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Supplier Purchase Order Terms and Conditions

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Supplier Purchase Order Terms and Conditions

1. Orders, Terms and Conditions.  These Supplier Purchase Order Terms and Conditions (these “Terms”) apply to each order (“Order” whether captioned an “Order,” “Service Order,” “Purchase Order,” “PO” or other title) placed by Vapor IO, Inc. or its affiliates (“Vapor”) with a Vapor supplier (a “Supplier”) for goods or services unless Vapor and Supplier have entered into signed, written agreement that expressly supersedes these Terms with respect to such Order.  Supplier’s acceptance of an Order without notification of its objection to these Terms constitutes Supplier’s agreement to these Terms.  Supplier’s acceptance occurs, without limitation of other means of acceptance, if it does not reject the Order within 15 days of the order date, or it begins performance of the services or ships all or part of the goods, as applicable.  Notwithstanding any prior communications, Vapor’s Order is not an acceptance of any Supplier offer, or if the Order is properly adjudicated to be an acceptance of a Supplier offer, the acceptance is conditioned on Supplier’s agreement to these Terms.  At Vapor’s request, Supplier shall issue a quote stating terms relating to pricing, discounts, lead times, delivery methods, service specifications and similar transaction specific terms (a “Quote”).  Each Supplier Quote shall be valid for ninety (90) days from issuance unless otherwise specifically stated in the Quote. The fees, schedules, specifications, warranties and representations regarding the goods or services, and other transactions terms included in any Supplier proposal or communication in contemplation of the Order are part of the Order, as well as any transactions terms that are attached to or expressly referenced in the Order.  If there is a conflict or inconsistency between the Order and these Terms, these Terms control.  Vapor may at any time make changes in the delivery schedules, shipment methods, place of delivery, designs, quantities, and specifications for the goods or services ordered hereunder.  If the parties wish to change the terms of an existing Order, they shall prepare a written statement that references the specific Order by date, purchase order number, or other identifier, and describes the requested changes (a “Change Order”).  No changes to an Order shall become effective until both parties have signed the Change Order.  Any Vapor statements regarding its future supply needs are made for information purposes only and do not constitute a forecast or commitment unless expressly agreed otherwise in a written agreement signed by a Vapor executive

2. Inspection and Acceptance of Goods, Services. Vapor may inspect and test the goods at any time at the place of manufacture prior to shipment, or upon receipt, or at such time or place as it may choose, even if it has paid for the goods prior to inspection.  Vapor shall have thirty (30) days following the delivery or completion of the services or such other period agreed to by the parties in the applicable order (“Acceptance Period”), to evaluate the good and/or services for conformance with the applicable order (“Acceptance Criteria”) and any agreed specifications and requirements.  If the Services fail to materially conform to the applicable Acceptance Criteria, or other agreed specifications and requirements, Vapor may reject the goods and/or services by a written notice given before the end of the applicable Acceptance Period.  Supplier shall have ten (10) days from Vapor’s notice of rejection to cure the items of non-conformance and/or re-perform the services.  Vapor shall then have an additional ten (10) day period to evaluate the goods and/or services, and may again reject the goods or services for non-conformance by written notice given before the end of the ten (10) day period.  In the event that Vapor rejects the goods or services in accordance with this provision, no fees shall be due for that portion of the goods or services so rejected and not cured by Supplier.  Failure to inspect the goods or review performance of services is not: (i) acceptance of any defective or nonconforming goods or services; or (ii) waiver of any of Vapor’s rights or remedies arising by virtue of any defect or nonconformance.

