ENTIRE AGREEMENT

This Purchase Order, with any accompanying documents provided by Vernier Software and Technology LLC. (“Vernier”), becomes the entire and exclusive agreement between Vernier and the Seller when acknowledged by the Seller in writing or when the Seller ships the product. This order supersedes and replaces all prior agreements, understandings, negotiations and discussions of the parties, whether oral or written. There are no other agreements between the parties in connection with the subject matter hereof not embodied in this order.

PRECEDENCE

This offer to purchase is limited to acceptance of the terms and conditions of the offer. Vernier is not bound by any term or condition of Seller stated in any quote, acknowledgement, invoice, or in any other manner that is inconsistent with or in addition to the terms and conditions of this Purchase Order unless the additional or inconsistent term is in writing and signed by an authorized Vernier representative.

SHIPMENT

Unless otherwise agreed in writing by Vernier, all products ordered by Vernier (“Products”) shall be delivered in accordance with the shipping terms stated on the face of the Purchase Order.

PACKING AND SHIPMENT

Unless otherwise specified, Seller will pack all Products in accordance with good commercial practices so as to ensure safe arrival of the Products at Vernier. An itemized packing list specifying the Purchase Order number, the quantity shipped, the Vernier and the manufacturer part numbers must accompany each shipment. For international shipments, the Vernier part number must be referenced on Seller’s invoice. Failure to comply may result in delay in payment.

DELIVERY AND DELAYS

Seller shall notify Vernier within five (5) business days of order receipt if Seller cannot meet the delivery date requested in Vernier’s order. Failure to provide such notice shall be deemed acceptance of the requested delivery date. Time is of the essence of this order. Whenever any event delays or threatens to delay the timely performance of this order, Seller will immediately notify Vernier of such event and furnish all relevant details. If Seller can fulfill its delivery obligation only by shipping via premium freight, the premium charges shall be solely at the Seller’s expense. Vernier may cancel this Purchase Order at any time, in whole or in part, if delivery of the Products ordered is not timely or if Seller fails to promptly replace nonconforming Products. Failure of Seller to deliver on time may result in Vernier cancellation of the order. In the event of cancellation under this paragraph, Vernier shall be under no obligation to pay for those Products affected by the cancellation. Nothing in this Section shall excuse Seller from proceeding with any uncancelled portion of any order.

RESCHEDULING OF DELIVERY

Unless otherwise agreed by Vernier, Vernier may request that delivery of Products be rescheduled for up to three (3) months from the original scheduled delivery date by providing written notice to Seller. Requests may be submitted up to five (5) business days prior to scheduled shipment. Upon receipt of such rescheduling request, Seller shall reply to Vernier within three (3) business days confirming Seller’s acceptance of the rescheduled delivery date. Failure by Seller to respond within such time period shall, at Vernier’s discretion, be deemed either acceptance by Seller of Vernier’s request or grounds for order cancellation.

CANCELLATION OF ORDER

Unless otherwise agreed by Vernier, this order may be cancelled by Vernier if Vernier delivers notice of cancellation no less than five (5) business days prior to scheduled shipment. For items that are sold to or manufactured exclusively for Vernier, Vernier agrees to the lesser of the Seller’s cancellation fee or liability for deliveries scheduled as follows:

• 0-30 calendar days’ notice – time and material only;
• 31-60 calendar days’ notice – raw material on hand at Seller at time of notification and not exceeding the lesser of the quantity required to produce the order or ninety (90) calendar days’ supply;
• 61+ calendar days’ notice – no liability.

Additionally, Seller shall in good faith take all necessary and appropriate actions to reduce time and material exposure to Vernier.

REJECTION AND REVOCATION OF ACCEPTANCE

Vernier may inspect the Products ordered and reject any nonconforming Products or deliveries. Vernier’s right of inspection and rejection, whether exercised or not, shall not affect Vernier’s right to revoke acceptance or pursue other remedies if defects or nonconformities are discovered at a later date. Seller shall remove all non-conforming Products within five (5) days of notice of non-conformance. If Seller fails to remove the nonconforming Products within such five (5) day period, Vernier shall have the right, at its option, to return the entire shipment at Seller’s expense, or to sort the shipment, return or scrap non-conforming Products at Seller’s expense, and invoice Seller for any labor performed at the actual burdened rate for Vernier employees performing the labor. Seller shall credit Vernier the invoice amount of any product returned for repair and shall re-invoice the product once repaired and re-shipped. Seller shall bear all freight costs associated with the return and re-shipment of non-conforming Products.

OVER/UNDER QUANTITIES

Unless expressly approved in writing prior to delivery, any shipment whose quantity does not match the quantities specified in the Purchase Order shall be deemed a nonconforming delivery under Section 8 of these terms and conditions, and Vernier shall have the right to return such nonconforming shipment as set forth in Section 8.

