveries, patent rights, trademarks, and copyrights that result from any services or deliverables provided by Vendor (collectively, “Inventions”) are the sole and exclusive property of Impax. Vendor shall promptly deliver all Impax Data and Inventions to Impax. Vendor shall not file any patent applications with respect to any Impax Data or Inventions. Vendor shall not lien or encumber, or otherwise cause, permit, or consent to the granting of a lien or encumbrance of, any Impax Data or Inventions, or withhold from Impax any Impax Data or Inventions in order to settle any dispute. To the extent that any intellectual property of Vendor is (i) incorporated into Impax Data, Inventions, or any deliverable or (ii) is used to develop, compile, or present the Impax Data, Inventions, or any deliverable and might be reasonably expected to be needed in order to use, or would be reasonably useful in connection with using, the Impax Data, Inventions or any deliverable, Vendor hereby grants to Impax a nonexeclusive, worldwide, paid-up license to such intellectual property in connection with Impax’s use of the Impax Data, Inventions, or any deliverable for any purpose. To the extent any Impax Data or Invention may be copyrighted, such Impax Data or Invention will be deemed to be works made-for-hire, within the meaning of the Copyright Act, Title 17 of the United States Code, and will be and hereby is the sole and exclusive property of Impax. If a work does not qualify as a statutory work made-for-hire, then Vendor agrees to assign, and hereby assigns, all rights and copyright rights in such works to Impax.

Drawings, Prints, and Specifications. Vendor may not use, sell, loan or publicize any of the tools, specifications, blueprints, designs or artwork supplied or paid for by Impax without Impax’s prior written consent, which may be withheld in Impax’s sole discretion.

Tools, Dies, Molds, etc. All tools, dies, molds, printing plates, mechanicals, etc. (“Tools”) created for use in connection with the Purchase Order will be the property of Impax, and Impax may withdraw the Tools from Vendor’s premises upon written request. Vendor will at all times carefully preserve and maintain in good operating condition all Tools.

Gratuities. Vendor and Vendor’s representatives may not offer or give to an agent, officer, official or Impax employee, any gift, entertainment, payment, loan or other gratuity which, in Impax’s sole discretion, is given to influence the award of an order or obtain favorable treatment under an order. Violation of this section may be considered by Impax to be a material breach of these Terms and Conditions, which would justify immediate termination or cancellation of the Purchase Order.

Indemnity. Vendor shall, to the fullest extent permitted by law, indemnify, defend and hold Impax, its subsidiaries, and Impax’s and its subsidiaries’ employees, directors, affiliates, agents, successors and assigns (the “Indemnities”) harmless from and against all claims, losses, causes of action, damage, costs, expenses, liens, and liabilities of every kind and nature, including but not limited to reasonable attorneys’ fees and costs (“Losses”), arising from or in connection with (a) Vendor’s performance of the Purchase Order; (b) any actual or alleged breach of any of Vendor’s obligations, representations or warranties under the Purchase Order or these Terms and Conditions; or (c) other acts or omissions of Vendor or its officers, agents, employees, subcontractors and guests, however caused, except for claims arising from the sole negligence or willful misconduct of Impax or its employees.

Proprietary Rights Indemnity. Vendor shall, to the fullest extent permitted by law, indemnify, defend and hold the Indemnities harmless from and against all Losses arising from or in connection with a violation or actual or alleged infringement of any patent, copyright, trademark, service mark, trade secret, or other intellectual property right (“Infringement Claim”) relating to any goods or services provided to Impax by Vendor under the Purchase Order, except for goods manufactured according to Impax’s specific design. If any deliverables to be delivered to Impax pursuant to the Purchase Order are the subject of an Infringement Claim, such that use of any deliverables is enjoined in connection with an Infringement Claim, or in Impax’s or Vendor’s opinion any deliverables are likely to become the subject of an Infringement Claim, then Vendor, at its sole expense, must timely undertake to procure for Impax the right to continue use of such deliverables. If such right cannot be timely procured on terms and conditions acceptable to Impax in Impax’s sole discretion, Vendor must, at Vendor sole expense and without limiting any of Impax’s other rights or remedies, (a) modify such deliverables to render them non-infringing, but functionally equivalent, subject to Impax’s acceptance of such modified deliverables in Impax’s sole discretion; or (b) substitute such deliverables with replacements that are non-infringing, but functionally equivalent, subject to Impax’s acceptance of such substitute deliverables in Impax’s sole discretion. If Vendor, using Vendor’s best efforts, is unable to accomplish item (a) or (b) above, Vendor must refund to Impax amounts actually paid by Impax for the deliverables.

