BUCKINGHAM GENERAL PURCHASING TERMS AND CONDITIONS (Purchase Agreement)

 

This Purchase Agreement (“PA”) inclusive of both sides of this paper and any attachments represent, together with the Purchase Order (“PO”) to which this PA serves as an addendum, the sole and entire agreement between the seller identified on the front of this PA (“Supplier”) and Buckingham Manufacturing (“Buckingham” or “Buyer”), unless there is a written agreement in place between Buyer and Supplier (“Supplier Agreement”). If a Supplier Agreement is in effect, then in such instance, any conflicts between a provision in this PA and the Supplier Agreement shall be resolved as follows: (1) if the conflict between this PA and the Supplier Agreement involves the price, quantity, payment terms, or Statement of Work set forth in this PA, this PA shall govern; (2) if the conflict between this PA and the Supplier Agreement involves the terms and conditions set forth in the Supplier Agreement, then the Supplier Agreement governs; (3) all other conflicts between this PA and the Supplier Agreement shall be governed by the provisions in this PA.

 

Buckingham objects to and rejects any other terms or conditions appearing on, incorporated by reference in or attached to any purchase order, acceptance, acknowledgement, invoice, transmittal or other document other than a Purchase Order. Acceptance is made expressly conditional upon Buyer’s assent to the terms of these General Purchase Terms.

 

Acceptance and Termination:

 

By acceptance hereof, or, if acceptance has not been communicated to Buyer, by delivery of the goods and/or services (“Products”), Supplier agrees that, subject to Buyer’s right to reject Supplier’s performance hereunder, a contract containing the provisions herein set forth shall arise between the parties hereto with respect to the Products. No addition or modification hereof, and no waiver or alteration of any provision hereof, shall be valid unless made in writing and executed by Buyer. Failure of Buyer to receive a written acceptance hereof within 10 days after the date hereof shall entitle Buyer, at its sole option, at any time prior to actual receipt of such written acceptance of the Products to terminate this order without cost or liability.

 

This PA may be terminated by Buyer with or without cause. In the event of termination by Buyer without cause, Buyer agrees to compensate Supplier for the actual and reasonable expenses incurred by Supplier for work in process up to and including the date of termination, provided such expenses do not exceed the agreed upon prices.

 

Price and Payment:

 

Buyer is responsible for and will pay all sales, use and other taxes. All invoices will be paid net 60 days upon receipt of invoice unless otherwise indicated on the face of this PA.    Payment will not constitute acceptance of the Products, nor impair Buyer’s right to reject Products for non‐conformance at a reasonable later date.

 

No modification to purchase price or consideration shall be valid unless 1) such modification to purchase price or consideration is expressly accepted in writing by Buyer and 2) shall only be effective sixty (60) days after said modification is expressly accepted in writing by Buyer.

 

Shipping/Delivery:

 

Supplier will package and ship all Products in accordance with Buyer’s packaging specification which shall be requested from Buyer and will be provided at no charge. In addition, Supplier will use appropriate care in packing and marking shipments to ensure that all shipments are in compliance with all appropriate rules and regulations, including requirements for international shipping.

All Products will be shipped to Buyer’s designated location(s) unless otherwise stated on this PA and packing slips must reference Buyer’s part number, PO or PA number, quantity and delivery location. Shipments over $1,000.00 in value are to be insured at Supplier’s expense for the benefit of Buyer.  Title to the Products shall transfer to Buyer upon receipt at Buyer’s receiving dock.

Time of Essence:

 

In this PA and in any contract arising therefrom, time is of the essence. If Supplier fails to deliver on time, Buyer may purchase replacements elsewhere and Supplier will be liable for actual and reasonable costs and damages Buyer incurs. Supplier will promptly notify Buyer if it is unable to comply with the delivery date specified on this PA. Buyer also reserves the right to assess and apply charge‐backs to the Supplier in situations where critical customer deliveries were missed due to line down situations caused by the Supplier late delivery or quality problems. Charges will also be applied when, due to criticality of need, non‐conforming Product requires reworking in Buyer’s tool room at Buyer’s current shop rates.

 

Intellectual Property:

 

Unless otherwise specifically stated on the face of this PA or in the body of a related agreement, if this PA calls for experimental, developmental or research work, Supplier agrees to and does hereby grant to Buyer all ownership rights and interests, including the right to patent and license, throughout the world, any inventions, improvements or discoveries conceived or first actually reduced to practice in the performance of this order and for this purpose Supplier shall submit promptly to Buyer a written disclosure of each invention, improvement or discovery.  All intellectual property owned or licensed by Buyer, including any intellectual property used in the research, development, or manufacture of the Products supplied by Supplier, shall remain Buyer’s sole property.

