Terms & Conditions
1. Quotations Not Binding. No price quotation given by Seller shall be binding unless in writing and signed by a duly authorized representative of Seller. No price quotation shall be effective for more than thirty (30) days without the express written consent of Seller. Seller reserves the right to amend, modify, or withdraw a price quotation at any time prior to Seller's receipt and acceptance of Buyer's purchase order (the "Order"). “Product” shall mean all products, items, apparatus and equipment contained in the Order.
2. Additional or Conflicting Terms. In the event that there are terms or conditions contained or set forth in the Order or any other purchase order, notice, confirmation, or document delivered by Buyer to Seller which are in conflict with these Terms and Conditions or which attempt to materially and adversely alter the rights or responsibilities of Seller hereunder, such conflicting or altering terms or conditions shall be null and void and of no effect. No change in these Terms and Conditions shall be valid, effective, or binding on Seller unless such change is expressly agreed to in writing by a duly authorized representative of Seller. Seller reserves the right to correct all typographical and clerical errors contained in any quotation, proposal, acknowledgment, or invoice.
3. Delivery; Title; Risk of Loss. The shipment and delivery times stated on the face hereof are estimates only and shall date from Seller's written acceptance of the Order or Seller's receipt of the Specifications and Samples (as such terms are hereinafter defined) and all other technical data or information pertaining to the Order, if any, required by Seller to complete the Order, whichever is later. Seller shall not be liable to Buyer or to any customer of Buyer for damages of any kind for the failure of Seller to ship or deliver an Order or Product within these times.
Upon completion of the Order, the Seller shall ship the Product to Buyer at Buyer's expense. Risk of loss and damage to the Product shall pass to Buyer upon delivery thereof to the shipper. Title to the Product shall pass to Buyer only upon Buyer's payment in full of the contract price for the Product.
If Buyer, for any reason, fails to accept delivery of the Product upon arrival at the Product's destination for delivery, then Buyer shall make reasonable efforts to protect Product and shall follow Seller’s reasonable instructions with respect to Product. Additionally, the Seller may place the Product in storage, at the place of manufacture or elsewhere or may ship the Product back to Seller. In such event, (i) Seller shall notify Buyer that the Product has been placed in storage or shipped back to Seller, as the case may be; (ii) Seller's delivery obligations shall be deemed fulfilled and all risk of loss and damage to the Product shall thereupon pass to the Buyer; (iii) any amounts otherwise payable to Seller upon delivery shall be payable within thirty (30) days after presentation of the Seller's invoices therefor; and (iv) within thirty (30) days after presentation of Seller's invoices therefor, Buyer shall reimburse Seller for all reasonable expenses incurred by Seller in connection with placing the Product in storage and/or shipping Product back to Seller, including, but not limited to, preparation for and placement in storage, handling, storage, demurrage, inspection, preservation, freight and insurance.
4. Cancellation. Cancellation of the Order can be made only with the written consent of Seller and upon terms which will indemnify and hold Seller harmless from all losses and damages resulting from such cancellation. Buyer shall pay Seller for all incidental damages, including but not limited to all costs, expenses, losses, or damages, including reasonable attorneys' fees, incurred by Seller as a result of cancellation, and shall pay Seller’s lost or prospective profits from full performance of the Order, which Buyer and Seller hereby agree such expected profits shall equal fifteen percent (15%) of the contract price.
5. Warranties. Seller makes no warrantees, expressed or implied, about the Product or otherwise except those expressly set forth on the face hereof and those set forth below (hereinafter referred to as the "Authorized Warranties"). No officer, employee, or agent of Seller or any other person is authorized by Seller to make any express warranty about the Product except the Authorized Warranties and Buyer, by accepting these Terms and Conditions, acknowledges and agrees that (i) no express warranty has been made by any person about the Product except the Authorized Warranties and (ii) in placing the Order, Buyer has relied solely upon the Authorized Warranties and Buyer's own independent investigation of and knowledge about the product.
Authorized Warranties. In addition to the warranties, if any, expressly set forth on the face thereof, Seller warrants to the Buyer that, for a period of one hundred twenty (120) days from the date the Product is delivered or deemed to be delivered to the Buyer (the "Warranty Period"), the Product shall conform to the Specifications and shall be free from material defects in materials and workmanship under normal use and service. Additionally, the warranty period for Products deemed new equipment installations is the sooner of (i) one year from installation, or (ii) 18 months from shipment from Drake’s plant. A Product shall be deemed a new equipment installation at Seller’s sole and absolute discretion. If Buyer discovers a material defect in materials or workmanship or nonconformity with the Specifications and returns the defective or non-conforming Product (which terms shall include new equipment installations) to the Seller, at Seller's principal manufacturing facility, within the Warranty Period, then the Seller's sole obligation under this warranty (the "Product Warranty") shall be to repair or, at its option, to replace the Product, without charge, F.O.B. the Seller's plant.
The Product Warranty shall not apply to certain components of the Product, including parts manufactured by Drake suppliers that carry their own separate warranties. (i.e. electrical components, timing belts, etc.) These components of the Product that are not manufactured by Seller (hereinafter referred to as "Non-Manufactured Components") and Seller makes no warranties whatsoever about such Non-Manufactured Components. These warranties will be passed to buyer whenever allowed. There is no warranty coverage on normal wear items or items that fail because of improper operation or improper maintenance.
The Product Warranty shall also not apply (i) if the Product is not returned to the Seller within the Warranty Period, (ii) to defects or damage to the Product caused in whole or in part by misapplication, improper maintenance, storage, use, installation or repair, or by abnormal conditions of temperature, moisture, dirt or corrosive material, etc., (iii) if the Product has been altered, modified, or repaired by anyone other than an authorized representative of Seller, (iv) if the Product has been involved in any accident, fire, explosion, act of God, or that has been otherwise damaged without fault of Seller. It is understood that Seller has no special knowledge of Buyer's operation or requirements, and Buyer agrees that the Product is being purchased because of Buyer's independent determination of its suitability for intended use.
