ECHO3

ECHO3 TERMS AND CONDITIONS OF SALE OR SERVICE

  1. GENERAL TERMS & CONDITIONS; ORDER ACCEPTANCE. All Products and Services (as such Terms are defined below) furnished by ECHO3 (“ECHO3”) are delivered pursuant to these terms and conditions (“Terms”) and the terms set forth in any agreement between ECHO3 and the customer specified therein (“Customer”) including, but not limited to, a purchase or services agreement, if any, signed by the Customer and accepted by ECHO3 (hereinafter “Agreement”). ECHO3 and Customer may be referred to collectively herein as the “Parties.” No other terms or conditions in any Customer documentation that conflicts with or adds to the Agreement or these Terms shall be binding on ECHO3.  Customer’s placement of an order (“Order” or “Purchase Order”) for Products or Services (as defined herein) constitutes Customer’s acceptance of the Agreement and these Terms.  ECHO3 reserves the right to accept or deny Orders or Agreements, in its sole discretion.  Customer’s acceptance of the Agreement shall constitute Customer’s acceptance of these Terms. Customer acknowledges and agrees that different or additional Terms in Customer’s Purchase Orders or any other Customer document shall be considered material alterations of the Agreement or these Terms and are expressly rejected and shall not be effective without the written approval of an authorized ECHO3 officer. These TERMS may be referred to in an Agreement as the “Terms,” the “Terms and Conditions” or similar reference.

 

  1. ECHO3 offers for purchase or lease [insert scope of vehicle purchase/lease options]

 

  1. ECHO3 performs [insert scope of vehicle services]

 

  1. DELIVERY, INSPECTION AND ACCEPTANCE. Delivery dates, if furnished by ECHO3, are approximate. Customer’s order will be processed as quickly as practicable taking into consideration the type of Product or Service ordered by Customer, ECHO3’s obligations to other customers, ECHO3’s facility capacity and availability of Product. Title and risk of loss of all Products shall pass to Customer upon ECHO3’s delivery to Customer or delivery to designated carrier for shipment to Customer, unless otherwise expressly agreed by ECHO3 in in a form of ECHO3’s sole choosing. Unless otherwise agreed by ECHO3 in writing or as specified in an Order, Customer shall pay all freight, handling, delivery and insurance charges for shipment of Products. Unless otherwise agreed in writing in an Order choice of carrier and shipping method and route shall be at the election of ECHO3.  ECHO3 shall not be liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of ECHO3.  ECHO3 shall be entitled to refuse or to delay shipments for failure by Customer to pay promptly any payments due ECHO3.  Customer shall inspect Products immediately upon receipt.  Damage or inconsistencies with an Order shall be reported to ECHO3 in writing within five (5) days of receipt of Product.  If Customer fails to notify ECHO3 in writing of any defect in the Product or Order within the applicable time period, such Product and Order is deemed unconditionally and irrevocably accepted by Customer.    ECHO3 WILL NOT ACCEPT RETURNS OF PRODUCT FOR REFUND OR CREDIT unless set forth herein.  See procedure for request for returns, in [paragraph/section 10 below.]. Should Customer have any questions concerning proper operation of Product, upon receipt, Customer shall immediately notify ECHO3.

 

PRICING AND PAYMENT TERMS.  Prices are agreed to by the Parties when they are (i) set forth in an Agreement or Order, (ii) signed by the Customer (iii) accepted by ECHO3.  Prices exclude all shipping charges, insurance costs, or any other Taxes and Fees (as defined below).  Customer will be responsible for, and hold ECHO3 harmless from, all such charges, costs, and Taxes and Fees.  All prices, including but not limited to prices for Products, Services, shipping and returned checks are in U.S. dollars and subject to change, without notice, solely by ECHO3, unless otherwise agreed to in prior writing by ECHO3 and the Customer. Although ECHO3 endeavors to advise customers of changes in prices, the prices in effect at the time Orders are placed will apply unless otherwise agreed to in prior writing by ECHO3 and the Customer.

 

  1. SECURITY INTEREST. ECHO3 shall retain full title to all Products until Customer has made full payment to ECHO3. Customer hereby grants ECHO3 a security interest in all Products shipped to secure the payment of the purchase price of such Products and all other amounts owing under this Agreement as described and set forth on each invoice for such Products shipped from time to time pursuant to this agreement. Customer agrees to execute one or more financing statements in a form satisfactory to ECHO3, and ECHO3 is authorized to file a financing statement in any location deemed necessary or advisable to perfect ECHO3’s security interest in the Products and their proceeds. Customer further agrees to cooperate fully with ECHO3 in executing any additional documents, instruments, financing statements or amendments thereof as ECHO3 may deem necessary or advisable to maintain and continue the security interest created by this Agreement.

