Echodyne Purchase Order Terms & Conditions
The following standard purchase order terms and conditions (“Terms”) are between Echodyne Corp. (“Echodyne”) and the supplier identified on the applicable Order (“Seller”). “Order” means any purchase order, statement of work or other document under which Echodyne procures goods, software or services (collectively, “Products”) from Seller. Together with the Terms, the Order constitutes the entire agreement between the parties regarding the purchase of Products listed on the Order by Echodyne from Seller, subject to Section 2.
- Acceptance of the Terms. Seller accepts this Order and any amendments by signing the
acceptance copy of the Order and returning it to Echodyne promptly. Even without such written acknowledgment, Seller’s full or partial performance under this Order will constitute acceptance of these Terms. By acceptance of this Order or full or partial performance (whichever is earlier), Seller agrees to be bound by, and to comply with the Terms and the Order, which includes any supplements to it, and all specifications and other documents referred to in this Order. These Terms apply to all Products listed in this Order and constitute Echodyne’s offer to Seller, which Echodyne may revoke at any time prior to Seller’s acceptance. This Order is not an acceptance by Echodyne of any offer to sell, any quotation, or any proposal. Reference in this Order to any offer to sell, quotation, or proposal will not constitute a modification of any of these Terms. Terms and conditions different from or in addition to these Terms, whether contained in any acknowledgment of this Order, or with delivery of any Products under this Order, or otherwise, will not be binding on Echodyne (regardless of whether they would materially alter this Order), and Echodyne hereby explicitly rejects them. These Terms may be modified only by a written document signed by duly authorized representatives of Echodyne and Seller.
- Relationship to Other Agreements. If the parties executed an agreement, such as a master supply agreement, which applies to (i) Products ordered with these Terms, and (ii) the relationship of the parties governed by these Terms (“Agreement”), then the provisions of such Agreement are incorporated herein. If a conflict arises between these Terms and the Agreement, to the extent of that conflict, the terms of the Agreement will apply.
- Prices and Taxes. This Order must not be filled at a price higher than shown on the face of the Order. If no price is set forth on the front of the Order, the Products will be billed at the price last quoted or at the prevailing market price, whichever is lower, and, in any event, Products ordered under this Order will not be billed at a higher price than last quoted or charged without Echodyne’s specific written authorization. Echodyne will be entitled at all times to set off any amount owed at any time by Seller or any of its affiliates to Echodyne or any of its affiliates against any amount payable at any time by Echodyne in connection with this Order. No extra charges of any kind will be allowed unless specifically agreed to in writing by Echodyne. Seller will be liable for payment of all applicable taxes arising out of transactions contemplated by the Order except as otherwise agreed by the parties in writing. If Seller reduces its prices for any Products during the term of an Order, Seller shall correspondingly reduce the prices of Products sold thereafter to Echodyne under any future Order.
- Invoices and Payment.
- Invoicing. Invoices shall be rendered on completion of services or delivery of goods or software and shall contain the Order number, item number, description of goods or software or services, quantities, unit prices, each applicable tax, delivery date(s) and total purchase price. Each invoice must refer to one, and only one, Order.
- Payment Terms. Unless expressly stated in an Agreement or the face of the Order, payment on invoices shall be net 30 days from receipt of the invoice. All claims for money due or to become due from Echodyne shall be subject to deduction by Echodyne for any setoff or counterclaim arising out of this or any other of Echodyne's Orders with Seller. All invoices must be submitted to [email protected]. Payment of an invoice will not constitute acceptance of Products and will be subject to adjustment for errors, shortages, defects in the Products or other failure by Seller to meet the requirements of the Order. If, in good faith, Echodyne disputes an amount charged on an invoice, Echodyne will be entitled to withhold the disputed amount pending resolution of the dispute. Echodyne is not obligated to pay any invoice received from Seller more than 120 days after Echodyne accepts the Products.
- Shipping; Delivery. All goods must be packaged in the manner specified by Echodyne and shipped in the manner and by the route and carrier designated by Echodyne. If Echodyne does not specify the manner in which the goods must be packaged, Seller shall package the goods so as to avoid any damage in transit. If Echodyne does not specify the manner of shipment, route, or carrier, Seller shall ship the goods at the lowest possible transportation rates, consistent with Seller’s obligation to meet the delivery schedule set forth in this Order.
