Supplier Terms & Conditions
Please read these Etched Purchase Order Terms and Conditions for Suppliers (the “PO T&Cs”) carefully because they govern your supply of products and services for Etched, Inc., a Delaware corporation (“Etched”). Regardless of how you deliver your products or services and regardless of your terms of sale, these PO T&Cs apply unless an agreement signed by Etched specifically supersedes and replaces these PO T&Cs. Supplier's performance shall be deemed to be acceptance of these terms and conditions.
THESE PO T&CS CONTAIN A MANDATORY ARBITRATION AGREEMENT THAT REQUIRE THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION TO RESOLVE ALL DISPUTES.
1. Terms And Conditions
These Purchase Order Terms and Conditions and any attachments or addendums thereto (this “Agreement”) represents the exclusive agreement between Etched, Inc., a Delaware corporation (“Etched”) and the person or entity identified as supplier (“Supplier”) named in the applicable purchase order (the “Purchase Order”) with respect to the products and deliverables (collectively, “Products”) and/or services (“Services”) referenced herein, unless there is a separate executed agreement between Etched and Supplier which specifically supersedes and replaces this Agreement. No other documents, including Supplier’s proposals, invoices, quotations, terms and/or acknowledgements become part of the Agreement unless approved in writing by Etched. All capitalized terms shall have their meanings as defined herein.
2. Acceptance, Price, Invoices, Payment Terms And Forecasts
1. Purchase Order Acceptance. Supplier shall accept or reject Etched’s Purchase Order within three (3) business days of receipt. If Supplier proposes alternative terms, such alternative terms are expressly rejected unless agreed to by Etched in writing. Supplier shall be deemed to have waived any objections and accepted the Purchase Order if Supplier fails to object in writing within the timeframe specified above.
2. Price. Supplier’s pricing shall be fixed and shall not exceed the lowest prices charged by Supplier to other similar customers. Except as otherwise provided in this Agreement, all prices are inclusive of applicable value added tax and other similar taxes (collectively “VAT”), freight charges and duties. Etched shall not pay or reimburse Supplier for any taxes, fees, surcharges, or exactions of any type which are statutorily imposed on Supplier including but not limited to taxes, fees or surcharges imposed on or measured by Supplier’s net or gross income. Supplier will timely provide customary tax documentation reasonably requested by Etched.
3. Interest in Accounts. Supplier shall not undertake to sell, transfer, pledge or assign to any person or entity any interest, in whole or part, in the accounts payable by Etched under this Agreement without prior written notice to, and consent of, Etched.
4. Invoices, Payment Terms & Performance Acceptance. Supplier will invoice Etched in accordance with the fee(s) specified in the applicable Purchase Order. Supplier will submit itemized invoices to ap@etched.com. Etched will initiate payment ninety (90) days after receipt of a conforming invoice unless specified in the applicable Purchase Order or SOW. No invoice may be dated or submitted earlier than the delivery date for the Products and/or Services being invoiced unless mutually agreed in writing. Payment will be in U.S. Dollars unless otherwise stated in the Purchase Order. Payment will not constitute acceptance of Products and/or Services or impair Etched’s right to inspections. Acceptance shall be when Etched deems the Products and/or Services to meet its specified criteria (“Acceptance”). Etched is not required to pay any invoice submitted more than 180 days after Acceptance. Etched may reject Products and/or Services that do not meet the warranties or specifications set forth in this Agreement, the SOW and/or the Purchase Order. If requested by Etched, Supplier will correct and re-deliver any rejected Products and/or Services, under agreed upon deadlines, and subject to further Acceptance. Etched, at its option, and without prior notice to Supplier, shall have the right to withhold payment, set off or deduct in good faith from any Supplier’s invoices, any credits, refunds or claims of any kind. Should Supplier desire more flexible payment terms, Supplier may propose incentive terms for Etched to consider.