PRICE AND PAYMENT

The price of Products shall be as stated in the Purchase Order. If there is no price stated in the Purchase Order, the price shall be the lower of the price most recently charged or quoted by Seller to Vernier for each product. Seller shall invoice Vernier for Products at time of delivery, and the invoice must reference the applicable Purchase Order. Vernier shall pay amounts properly invoiced within thirty (30) days of the date of invoice unless another term for payment is specified on the Purchase Order.

TAXES AND OTHER CHARGES

Unless otherwise agreed in writing, the contract price includes all applicable foreign, federal, state, and local taxes, tariffs, import and export duties, commissions, and other charges.

COMPLIANCE WITH LAW

The Seller shall acquire, produce, and deliver the Products in accordance with all applicable laws and regulations pertaining to its performance of its obligations under this Purchase Order. The Seller will comply with all federal affirmative action and equal opportunity requirements as referenced below.

This contractor and subcontractor shall abide by the requirements of 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a). 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, sexual orientation, gender identity 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.

The contractor will not discharge or in any manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant.

This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as part of such employee’s essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor’s legal duty to furnish information.

The Seller shall provide Products that allow Vernier to be in compliance with the current RoHS (restriction of hazardous substances) and WEEE (waste, electrical and electronic equipment) directives.

Conflict Minerals: Article 1502 of US Dodd-Frank Wall Street Reform and Consumer Protection Act
Vernier fully understands the importance of the issue of conflict minerals to its customers and is committed to supply chain initiatives and overall corporate social responsibility that work towards a conflict free supply chain. Suppliers to Vernier are required to take appropriate due diligence to identify their supply chain and the associated country of origin for minerals known to directly or indirectly finance or benefit armed militant groups in the democratic Republic of Congo or adjoining countries. Upon request, Vernier expects its suppliers to disclose the details of their conducted due diligence and only source minerals from responsible sources.

HAZARDOUS SUBSTANCES OR PROCESSES

For any product containing a hazardous substance, Seller shall provide Vernier, immediately upon acceptance of this Purchase Order, a complete safety data sheet (SDS) for each hazardous substance in conformance with the requirements of the Globally Harmonized System for Hazardous Communication (GHS) and any similar information required by applicable laws and regulations in effect at the time of acceptance of this Purchase Order.

SELLER WARRANTY

Seller warrants that all Products delivered: (a) are free from defects in materials, workmanship, manufacture, and title; (b) conform in every respect to the specifications of this Purchase Order, including any drawings or specifications incorporated herein or samples furnished by Seller; (c) are of merchantable quality and fit for the purposes intended by Vernier; and (d) where design is Seller’s responsibility, are free from defects in design for minimum of twelve (12) months. If any product does not conform to any of the foregoing warranties, Seller shall, at Vernier’s option, repair or replace the product or refund the purchase price of the product to Vernier. Replacement and repaired Products shall be warranted for the remainder of the warranty period or six (6) months, whichever is longer. The foregoing warranties are in lieu of all other warranties, express or implied.

QUALITY EXPECTATIONS

It is the expectation of Vernier that the Seller will drive an active and continuous improvement program designed to improve cost, delivery and quality of performance. If at any time data from either Seller’s or Vernier’s control and measurement systems indicates that the quality or reliability of Products has fallen below the minimum established levels, Seller shall immediately commence corrective action and continue such action until the quality and/or reliability again meets or exceeds the minimum acceptable level. Nothing in this Section 15 is intended to limit Seller’s warranty obligations under Section 14.

CONFIDENTIAL INFORMATION

Seller shall maintain the confidentiality of any information, data, know-how, documents, or other property that Vernier discloses to Seller and that Vernier designates as confidential or that the Seller has reason to know is considered to be confidential by Vernier (“Confidential Information”). Confidential Information includes, but is not limited to, product development plans, marketing plans, vendor lists, trade secrets, drawings, schematics, technical specifications, manufacturing techniques, financial information, and customer lists. Confidential Information excludes information that Seller can document through its own written records was already known to it prior to disclosure by Vernier. Seller shall not disclose Confidential Information to any third party, and shall use such Confidential Information only as necessary to perform its obligations under this Purchase Order. Seller shall make all reasonable efforts under the circumstances to maintain the confidentiality of Confidential Information. Seller shall require any employees and contractors who have access to Vernier’s Confidential Information to comply with the foregoing restrictions and shall limit disclosure of such Confidential Information to individuals who have a need to know such information for the purpose of this order. Unless otherwise agreed in writing, no information disclosed in any manner or at any time by Seller to Vernier shall be deemed secret or confidential.

DOCUMENTATION RELATED TO OUTSOURCED MANUFACTURING

In the event Seller is providing procurement and/or manufacturing services for a product designed by Vernier, all documentation related to the design, manufacture and procurement of the product, including documentation created by Seller, shall be the property of Vernier. Seller shall execute such documents as Vernier may reasonably request in order to perfect and document Vernier’s ownership.