Seller will mark all containers with necessary lifting, handling, and shipping information and with purchase order numbers, date of shipment and the names of the consignee and consignor. An itemized packing list must accompany each shipment. No partial or complete delivery will be made prior to the due date or dates shown unless Echodyne has given prior written consent. Seller will deliver the goods in the quantities and on the date(s) specified in the Order or as otherwise agreed in writing by Echodyne. If no delivery date is specified, Seller will deliver the goods on the date that is 5 business days after Seller’s receipt of the Order unless Echodyne has given prior written consent to earlier delivery. Echodyne may reject and return any goods delivered prior to the specified delivery date at Seller’s expense and Seller will redeliver the goods on the delivery date. All goods will be delivered to the delivery location during Echodyne’s normal business hours or as Echodyne otherwise instructs. Unless otherwise specifically provided on the face of the Order, the goods ordered under the Order will be delivered F.O.B. delivery location.
- Inspection and Acceptance.
- Inspection; Access. All Products, work in progress and Seller’s performance will be subject to inspection and testing by Echodyne, its customers and regulatory authorities at all reasonable times and places. Seller hereby agrees to provide access to its facilities for such inspection, testing and other verification or validation activities that Echodyne for the control and monitoring of performance, its customers, or regulatory authorities intend to perform at Seller’s facilities, provided that Echodyne will inform Seller of such activities within a reasonable time prior to any access, and provided that any access or Seller site visits will be during Seller’s normal operating hours. Seller will make test specimens available to Echodyne upon Echodyne’s request. Records of all inspection work by Seller will be kept complete and available to Echodyne and its customers and regulatory authorities during the performance of this Order and for seven (7) years after Seller’s completion of this Order. Seller will provide and maintain an inspection; and release of products and services process acceptable to Echodyne covering the Products ordered.
- Acceptance. Final acceptance or rejection of the Products will be made as promptly as practical after delivery except as otherwise provided in the Order, but failure to inspect and accept or reject Products or failure to detect defects by inspection will neither relieve Seller from responsibility for such Products not in accordance with this Order nor impose liabilities on Echodyne for them. Payment, if any, made for any Products rejected hereunder shall be promptly refunded by Seller. If any of the Products are found at any time to be defective in material or workmanship, or otherwise not in conformity with the requirements of this Order, including any applicable drawings, specifications, or instructions, then Echodyne, in addition to such other rights and remedies it may have by contract or by law or equity, at its sole discretion may reject and return such Products at Seller’s expense, require Seller to inspect the Products and remove nonconforming Products and/or require Seller to replace nonconforming Products with conforming Products. If Seller fails to make the necessary inspection, removal, and replacement in a time and manner satisfactory to Echodyne, Echodyne may at its option: (i) replace or correct such item and charge the cost to Seller; (ii) without further notice terminate this Order for default, return the rejected item to Seller at Seller’s expense and Seller will promptly refund any amounts paid by Echodyne for the returned item; or (iii) require a reduction in price.
- Change Orders. No modification of this Order shall be binding on Echodyne unless made by a change order, executed in writing by Echodyne’s authorized representative (“Change”). Echodyne may at any time, by means of a Change modify any of the following: 1) drawings, designs or specifications, 2) method of shipment or packing, 3) place of manufacturing, inspection, delivery or acceptance, 4) reasonable increases or decreases in quantities, 5) reasonable changes in delivery schedules, and 6) changes in the quantities of Echodyne furnished materials, tooling, etc. 7) changes of external providers; Seller shall proceed immediately to perform this Order as changed. If any Change causes any increase or decrease in the cost or in the time required for the performance of the work, an equitable adjustment will be made in the price or schedule, and the original Order will be modified accordingly in writing. Echodyne is not obligated to pay for any price increases that that result from changes that do not comply with the change order process described in this Section 7. Seller shall not substitute materials or accessories, even if Seller believes they are of superior quality, without Echodyne’s prior written consent. Seller will notify Echodyne promptly of any changes to processes, products, or services, including changes of its suppliers or location(s) of manufacture if such changes could affect Seller’s performance hereunder, and obtain Echodyne’s consent to such changes.