THE WARRANTIES SET FORTH HEREIN CONSTITUTE THE ONLY WARRANTIES WITH RESPECT TO THE PRODUCT. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. THEY ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR ANY AGREEMENT OR OTHER DOCUMENT ENTERED INTO OR EXCHANGED BETWEEN BUYER AND SELLER, IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), STRICT LIABILITY OR OTHERWISE SHALL THE SELLER BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR EXEMPLARY DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED TO THE LOSS OF PROFITS OR REVENUES.
Without limiting the generality of the foregoing, Seller shall not be liable for any expenses incurred by Buyer in an attempt to correct any allegedly defective product or the cost of correcting any malfunctioning apparatus (except as aforesaid) nor for any claim based on damage or injury to persons or property or for indirect damage or loss of any kind or character or any other consequential damages on the part of the Buyer or its customers or lessees.
Buyer’s sole remedy for recovery of damages for a defective Product shall be the return the defective Product during the Warranty Period for repair or replacement, at Seller’s sole and absolute discretion.
6. Electrical System. Unless expressly set forth on the face hereof to the contrary, the Product’s electrical system will conform generally to the requirements for the machine tools under the National Electrical Code. Any alterations or additions required to conform with electrical regulations peculiar to any installation will upon request be made at additional charge.
7. Taxes. Amounts to be paid by Buyer for the Product do not include any federal, state, or local sales or use taxes, however designated, which may be levied or assessed on the Product or the manufacture or sale thereof. With respect to such taxes, Buyer shall either furnish Seller with an appropriate exemption certificate applicable thereto or pay to Seller, upon timely presentation of an invoice therefore, such amounts thereof as Seller may by law be required to collect or pay.
8. Delivery; Payment. Unless otherwise specified on the face hereof, (i) all prices are in U.S. currency, and (ii) delivery of the goods described on the face hereof shall be Ex-Works (EXW) F.R. Drake Company, 1410 Genicom Drive, Waynesboro, VA 22980 USA.
9. Property Rights of Others. If Buyer has furnished technical requirements or other specifications for the Product ('Specifications'), then the Buyer represents and warrants that the Seller's use of such Specifications in the manufacture of the Product do not and will not constitute an infringement or violation of any third party's patent, trademark, copyright trade secret, or other tangible or intangible property right of any kind whatsoever, whether United States or foreign (collectively, 'Third Party Property Rights"). Buyer agrees to defend and hold Seller harmless, at its own expense, all suits and claims against Seller by any third party alleging an infringement or violation of Third Party Property Rights and shall pay all sums, including without limitation, attorneys' fees and other costs, which, by final judgment or decree, or in settlement of any such suit or claim, may be assessed against or paid by Seller on account of such infringement or violation.
Buyer further agrees to indemnify and defend Seller and to hold Seller harmless from and against all suits and claims against Seller by any third party alleging an infringement or violation of Third Party Property Rights arising out of (i) the package produced by the Product; (ii) the Products of Buyer assembled, wrapped, packaged, or otherwise processed by the Product; (iii) the method or process carried out on such products by the Product; and (iv) the use of the Product by Buyer in combination with products or equipment not supplied by Seller.
Seller makes no representation or warranty as to whether the manufacture or sale of the Product by Seller (including, without limitation, the legality, validity, or genuineness of Seller's patents on the Product) or the use, lease, or sale of the Product by Buyer does or will infringe upon or violate Third Party Property Rights and expressly disclaims any liability to Buyer arising out of such rights.
10. Samples. If the product is intended to assemble, wrap, or otherwise process products manufactured by Buyer, then Buyer will supply and ship to Seller at no charge such quantities of such products ("Samples") for testing the Product as Seller may reasonably request.
11. Markings and Notices. Buyer agrees that all original markings and notices, including labels, instructions, and patent notices, affixed to any item will not be altered, defaced, obscured, or removed.
Use of all guards, interlocks, electrical devices and other safety devices on the Product and the Operation thereof in accordance with Seller's operating instructions is essential to safety. Buyer shall keep affixed and in legible condition all warnings and operating instructions affixed to the Product when delivered by Seller and will not remove or render inoperable any guards, interlocks, electrical devices, or other safety devices and shall cause its employees and agents to operate the Product in accordance with Seller's operating instructions.
12. Excusable Delays. Notwithstanding any other provision hereof to the contrary, Seller shall not be liable for non-performance or defective or late performance of any of its obligations hereunder to the extent that and for such periods of time as such non-performance, defective performance, or late performance is due to acts of God, war (declared or undeclared), acts (including failures to act) of any governmental authority (de jure or de facto), riots, revolutions, fire, floods, explosions, sabotage, nuclear incidents, earthquakes, storms, epidemics, strikes, or delays of suppliers or any other events the non-occurrence of which was a basic assumption of the parties.
13. Severability. In the event that one or more of these Terms and Conditions shall be held to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other provision hereof.
14. Governing Law. The contract incorporating these Terms and Conditions shall be governed by, and its provisions shall be construed and enforced in accordance with, the laws of the Commonwealth of Virginia.
15. Forum Selection Clause. The parties agree that the venue for enforcing any rights under contract incorporating these Terms and Conditions shall be only with a Virginia state court of competent jurisdiction or a federal court located in the Commonwealth of Virginia of competent jurisdiction. The parties hereby consent to the jurisdiction of all such courts.