5. Forecasts. Any forecasts provided by Etched shall not constitute a commitment of any type by Etched.
3. Trade Controls
Etched and Supplier will comply with all applicable export, import and trade-related laws, regulations and other legal requirements of the United States and other nations. Without limitation, Supplier warrants that: (i) it will, before providing any commodity, software, technology or service to Etched that is on the U.S. Munitions List or the Commerce Control List, notify Etched in writing of such item’s export control classification; (ii) Supplier is not on any U.S. Government list of sanctioned or restricted persons (e.g., the Specially Designated Nationals and Blocked Persons List or Entity List), and that Supplier will give immediate notice to Etched in the event that it is so listed; and (iii) Supplier agrees that before releasing, transferring, or exporting any restricted products, software, technology, technical data or technical assistance to Country Groups D:1, E:1 and E:2 as identified in Supplement No. 1 to Part 740 of the U.S. Export Administration Regulations, Supplier will obtain any required US government authorization.
4. DELIVERY, QUANTITY, QUALITY, CANCELLATIONS & NOTICE
1. Delivery. TIME, QUANTITY AND QUALITY ARE OF THE ESSENCE AS TO ALL PRODUCTS AND SERVICES PROVIDED BY SUPPLIER. Products will be delivered in strict accordance with the quantities and applicable scheduled delivery date specified by Etched (“Delivery Date”) in the applicable SOW or Purchase Order. Supplier shall not make any process or design changes affecting Products and/or Services without Etched’s prior written consent. Supplier shall pack and ship Products in accordance with Etched’s instructions and industry standards. Etched may specify the method of transportation and the type and number of packing slips and other documentation provided with each shipment. Products shall be shipped DDP (Delivered Duty Paid) Incoterms 2020, unless otherwise specified in the Purchase Order or SOW, for which the Supplier is responsible to import the items into the said country paying all costs for everything and making all the arrangements for delivery subject to Supplier having capability, where applicable, for importing in the destination country, as mutually agreed. Any cost or expense incurred by Etched due to Supplier’s failure to comply with its requirements shall be the sole responsibility of Supplier.
2. Quality. Supplier shall maintain a quality system that ensures compliance that all Products and/or Services set forth in the Agreement, or otherwise supplied to Etched, will meet the standards specified by Etched. If requested, Supplier shall provide Etched with a copy of Supplier’s quality system and supporting test documentation.
3. Cancellation and Rescheduling. Supplier may not cancel any Purchase Order that has been accepted or deemed accepted unless mutually agreed. Etched may, without charge, change or cancel any portion of the Agreement including, without limitation, the quantity required, Etched’s designs and/or specifications prior to shipment, provided that Etched gives Supplier notice. If Etched changes or cancels any portion of the Agreement as provided above, Supplier shall provide Etched with a written claim for adjustment prior to shipment which contemplates Supplier’s actual costs incurred as a direct result of such change or cancellation which are not recoverable by either: (i) the provision of Services to other parties within a reasonable time or (ii) the exercise by Supplier, in a commercially reasonable manner, of other mitigation measures. If the parties are unable to agree on the adjustment amount, Etched may, without any liability to Supplier, terminate the Purchase Order and/or Services affected.
4. Late Delivery, Over-shipments. Supplier shall give Etched prompt notice of any prospective failure to ship Products on the Delivery Date. If only a portion of Products is available for shipment or performance to meet the Delivery Date, Supplier shall promptly notify Etched and proceed unless otherwise directed by Etched. Supplier shall be responsible for any cost increase in the shipment of Products due to its failure to meet the Delivery Date and/or if such method does not comply with Etched’s shipping instructions. Over-shipments and/or early deliveries may be returned at Suppliers’ sole expense, or Etched may delay processing any early delivery invoice until the Delivery Date.
5. Discontinuance of Products. Supplier shall provide at least twelve (12) months prior written notice to Etched prior to Supplier’s discontinuance of manufacturing any Products for any reason. Such notice shall include, at a minimum, Etched part numbers, substitutions, and last date that orders will be accepted for such Products (which shall not be less than six (6) months prior notice).
6. Notice. Supplier shall notify Etched within ten (10) days of any changes in its business, controls, subcontractors, and/or manufacturing and production sites that may have a material impact on its performance of its obligations under this Agreement.