 

Statement of Work:

 

Where applicable, the Buyer and Supplier agree to execute a statement of work (“Statement of Work”) detailing all quality and business management related items relative to development of the Products to be provided as stated on the face of this PA. Such Statement of Work is made a part of this PA by reference.

 

Warranty:

 

Supplier expressly warrants all Products and services to be free from defects resulting from the design (if the Supplier is the designer or partner in the design), workmanship, and materials. Supplier warrants that Products will conform to specifications and standards for a period of two years from the date of acceptance. Notice of all claims by Buyer under this warranty will be given to Supplier within two years of delivery. Provided that Supplier receives notice from Buyer in a timely manner, Supplier will, at its own expense either promptly replace, or accept return of warranted Products and parts and provide Buyer with a full refund, at Buyer’s sole discretion. If a refund is given, Buyer reserves its right to obtain the Products elsewhere and seek “cover” from the Supplier. If Buyer can repair defective Products or make the services viable to Buyer, then Buyer may take remedial steps and Supplier will pay for the repair. Buyer will notify Supplier of the anticipated cost and obtain written approval before starting the repair. All costs for transport of non‐confirming Product will be paid by the Supplier, unless “no fault found”, is proven by the Supplier. Non‐conforming Product will be replaced within 24 hours. A formal Corrective Action report will be required when requested and will be issued by the Supplier within 7 business days of the Buyer’s determination of non‐conforming Product. Buyer reserves the right to assess a $100 administration charge for each instance of non‐conforming Product identified for documentation and technical assessment costs.

 

Supplier warrants that at all times, Supplier will comply with all applicable laws, rules and regulations to which it is or becomes subject, including but not limited to the regulations promulgated by any agency of the government of the United States of America and the State of New York.

 

Supplier warrants that Supplier’s Products or services specified in this PA do not infringe any patent, trademark, copyright or other intellectual property right of a third party.

 

Supplier warrants that Supplier will not modify or change the specifications, manufacturing processes, sub‐supplier, or quality requirements to any Product without prior written consent of Buyer.

 

All Products supplied to Buyer shall comply with, and Supplier agrees to be bound by, all applicable foreign, United States federal, state and local laws, orders, rules, regulations, guidelines, standards, limitations, controls, prohibitions, or other requirements contained in, issued under, or adopted pursuant to such laws, including, without limitation, product content and labeling, including, without limitation, the U.S. Toxic Substances Control Act and applicable RoHS and REACH regulations, anti‐bribery, anti‐corruption laws, Conflict Mineral prohibition and Conflict Mineral disclosure requirements. Supplier further agrees that neither Supplier nor any of its subcontractors will utilize child, slave, prisoner or any other form of forced or involuntary labor, or engage in abusive employment or corrupt business practices, in the production or provision of Products. Delivery of any Products shall constitute Supplier’s representation to Buyer that there has been and will be full compliance with all applicable laws and, at Buyer’s request, Supplier shall certify in writing its compliance with the foregoing. As used herein, Conflict Mineral means minerals or their derivative that the US Secretary of State has determined are financing conflict in a DRC country, including, but not limited to, cassiterite, columbite‐tantalite (coltan), gold, wolframite, tin, tantalum and tungsten.

 

Proposition 65:

Supplier warrants that its Products and practices shall comply with the California Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65.  If Supplier’s products contain chemicals known to the State of California to cause cancer, birth defects, or other reproductive harm, as listed at https://www.p65warnings.ca.gov/chemicals, at or above “safe harbor levels” as defined by the California Office of Environmental Health Hazard Assessment (https://oehha.ca.gov/proposition-65/general-info/current-proposition-65-no-significant-risk-levels-nsrls-maximum), such Products shall be accompanied by a warning in compliance with Proposition 65.

 

Insurance:

 

Supplier will maintain in force, at its sole cost and expense, insurance coverage for Worker’s Compensation, Employer’s Liability and Commercial General Liability. In addition, upon request Supplier shall name Buyer as an additional insured.

 

Assignment:

 

Supplier shall not assign any of Supplier’s rights or obligations hereunder without the prior written consent of Buyer, which includes any change in control or transfer of ownership.

