Terms and Conditions
Warranty Disclaimer and Liability Limits
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY SET FORTH IN DRAKE’S PROMOTIONAL MATERIALS FOR THE APPLICABLE PRODUCTS AND SERVICES (INCLUDING ITS PRODUCT PACKAGING AND INSERTS, IF ANY), DRAKE MAKES, AND PURCHASER RECEIVES, NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT. Under no circumstances shall Drake be liable to Purchaser for any indirect, special, incidental, exemplary or consequential damages (including, without limitation, damages for lost profits, business interruption, loss of or unauthorized access or damage to information/data, costs of procurement of substitute goods or services, and the like), or for any damages in excess of the fees paid to Drake hereunder, irrespective of the cause and under any theory of liability (including but not limited to negligence, breach of contract, products liability, and strict liability) and even if such party was, or should have been aware, or was advised of the possibility, that such damage may occur. Further, Purchaser shall make no warranties or representation about the Drake products or services that are inconsistent with or in addition to those made by Drake and shall indemnify and hold harmless Drake and its officers, directors, employees and agents from any damages, liabilities or costs (including reasonable attorneys' fees) arising out of Purchaser’s breach hereof. Some states limit the disclaimer of warranties and the limitation of liability, so the above may not apply to you.
Purchase Order General Provisions
1. ACCEPTANCE. The terms and conditions hereof constitute the complete and exclusive agreement relating to this Purchase Order and supersedes all prior representations, understandings and communications covering the goods (products or services) ordered herein. Acceptance of this Purchase Order shall be unqualified, unconditional and subject to and expressly limited to the terms and conditions hereof. Buyer shall not be bound by additional provisions at variance herewith that may appear in Seller's quotation, acknowledgment, invoices or in any other communication from Seller to Buyer unless such provision is expressly agreed to in writing signed by the Buyer. The invalidity in whole or in part of a provision of this purchase order shall not affect the validity of any other provision of this order. It is mutually agreed that each provision of this Purchase Order is severable from each other and constitutes separate and distinct provisions.
2. PRICES. Seller represents and warrants that during the term of this order, the prices for the goods are the same or comparable to the best prices offered by the Seller to any other customer under the same or similar conditions. If during this term, lower prices are quoted to anyone for similar products and services, Seller shall notify Buyer and make such prices available to Buyer and such lower prices shall be from that time be substituted for the prices contained herein.
3. PACKAGING AND MARKING. If required by the Buyer, Seller shall use bar-coding on all shipping containers and shall pack, mark and ship all goods pursuant to specifications set forth in this Purchase Order. Unless otherwise provided herein, no charge shall be made by the Seller for containers, crating, boxes, bundling, damages, dunnage, drayage, storage or other packaging requirements. All items shall be packed by Seller in suitable containers for protection to permit safe transportation and handling. Seller shall separately number all cases, packages, etc. and provide an itemized packing slip in box number one showing Purchase Order number, part number, and quantity shipped.
4. DELIVERY. Time is of the essence with respect to this order. The Purchase Order specifies the quantity, delivery location(s), and the date(s) required for delivery to such locations. Buyer and Seller shall negotiate a mutually agreeable delivery date on any request to accelerate delivery to a date earlier than the required delivery date. Deliveries shall be made in the quantities and at the times specified and Buyer shall not be required to make payment for deliveries which are in excess of quantities so specified. Buyer reserves the right to return, shipping charges collect, all materials received at Buyer's location more than (2) weeks ahead of schedule or in excess of the specified quantities on the face of this order. Seller agrees to immediately notify Buyer, if at any time it appears that the delivery schedules may not be met, giving Buyer a new delivery date, and Buyer may, at Buyer's option (1) accept the new delivery date or (2) cancel this Purchase Order without liability. Seller further agrees to take such actions as are reasonably available to assure the new delivery schedule will be met. Such actions shall be taken at no additional cost to the Buyer.
5. INSPECTION. All good shall be subject to inspection and test by Buyer, the U.S. Government, if in support of a U.S. Government contract, or the Buyer's customers at all times and places as such parties require. Seller shall provide without additional charge reasonable facilitates and assistance for the safety and convenience of the foregoing parties in performance of such tests and inspections. All items shall also be subject to final inspection and acceptance at Buyer's plant within a reasonable time after delivery notwithstanding any prior inspection or payment hereunder. The Seller shall provide and maintain an inspection system which is acceptable to the Buyer. Records of all inspection work shall be kept complete and available to Buyer during the performance of this Purchase Order and for such further period as the Buyer may determine.