5. REPRESENTATIONS & WARRANTIES
1. Representations & Warranties. Supplier represents and warrants that all (i) Services will be performed by Supplier in a professional manner, consistent with the standard of skill and care exercised by the best professionals within Supplier’s industry on projects of comparable scope and complexity, in a similar location, and in conformance with the requirements of this Agreement; (ii) Supplier is sufficiently experienced, properly qualified, registered, licensed, equipped, organized, and financed to perform the Services in compliance with the terms of this Agreement; (iii) Supplier will devote such time, personnel and resources for the performance of its duties under this Agreement and any Purchase Order, and within the deadlines set by Etched; (iv) Supplier has hiring and subcontracting policies to protect the rights of its employees and the rights of subcontractor employees and will comply with those policies in the performance of this contract and notified its employees of such employment and subcontractors of such policies; (v) Supplier will not engage in any trafficking in persons or related activities, including but not limited to the use of forced labor, in the performance of this Agreement; (vi) there is no copyright, patent, or trade secret or other proprietary right of a third party that would be infringed or misappropriated by Etched's use of the Products and/or Services, and that Supplier is not aware of any facts upon which a claim for infringement could be based; and (vii) there are no pending or threatened claims, suits, or actions pertaining to Supplier, the Products, or the Services that could affect either party’s ability to perform under this Agreement. Supplier will promptly notify Etched in writing if it becomes aware of any such claims or facts.
2. Additional Product Warranties. Supplier represents and warrants to Etched that: (i) the Products will be free and clear of any liens, security interests and encumbrances of any nature, with title vesting solely in Etched, (ii) the Products will be new and free from defects (including latent defects) in design, materials and workmanship, and will strictly comply with any specifications provided by Etched for a period of at least three (3) years after Etched’s Acceptance; and (iii) the work under this Agreement will be performed in compliance with the laws of the United States, in a professional and timely manner, and in accordance with good industry practice.
3. Epidemic Failure Warranty and Remedy. Supplier warrants all Products against Epidemic Failure for a period of three (3) years after Etched’s Acceptance. “Epidemic Failure” means the occurrence of the same failure, defect, or non-conformity with an Order in 2% or more of Products within any three-month period. If an Epidemic Failure occurs, all costs, including but not limited to, replacement Products, parts, upgrades, materials, labor, transportation, and inventory replacement arising from an Epidemic Failure shall be borne by Supplier, regardless of whether Etched initiates a field stocking recall or customer-based recall or retrofit, including Products in distribution inventory and Etched’s installed base. Supplier, at its expense, will ensure that such Products, parts, or updates have the highest shipping priority. Etched reserves the right to procure, upon terms it deems appropriate, similar goods to substitute the affected Products, and Supplier shall promptly reimburse Etched for all costs, charges, prices, and fees paid in purchasing the substitute goods.
4. Survival of Warranties. Except for non-infringement in Section 5.1(vi) above, which shall survive indefinitely, all other warranties specified herein shall: (i) survive any inspection, delivery, Acceptance, or payment by Etched (ii) be in effect for the longer of Supplier’s normal warranty period or the period set forth in Sections 5.2 and 5.3, and (iii) extend to Etched and its successors, assigns, contractors, suppliers and customers.
5. Remedies. Supplier shall, without charge, correct any non-conformity, defect, or malfunction in any Products or Services reported by Etched within thirty (30) days of receipt of notice from Etched. If Supplier fails to cure the non-conformity within such period, Etched may terminate the applicable Purchase Order or SOW and Supplier shall refund all fees paid for the corresponding Products and/or Services within ten (10) days of termination. The remedies set forth in this Section are non-exclusive and shall not limit any other remedies available to Etched under this Agreement, at law, or in equity.
4. Non-Compliance And Force Majeure
1. Non-Compliance. Any Products and/or Services that are not in conformity with the requirements of a Purchase Order (“Non- Compliance”), may be returned at Etched’s option at Supplier’s risk and expense. Etched may procure similar Products and/or Services in substitution for the Non-Compliance, and Supplier shall refund the cost of the Non-Compliance and reimburse Etched upon demand for all additional costs incurred by Etched.