 

Advertisement:

 

Supplier shall not utilize Buyer’s name, including trade or “d/b/a/” names, products, processes, intellectual property, or communications through any medium, in connection with any advertising through any medium, including, but not limited to, print, mail, digital, radio, Internet, or other communications to the public intended to generate clients and/or revenue for Supplier.  Buyer may consent to such advertisement in writing subject to any conditions Buyer desires.

 

Equipment:

 

Any tooling, including but not limited to molds, jigs, fixtures, dies and patterns (“Tooling”), paid for by Buyer including any patents or proprietary intelligence are the property of Buyer. Tooling paid for or provided by Buyer will be plainly marked “Property of Buckingham Manufacturing” with the appropriate tool number assigned and will be consigned to Supplier. If requested, Supplier agrees to sign a separate Equipment Consignment Agreement that is made a part of this PA by reference. Buyer will have the right to remove any and all property at any time. Tooling developed, created or manufactured on behalf of Buyer will be used solely for the benefit of Buyer, unless a specific separate agreement is reached and signed by both parties. Supplier accepts full financial responsibility for any risk associated with loss or excessive damage to Buyer supplied Tooling while in its possession. Supplier will notify Buyer of any loss or damage to Tooling within forty‐eight (48) hours of occurrence.

 

Modification of any Tooling will be at the direction of Buyer and at Buyer’s expense unless otherwise agreed. At no time will Supplier modify any Tooling belonging to Buyer without prior notification and written approval by Buyer.

 

Supplier assumes full responsibility to qualify any and all Tooling in accordance with Buyer approved processes, monitor condition of Tooling/tool life to assure no interruption in product flow before or after any required maintenance, repair or replacement of such Tooling, and in conformance with any federal, state or local governmental authorities or agencies. Supplier expressly assumes all risk and liability for property damage or personal injury that may arise from the installation, modification, use and/or removal, of any tool, and any potential injury associated therewith.

 

Upon the request of Buyer, Supplier shall provide Buyer with a complete list of all Buyer Tooling and other property on the premises of Supplier and will be able to demonstrate compliance with the obligations of this PA.

 

Force Majeure:

 

Notwithstanding anything to the contrary contained herein, neither party shall be liable for any delays or failures in performance resulting from acts beyond its reasonable control including, without limitation, acts of God, acts of war or terrorism, shortage of supply, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties or civil unrest. Notwithstanding the foregoing, in the event of such an occurrence, each party agrees to make a good faith effort to perform its obligations hereunder.

 

Indemnification:

 

Supplier agrees to defend, hold harmless, and indemnify Buyer from any claim that Supplier’s Products or services infringe any intellectual property rights of any third party, or any claim arising from the failure of Supplier to comply with its warranties and obligations under this PA. If a claim of infringement is made, Supplier shall, at its own expense, comply with Buyer’s demand to: (A) obtain for Buyer the rights to the Products, (B) modify the Products or services so they are non‐infringing, (C) replace the Products or services with non‐infringing Products or services or (D) accept the return of infringing Products and the cancellation of infringing services and refund any and all amounts paid by Buyer.

 

Supplier shall hold Buyer harmless from and shall defend and indemnify Buyer for all liability, loss, costs, expenses, damages, including court costs and reasonable attorney’s fees, arising from any injury (including death) or property damage which is related to, arises in connection with or is based upon (i) any breach by Supplier, its officers, employees, agents or representatives of any provision of this PA, or (ii) any act or omission of Supplier, its officers, employees, agents or representatives. This indemnification does not extend to any liability, loss, costs, expenses or damages arising directly and solely from the acts, omissions or misrepresentations of Buyer, whether negligent, inadvertent or otherwise.

 

Limitation of Liability:

 

Supplier assumes all risk of loss due to damage or rejection of inadequate Products, or termination of this PA. In no event shall Supplier claim, or seek against Buyer, any liability for any lost revenues, lost profits, incidental, indirect, consequential, special, or punitive damages.

 

Choice of Law & Forum Selection:

 

This PA shall be governed by, subject to and construed according and interpreted in accordance with the laws of the State of New York, notwithstanding the conflict of laws provisions. Any claim, action, suit or other proceeding initiated under or in connection with these General Purchase Terms, all Purchase Orders and any claim stemming from the use of Supplier’s products must be asserted, brought, prosecuted and maintained only in Broome County, New York, and the parties hereto hereby waive any and all right to object to the laying of venue in any such court and to any right to claim that any such court may be an inconvenient forum.  The parties hereto submit themselves to the jurisdiction of each such court and agree that service of process on them in any such action, suit or proceeding may be affected by the means by which notices are to be given to it under these General Terms of Purchase.  Any claim, action, suit or other proceeding initiated by Buyer in connection with these General Purchase Terms, all Purchase Orders and any claim stemming from the use of Supplier’s products must be brought within two years after delivery to Buyer of the applicable merchandise to which such claim, action, suit or other proceeding relates.