6. NONCONFORMING GOODS. If any goods are defective in material or workmanship or are otherwise not in conformity with the requirements of this order, Buyer may either (i) reject same and rescind the Purchase Order (ii) perform one hundred percent (100%) testing, at Seller's expense, retain all nonconforming goods, reject nonconforming goods and require Seller to replace rejected goods within ten (10) working days, (iii) accept same with a mutually agreed upon adjustment in price (iv) deduct from the amount due Seller or charge Seller the cost to correct such defect. In case where Buyer selects to return nonconforming goods, replacement, correction and all associated transportation charges will be at the expense of the Seller. Payment for nonconforming goods shall not constitutes acceptance thereof, limit or impair Buyer's right to assert any legal or equitable remedy, or relieve Seller's responsibility for latent defects.
7. WARRANTY. Seller expressly warrants for a period of one (1) year or for the period set forth in Seller's standard warranties, whichever is longer, that all goods covered by the Purchase Order will conform to specifications, drawings, samples or descriptions furnished to or by Buyer, and will be free from defects in design, material and workmanship. In addition, Seller acknowledges that Seller knows of Buyer's intended use and expressly warrants that all products and services will be fit and sufficient for the particular purposes for which purchased. If any goods delivered under this Purchase Order do not meet the warranties specified herein, Buyer may, at its option either (i) require the Seller to correct, at no cost to the Buyer, any defective or nonconforming goods by repair or replacement or (ii) return such defective or nonconforming goods at Seller's expense and recover from Seller the Purchase Order price thereof or (iii) correct or cause to be corrected the defect or nonconforming goods and charge Seller with the cost of such correction. If Seller's correction is by replacement and the goods have not been delivered to the final end user such replacement must be new goods. This warranty shall survive any inspection, acceptance, payment by the Buyer, or duration of this Purchase Order. The foregoing warranties shall be in addition to any other rights and warranties available to the Buyer.
8. TERMINATION. In addition to any other rights of Buyer to cancel or terminate this order, Buyer may at its option, terminate all or any part of this order, at any time and for any reason, by giving written or electronic facsimile notice to the Seller specifying the effective date of termination. Upon any such termination, Seller shall (i) immediately stop work, (ii) use any terminated goods to bring the then current stocking up to levels required by this order (iii) use its best efforts to mitigate damages by attempting to locate customers for any terminated products, and stop work for terminated services. Seller shall submit a termination claim to Buyer within sixty (60) days from the effective date with sufficient data to permit Buyer's audit and shall thereafter promptly furnish such supplemental information as Buyer shall request. Buyer, or its agents, shall have the right to audit and examine all books, records, facilities, work, material, inventories, and other items relating to any termination claim of Seller. Buyer and Seller shall negotiate reasonable termination charges with respect to any goods that are not used or sold, based on the actual costs of unique materials which (i) have been produced specifically for goods built or services for the Buyer, and (ii) cannot be incorporated into Seller's standard product or otherwise utilized. The total amount to be paid by the Buyer in the event of termination shall in no event exceed the price of this order.
9. TERMINATION FOR DEFAULT. Buyer may terminate this Purchase Order in whole or in part by written notice, if the Seller fails (i) to make delivery of the goods within the time specified herein, or any extension hereof by written change Purchase Order or amendment or (ii) to replace or correct defective goods in accordance with the provisions of those clauses hereof entitled "Warranty" and "Nonconforming Goods," or (iii) to perform any other provisions of this Purchase Order or so fails to make progress as to endanger performance in accordance with its terms. The Buyer is the sole judge under such circumstances. In the event of termination pursuant to this clause, Buyer may procure upon such terms and in such manner as Buyer may deem appropriate, goods similar to those so terminated, and Seller shall be liable to Buyer for any additional costs occasioned thereby provided that the Seller shall continue the performance of this Purchase Order to the extent not terminated. In addition to other rights provided herein, Buyer may require Seller to transfer and deliver to Buyer in the manner and to the extent directed by Buyer (i) any completed goods, (ii) such partially completed goods and contract rights as the Seller has produced or acquired for the performance of the terminated part, and (iii) the Seller shall protect and preserve such property in the possession of the Seller. Payment of completed goods delivered to and accepted by the Buyer shall be in the amount agreed upon between the Seller and the Buyer (not to exceed the contract price), however, Seller's obligations hereunder to carry out Buyer's direction as to delivery, protection and preservation shall not be contingent upon prior agreement. Failure of Buyer to enforce any right under this clause shall not be deemed a waiver and are in addition to any other rights and remedies provided for by law or under this order.