2. Force Majeure. Subject to the provisions of this section, neither party will be liable for any delay in performance under this Agreement caused by any “act of God” or other cause beyond such party’s control (a “delaying cause”). Supplier will immediately give notice to Etched of any delaying cause. In the event of a delaying cause, Etched may act in its sole discretion to (i) allow an extension of time for Supplier to remedy the effects of the delaying cause or (ii) terminate or suspend all or any part of the affected SOW and, as to Services not yet performed, contract for similar services with a third party, and receive a refund from Supplier of any prepaid fees or costs associated with those suspended Services. Notwithstanding the language of this section, Supplier shall be paid for actual services rendered prior to the termination or suspension, unless Supplier would not have been paid based upon any other provision of this Agreement or applicable law.
7. DELAYS & TERMINATION
1. Notice of Delays. Supplier will promptly notify Etched in writing of anything that is likely to cause a delay in the delivery of any Products or a disruption of Services.
2. Termination for Convenience. Etched reserves the right to terminate this Agreement or any statements of work (“SOW”) or any Purchase Order hereunder, in whole or in part, without liability at any time, without cause, upon written notice to Supplier. In such event, Supplier will deliver to Etched all Products and/or Services completed or in progress up to the date of termination, and Supplier shall be paid for actual Products and/or Services rendered and for any non-cancelable costs which are specifically identified as such, approved in the applicable SOW, and actually incurred prior to the notice of termination in accordance with Section 4.3. Supplier agrees to continue the performance of this Agreement to the extent not terminated.
3. Termination for Default. If Supplier fails to perform or breaches any provision of the Agreement, or any other order or agreement with Etched, Etched may terminate the whole or any part of the Agreement, unless Supplier cures the breach within ten (10) days after receipt of Etched’s notice of breach. The term “breach” shall include, without limitation, any: (i) proceeding, whether voluntary or involuntary, in bankruptcy or insolvency by or against Supplier; (ii) appointment, with or without Supplier’s consent, of a receiver or an assignee for the benefit of creditors; (iii) failure to provide Etched with reasonable assurances of performance on Etched’s request; and/or (iv) other failure to comply with the Agreement. In the event Etched terminates this Agreement, Purchase Order or any SOW, in whole or in part for default, then Etched shall be entitled to pursue all available remedies in law and in equity, including substitute Products and/or Services, and Supplier shall reimburse Etched upon demand for all additional costs incurred.
5. Intellectual Property And License Grants
1. Third Party Materials. Supplier will not incorporate any third party’s intellectual property or any open source materials into any Products, Services or Developed IP (defined below) without Etched’s prior written approval of: (i) such incorporation; and (ii) any applicable license terms. Supplier shall identify all third party licenses and deliver to Etched all materials required to meet the requirements of any licenses for third party software that is included in the Products and Services. Supplier shall deliver to Etched the source code for any software licensed under a license that has a source availability requirement (such as the GNU General Public License). If the source code is not included with the material that Supplier has previously delivered, Supplier shall deliver within seven (7) days after Etched’s request the source code for any software licensed under an open source license that has a source availability requirement. Supplier grants Etched the right to copy and distribute the materials, as necessary.
2. Pre-existing IP. Supplier shall not incorporate into any Products, Services, or Developed IP any intellectual property owned or developed by Supplier outside the scope of this Agreement (“Pre-Existing IP”) without Etched’s prior written consent. To the extent any Pre-Existing IP is incorporated, Supplier hereby grants Etched a non-exclusive, royalty-free, irrevocable, perpetual, transferable, sublicensable (through multiple tiers), worldwide license to use, reproduce, distribute, modify, make derivative works of, and otherwise exploit such Pre-Existing IP in connection with Etched’s use of the Products, Services, or Developed IP.
