Terms & Conditions

STANDARD TERMS AND CONDITIONS

OPERATEUP, INC. dba ECHO INDUSTRIES

 

These Standard Sales Order General Terms and Conditions govern all contracts made by Operateup, Inc. D/B/A Echo Industries (“Echo”) with its customers (“Buyer”). Unless otherwise specifically agreed to in writing by Echo, all sales of the goods described in any purchase order, proposal, or sales order acknowledgement from Buyer or Echo, are made subject to the provisions of Section 1 to 18 (inclusive) hereof (collectively the “Standard Terms and Conditions”).

  1. A Sales Order Acknowledgement shall operate as OperateUp, Inc.’s dba Echo Industries (“Echo”) acceptance of Buyer’s purchase order, but such acceptance is expressly conditioned on assent by Buyer to these Standard Terms and Conditions. Such assent to these Terms and Conditions shall be deemed to have been given unless written notice of objection to any of such conditions (including inconsistencies between Buyer’s purchase order and these Standard Terms and Conditions is given by Buyer to Echo promptly on receipt of Echo’s acknowledgment.

 

  1. Acknowledgement. Echo will issue a written acknowledgement for each order accepted during the term of this relationship. Scheduled ship dates are stated on the acknowledgements. All orders are considered correct as acknowledged. Buyer should review each Order Acknowledgement promptly and notify Echo of any discrepancies. In the event of any difference or inconsistency between Echo’s acknowledgement and these Standard Terms and Conditions, on the one hand, and Buyer’s purchase order on the other hand, Echo’s acknowledgement and these Standard Terms and Conditions will control. Any error or discrepancy on acknowledgement must be reported to Echo in writing within three (3) working days of acknowledgement date.

 

  1. Order Changes / Cancellations. Purchase orders acknowledged by Echo cannot be changed or cancelled without Echo’s consent, which consent may, without limitation, be conditioned upon Buyer’s agreement to pay increased or additional expenses resulting from the requested change or cancellation, including but not limited to a twenty-five percent (25%) cancellation charge if order is cancelled or changed within a minimum of twenty (20) days prior to expected delivery date as acknowledged.

 

  1. Payment. Products and services sold by Echo to Buyer hereunder shall be charged to and paid for by Buyer in accordance with agreed upon pricing. Buyer shall remit to Echo in United States currency the total amount of such invoices promptly within thirty (30) days of receipt thereof, without any offset of any type whatsoever, unless agreed to in writing by Echo. Echo reserves the right to modify payment terms by Buyer as deemed necessary. A 1.5% finance charge will be added to all unpaid balances over 30 days. The Buyer is subject to a 3% fee for credit card payments. Echo reserves the right to modify payment terms by Buyer as deemed necessary.

 

  1. Intellectual Property Rights Protection. Buyer shall indemnify and hold Echo, its directors, officers, employees, customers, successors, assigns (hereinafter, for purposes of this Paragraph 5, collectively referred to as “Echo”), harmless from any liability on claims of copyright, patent, trademark or trade secret infringement against Echo on account of any copyright, patent, trademark, trade secret, logo or design used or furnished by Buyer and Buyer shall defend any suits brought against Echo for any such claim and shall bear Echo’s cost, expenses and reasonable attorneys’ fees in the defense thereof and the -2- judgments and costs which may be awarded against Echo therein or amounts paid in settlement with Echo’s prior approval; provided that Echo shall notify Buyer of any claim or suit with reasonable promptness after Echo receives notice thereof and Buyer shall have the right to participate in or take over the defense of such claim or suit.

 

  1. Echo warrants that all Echo products sold by it to Buyer shall be free from defects in materials or workmanship for period of sixty (60) days from the date of shipment or otherwise stated to Buyer. Echo further warrants that it has good title to the products supplied and that the products are free and clear from all liens and encumbrances. Except Under no circumstances will the Limited Warranty apply with respect to improper handling, operation, siting, installation, or maintenance, or where any person other than Echo performs any service or is related to an ancillary product not provided by Echo.  EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE STANDARD TERMS AND CONDITIONS, THE PRODUCTS ARE SOLD ON AN “AS-IS”, “WHERE-IS” BASIS AND ECHO EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. Any claim on account of defective materials or for any other cause whatsoever shall conclusively be deemed waived by Buyer unless written notice hereof is given to Echo promptly after discovery but not later than sixty (60) days from date of shipment. ECHO SHALL HAVE THE RIGHT EITHER TO REPLACE OR REPAIR ANY DEFECTIVE MATERIALS, TO REFUND THE PURCHASE PRICE UPON RETURN OF THE MATERIALS OR TO GRANT A REASONABLE ALLOWANCE ON ACCOUNT OF SUCH DEFECTS, AND ECHO’S LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR DEFECTIVE MATERIALS SHALL BE LIMITED SOLELY TO REPLACEMENT, REPAIR, REFUND OR ALLOWANCE AS ECHO MAY ELECT. Echo shall be given reasonable opportunity to investigate all claims and no materials shall be returned to Echo until after inspection and approval by Echo and receipt by Buyer of written shipping instructions from Echo. IN NO EVENT SHALL ECHO BE LIABLE TO BUYER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM DEFECTIVE PRODUCT OR ANY OTHER BREACH BY ECHO.