3. Payment Terms.      Supplier shall submit invoices via email to the address specified in the Order, or if not specified, to [email protected]   Invoices must contain sufficient detail so that invoiced amounts can be matched to respective Orders, including: purchase order number, item number, description of items or services provided, quantities, unit price, extended totals, and Supplier’s packing slip number, in addition to any other information specified in these Terms.  Supplier shall furnish Bills of Lading, express receipts, or other proof of delivery on Vapor’s request. Vapor may adjust payments of invoices for errors, shortages, defects in goods, nonconforming services, or other failure of Supplier to meet the requirements of the order. Vapor may at any time set off any amount owed to Supplier or any of its affiliated companies.  Unless otherwise specified in the Order, payments are due net forty-five (45) days after, and any applicable early payment discount shall be calculated from, the last to occur of:  (a) receipt of the goods by Vapor at the point of delivery specified in the Order, or (b) acceptance of services provided, or (c) receipt by Vapor of Supplier’s invoice acceptable to Vapor.  Supplier shall state separately on its invoice any packing, storage, transportation or delivery charges prepaid or payable by Vapor. Supplier shall invoice Vapor promptly.  Vapor is not obligated to pay any invoice for goods delivered or services rendered more than 90 days prior to the invoice date. Vapor may dispute any or all of an invoice by providing Supplier with written notification of the disputed amount and may withhold any and all disputed amounts. In the event that Vapor has issued payment for an invoice and subsequently disputes the invoiced amount, Supplier shall issue a credit for the disputed amount within 30 days of Vapor’s notice of the dispute.

4. Pricing; Expenses.  All fees for services must be agreed by both parties in advance of the services being performed. Supplier warrants that the price charged for the goods or services are no less favorable than those currently extended by Supplier to its other customers buying the same or similar goods or services in comparable quantities under similar circumstances.  No extra charges of any kind, including charges for packing or cartage, will be allowed unless specifically agreed to by Vapor in writing in advance.  Vapor shall not pay or reimburse Supplier for its travel or other expenses unless specifically agreed in the Order or otherwise agreed in writing by the authorized representative of Vapor, and then only those expenses that are reasonable and accompanied with appropriate documentation.  Any travel must be approved in advance in writing by an authorized representative of Vapor.

5. Taxes

a. Sales, Withholding Taxes.  Unless otherwise specified, the prices stated in the Order include all applicable federal, state and local taxes, value added tax, service tax, transfer tax, excise tax, tariff, duty or any other similar tax imposed by any governmental authority (but excluding taxes based on Supplier’s income) (the “Sales Tax”).  All such taxes shall be stated separately on Supplier’s invoice.  Unless Vapor has provided Supplier with a valid state exemption resale certificate, or unless Vapor or the transaction is otherwise exempt, Vapor shall pay any Sales Tax that is properly charged and that is included on the invoice for the related goods or services, and Supplier shall pay all other taxes on or related to the goods and on the shipment thereof to Vapor. Supplier shall promptly remit to the appropriate taxing authority all Sales Tax collected from Vapor. If Vapor is required by law to withhold taxes on payments to Supplier, then Vapor will pay such amounts as are necessary such that the net payment to Supplier, after withholding tax, is in full satisfaction of the invoice.  Supplier shall cooperate with Vapor’s reasonable and legal requests to minimize Sales Taxes.

b. Employment Taxes.  Supplier is solely and exclusively liable for complying with, and making all payments under, all applicable state, federal and international laws with respect to its personnel, including laws governing self-employed individuals if applicable, such as laws related to payment of income taxes, social security, disability, and other contributions.  Vapor shall not withhold or make payments for social security, unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on Supplier’s behalf.  Supplier shall provide proof of payment of appropriate taxes on fees paid to Supplier upon reasonably request of Vapor.

6. Shipping and Delivery.

a. Packing, Marking and Shipment. Unless otherwise specified, Supplier shall pack, mark and ship all goods in compliance with all applicable transportation regulations, good commercial practice, and in a manner adequate to insure the safe arrival of the goods at the named destination.  An itemized packing list showing the Order number, Supplier part number and quantity desired shall be included with each shipment.  Supplier shall mark all containers with necessary lifting, handling, and shipping information, and with purchase order numbers, date of shipment, and the names of consignee and consignor, if applicable.  No partial or complete delivery shall be made prior to the date or dates shown in the Order unless Vapor has given prior written consent.  At Vapor’s request, Supplier will provide written confirmation of the country of origin of any goods specified by an Order.