10. RIGHT TO SUSPEND OR STOP WORK. The Buyer shall have the right to "suspend" or to "stop work" in whole or in part for a period not to exceed ninety (90) days, by providing written notice to the Seller, specifically identified as a "suspend work" or "stop work." The Seller, upon receipt of such notice, shall take all reasonable steps to minimize the incurrence of costs allocable to the work affected. The Buyer, at the end of the ninety (90) day period, or sooner, shall provide written disposition to the Seller of either (i) cancellation of notice to suspend/stop work or (ii) terminate the work covered by such notice as provided in the "Termination" clause of these general provision. The Seller, in case of termination and in accordance with the clause, shall submit a claim for an adjustment, if any, in the performance or delivery schedule and/or Purchase Order price. However, no claim shall be made or accepted for any suspension or stop work to the extent that performance would have been so suspended or stopped by any other clause, including the fault or negligence of the Seller or if an adjustment is provided for or excluded under any other provision of this order. The Seller shall in no event be entitled to any adjustment for prospective profits or any damages whatsoever including, without limitation, incidental, punitive or consequential damages, whether directly or indirectly resulting from such suspension/stop work.
11. DISPUTES. The Buyer and Seller agree to negotiate in good faith the settlement of any dispute that may arise under this order. Failure to reach agreement on the subject of dispute, within a reasonable period, will require arbitration by a third party. Each party selects an arbitrator and the arbitrators select a third arbitrator. Irrespective of the place of performance of any work hereunder, the Buyer and Seller agree that this Purchase Order was entered into in the State of Ohio and shall be construed and interpreted according to the laws of Ohio without resort to the State's conflict of law rules. Pending settlement of any dispute, whether or not during negotiation or arbitration, Seller shall proceed diligently with the performance of this Purchase Order in accordance with Buyer's decision or direction, including delivery of goods, concerning the subject matter of such dispute.
12. REMEDIES. The rights and remedies reserved by Buyer in this Purchase Order shall be cumulative and additional to all other or further remedies provided in law and equity.
13. CHANGES. Buyer shall have the right to make changes from time to time in the work to be performed or the materials to be furnished by Seller hereunder. If such changes cause an increase or decrease in the amount due under this Purchase Order or in the time required for its performance, an equitable adjustment shall be made and the Purchase Order shall be modified accordingly in writing. Any claim for adjustment will be in such form as Buyer may direct and must be made in writing within fifteen (15) days from the date the change is ordered. Nothing contained in this clause shall relieve the Seller from proceeding without delay in the performance of this order. Changes shall not be binding upon Buyer except when specifically confirmed in writing signed by a member of Buyer's Purchasing Department which expressly states that it constitutes as amendment or change to this order. Information, advice, approvals, or instructions given by Buyer's personnel or other representatives shall be deemed expressions of personal opinion only and shall not affect Buyer's and Seller's rights and obligations hereunder. Any changes to this Purchase Order shall be made in accordance with this clause.
14. FORCE MAJEURE. Any delay or failure of either party to perform its obligations hereunder shall be excused if and to the extent that it is caused by an event or occurrence beyond the reasonable control of the party and without its fault or negligence provided that written notice of such delay (including the anticipated duration of the delay) shall be given by the affected party to the other party within ten (10) days. Performance shall be deemed suspended during and extended for such time as any such circumstances exist. During the period of such delay or failure to perform by Seller, the Buyer, at his option, may either (i) terminate this order, in whole or in part, for any goods not delivered or (ii) suspend this order, in whole or in part, for the duration of the delay, and at Buyer's option, purchase the goods from other sources and reduce its schedules to the Seller for such quantities or (iii) have Seller provide the goods from other sources in quantities and at times requested by Buyer and at the prices set forth in this order. Upon remedy of such cause, the party delaying delivery shall continue performance and the other party shall accept performance for any part of this Purchase Order not terminated. As used herein, performance shall include, without limitation fabrication, delivery, installation, testing, acceptance and warranty repair, as applicable.
15. INVOICES. Invoices shall include the waybill number and be rendered after shipment, covering no more than one Purchase Order unless otherwise stipulated. Invoices must reference the Purchase Order number, item number, part number, description of items, unit of measure, quantities, unit prices and extended totals in addition to any other information specified elsewhere herein. If the invoice is subject to a cash discount, the discount period will be calculated from the date the correct invoice is received by Buyer. Payment of invoice shall not constitute acceptance of the goods and shall be subject to adjustment for errors, shortages or defects.