3. Developed Intellectual Property; Products.
i. Title to Products. Title to the Products will transfer to Etched upon delivery.
ii. Ownership of Developed IP. Etched owns any intellectual property developed for Etched by Supplier (“Developed IP”) and Supplier hereby irrevocably assigns and transfers all right, title, and interest in the Developed IP that exists anywhere in the world, to Etched. If applicable law prevents future assignments, Supplier will assign (or will procure the assignment of) such rights as they are created.
iii. License to Developed IP if Assignment Fails. If applicable law prevents Supplier from transferring ownership of any Developed IP to Etched, Supplier grants to Etched a perpetual, irrevocable, exclusive, royalty-free, fully-paid, transferrable, worldwide license (with the right to sublicense) to: (A) reproduce, prepare derivative works of, distribute, publicly perform, publicly display, and otherwise use such Developed IP; and (B) make, use, sell, offer for sale, import, export any component of, and otherwise dispose of such Developed IP.
iv. Assistance to Accomplish Assignment; Attorney-in-Fact. If requested by Etched, Supplier will timely perform all acts reasonably necessary to accomplish the assignments and other transactions specified in this Agreement. Supplier hereby irrevocably designates and appoints Etched as Supplier’s agent and attorney-in-fact to execute any documents needed to accomplish the assignments specified in this Section 8 if Etched is unable, after reasonable effort, to secure Supplier’s signature
v. Moral Rights in Products. Supplier will not assert, and to the extent permitted by applicable law, otherwise waives, any moral rights in the Products and Developed IP. Supplier will ensure that personnel and other third parties who have moral rights in the Products and Developed IP will also not assert, and to the extent permitted by applicable law, will waive, those moral rights.
4. Licenses. If Products and/or Services include software, firmware or documentation, Supplier grants to Etched a non-exclusive, irrevocable, transferable, perpetual, sublicensable, royalty free, worldwide license to use, reproduce, display, prepare derivative works of the documentation directly or as integrated into Etched products, and distribute such works, software, firmware, or documentation, and to sublicense such rights to third parties, including Etched customers.
6. Indemnification, Insurance, And Confidential Information
1. General Indemnification. Supplier agrees to protect, defend indemnify and hold Etched harmless from all sums, costs and expenses as a result of any and all third party claims, losses, expense, damage liability, demands, either at law or in equity, resulting from any personal injury or death, damages to property resulting directly or indirectly from the performance of Supplier hereunder, or Supplier’s performance, acts, omissions, and/or the breach of this Agreement by Supplier or its personnel of any of the contractual obligations, covenants, undertakings or promises under this Agreement. Etched shall have the sole right to select counsel for its defense under this Section 9.1.
2. Intellectual Property Indemnification. Supplier agrees to defend, indemnify, and hold harmless Etched and its affiliates, subsidiaries, assigns, agents, subcontractors, distributors and customers (collectively “Indemnitees”) from and against all third party claims, losses, demands, fees, damages, liabilities, costs, expenses, obligations, causes of action, suits, or injuries, of any kind or nature, arising from any claim that Supplier’s Products and/or Services, or the use, sale or importation of them, infringes any intellectual property right. Without limiting the foregoing, Supplier will pay all costs, damages, and expenses (including attorneys’ fees) incurred by Etched and/or its Indemnitees and will pay any award with respect to any such claim or agreed to in settlement of that claim. Etched shall have the sole right to select counsel for its defense under this Section 9.2.
3. Infringing Products and/or Services. If the use of any Products and/or Services is enjoined (collectively, “Infringing Products and Services”), Supplier shall at its expense procure the right for Etched to continue using or receiving the Infringing Product and Services. If Supplier is unable to do so, Supplier shall at its expense (and at Indemnitees’ option): (i) replace the Infringing Products and/or Services with non-infringing Products and/or Services of equivalent form, function and performance; or (ii) modify the Infringing Products and/or Services to be non-infringing without detracting from form, function or performance; or (iii) if unable to replace or modify the Infringing Products and/or Services, refund in full all monies paid by Etched for the Infringing Products and/or Services and pay all reasonable costs incurred by Etched in replacing the Infringing Products and Services.