ADVERTISING

Seller shall not use the Vernier name or refer to Vernier directly or indirectly in any advertisement, sales presentation, news release, or releases to any professional or trade publication without Vernier’s prior written approval.

INDEMNITY

Seller shall defend, indemnify, and hold Vernier harmless of and from any claims, loss, damage, or expense arising out of: (a) any defect or nonconformity in the Seller’s Products; (b) breach of any warranty by the Seller; or (c) any claim that the use, sale, or importation of any product by Vernier or its direct or indirect customers infringes upon the patent or other intellectual property rights of a third party. Vernier shall notify Seller promptly of any such claim and shall cooperate with Seller at Seller’s expense in the defense thereof. Should any Products or part thereof furnished under this Purchase Order become, or in Vernier’s reasonable opinion be likely to become, the subject of any claim for infringement of any patent or other intellectual property right, Seller shall at its own expense and order of preference, either: (a) secure for Vernier the right to continue using such Products or part thereof, (b) replace or modify such Products or part thereof to make it non-infringing and equal in operation or performance, or (c) remove such Products or part thereof and refund all payments related thereto.

LIMITATION OF LIABILITY

Vernier’s liability to Seller shall be limited to amounts owing for Products delivered to and accepted by Vernier. In no event shall Vernier be liable for termination damages or other compensation, or for any other special, consequential, or incidental damages, however caused.

DEFAULT

If the Seller breaches any provision of this Purchase Order, becomes insolvent, enters voluntary or involuntary bankruptcy or receivership proceedings, makes an assignment for the benefit of creditors, or is unable at any time to provide reasonable assurance to Vernier of the ability to perform this Purchase Order, Vernier may, without limiting any other rights or remedies it may have, cancel this Purchase Order by written notice to the Seller. Upon cancellation under this paragraph, Vernier is relieved of all further obligations to the Seller, and the Seller shall be liable to Vernier for all costs incurred by Vernier in completing or procuring performance of the remainder of this Purchase Order.

ASSIGNMENT

No right or obligation under this Purchase Order (including the right to receive monies due) may be assigned by Seller without the prior written consent of Vernier. Any purported assignment without such consent will be void. Vernier may assign this Purchase Order and its rights and obligations hereunder to a Vernier affiliate or as part of the sale or other transfer of the business to which the order relates. In the event of a change of control of Seller in which Seller is not to be a surviving entity, Seller will promptly notify Vernier of the change of control and use its best efforts to ensure this order is fully assigned to the successor entity; provided, however, that Vernier shall have the right to terminate this order by providing Seller with written notice of its intention to terminate within thirty (30) days of having actual knowledge of the change of control. Subject to the foregoing, this Purchase Order will be binding on and inure to the benefit of the parties and their respective successors and permitted assigns.

NOTIFICATION OF PRODUCT CHANGE

Substitutions are not permitted without Vernier’s prior written approval. Seller shall provide Vernier with at least 12 months advance written notice of any product design change or obsolescence (End of Life). Upon receipt of such notice, a Vernier manager shall acknowledge receipt of the notice in writing. For a minimum period of 12 months following the date of Vernier’s written acknowledgement, Seller shall continue to fulfill Vernier orders for the affected product.

WAIVER

The failure of Vernier to enforce at any time any of the provisions of this order, to exercise any election or option provided herein, or to require at any time the performance by Seller of any of the provisions herein will not in any way be construed to be a waiver of such provisions.

REMEDIES

No remedy provided in this Purchase Order shall be deemed exclusive of any other remedy allowed by law.

GOVERNING LANGUAGE

This Purchase Order may be translated into a language other than English, but this English version of the Purchase Order shall control the rights and obligations of the parties regardless of any subsequent translation and regardless of any reliance by any party upon such translation. All communications and notices relating to this Purchase Order shall be in English.

DISPUTES

The rights and obligations of the parties under this Purchase Order shall be governed by the laws of the state of Oregon, U.S.A., including federal law, but excluding choice of law rules and excluding the United Nations convention on the international sale of goods. Any litigation between the parties shall be commenced and prosecuted in state or federal courts in Oregon. The prevailing party in any litigation shall be entitled to recover reasonable expenses of litigation, including attorneys’ fees and expenses on any appeal and petition for review.

SURVIVAL

The provisions contained in this Purchase Order that by their sense and context are intended to survive the cancellation or termination of this Purchase Order shall survive such cancellation or termination, including without limitation Sections 14 (WARRANTY); 16 (CONFIDENTIAL INFORMATION); 18 (ADVERTISING); 19 (INDEMNITY); 20 (LIMITATION OF LIABILITY); and 27 (DISPUTES).