- Ownership; Use of IP. Each party will own and retain all rights to its pre-existing intellectual property and any intellectual property developed independently of the Products subject to these Terms, including any of such party’s intellectual property rights therein. Echodyne will own all services deliverables, including all intellectual property rights, all media in any format, hardware, and other tangible materials created by Seller while delivering the services. Any Seller work which is a written or customized product or report related to, or to be used in, a services deliverable is regarded as a services deliverable and owned by Echodyne. If services deliverables do not qualify as a work made for hire, Seller assigns to Echodyne all right, title, and interest in and to such deliverables, including all intellectual property rights. Seller waives all moral rights in the services deliverables. Seller will grant Echodyne a worldwide, nonexclusive, perpetual, irrevocable, royalty-free, fully paid up right and license, under all current and future intellectual property rights, to use Seller’s and third-party intellectual property consistent with Echodyne’s ownership interests under this Section 8. Seller grants to Echodyne a worldwide, irrevocable, nonexclusive, perpetual, paid-up and royalty free license for any software or other intellectual property not subject to a separate license.
- Warranties. Seller represents and warrants that (a) all Products and services deliverables are free of any claim of any nature by any third person and that Seller will convey clear title to the goods and services deliverables to Echodyne, (b) all services are performed in a manner acceptable in the industry and in accordance with generally accepted standards in Seller’s industry, and services deliverables are free from all defects, fit for the particular purposes for which they are acquired, and provided in strict accordance with the specifications or other requirements (including performance specifications) approved or adopted by Echodyne, (c) all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of Seller, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the services, and (d) all goods sold will be of merchantable quality, free from all defects in design, workmanship and materials, fit for the particular purposes for which they are purchased, and provided in strict accordance with the specifications, samples, drawings, designs or other requirements (including performance specifications and any applicable specifications provided by an end-customer of Echodyne, which will be included with the Order) approved or adopted by Echodyne. Seller shall replace or correct, at Echodyne’s option and at Seller’s cost, defects of any Products not conforming to these warranties. If Seller fails to correct defects in or replace nonconforming Products within ten (10) days from the date the Echodyne notifies Seller of the defect or defects, Echodyne may exercise its remedies under Section 10 . All warranties of Seller herein or that are implied by law shall survive any inspection, delivery, acceptance, or payment by Echodyne. Any attempt by Seller to limit, disclaim, or restrict these warranties or any remedies of Echodyne, by acknowledgment or otherwise, in accepting or performing this Order, will be null, void, and ineffective without Echodyne’s written consent.
- Default. Time is of the essence for this Order. Echodyne may, by written notice of default to Seller, (a) terminate all or any part of this Order if Seller fails to perform, or fails to make progress as to endanger performance of this Order in accordance with the Terms, and does not cure such failure within a period of ten (10) days (or such longer period as Echodyne may authorize in writing) after receipt of notice from Echodyne specifying such failure; and (b) procure, on such terms as it will deem appropriate, goods, software and services similar to the Products in the terminated Order. Seller will continue performance of this Order to the extent not terminated and will be liable to Echodyne for any excess costs for any replacement products. As an alternate remedy, and in lieu of termination for default, Echodyne, at its sole discretion, may elect to extend the delivery schedule and/or waive other deficiencies in Seller’s performance, in which case an equitable reduction in the Order price will be negotiated. If Seller for any reason anticipates difficulty in complying with the required delivery date, or in meeting any of the other requirements of this Order, Seller will promptly notify Echodyne in writing. If Seller does not comply with Echodyne’s delivery schedule, Echodyne may require delivery by fastest way and charges resulting from the premium transportation must be fully prepaid and absorbed by Seller. The rights and remedies of Echodyne provided in this Section 10 will not be exclusive and are in addition to any other rights and remedies provided by the Uniform Commercial Code, by law, at equity, or under this Order.