4. Insurance. During the performance of the Agreement, Supplier will maintain in full force and effect, at Supplier’s expense, Workers’ Compensation insurance as required by law or regulation, having jurisdiction over Supplier’s employees. Supplier agrees to have Employer’s Liability insurance in amounts not less than the local currency equivalent of U.S. $1,000,000. Where permitted by law, such insurance policies will contain a waiver of the insurer’s subrogation rights against Etched. In addition, Supplier shall maintain, at its expense, (i) Professional Errors and Omissions Liability insurance, (ii) Network Security & Privacy Liability Insurance, and (iii) Comprehensive General Liability insurance policy, covering claims of or arising from the performance or failure to perform any services provided by Supplier, including coverage for errors, omissions, wrongful acts, negligent acts, and infringement of copyrights and trademarks, breach of security, unauthorized access, use, loss, wrongful disclosure or theft of data or confidential information and 1st and 3rd party liability, bodily injury, including death, products and completed operations, contractual liability, and property damage that may arise out of use of the services or acts of omission of Supplier under the Agreement, and containing such other provisions as may be required by Etched. In each case, such policies shall provide a coverage minimum of U.S. $1,000,000 per occurrence. Additionally, such policies shall provide that the coverage thereunder shall not be terminable without at least thirty (30) days prior written notice to Etched. Upon demand by Etched, Supplier shall promptly supply Etched with certificates of insurance of such policies. In no event will the coverage or limits of any insurance maintained by Supplier under the Agreement, or the lack or unavailability of any other insurance, limit or diminish in any way Supplier’s obligations or liability to Etched hereunder. Where available, Supplier shall include Etched, its subsidiaries, related and affiliated companies, and each of Etched, its’ subsidiaries and its’ related and affiliated companies’ officers, directors, agents, employees and assigns as additional insureds.
5. Confidential Information. “Confidential Information” includes, without limitation, all information designated by Etched as confidential, and including but not limited to, all information or data concerning the Products and Services, general business plans, customers, costs, forecasts, and profits, or is of such a nature that a reasonable person would believe it to be confidential or proprietary. Except as required for Supplier’s performance of the Agreement, Supplier shall not use or disclose any Confidential Information obtained from Etched or otherwise prepared or discovered by Supplier, and Supplier shall protect the confidentiality of Confidential Information with the same degree of care as Supplier uses for its own similar information, but no less than reasonable care. Supplier’s confidentiality obligations under this Section shall survive termination or expiration of this Agreement for a period of five (5) years, provided that with respect to trade secrets, such obligations shall continue for so long as such information constitutes a trade secret under applicable law. The foregoing confidentiality obligations will not apply to Confidential Information that (i) is already known to Supplier prior to disclosure by Etched, as evidenced by written records; (ii) is or becomes a matter of public knowledge through no fault of Supplier; (iii) is rightfully received from a third party by Supplier without a duty of confidentiality; (iv) is independently developed by Supplier without use of or reference to Etched’s Confidential Information, as evidenced by written records; (v) is disclosed under a requirement of law, provided that Supplier gives Etched prompt written notice of such requirement and cooperates with Etched in seeking a protective order; or (vi) is disclosed by Supplier with the prior written approval of Etched.
6. Publicity. Supplier shall not make or authorize any news release, advertisement, or other disclosure to any third party which relates to the existence of a relationship between Etched and Supplier.
7. Data Protection. To the extent Supplier processes any personal data on behalf of Etched in connection with the Products or Services, Supplier shall: (i) process such data only in accordance with Etched’s documented instructions; (ii) implement appropriate technical and organizational measures to protect personal data against unauthorized access, loss, or destruction; (iii) promptly notify Etched of any data subject requests and cooperate with Etched in responding to such requests; (iv) upon termination of the Agreement, return or securely delete all personal data of Etched, at Etched’s election; and (v) enter into any data processing agreement or similar addendum as reasonably requested by Etched to comply with applicable data protection laws.