 

  1. TERMS OF PAYMENT; CUSTOMER CREDIT; PERSONALLY IDENTIFYIABLE INFORMATION (PII). CUSTOMER WILL ONLY TRANSMIT PERSONALLY IDENTIFIABLE INFORMATION, SENSITIVE PERSONAL INFORMATION, AND PAYMENT INFORMATION, INCLUDING CREDIT CARD INFORMATION, (COLLECTIVELY “PII”) WHEN REQUIRED OR REQUESTED BY ECHO3 AND IN ACCORDANCE WITH ECHO3’S POLICIES, INCLUDING, WITHOUT LIMITATION, ECHO3’S POLICY PROHIBITING TRANSMISSION OF PII VIA ELECTRONIC MAIL. CUSTOMER ASSUMES ALL RISK RESULTING FROM A VIOLATION OF THE FOREGOING. Unless otherwise defined in the Agreement or Order, the following Terms of payment shall apply:  Payments shall be made in U.S. funds by check, money order, or electronic funds transfer or by credit card (Visa, MasterCard, and American Express only) if submitted strictly in accordance with approved PII policies and via secure means. Customer shall not submit and ECHO3 will not process credit card data sent via email, text, or facsimile.  Acceptance of all Orders is conditioned upon credit approval satisfactory to ECHO3 in its sole discretion.   CREDIT CARD PAYMENTS ARE ACCEPTED ONLY AT TIME OF ORDER.  ECHO3 also offers leasing options.  If payment is not made when due, Customer agrees to pay interest at the rate of 1.5% per month (18% per year) on all amounts overdue.  Payment on invoices for Services are due at time of completion of Service.  Customer agrees to pay all costs and expenses, including, but not limited to, attorney and collection fees incurred by ECHO3 in connection with the enforcement of ECHO3’s rights hereunder.  For questions about remitting payment or written billing disputes, Customer should contact ECHO3’s Accounting department at [insert phone number] or [insert email address].

 

  1. TAXES/FEES. ECHO3’s quoted and published prices do not include any taxes. Taxes may be charged on actual invoices.  Accordingly, any sales tax, excise tax, use tax, VAT tax, assessment, inspection or testing fee, transportation costs, shipping fees, customs, export compliance, insurance or any other tax, fee, or charge of any nature whatsoever imposed currently or in the future on ECHO3 or by any federal, state, local or other governmental authority, upon or with respect to the sale, rental, possession, purchase, delivery, shipment, storage, processing, use, or consumption of any of the Products or Services including taxes, fees or charges including those measured by the receipts from the sale of such Products or Services (individually or collectively, “Taxes and Fees”) shall be paid by Customer.  Except as expressly provided to the contrary in the Agreement, in addition to the prices quoted or invoiced all Taxes and Fees shall be the Customer’s responsibility.  Customer agrees to pay, without delay, and to hold ECHO3 harmless from all of the Taxes and Fees and any penalties for Customer’s failure to timely pay Taxes and Fees.  In the event ECHO3 is required to pay any Taxes and Fees, the Customer shall upon demand immediately reimburse ECHO3 for any such amount paid by ECHO3.  Where applicable, Customer must provide ECHO3 with a current tax exemption certificate, a resale certificate and any other documentation required by the appropriate taxing authority.

 

  1. RESALE AND EXPORT; NO CONFLICT. Customer agrees that the purchase of the Products is solely for Customer’s use and benefit for the normal and ordinary use and intended purpose.  Customer acknowledges and agrees that any warranty and support of the Products are not transferable.  Any sale, transfer, rental, lease, loan, or export of any Product to any other person shall invalidate any and all warranties and service agreements and be at the sole risk of Customer.  In such event, ECHO3’s obligations hereunder and under and Agreement shall at ECHO3’s option be null and void.  Customer represents and warrants to ECHO3 that its execution and delivery of the Agreement will not conflict with or result in a breach of, constitute a default, or require any notice under any contract or other arrangement to which Customer is a party or by which it is bound.