b.Transportation and Risk of Loss.  Unless otherwise specifically provided on the face of the Order, or otherwise agreed to in writing by Vapor and Supplier, deliveries must be made in the quantities and according to the time deadlines specified in the Order.  Unless Vapor provides otherwise in writing, the terms, choice of carrier and routing of shipment shall be F.O.B. destination basis to the delivery address designated by Vapor.  Vapor may revise shipping instructions as to any unshipped goods.  When shipment is F.O.B. place of destination, risk of loss shall remain with Supplier until delivery of the goods to Vapor at the named destination, regardless of the point of inspection, if any, and Supplier shall maintain insurance against loss in transit to such point, and Vapor shall not be required to assert any claims against common carriers.  When shipment is F.O.B. place of shipment, risk of loss shall pass to Vapor upon delivery of the goods to the common carrier by Supplier but only if the goods are properly addressed, labeled and packaged as described herein, otherwise risk of loss will remain with the Supplier until delivery of the goods to Vapor at the named destination.  Supplier shall bear all risk of loss as to properly rejected goods or services.

c. Prompt Delivery of Conforming goods.  Timely delivery of conforming goods in the full quantities specified herein is of the essence and unauthorized quantity, including over shipments, is subject to rejection and return at Supplier’s expense.  Over shipments will be held at Supplier’s risk and expense for a reasonable time awaiting shipping instructions.  Supplier agrees to exert reasonable efforts, including overtime and premium shipment at Supplier’s expense, to meet the promised delivery date, provided, however that failure of such efforts to achieve prompt delivery of conforming goods shall not relieve Supplier of liability for such failure.  Supplier agrees to notify Vapor immediately if at any time it appears that the delivery schedule set forth herein may not be met.  Such notification shall include the reasons for possible delays, steps being taken to remedy such problems and a proposed new delivery date.

d. Hazardous Materials. Supplier shall provide Vapor with all appropriate documentation with respect to any and all hazardous materials shipped pursuant to the Order and shall comply with all applicable laws affecting any such shipment.

7. Warranties. Supplier warrants that that it has good and marketable title to the goods to be furnished hereunder and the goods will be: (i)  new, unless otherwise expressly stated in the Order, (ii) in full compliance with the Order terms and other Vapor specifications, blueprints, drawings and data or Supplier’s samples, if any; (iii) fit for the use intended by Vapor; and (iv) free from infringement of any copyright, patent, trade secret, or other intellectual property rights of a third party.  Supplier warrants that all services will be performed proficiently, in a manner consistent with the highest industry standards for such service by competent, trained and fully-qualified personnel in a proper and workmanlike manner who are not citizens or nationals of any country that is a United States Department of State listed embargoed country.  Supplier warrants that it shall not, including by means of the goods or services, transmit to Vapor any virus, malware, spyware, ransomware, adware, or other code or information that is designed to interrupt the normal use of the goods or services or the systems on which any part of the goods or services are installed, or destroy or corrupt any data, make data unavailable, or covertly transmit information regarding Vapor or any user of the goods or services to Supplier or any third party.  Supplier agrees that the warranties herein contained shall be in addition to any warranties implied in law expressly made by Supplier or other than hereunder; and survive acceptance and payment by Vapor.  The goods, including all parts and components thereof, will be neither used nor reconditioned without the prior written consent of Vapor.

8. Termination

a. Termination for Breach.  Vapor may, by written  notification, terminate any Order in whole or part if Supplier fails (i) to make delivery of the goods or perform the services within the time specified herein, or within any extension thereof by written change order or amendment;  (ii) to replace or correct defective goods in accordance with the specifications of the order; or (iii) to perform any of the other provisions of the Order or so fails to make progress as to endanger performance in accordance with its terms. If an Order is terminated pursuant to this clause, Vapor may procure, upon such terms and in such manner as Vapor may deem appropriate, goods or services similar or substantially similar to those terminated, and Supplier shall be liable to Vapor for any excess cost occasioned Vapor thereby, provided that Supplier shall continue the performance of the Order to the extent not terminated. If the Order is terminated pursuant to this Section, Vapor, in addition to other rights provided herein or by law, may require Supplier to transfer title and deliver to Vapor, in the manner and to the extent directed by Vapor: (i) any completed goods, and (ii) such partially completed goods and/or services (including but not limited to, materials, parts, tools, fixtures, plans, drawings, products, software, source code, specifications, designs, blueprints, written scripts, electronic media, marketing, sales, financial or other research, reports or other business information, and contract rights) as Supplier has produced or acquired for the performance of the Order, and Supplier shall, upon direction of Vapor, protect and preserve property as directed in this paragraph which is in the possession of Supplier. Payment for completed goods and services delivered to and accepted by Vapor shall be in an amount agreed upon by Supplier and Vapor (not to exceed the contract price).  Supplier’s obligation hereunder to carry out Vapor’s directions as to delivery, protection, and preservation shall not be contingent upon prior agreement as to such amount.