 

The parties also agree that neither arbitration nor mediation shall be used to resolve any dispute unless a prior written agreement to do so is executed by both parties.

 

LIMITATION OF ACTIONS:

 

Any claim or cause of action by Supplier against Buyer, its directors, officers, employees, agents, accountants or attorneys, based upon, arising from, or relating to this Purchase Agreement, or any other present or future document or agreement, or any other transaction contemplated hereby or thereby or relating hereto or thereto, or any other matter, cause or thing whatsoever, occurred, done, omitted or suffered to be done by Buyer, its directors, officers, employees, agents, accountants or attorneys, shall be barred unless asserted by Supplier by the commencement of an action or proceeding in a court of competent jurisdiction and contemplated by this Agreement as specified in the section entitled “CHOICE OF LAW & FORUM SELECTION,” by the filing of a complaint within one year after the first act, occurrence or omission upon which such claim or cause of action, or any part thereof, is based, and the service of a summons and complaint on an officer of Buyer, or on any other person authorized to accept service on behalf of Buyer, within thirty (30) days thereafter.  Supplier agrees that such one-year period is a reasonable and sufficient time for Supplier to investigate and act upon any such claim or cause of action.  The one-year period provided herein shall not be waived, tolled, or extended except by the written consent of Buyer at its sole discretion. This provision shall survive any termination of this Purchase Agreement or any other present or future agreement.

 

In the interpretation of this limitation of actions for breach of Supplier’s warranty it is expressly agreed that there are no warranties of future performance of the equipment that would extend the period of limitation herein contained for bringing an action. IT IS EXPRESSLY UNDERSTOOD THAT ANY EFFORT BY SUPPLIER, BUYER OR THEIR AGENTS TO REPAIR ANY PRODUCT SHALL NOT EXTEND THE ONE YEAR PERIOD OF LIMITATION UNLESS SUPPLIER AGREES IN WRITING. THE WARRANTY SET FORTH HEREIN APPLIES TO REPLACEMENT PARTS AS WELL AS EQUIPMENT ORIGINALLY SOLD, AND NOTHING EXCEPT SUPPLIER’S WRITTEN CONSENT SHALL EXTEND ITS OBLIGATION IN WARRANTY MORE THAN ONE YEAR BEYOND SHIPMENT DATE OF THE ORIGINAL PRODUCT.

 

Confidential Information and Loss/Breach of Data:

 

Both parties shall treat any information received as part of this PA as confidential, and at a minimum will take the same care taken as with their own internal confidential information. Each party shall make its best efforts to identify confidential information through notice and identification. If requested, Supplier agrees to sign a separate Non‐Disclosure Agreement that is made a part of this PA by reference.  Confidential Information shall mean any information relating to Buyer’s business, financial condition, client lists, client files, personnel, strategies, plans, costs of procedures, overhead costs, operations, concepts, products, including the Products themselves, parts, design, layout, images, accompanying documentation for any existing or proposed product or service, research, development, testing, the performance of any prototype related to any existing or proposed product or service, or any other information marked “confidential,” “proprietary,” or with a similar legend or information that by its nature would be understood by a reasonable person to be proprietary or confidential.  All Confidential Information is provided “AS IS.”

 

Supplier shall hold in confidence and safeguard Confidential Information received under this PA and shall exercise the same degree of care to prevent disclosure to others as it takes to preserve and safeguard its own Confidential Information; but in any event, it shall exercise no less than a reasonable degree of care.  Further, internal disclosure by Supplier shall be limited to only those of its employees who are bound by confidentiality obligations at least as protective as those set forth herein and who have a direct need to know to fulfil the purpose of this PA.  Internal copying of Confidential Information by Supplier shall be kept to the minimum necessary for the efficient conduct of business, and all confidentiality labels shall be reproduced in full on all copies, whether whole or partial.  Supplier shall not use Confidential Information to compete with Buyer or to enable any third party to compete with Buyer.  Supplier shall not reverse engineer, decompile, or disassemble Confidential Information without the prior written permission of Buyer, except to the extent minimally necessary to fulfill Supplier’s obligations under this PA.