Indemnification Procedure. Following Impax’s written notice and demand for indemnification, Vendor must immediately commence with the defense of any suit or proceeding. Impax retains the right to have any suit or proceeding monitored by counsel of Impax’s choice. Vendor must immediately reimburse Impax for any expenses incurred by Impax in connection with this indemnification, including but not limited to any amount paid for goods which Impax is enjoined from using.

Insurance. Vendor must maintain the following insurance coverage as primary insurance coverage in full force and effect at all times during its performance of the Purchase Order: (a) Workers’ Compensation – Statutory; (b) Employer’s Liability - $1,000,000; (c) Commercial General Liability, on an occurrence basis and including blanket contractual liability, products and completed operations - $1,000,000 combined, single limit and $1,000,000 aggregate; (d) Automobile Liability - $1,000,000 combined single limit per accident; (e) Umbrella/Excess Liability - $2,000,000 per occurrence and aggregate; and (f) any other applicable insurance, required by law or otherwise. Vendor’s insurer(s) must maintain a Best rating of “A-” or better and be acceptable to Impax. Prior to commencement of its performance of the Purchase Order, Vendor must provide Impax with a certificate of insurance evidencing the coverage set forth above and naming Impax as an “additional insured.”

Independent Contractor. Vendor is not an agent, employee, partner, joint venture or associate of Impax. Vendor is an independent contractor with the right and discretion to control the performance of its obligations under the Purchase Order without the direct supervision or control of Impax. Vendor is solely responsible for the conduct of its employees, agents and subcontractors at all times and must comply with all social security, workers’ compensation, unemployment and disability insurance requirements and withholdings, and any other applicable federal, state and local laws, rules and regulations, including the procurement of permits and licenses when required.

Disputes. The parties will use their best efforts to resolve any claim, controversy or dispute concerning any matter related to the Purchase Order or these Terms and Conditions. If legal action is commenced, Vendor will continue to diligently perform its obligations under the Purchase Order pending final adjudication of the dispute.

Assignability. The Purchase Order in its entirety and each and every provision thereof will inure to the benefit of the customers, successors and assigns of Impax. Any assignment of the Purchase Order by Vendor without Impax’s prior written consent will be null and void.

Waivers. Any failure by Impax to enforce or require strict performance by Vendor of the Purchase Order or these Terms and Conditions will not constitute a waiver by Impax and Impax may at any time avail itself of the remedies it may have for any breach of the terms of the Purchase Order or these Terms and Conditions.

Governing Law, Venue. The Purchase Order and these Terms and Conditions will be governed by the laws of the State of California, without regard to its conflicts of laws principles. All actions relating to the Purchase Order or these Terms and Conditions must be brought and heard in a court of competent jurisdiction located in the State of California.

Uniform Commercial Code. Article 2 of the California Uniform Commercial Code (the “UCC”) is incorporated herein and is intended to supplement the Purchase Order and these Terms and Conditions and any interpretation of them. In the event of a conflict between the UCC and any provision of these Terms and Conditions, the provisions contained in these Terms and Conditions will govern and prevail.

Survival. Any provisions set forth in these Terms and Conditions related to insurance, indemnity, confidential information, publicity, assignment, governing law, records, audits, representations or warranties survive the completion of performance, cancellation or termination of the Purchase Order and/or these Terms and Conditions for a period of at least five years or as otherwise expressly provided.

Remedies Cumulative. No remedy or election will be deemed exclusive but will, whenever possible, be cumulative and in addition to any other remedies available at law or in equity.

Severability. In the event any provision in the Purchase Order or these Terms and Conditions is held to be illegal, invalid or unenforceable, in whole or in part, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with the law, and the legality, validity and enforceability of the remaining provisions will not be affected and will remain in full force and effect.

Headings. The paragraph headings contained in these Terms and Conditions are for reference purposes only and will have no effect on the interpretation of these Terms and Conditions or the Purchase Order.

Precedence. In the event of a conflict between these Terms and Conditions and the Master Agreement, the terms and conditions set forth in the Master Agreement will govern and prevail.