b. Termination Without Cause.  Vapor may terminate any Order, in whole or in part, at any time, without cause, by written notice to Supplier without incurring a penalty or additional costs beyond fees due for services rendered and/or good accepted. Upon any such termination, Supplier shall, to the extent and to the times specified by Vapor, stop all work on the Order, place no further Orders hereunder, terminate work under Orders outstanding hereunder, and protect all property in which Vapor has or may acquire an interest. Supplier shall proceed promptly to comply with Vapor’s direction with respect to each of the foregoing without awaiting settlement or payment of this termination claim.  Within twenty (20) days from such termination, Supplier may submit to Vapor its written claim for termination charges in the form prescribed by Vapor.  Only Supplier’s actual costs incurred for goods shipped or services performed, that have been accepted and approved by Vapor and completed up to the effective date of termination shall be allowed for quantities terminated pursuant to this clause. Failure to submit a claim within such time shall constitute a waiver of all claims and a release of all Vapor’s liability arising out of such termination.  Whenever possible, Supplier shall reasonably assess open orders, raw materials, work in process and subassemblies and place such items into inventory and sell it to other customers and correspondingly reduce its termination claim by the value of such usable items.  This Section shall be applicable only to a termination for Vapor’s convenience, without any default on Supplier’s part, and shall not affect or impair any other rights of Vapor to terminate the Order upon Supplier’s default in the performance hereof.

c. Insolvency.  Either Party may terminate this Agreement or an open Order, subject to applicable law, immediately in the event that: (a) the other shall become insolvent; (b) the other files or initiates proceedings or has proceedings filed or initiated against it, seeking liquidation, reorganization or other relief (such as the appointment of a trustee, receiver, liquidator, custodian or such other official) under any bankruptcy, insolvency or other similar law; (c) the other makes an assignment for the benefit of the creditors or makes an application to a court of competent jurisdiction for protection from its creditors; (d) the other admits in writing its inability to pay its debts as they mature; or (e) the other ceases to function as a going concern or to conduct its operations in the normal course of business

9. Vapor Policies; Security.  Supplier shall at all times comply with Vapor’s policies as provided by Vapor or as otherwise set forth on Vapor’s web site.  Supplier shall not attempt to access Vapor’s secure sites, network(s) or other information systems, either via its personnel performing Services onsite or remotely, without Vapor’s prior written consent in each instance.  If granted, Vapor may revoke such access at any time in Vapor’s sole discretion.  Supplier personnel who perform Services on Vapor’s premises must comply with Vapor’s on-site security requirements, including any landlord security requirements, as they may be modified from time to time.  Supplier shall ensure that its personnel have received safety training applicable to the risks involved with the particular Services to be performed on Vapor’s premises. Supplier acknowledges that practices for services performed on Vapor’s premises while in or around a data center require the use of reasonable care to prevent damage to any information systems housed on the premises, including, as applicable, in the datacenter and the supporting infrastructure.  Vapor’s security processes may include walk-throughs, system inspections, and pre- and post-installation testing of the system(s) and Supplier shall make commercially reasonable efforts to coordinate such processes with Vapor.  

10. Designs, Tools and Materials Supplied by Vapor.  If the goods are to be produced by Supplier in accordance with designs, drawings or blueprints furnished by Vapor, or with the assistance of tools, machinery, or equipment furnished by Vapor, or are to incorporate or utilize parts and materials supplied to Supplier by Vapor, Supplier shall return the same to Vapor at the earlier of completion of the order or cancellation thereof unless otherwise expressly instructed by Vapor in writing.  In addition, Supplier shall not use the same in the production of materials for any third party or for itself without Vapor’s express prior written authorization.  All such designs, drawings, blueprints, tools, machinery and equipment shall remain Vapor’s property.  Supplier shall use such property at its own risk and shall be responsible for all losses of or damage to said property while in Supplier’s custody.  Supplier shall maintain all such property in good condition and repair and Vapor makes no warranties or representations, express or implied, of any nature with respect to such property and expressly disclaims the warranties of merchantability and fitness for a particular purpose.  Vapor retains title to said parts and materials, and Supplier agrees to pay Vapor for all such parts and materials lost, damaged or destroyed while not in Vapor’s immediate custody.  Supplier shall insure Vapor’s property and be liable for any loss or damage while Vapor’s property is in Supplier’s possession or control, ordinary wear and tear excepted.