 

  1. Echo shall make shipments as near to the expected ready date as possible, but no rights shall accrue to Buyer hereunder by reason of Echo’s delay in shipping on such expected ready date. The Buyer shall be liable for the added costs of storage, handling and carrying of materials at the Echo’s facility when shipments are postponed or delayed for reasons beyond Echo’s control or at Buyer’s request. Echo reserves the right to add to the selling price handling, delivery, and administrative charges.

 

  1. Title – Risk of Loss / Shipment. Title, possession, and risk of loss or damages in transit or otherwise, pass to the Buyer at the Echo’s plant upon delivery to any truck or carrier. Method of shipment will be determined by Buyer and sent with the freight company indicated on order with freight charges paid by Buyer.

 

  1. Shipment Damage Claims. All products are packaged to comply with carrier requirements and leave Echo’s manufacturing facilities in good condition. Buyer shall be responsible to carefully inspect all product upon delivery and before acceptance. Any damage discovered upon delivery must be noted on the bill of lading. Notification of damage discovered after delivery must be given to the carrier within fifteen (15) days immediately following delivery, and all damaged product must be kept at the point of delivery in its original packaging. Echo shall not be liable for loss or damage to product that occurs in transit, and Buyer’s sole remedy for any such damages shall be to seek appropriate recourse against the carrier.

 

  1. Shortage Claims. Buyer must report shortage claims to Echo within ten (10) days immediately following delivery. Shortage claims reported after ten (10) days after delivery will not be honored.

 

  1. Product conforming to the specifications contained in Buyer’s purchase order that is acknowledged by Echo may not be returned to Echo without Echo’s consent, which consent may be withheld in Echo’s discretion and which may be conditioned upon Buyer’s agreement pay re-handling and/or restocking charges and/or to prepay all freight charges on the return shipment.

 

  1. Buyer agrees to indemnify, defend and hold Echo harmless from and against any and all losses, damages, claims, suits or judgments arising out of or resulting in whole or in part to the extent attributable to: (a) any modification, alteration or other change made by Buyer, its servants, agents, employees and/or independent contractors, to the products sold to Buyer, without the express written consent of Echo; (b) any product of Buyer (including, without limitation, under any product liability claim based upon such product); (c) any failure of Buyer to follow Echo’s written recommendations or to properly train and supervise machine operators and maintenance personnel in the handling, operation and maintenance of the product sold hereunder; or (d) any act or omission of Buyer. In addition to the foregoing, and not in replacement thereof, any third party that purchases or otherwise receives any product purchased from Echo shall, effective as of the date of such resale or transfer, be subject to the obligations to indemnify Echo as set forth in this paragraph as applicable to such transferee, and in connection therewith, Buyer further agrees to cause such transferee, as a condition precedent to such resale, to execute a confirmatory letter addressed to Echo to this effect.

 

  1. Statute of Limitations. Except as specifically set forth in these Standard Terms and Conditions, no claim arising out of or in connection with products purchased from Echo, these Terms and Conditions or any product warranty applicable to any Echo product may be brought by Buyer more than one (1) year after the cause of action on which it is based has accrued.

 

  1. Force Majeure. Excluding any payment obligations hereunder, neither of the parties hereto shall be liable in damages or have the right to terminate any accepted purchase order, or any contract arising thereunder, for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to, acts of God, fire, flood, strikes or other labor trouble, governmental regulations, war or insurrection, delays in obtaining materials, equipment or transportation, or any other commercial impracticability or other causes of delay beyond Echo’s control. Any failure by a party under any purchase order or other agreement (other than payment of money due) due to a force majeure shall not be deemed to be a default and the time of performance shall be extended for a period of time equal to the period of delay and its consequences.

 

  1. Waiver, Amendment or Modification. The waiver, amendment, or modification of any provision of these Standard Terms and Conditions or any right, power or remedy hereunder shall not be effective unless made in writing and signed by both parties. The terms of these Terms and Conditions of Sale shall not be amended or changed by the terms of any purchase order, order form or acknowledgment even though Echo may have accepted or signed such documents. No failure or delay by either party in exercising any right, power or remedy with respect to any of its rights hereunder shall operate as a waiver thereof.

 

  1. Notice. All notices required between the parties shall be in writing and shall be deemed to have been duly given if sent by electronic mail between 9:00 am to 5:00 pm Eastern Time, and if not sent between 9:00 am to 5:00 pm Eastern Time, then on the recipient’s next business day,

if delivered in person or if mailed certified mail, postage prepaid, return receipt requested or overnight courier and addressed as follows:

 

To Echo:

Echo Industries

Mr. Scott Leichliter, President

61 R W Moore Ave

Orange, MA 01364

Email: ________________________

 

To Buyer:

Address set forth on the Order.

 

  1. Successors and Assigns. All the terms, conditions, covenants, and agreements contained herein shall inure to the benefit of, and be binding upon, any such successor corporation and any permitted assignees of the respective parties hereto.

 

  1. Governing Law; Severability; Venue. The validity, construction and performance of the respective legal relations between the parties, including, without limitation their respective obligations under these Standard Terms and Conditions shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. If any provision of these Standard Terms and Conditions or the application of any such provision shall be held by a tribunal of competent jurisdiction to be contrary to law, the remaining provisions of these Standard Terms and Conditions shall continue in full force and effect. Buyer and Echo agree that all disputes governing their contractual relationship shall be venued in either Franklin County Superior Court or the United States District Court for the District of Massachusetts, and both parties hereby submit to the jurisdiction of such courts and agree not to remove any suit or other action regarding or relating hereto to any other court or jurisdiction.