- Indemnification. Seller shall indemnify and hold Echodyne and its affiliates harmless and, on Echodyne’s request, shall defend each of them from and against any or all third party claims, demands, litigation, or proceedings of whatever kind, whether based upon negligence, breach of express or implied warranty, strict liability, infringement of intellectual property rights, or any other theory, arising out of, by reason of, or in any way connected with the Products, any breach by Seller of any of its obligations hereunder, or any other act, omission or negligence of Seller or any of Seller’s employees, workers, agents, subcontractors, or suppliers. Seller shall, upon Echodyne’s request, pay or reimburse Echodyne or any other party entitled to indemnification hereunder for all costs and expenses, including attorneys’ fees, as incurred by Echodyne or such other party in connection with any such claim, demand, litigation, proceeding, loss, or damage. In addition, for infringement claims, Seller will, at its own expense and at Echodyne’s option, either procure for Echodyne the right to continue using the allegedly infringing item, replace it with a non-infringing equivalent, or remove it and refund the purchase price and the transportation and installation costs thereof.
- Limitation of Liability. To the maximum extent allowable under applicable law, neither party shall be liable under any Order for any special, incidental, consequential, indirect, or punitive damages including, without limitation, lost revenues even if it has been advised of the possibility of such damages. Echodyne’s aggregate liability arising from or relating to any Order is limited to the amount paid by Echodyne for the Products under such Order.
- Compliance with Laws. Seller represents and warrants that it is in compliance with, and all Products supplied hereunder have been produced or provided in compliance with, the applicable provisions of all federal, state, or local laws or ordinances and all related lawful orders, rules and regulations, including any industry codes and standards referenced in Seller’s Product specifications applicable to the Products. Seller shall comply with any provisions, representations, or agreements, or contractual clauses required to be included or incorporated by reference or operation of law in any Order. Seller shall be required to obtain and pay for any license, permit, inspection or listing by any public body or certification organization required in connection with the manufacture, performance, completion or delivery of any good and/or service.
- Confidential or Proprietary Information. Notwithstanding any document marking to the contrary, any knowledge or information that the Seller has disclosed or may later disclose to Echodyne, and which in any way relates to the Goods covered by this Order will not, unless otherwise specifically agreed to in writing by Echodyne, be deemed to be confidential or proprietary information, and will be acquired by Echodyne, free from any restrictions. Seller will not transmit to Echodyne any sensitive personal information, including, but not limited to, identified health information, financial information, social security numbers, biometrics or other personally identified or identifiable information of like sensitivity. Seller will keep confidential any technical, process, economic, or other information derived from drawings, specifications and other data furnished by Echodyne in connection with this Order (in whatever form or format) and will not divulge, export, or use, directly or indirectly, such information for the benefit of any other party without obtaining Echodyne’s prior written consent. Except as required for the efficient performance of this Order, Seller will not use such information or make copies or permit copies to be made of such drawings, specifications, or other data without Echodyne’s prior written consent. If any reproduction is made with prior consent.
- Termination. Echodyne may terminate all or any part of this Order for convenience at any time by written notice to Seller. Upon such termination, Echodyne’s liability will be limited to reasonable termination charges mutually agreed by Seller and Echodyne, provided that Seller must specify any proposed charges in writing within fifteen (15) days after termination. This Order shall terminate automatically, without notice, if Seller becomes insolvent or the subject of any proceeding under the laws relating to bankruptcy or the relief of debtors.
- Government Contracts. If this Order bears a government contract number on the face of this Order, Seller shall comply with all provisions of such government contract and executive orders and directives to the extent that they apply to the subject matter of this Order, and all such applicable contract provisions, orders and directives are hereby incorporated by reference into this Order. A copy of the government contract’s pertinent terms and conditions will be given to Seller on request.
- Trade Control Compliance. The parties shall comply with all export and import laws, regulations, decrees, orders, and policies of the United States Government and the Government of any country in which the Parties conduct business pursuant to an Order, including but not limited to the Export Administration Regulations (“EAR”) of the U.S. Department of Commerce, the International Traffic in Arms Regulations (“ITAR”) of the U.S. Department of State, the U.S. Customs & Border Protection Regulations, the Harmonized Tariff Schedule, and the antiboycott and embargo regulations and guidelines as set forth in the EAR and in the U.S. Department of the Treasury, Office of Foreign Assets Control (collectively, “Trade Control Laws”). Seller shall not transfer (to include transfer to foreign persons employed by or associated with, or under contract to Seller, or Seller’s sub-tier suppliers or Seller’s non-U.S. subsidiaries) any export-controlled item, data or services, without providing advance notice to Echodyne and obtaining the requisite export and/or import authority. Subject to applicable Trade Control Laws, Seller shall provide Echodyne with the export control classification of any commodity or technology including software. Seller represents that it maintains an effective export/import control compliance program in accordance with all applicable Trade Control Laws.