11. Insurance.  Supplier agrees to procure, maintain, and pay and shall require its subcontractors at all times to maintain insurance for comprehensive product liability, property damage and general liability including blanket contractual coverage insuring claims resulting from the indemnification of Vapor required by these Terms and shall maintain proper worker’s compensation insurance covering all employees performing obligations under the order.  Upon request of Vapor, Supplier shall furnish to Vapor certificates of insurance and any other documents for the purpose of verifying Supplier’s compliance with this Section. In addition, Supplier shall procure, maintain and pay for adequate Workers’ Compensation coverage, including employer’s liability covering its employees who may perform work on Vapor’s site under the order.  Supplier agrees to provide Vapor a minimum of thirty (30) days’ written notice of cancellation in the event of cancellation or any material change in coverage.

12. Compliance with Laws.  Supplier shall comply with, and cause its subcontractors and any person under its control to comply with, all applicable laws, ordinances, regulations, rules, policies, administrative and judicial orders including but not limited to export controls and import regulations of the United States and other applicable jurisdictions, ethical and responsible standards of behavior, environmental protection, sustainable development and bribery, and applicable anti-corruption and bribery laws.

13. Confidential Information. Without Vapor’s prior written authorization, Supplier shall not use Vapor’s Confidential Information for any purpose other than providing the goods or services, and shall not disclose Vapor’s Confidential Information to any third party except its permitted subcontractors.  Supplier shall ensure that its personnel and its permitted subcontractor’s personnel are aware of the terms of this confidentiality clause and are bound by written confidentiality obligations at least as stringent as those stated in these Terms.  Supplier is responsible for an act or omission of any person to whom it has disclosed Vapor’s Confidential Information to the same extent as its own act or omission in breach of these terms.  Upon termination of the order, Supplier shall return to Vapor all Confidential Information, or where return is not feasible, destroy the Confidential Information in the manner reasonably requested by Vapor.  Supplier shall use reasonable safeguards to protect Vapor’s Confidential Information from unauthorized access, use and disclosure. Vapor’s “Confidential Information” means any proprietary information, technical data, trade secrets or know-how, all works of authorship, research, product plans, products, services, software, source code, developments, inventions, processes, formulas, technology, specifications, drawings designs, technical information, blueprints, drawings, engineering, hardware configuration information, written scripts, videos, electronic media, customer lists, marketing, sales, finances or other business information including but not limited to other documents, including copies, which include all such technical information and other non-technical data supplied to Supplier by Vapor or developed by Supplier as part of the services or the order process.  If prior to the order date the parties entered into a stand-alone non-disclosure agreement (an “NDA”), then that NDA is incorporated herein by this reference and controls over any conflicting term of this Section.

14. Indemnification. Each party will defend the other, the other’s Affiliates, and each of their respective directors, officers, agents, and employees against any third party claim based on that party’s intentional misconduct and indemnify each of them from the resulting losses, damages, and costs and expenses (including reasonable attorney fees) awarded to the third party by a court of competent jurisdiction or pursuant to a settlement agreement (“Losses”).  Supplier agrees to indemnify and hold harmless Vapor, and each of Vapor’s officers, directors, employees, affiliates, and customers, from and against any Losses and claims arising from or related to: (i) any breach by Supplier of its obligations under this agreement, including, without limitation a breach of its obligations, representations or warranties, (ii) Supplier’s gross negligence, and (iii) any personal injury, death or damage to tangible personal property resulting from Supplier’s negligence or willful misconduct.  Supplier shall pay or reimburse Vapor for all Losses as incurred.  On Vapor’s request, Supplier shall assume the defense of a third party claim covered by this indemnification, provided that Supplier’s choice of counsel remains subject to Vapor’s approval and Supplier must keep Vapor apprised of the status of the matter and give consideration to Vapor’s reasonable suggestions.  Supplier may not settle any indemnified claim without Vapor’s prior written approval.  In addition to its indemnification obligations, if any third party alleges that Vapor’s use of the goods, services or related deliverables infringe or violates the third party’s rights in intellectual property, Supplier shall do one of the following at its expense: (i) procure for Vapor the right to use the goods, services or deliverables free from the claim, or (ii) modify or replace the good, services, or deliverables such that they are not the subject of the claim, but are equally suitable, compatible and functionally equivalent to the original goods, services or deliverables.  If the Indemnifying Party is unable to complete any of the foregoing through the use of commercially reasonable efforts, then it shall refund to Vapor the purchase price paid for the goods, services or deliverables.