16. ASSIGNMENT. The rights, duties and obligations of Seller under this Purchase Order may not be assigned in whole or in part by operation of law or otherwise without the prior written consent of the Buyer and any attempted assignment of any rights, duties and obligations hereunder without such consent shall be null and void. The Purchase Order shall be binding on the parties and their respective successors and permitted assigns.
17. GOVERNING LAW. This Purchase Order is to be construed according to the laws of the State of Ohio without resort to the Conflicts of Law provisions of the state where the work is performed. The Buyer and Seller agree that the exclusive jurisdiction and venue of any action relating to this Purchase Order shall be the Superior Court or United States District Court for the above referenced state, and each of the parties hereby submits itself to the exclusive jurisdiction and venue of such courts for purposes of such action.
18. BANKRUPTCY. Buyer may immediately cancel this Purchase Order without liability to Seller in the event of any of the following or any other comparable event: (i) insolvency of the Seller (ii) filing of a voluntary petition in bankruptcy by Seller (iii) filing of any involuntary petition in bankruptcy against Seller (iv) appointment of a receiver or trustee for Seller or (v) execution of an assignment for the benefit of creditors by Seller, provided that such petition, appointment or assignment be not vacated or nullified with fifteen (15) days of such event.
19. INFORMATION. Seller agrees that none of the details connected with this Purchase Order shall be published or disclosed to any third party (except as is necessary for performance of this order) without Buyer's written permission. Any knowledge or information concerning Seller's products or methods of manufacturing processes, which Seller may disclose to Buyer incident to the performance of work under this Purchase Order shall be deemed to have been disclosed as a part of the consideration of this order, and Seller agrees not to assert any claim (other than the claim for patent infringement) against Buyer by reason of Buyer's use or alleged use thereof.
20. PATENT AND COPYRIGHT INDEMNIFICATION. (i) Seller agrees to indemnify Buyer, its agents, customers, subcontractors and assignees against any loss or damage and liability, including costs and expenses, for actual or alleged infringement of any patent, copyright or trademark, arising out of the use or sale by Buyer or its agents of the goods provided. Buyer shall notify the Seller of any suit, claim, or demand involving such infringement and shall permit Seller to defend against or settle the same. If any injunction is issued as a result of any such infringement, Seller agrees at Buyer's option to (i) refund to Buyer the amount paid to Seller hereunder, or (ii) furnish Buyer with acceptable and non-infringing goods. Seller agrees to protect, defend, hold harmless and indemnify Buyer from and against any and all liability and expense resulting from any alleged or claimed defect in goods, whether latent or patent, including allegedly improper construction and design or from the failure of goods to comply with specifications. Seller further agrees, that all materials supplied will be free from liability of royalties, mechanic liens, or other encumbrances, and Seller agrees to indemnify and hold Buyer harmless from these liabilities.
21. PERSONAL INJURY AND PROPERTY INDEMNIFICATION. The Seller shall take such steps as may be reasonably necessary to prevent personal injury or property damage during any work hereunder that may be performed by any employees, agents or subcontractors of the Seller at the Buyer's, Buyer's affiliates or Buyer's customer facilities. The Seller shall indemnify and hold harmless the Buyer's, Buyer's affiliates or Buyer's customer from and against all loss, liability and damages arising from or caused directly or indirectly by any act or omission of such employees, agents or subcontractors of the Seller and Seller shall maintain such insurance against public liability and property damage and such Employee's Liability and Compensation insurance as will protect the Buyer's, Buyer's affiliates or Buyer's customer against the aforementioned risks and against any claims under any Workman's Compensation and Occupational Disease Acts.
22. CREATIVE WORK. Unless otherwise noted, all software code developed as a requirement of this Purchase Order shall be the property of the Buyer. Seller hereby assigns and agrees to assign to Buyer the entire right, title and interest to all works of art, symbols, devices, designs, software tools and other proprietary materials furnished or created for hire under this order, including the right as exclusive proprietor to domestic and foreign copyright renewal, trademark, and/or patent procedure therein, and the right to register and claim priority therein under any applicable international treaties and conventions. Seller warrants that it has the unrestricted right to make the foregoing assignment.
23. SELLER'S DATA. To the extent goods are not supplied pursuant to detailed designs furnished by the Buyer, the Seller agrees to provide "data" needed to produce and support the goods purchased herein, whether or not the data is patentable or copyrightable. Seller grants the Buyer a royalty-free, non-exclusive, irrevocable, worldwide license to publish, distribute, translate, duplicate, or exhibit and to sub-license any data which is licensed. Such data includes without limitation documents, drawings, software, or any printed or written matter. Buyer and Seller agree that the Buyer's customers have the right to use the data. Buyer agrees to protect the data in the same manner the Buyer protects its own data and to reproduce restrictive legends or copyright notices on the copies provided.