 

  1. REPOSSESSION BY SECURED PARTY/RESALE. In the case of a failure to make full payment on any amounts owing to ECHO3, ECHO3, or its representatives or assigns, shall be at liberty from that time, and is authorized to enter into and upon any place(s) where the Products may then be, and retake the same and cancel this Agreement, and to retain all payments made with regard to the Products without obligation as to resale. Customer agrees to fully cooperate with the secured party in the event of removal/ repossession of the Products. In addition, upon the retaking of the Products, ECHO3 or its assigns shall have the right to resell the same for the account of the Customer in the manner provided by the Uniform Commercial Code and the Customer agrees to pay the deficiency arising after the application of the proceeds of the resale to the expenses of retaking and resale and to the payment of the contract price remaining due with interest.

 

  1. LIMIT OF LIABILITY. CUSTOMER EXPRESSELY ACKNOWLEDGES THAT ECHO3 IS NOT THE MANUFACTURER OF ANY PRODUCTS, AND IS, THEREFORE, NOT LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY LOSS THAT OCCURS ATTRIBUTABLE TO ANY PRODUCT SUPPLIED BY ECHO3.  CUSTOMER EXPRESSLY ACKNOWLEDGES THAT ANY AND ALL RECOURSE FOR LOSS ATTRIBUTABLE TO ANY PRODUCT SUPPLIED BY ECHO3 SHALL BE AGAINST PRODUCT’S RESPECTIVE MANUFACTURER. ANYTHING TO THE CONTRARY HEREIN OR IN ANY AGREEEMENT NOTWITHSTANDING:  ECHO3 SHALL HAVE NO LIABILITY WHATSOEVER FOR DAMAGE OR INJURY TO PERSONS OR PROPERTY, OR FOR OTHER LOSS OR INJURY RESULTING FROM ANY CAUSE WHATSOEVER ARISING OUT OF OR RELATED TO THE PRODUCTS OR NON-CONFORMITY WITH WARRANTY, IF ANY.  IN NO EVENT WILL ECHO3 BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHER DAMAGES OR INJURY OF ANY KIND OR AMOUNT, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOSS OF GOODWILL, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF, IN CONNECTION WITH, OR RELATED TO THE AGREEMENT, THE PURCHASE ORDER, OR THESE TERMS, WHETHER OR NOT ECHO3 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.  WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL ECHO3’S TOTAL LIABILITY TO CUSTOMER EXCEED THE LESSER OF (A) THE INSURANCE PROCEEDS MADE AVAILABLE TO ECHO3 BY ITS INSURERS OR (B) THE NET PROCEEDS RECEIVED BY ECHO3 FROM THE DISTRIBUTION OF ANY PRODUCT OR SERVICE PROVIDED TO CUSTOMER.  THIS AGREEMENT SHALL NOT BE DEEMED OR CONSTRUED TO CREATE ANY RIGHT IN ANY THIRD PARTY.

 

  1. Customer shall be in Default of the Agreement if any of the following occurs: (i) Customer fails to pay any Payment or other sum when due under the Agreement or any other agreement with ECHO3; (ii)  Customer breaches any warranty, representation, or other obligation or term of these Terms, the Agreement or any agreement with ECHO3; (iii) Customer becomes insolvent or unable to pay Customer’s obligations when due; or (iv) Customer, any guarantor, or any partner or member voluntarily files or has filed against it involuntarily, a petition for liquidation, reorganization, adjustment of debt or similar relief under the Federal Bankruptcy Code or any other similar present or future federal or state/province bankruptcy or insolvency law, or a trustee, receiver, or liquidator is appointed for Customer. Upon Customer’s Default, ECHO3 may pursue any and all remedies available at law or in equity and/or as specified in the Agreement.  In addition, from the time of Default all sums due shall accrue a default interest rate of eighteen percent (18%) per annum.

 

 

  1. Customer agrees that it shall indemnify, protect, defend, and hold harmless ECHO3, its officers, directors, employees, shareholders/members, advisors and agents from and against any and all claims, threats, liabilities, taxes, interest, fines, penalties, suits, actions, proceedings, demands, damages, losses, costs and expenses (including attorneys’ fees and court costs) of every kind and nature (“Losses”), arising out of, resulting from, or in connection with its acquisition or use of the Products or Services, including without limitation any claims of personal injury or property damage or claims by third parties against Customer with respect to the Products or Services and any non-fulfillment, failure to comply or breach by Customer of any covenant, promise, agreement, representation or warranty made by Customer under the Agreement, the Purchase Order, or these Terms.  Additionally, Customer waives, releases, discharges and agrees to hold harmless ECHO3 from and against any and all claims which may arise out of or relate to any information, incorrect advice, judgment, recommendation, finding, decision or conduct provided to Customer in the course of Services or with respect to Products.  Customer agrees that in connection with Customer’s obligations hereunder, ECHO3 may, in its sole and absolute discretion, engage legal counsel at Customer’s expense.