- Quality Management System. Seller shall implement and maintain a quality management system acceptable to Echodyne and in compliance with any other specific quality or customer requirements identified in this Order. Records of all quality control inspection work by Seller shall be kept complete and available to Echodyne and its customers. Where applicable, the Seller shall use customer-designated or approved external providers, including special processes.
- Notice of Nonconformances. Seller shall promptly notify Echodyne in writing of nonconformances in Seller’s performance in accordance with the Terms or an Order, including any violation of or deviation from Seller’s approved inspection/quality control system, processes, or conformance of Products to be delivered under an Order, including the quantity and specific identity of any impacted Products.
- Counterfeit Parts. Seller shall not furnish suspect counterfeit or counterfeit parts to Echodyne under this Order. All material delivered under this Order shall be authentic and traceable to the original manufacturer. Seller shall provide authenticity and traceability records to Echodyne upon request. Electronic parts shall not be acquired from brokers unless approved in advance in writing by Echodyne. Seller shall immediately notify Echodyne if Seller cannot provide parts, components, and/or assemblies traceable to the original component manufacturer or the original equipment manufacturer. Upon receipt of such notification, Echodyne reserves the right to terminate this Order at no cost to Echodyne or require specific material validation test and inspection protocol requirements from Seller. If suspect counterfeit or counterfeit parts are furnished under this Order and are found in any of the Products delivered hereunder, such items will be impounded by Echodyne. Seller shall promptly replace such suspect/counterfeit parts with parts acceptable to Echodyne. Seller shall be liable for all costs relating to the removal and replacement of said parts, including without limitation Echodyne’s external and internal costs of removing such suspect/counterfeit parts, of reinserting replacement parts and of any testing or validation necessitated by the reinstallation of Seller’s Products after suspect/counterfeit parts have been exchanged.
- Business Conduct; Environment, Health and Safety. Seller shall not take any action that will render Echodyne liable for a violation of any applicable anti-bribery legislation which prohibits the offering, giving, or promising to offer or give or receiving, directly or indirectly, money or anything of value to any third party to assist it, them or Echodyne in retaining or obtaining business or in procuring the Products. Seller shall maintain environmental, health and safety management systems as appropriate to ensure compliance with applicable federal, state, and local requirements. Seller further agrees to continuously promote a safe and healthy workplace and a sustainable environment related to water and air quality, water and energy conservation, greenhouse gas emission reductions, solid and hazardous waste reductions. Seller shall convey the requirement of this clause to its suppliers. Seller shall maintain an ethics and compliance program appropriate for its business throughout its performance hereunder. Seller must ensure that their personnel are aware of their contributions to product conformity and product safety.
- Retention of Records. Unless a longer period is specified in this Order (for example if required by a customer of Echodyne) or by law or regulation, Seller shall retain all records related to this Order for seven (7) years from the date of final payment received by Seller. Records related to this Order include, but are not limited to, proposal, procurement, specifications, production, inspection, test, quality, shipping and export, and certification records. At no additional cost, Seller shall timely provide access to such records to the Echodyne or Echodyne’s customer upon request.
- Subcontractors. If Seller intends to subcontract parts or the entirety of this Order, it shall obtain Echodyne’s prior written consent, and require each subcontractor to execute an agreement with conforming performance requirements, including applicable specifications (which may include specifications provided by Echodyne’s customer(s)), and legal terms substantially like the ones herein.
- Governing Law. The laws of the State of Washington govern this Order without reference to conflicts of laws principles. Each party hereby consents to exclusive jurisdiction and venue in state or federal courts sitting in King County, Washington.
- Entire Agreement. This Order, together with the Terms, all change orders, attachments, exhibits, supplements, specifications, schedules and other terms referenced in or attached to this Order, contains the entire agreement of the parties and supersedes any and all prior agreements, understandings and communications between Echodyne and Seller related to the subject matter of this Order.