24. WAIVER. The failure of Buyer to enforce at any time any of the provisions of this order, to exercise any election or option provided herein, or to require at any time performance by the Seller of the provisions hereof shall in no way be construed to be a waiver of such provision, nor in any way to affect the validity of this Purchase Order or any part thereof, or the right of the Buyer thereafter to enforce each and every such provision.
25. RELATIONSHIP. Seller agrees to treat as strictly confidential all specifications, drawings, blueprints, sample, models etc. supplied by Buyer. Seller shall not, without first obtaining the written consent of Buyer, in any manner advertise, publish or release for publication any information the Seller has contracted to furnish Buyer the goods herein ordered, or use any trademarks or tradenames of Buyer in Seller's advertising or promotional materials. In the event of Seller's breach of this provision, Buyer shall have the right to cancel the undelivered portion of any goods covered by this Purchase Order and shall not be required to make further payments except for conforming goods delivered prior to cancellation.
26. NEW MATERIAL. Unless otherwise specifically stated in writing by the Buyer all goods purchased under this Purchase Order shall be new.
27. TAXES AND DUTIES. Except as may be otherwise provided in the order, the price of this Purchase Order is inclusive of all taxes, tariffs, assessments, fees, licenses, customs charges and duties and other taxes and duties levied by any government or governmental agency including, without limitation, federal, state, use, value added and personal property taxes, franchise and income taxes imposed on the Seller, their suppliers and their employees in their performance of their work. The price of this Purchase Order shall be correspondingly reduced if Seller has included in the price any such charges in excess of the requirements of the applicable laws or regulations. Buyer will provide upon Seller's request a tax exemption certificate. Federal Manufacturer's and Retailer's Excise, State and Municipal Sales and Use Taxes when applicable shall be billed as separate items on your invoice.
28. BAILED PROPERTY. All supplies, materials, documentation, tools, equipment, specifications and any other items furnished by Buyer, either directly or indirectly, to Seller to perform this and other orders, or for which Seller has been reimbursed by Buyer, shall be and remain the property of Buyer and be furnished only under a Bailment Agreement. Buyer and Seller agree that Buyer's property in the possession of Seller without a bailment agreement is a sale of such property. Buyer's property shall at all times be properly housed and maintained by Seller, shall not be used by Seller for any other purposes other than performance of a Buyer's Purchase Order, shall be deemed personal, shall be conspicuously marked as Buyer property, shall not be commingled with property of Seller or with that of a third person, and shall not be moved from Seller's premises with Buyer's prior written approval. Seller shall bear the risk of loss and damage to Buyer's property. Upon request of Buyer such property shall be immediately released to Buyer or delivered to Buyer at Buyer's plant or to a location designated by Buyer. Buyer shall have the right to enter onto Seller's premises at and all reasonable times to inspect or remove such property.
29. COMPLIANCE WITH LAWS. The Seller warrants that no law, rule or regulation of the United States, a state or any other government agency has been violated in the manufacture or sale of the products or in the performance of the services covered in this order, including transportation, and will defend and hold the Buyer harmless from loss, cost or damage as a result of any actual or alleged violation.
30. CONTRACTS WITH FEDERAL, STATE OR LOCAL GOVERNMENT AGENCIES. The flowdown requirements for contracts with Federal, State or Local Government Agency or the subcontractor thereunder are incorporated, as an attachment, with the same force and effect as if they were given in full text and will remain in effect for the term of this order. It is incumbent upon the Seller to inform the Buyer of any changes to the Seller's compliance of any flowdown or changes to any of the terms and conditions. The U.S. Government contract clauses are set forth in the Federal Acquisition Regulation or other appropriate regulations required, in effect on the date of this order and the Seller agrees to follow the delivery priorities of the Defense Priorities and Allocation System.
31. PRECEDENCE. Conflicting provisions hereof, if any, shall prevail in the following order of precedence (i) typed provisions set forth on this Purchase Order, (ii) Buyer's Purchase Order attachments, (iii) the preprinted portion of this order including these Purchase Order general provisions (iv) statement of work, drawings and specifications attached or incorporated by referencing Buyer's specifications shall prevail over those of any agency of the Buyer's or Seller's Government and both shall prevail over those of the Seller.
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