 

To the maximum extent permitted by law, Supplier shall be liable for any direct, indirect, incidental, special, consequential, or punitive damages, such as, but not limited to, loss of revenue, loss of anticipated profits, goodwill, diminution of value, business interruption costs, or any other intangible losses arising out of damage from any data, cyber, or other security breach or any other data, cyber, or other security intrusion upon Supplier’s premises, computer network, hardware, software, or other tangible or intangible means of storing or utilizing Confidential Information pertaining to Buyer’s business, as that term is defined herein, or any other information the divulgence of which could reasonably cause any of the damages listed herein.

 

Non-Solicitation:

 

During the term of this PA and for a period of one year thereafter, Supplier shall not solicit, make an offer of employment to, or enter into a consulting relationship with, any person who was an employee of Buyer during the term of this Agreement.  If Supplier breaches this provision, Supplier shall pay to Buyer liquidated damages equal to 100% of the most recent twelve month salary of Buyer’s former employee together with all legal fees reasonably incurred by the Buyer in enforcing this provision. The foregoing restriction on solicitation does not apply to unsolicited applications for jobs, responses to public advertisements or candidates submitted by recruiting firms, provided that such firms have not been contacted to circumvent the spirit and intention of this provision or this PA as a whole.

 

Severability:

 

Any provision hereunder found to be legally unenforceable under New York law, as applicable, shall be deemed deleted and replaced with a legally enforceable provision having the closest possible intent. All other provisions shall remain in full force and effect.

 

Insolvency:

 

Supplier represents that it is in a financial position to provide the work and equipment under the terms of this PA. If financial circumstances of Supplier change at any time, Supplier will notify Buyer of the situation and work with Buyer to make sure the Products in this PA are provided in a timely manner and with no reduction in quality.

 

General:

 

Supplier will provide to Buyer, on demand and at no additional cost, any information and documentation required by Buyer for compliance with any and all applicable local, state, federal or international requirements including, but not limited to the North American Free Trade Agreement (“NAFTA”) and any other laws or regulations whether or not specifically identified in these terms and conditions. Supplier will include on each invoice and packing list adequate Product descriptions, country of origin and US Harmonized Tariff Code for each item in a shipment.

 

Any and all hazardous material provided by Supplier or in Products provided by Supplier will be expressly identified, labeled and Material Safety Data Sheets (MSDS) provided to Buyer, prior to the Products arrival at or use by Buyer. If necessary, Supplier agrees to provide MSDS sheets in any language requested by Buyer at no additional cost.

 

MISCELLANEOUS:

 

This Purchase Agreement and any Purchase Order shall be binding upon and inure to the benefit of Buckingham and Supplier and each of their respective successors and permitted assigns.  No oral statements, recommendations or assistance given by a representative and/or distributor of Buckingham to the Supplier or its representatives in connection with the use of any product by the Supplier shall constitute a waiver by Buckingham of any of the provisions hereof, or affect Buckingham’s liability as herein defined.

 

The terms of this Purchase Agreement do not constitute an agency relationship between the parties and neither party shall hold itself out to be the legal representative, agent, or employee of the other party for any purpose whatsoever.

Neither these PA terms nor any Purchase Order, nor any term or provision hereof or thereof may be modified, amended, or waived, except by a writing duly executed by Buckingham.

 

Neither party shall assign or delegate its rights or responsibilities under this PA or applicable Purchase Order, or any portion thereof, without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that Buckingham may assign this Purchase Agreement any Purchase Order in connection with a merger, a sale of all or substantially all of its assets or business operations related to this Purchase Agreement and any Purchase Order, or a reorganization without the consent of Supplier by providing notice to Supplier.

 

If any provision of this Purchase Agreement or any Purchase Order shall be held invalid or unenforceable by any court of competent jurisdiction, such provision shall be deemed deleted from this Purchase Agreement or any Purchase Order and replaced by a valid and enforceable provision which, so far as possible, achieves the same economic and other benefits for the parties as the severed provision was intended to achieve, and the remaining provisions of this Purchase Agreement and any applicable Purchase Order shall continue in full force and effect.

 

Where this Purchase Agreement is presented in response to an offer by Supplier, the Supplier’s receipt of this acknowledgement of its offer without protest or objection in writing thereto, shall constitute an acceptance by the Supplier of all the terms and conditions set forth herein.