15. Limitations on Liability.  EXCEPT AS SET FORTH IN SECTION 14, NEITHER PARTY (NOR ITS EMPLOYEES, AGENTS, SUPPLIERS OR AFFILIATES) SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; AND THE MAXIMUM AGGREGATE MONETARY LIABILITY OF VAPOR AND ANY OF ITS AFFILIATES (INCLUDING EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, AND EMPLOYEES) IN CONNECTION WITH THE AGREEMENT, UNDER ANY THEORY OF LAW, SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY VAPOR UNDER THIS AGREEMENT DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.  NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS EITHER PARTY’S LIBAILITY FOR (I) WILLFUL MISCONDUCT, FRAUDULENT MISREPRESENTATION, DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, (II) BREACH OF CONFIDENTIALITY OR PRIVACY OBLIGATIONS; (III) CLAIMS UNDER SECTION 13; (IV) CLAIMS FOR BREACH OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; AND (V) CLAIMS WHICH MAY NOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

16. Vapor Remedies.  If Supplier breaches any of these Terms, Vapor may exercise, singly or in any combination and in any order, all rights and remedies available to the Vapor at law or in equity, as well as any other rights provided for herein, including, without limitation, the right to, at Vapor’s option: (a) In the case of defective or nonconforming goods or non-compliant services, require Supplier to promptly rework, repair or replace the goods or services or any component thereof, and upon Supplier’s failure to or refusal to do so, to rework, repair or replace the same at Supplier’s expense; (b) Refund the purchase price and cost of shipment to Vapor; (c) In the case of defective or nonconforming goods or non-compliant services, to reject any shipment or delivery or part thereof; (d) Cancel any outstanding deliveries under the order and treat the breach by Supplier as Supplier’s repudiation of the order; (e) Hold Supplier liable for all delays or other failures to timely deliver conforming goods or compliant services in the quantities specified herein regardless of whether such delays or failures arise or result from actions or inactions of Supplier, third parties or from any other actual or proximate cause, whatever its nature and such liability shall include, without limitation, all loss of profits, consequential, incidental, special, indirect, contingent or similar damages and expenses (including reasonably attorneys’ fees) including losses sustained or anticipated to be sustained by Vapor as a result of Vapor’s inability to meet its contractual obligations to third parties or to enter into contracts with third parties; (f) In the case where conforming goods or compliant services fail to arrive at the destination and within the time specified by the order, Vapor may, but need not, immediately purchase substitutes therefore and Supplier shall be liable for all damages and expenses resulting from such failure; and (g) Hold Supplier liable to Vapor for all loss of profits, consequential, incidental, special, indirect, contingent or similar damages and expenses (including reasonable attorneys’ fees) actually or proximately arising from an breach of Supplier’s warranties and representations.  In addition, if there is a failure of significant number of units of any goods to meet Supplier’s warranties, then Supplier shall, at Vapor’s request, conduct a root cause analysis to determine the cause of the failure, and shall proactively remedy the failure at its expense as to all units of that good purchased by Vapor without waiting for units to actually fail.

17. Assignment and Subcontracting. Supplier may not assign this Agreement without Vapor’s prior written consent, not to be unreasonably withheld, and any attempted assignment in violation of this sentence shall be void.  Any use of subcontractors shall not relieve Supplier of any of its obligations under this Agreement.  Supplier shall be responsible for the performance or nonperformance of its subcontractors as if such performance or nonperformance were that of Supplier.  Supplier shall require all subcontractors, as a condition to their engagement, to agree to be bound by provisions substantially the same as those included in this Agreement.  In the event of a change in control of Supplier, Vapor may, at its option, terminate any Orders in effect at the time of the change of control. 