 

  1. EXCUSABLE DELAY. ECHO3 shall not be responsible in any way for the loss, damage, detention or delay caused by strike, lockout, fire, flood, war, riot, embargo, insurrection, act of God, civil or military authority, compliance with governmental requests or orders, accidents, inability to obtain products or materials from usual sources (including, but not limited to, original manufacturers), subcontractor, supplier or Customer caused delays, transportation shortages or delays, other delivery commitments, technical failures, or due to any unforeseen circumstances or causes beyond its control.  ECHO3’s performance shall be deemed suspended during and extended for such time as it is so delayed, and delivery dates shall be so extended.

 

  1. GOVERNING LAW; VENUE. Except as otherwise expressly provided in the Agreement, the Agreement, including any personal guaranty, related Purchase Orders, and these Terms shall be governed by the laws of the State of Colorado without regard to principles of conflicts of law.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply.  The Parties hereby consent and submit to the exclusive jurisdiction of the State of Colorado and to venue in the Denver District Court or the United States District Court for the District of Colorado.  Customer agrees to waive any claim for lack of jurisdiction or inconvenient forum.  CUSTOMER ACKNOWLEDGES AND AGREES TO WAIVE ITS RIGHT TO A TRIAL BY JURY.  ECHO3 may bring a legal action for an injunction or other equitable relief in any appropriate jurisdiction against Customer without the need to post bond or other secured interests.  No action, regardless of form, arising out of or in any way connected with the Products or Services furnished by ECHO3 may be brought by a Customer more than one (1) year after the cause of action has accrued.
  2. WAIVER; SEVERABILITY.  ECHO3’s waiver of any term or breach herein or in the Agreement shall not be deemed a waiver of ECHO3’s right to seek compliance of that term or any other term thereafter. The invalidity, illegality, or unenforceability of any provision of the Agreement or these Terms shall not affect or impair the validity, legality or enforceability of the remainder of the Agreement or these Terms, and to this end, the provisions of the Agreement and these Terms are declared to be severable.  The Parties or the Court shall substitute for the invalid provision a provision that most closely approximates the intent and economic effect of the invalid provision. Customer hereby expressly waives any and all rights and remedies granted Customer under the Uniform Commercial Code, including without limitation Sections 2A-508 through 2A-522 CC.
  3. COUNTERPARTS; AMENDMENTS.  These Terms supersede all prior agreements and understanding, written or oral, between the Parties that relate to the subject matter.  Any change or modification to the Terms specified herein must be in writing and signed by an authorized officer of ECHO3.  Except as expressly specified herein, any other terms or conditions, including any documents provided by Customer, or any verbal assurances by sales representatives or distributors, shall not serve to vary any term or condition specified herein and shall be expressly rejected.
  4. The provisions of the Agreement and these Terms that, by their sense and context, are intended to survive performance by either or both Parties shall also survive the completion, expiration, termination or cancellation of the Agreement.
  5. NO ASSIGNMENT. Customer agrees not to transfer, sell, sublease, assign, pledge, or encumber any rights under the Agreement or an Order without ECHO3’s prior written consent.  Any such attempted assignment shall be void and of no effect.  Customer agrees that ECHO3 may sell, assign or transfer the Agreement and/or Orders, and if ECHO3 does, the new owner will have the same rights and benefits that ECHO3 has now or in the future, but will not have to perform any of ECHO3’s obligations; provided, however, if ECHO3 assigns the Agreement, ECHO3 will meet its remaining obligations directly or by assignment.  The rights of the new owner will not be subject to any claims, defenses or set-offs that Customer may have against ECHO3.
  6.   Any notice, demand or request required or permitted under the Agreement shall be in writing and shall be sent as specified in the Agreement; provided, however, notices to ECHO3 shall be sent by a nationally recognized overnight courier service or prepaid certified or registered mail return receipt requested and delivery confirmed to:  [insert address]
  7. MODIFICATION OF   The Terms are set forth on ECHO3’s website at [insert website address]. ECHO3 reserves the right to modify, amend, alter and change these Terms at any time, with or without notice to Customer. Customer’s authorization for, or acceptance of, use of, or delivery of Product or Services hereunder shall be deemed acceptance of the Terms in effect at such time.

 

 

END OF TERMS AND CONDITIONS OF SERVICE