8. Restrictions on Use of Artificial Intelligence. Supplier shall not input, process, or use any of Etched’s Confidential Information, intellectual property, technical data, or proprietary materials (including designs, specifications, and source code) in or with any artificial intelligence, machine learning, or large language model system (whether proprietary or third-party) without Etched’s prior written consent. Supplier shall ensure that its personnel and subcontractors comply with this restriction.
7. Limitation Of Liability
1. Definition. IN THIS SECTION 10, “LIABILITY” MEANS ANY LIABILITY, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE (WHETHER OR NOT FORESEEABLE OR CONTEMPLATED BY THE PARTIES).
2. LIMITATION OF LIABILITY. IN NO EVENT SHALL ETCHED HAVE ANY LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT (A) FOR SUPPLIER’S LOST REVENUES OR PROFITS; (B) FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL LOSSES; OR (C) FOR EXEMPLARY OR PUNITIVE DAMAGES. ETCHED’S TOTAL AGGREGATE LIABILITY TO SUPPLIER SHALL NOT EXCEED THE ACTUAL AMOUNTS PAID TO SUPPLIER UNDER THE APPLICABLE PURCHASE ORDER GIVING RISE TO THE CLAIM DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
8. Information Security
1. Information Security Warranty. Supplier represents and warrants that it has a SOC 2 Type 2, ISO 27001, ISO 27701 certification or other mutually acceptable, industry-relevant information security audit performed within the past twelve (12) months. Upon request, where applicable to the Services or Products, Supplier shall provide such certifications or other relevant information to Etched. If Etched determines that such relevant information is not sufficient, Etched may require an audit of Supplier’s cyber security processes to be performed at Supplier’s expense. Supplier shall ensure that Supplier’s subcontractors, agents, and third parties that provide Services and Products under this Agreement have substantially similar security standards and practices as those imposed on Supplier under this Agreement. Such terms, as relevant to their engagement, shall be in an executed contract between Supplier and Supplier’s third parties. Supplier shall ensure that all notifications related to a security breach of Etched’s data shall be made to Etched Cybersecurity Security Operations Center via (a) email sent with read receipt to: legal@etched.com within twenty-four (24) hours of discovery. In the event of a security breach of Etched’s data, Supplier shall provide ongoing and frequent updates of its investigation and remediation activities, with sufficient information for Etched to meet its regulatory and contractual obligations pertaining to the data involved. In the event any security breach occurs during the term of the Agreement, Supplier shall execute any mutually agreed remediation plan within a commercially reasonable timeframe. Supplier shall bear all costs associated with any security breach attributable to Supplier’s failure to maintain the security standards required by this Agreement, including costs of notification, credit monitoring, regulatory fines, and remediation.
9. Compliance With Laws
1. Compliance. Supplier will at all times comply with all federal, state, local and foreign laws, rules, and regulations applicable to its obligations under the Agreement. Supplier shall furnish to Etched all information required to enable Etched to comply with such laws, rules, and regulations in its use of the Products and/or Services or reasonably requested by Etched to confirm compliance with such laws, rules, and regulations or with the provisions of the Agreement. Supplier warrants that in all countries in which Supplier does business, its operations and shipments comply with all applicable laws and regulations regarding security. To the extent applicable to Supplier’s business, Supplier agrees to implement the Security Recommendations set forth by the U.S. Customs Service Customs-Trade Partnership Against Terrorism (“C-TPAT”). Supplier shall maintain, for three (3) years after termination or expiration of this Agreement, complete and accurate records relating to its provision of the Products and Services, including fees charged hereunder, compliance with this Agreement, and all applicable laws and regulations. Supplier shall, upon Etched’s request, allow Etched to conduct periodic audits of Supplier’s books and records to ascertain compliance with this clause. This provision will survive termination of the Agreement for any reason. Each of Supplier’s employee, agent, representative, subcontractor, or other party who has been or will be engaged by Supplier in connection with this Agreement will be made aware of the above obligations; will agree to comply with them; and will have signed, prior to beginning such involvement, an agreement with Supplier stating that they are aware of the above obligations and agree to comply with them.