18. Miscellaneous.  

a. Relationship Between the Parties.  The relationship of the parties shall be that of independent contractors, and nothing in these Terms shall be construed to create a partnership, joint venture, or employer-employee relationship.  Neither party is the agent of the other, and neither party is authorized to make any representations, contract, or commitment on behalf of the other.  Supplier will choose the manner and means of performing services and will provide its own equipment, tools, and other materials at its own expense.  The parties do not agree to any exclusivity in regards to the subject matter of this Agreement and each party is free to contract with third parties, including competitors of the other party, for transactions of the type covered by this Agreement in any market, worldwide.  The use of the words “partner” or “partnership” in communications between the parties refers only to a business relationship, and does not create or reflect any legal partnership, joint venture, or other fiduciary or other special relationship between Supplier and Vapor.

b. Publicity.  Supplier may not issue any press release or other publicity regarding the subject matter of this Agreement, or publicly disclose that it is providing Services to Vapor, without Vapor’s prior written consent.

c. Intellectual Property.  Except as expressly stated herein, each party retains all right, title and interest in and to its intellectual property.  Neither party may use the other party’s name, logo, trade or service marks, or similar indicia (each a “Trademark”) without the other party’s prior written consent.  Any authorized use shall be subject to the Trademark owner’s mark usages guidelines provided to the other or published on its website.

d. Commercial Items. To the extent that any software and documentation are being provided under this Agreement, such items are “Commercial Items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212(b) and 48 C.F.R. 227.7202 as applicable, all U.S. Government end-users acquire the software and documentation with only those rights set forth herein. Any technical data provided that is not covered by the above provisions is deemed to be “technical data commercial items” pursuant to DFAR Section 252.227.7015(a). Any use, modification, reproduction, release, performance, display or disclosure of such technical data shall be governed by the terms of DFAR Section 252.227.7015(b).

e. Governing Law and Venue; Dispute Resolution. The laws of the State of Texas (exclusive of its choice of law principles) and the United States of America govern this Agreement. This Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of the Agreement shall be the state or federal courts of Bexar County, Texas, and each party agrees not to bring an action in any other venue.  Supplier waives all objections to this venue and agrees not to dispute personal jurisdiction or venue in these courts.  If any action is brought to enforce this Agreement, the prevailing party shall be entitled to collect its reasonable attorney fees and costs of suit. TO THE EXTENT PERMITTED BY LAW, EACH PARTY WAIVES THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF OR RELATED TO THIS AGREEMENT AND THE PARTIES ACTIVITIES IN CONNECTION WITH THIS AGREEMENT.  Notwithstanding the foregoing, prior to bringing a claim, for a period of at least thirty days, the parties shall attempt in good faith to resolve any dispute arising out of or relating to the Agreement. Such resolution efforts shall be conducted by executives of each party who have authority to settle the controversy. All communications pursuant to this clause are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence. Notwithstanding anything to the contrary in this Agreement, neither party shall be required to pursue the procedures described in this Section prior to filing a request of injunctive or other equitable relief.

f. Waiver and Modification.  Vapor’s failure to enforce at any time any of these Terms, to exercise any election or option provided herein, or to require at any time performance by Supplier of any of the provisions hereof, shall in no way be construed to be a waiver of such provisions, nor in any way to affect the validity of the order or any part thereof, or the right of Vapor thereafter to enforce each and every such provision.  To be binding upon Vapor, any modification of the order must be in writing and signed by Vapor’s authorized representative.

g. Severability.  In the event one or more of the terms of this Agreement are adjudicated invalid, illegal, or unenforceable, the adjudicating body may either interpret this Agreement as if such terms had not been included, or may reform such terms to the limited extent necessary to make them valid, legal or enforceable, consistent with the economic and legal incentives underlying the Agreement.

These Terms supersede and replace, in their entirety, and prior or contemporaneous agreement or understanding between the parties regarding their subject matter, written or oral.

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