2. Governing Law & Arbitration. The Agreement shall be interpreted and governed by the laws of California without regard to its conflict of law principles. Any dispute, controversy or claim arising out of or relating to this Agreement, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, will be exclusively referred to and finally determined by arbitration in accordance with the JAMS Arbitration Rules. The tribunal will consist of one neutral arbitrator. The place of arbitration will be San Jose, California. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, either party may seek injunctive or other equitable relief from any court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of intellectual property rights or Confidential Information.
10. Relationship Of Parties
1. Non-Restrictive Relationship. Etched shall not be precluded from independently developing, acquiring from other third parties, distributing or marketing other Products and/or Services which may perform the same or similar functions as the Products and Services provided under the Agreement.
2. Subcontractors. Supplier will not subcontract any of the Services to other persons or entities without the prior written approval of Etched. Supplier agrees to impose on its subcontractors the same obligations imposed upon Supplier under this Agreement with respect to safety, security, confidentiality, privacy, insurance and insurance certificates, and indemnification. If so, requested by Etched prior to commencement of the Products and Services, and subsequently as personnel are added, Supplier shall provide Etched with a list of personnel performing Services for approval by Etched. Supplier’s execution of any subcontracts, including subcontracts approved by Etched, will not relieve, waive, or diminish any obligation Supplier may have to Etched under this Agreement. Supplier shall be responsible and liable for all acts of its personnel. Compensation for subcontracted Services will be included in the fees and costs billed by Supplier according to Section 1 of this Agreement and further outlined in a Statement of Work (SOW).
3. Business Continuity Plan / Disaster Recovery Plan. Supplier represents and warrants that it has (i) a formal plan for how it will recover and restore partially or completely interrupted critical functions(s) within a predetermined time after a natural or human induced disaster or extended disruption (“BCP”) and (ii) a formal plan for coping with the unexpected or sudden loss of key personnel, data, hardware or software necessary to resume critical business operations after a natural or human induced disaster (“DRP”) which details strategies for response to and recovery from a broad spectrum of potential disasters that could disrupt operations and timely delivery of materials and services required pursuant to this Agreement. Supplier will conduct an annual test and evaluation of its BCP and its DRP, which upon request by Etched may be provided to Etched to ensure expected systemic and process responsiveness from Supplier.
11. Miscellaneous
1. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior oral or written representations or agreements by the parties with respect to the subject matter herein. No subsequent terms, conditions, understandings, or agreements purporting to modify the terms of this Agreement will be binding unless in writing and signed by Etched and Supplier.
2. No Assignment. Supplier shall not delegate or assign its rights or obligations without Etched’s prior written consent. Any attempted delegation or assignment by Supplier without such consent shall be void. Notwithstanding the foregoing, Supplier may assign or transfer this Agreement to a successor in connection with a merger, acquisition, or sale of all or substantially all of Supplier’s assets, subject to Etched’s prior written consent, which shall not be unreasonably withheld.
3. Precedence. In the case of inconsistency or conflict between the provisions of this Agreement and the terms and conditions of any Purchase Order or Statement of Work, the controlling order of precedent shall be: (i) this Agreement, (ii) Purchase Order, (iii) Statement of Work.
4. Non-Solicitation. Supplier shall not knowingly solicit for employment or induce to resign from Etched, its current employees, directors or officers who are directly involved in the performance of this Agreement. The foregoing shall not apply to advertisements or general solicitations that do not specifically target Etched’s employees.
5. Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of this Agreement will be enforced to the maximum extent permissible so as to implement the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
6. No Waiver. The failure of either party to enforce on a particular occasion any right or remedy provided in this Agreement or by law or in equity will not be deemed a waiver of that right or remedy on a subsequent occasion or a waiver of any other right or remedy.
7. Survivals. Sections 2.3-2.5, 4.4, 5.1-5.5, 6.1, 7-10, 12-14, including but not limited to those relating to confidentiality, intellectual property, indemnification, and dispute resolution, which by their nature are intended to survive, shall survive any termination of this Agreement.
