TERMS & CONDITIONS FOR SUPPLIERS
ORENDA, LLC (as “Purchaser(s)”) and associated Purchase Order(s) (“Order(s)”) Terms & Conditions
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PRICE: This Order must not be filled at a price higher than shown on the face of the Order. Purchaser will be entitled at all times to set off any amount owed at any time by Seller or any of its affiliates to Purchaser or any of its affiliates against any amount payable at any time by Purchaser in connection with this Order. No extra charges of any kind will be allowed unless specifically agreed to in writing by Purchaser. All applicable taxes arising out of transactions contemplated by the Order will be borne by Seller.
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DELIVERY: Time is of the essence of this Order. All the prices include shipping to the “Ship To” address on the Order, and are F.O.B. Destination Freight Prepaid, unless specifically identified elsewhere in the PO.
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INSPECTION: All goods will be subject to inspection and test by Purchaser and its customer prior to final acceptance. Final acceptance or rejection of the goods will be made as promptly as practical after delivery except as otherwise provided in this Order, but failure to inspect and accept or reject goods or services or failure to detect defects by inspection, will neither relieve Seller from responsibility for such goods or services as are not in accordance with this Order nor impose liabilities on Purchaser for them. Purchaser's payment for the goods shall not constitute its acceptance of the goods. Goods rejected and goods supplied in excess of quantities ordered may be returned to the Seller at its expense. Payment, if any, made for any good rejected hereunder shall be promptly refunded by Seller.
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WARRANTIES: In addition to warranties arising under the Uniform Commercial Code of New York, Seller represents and warrants that (a) all goods are free of any claim of any nature by any third person and that Seller will convey clear title to Purchaser, (b) all goods offered for sale and/or sold to Purchaser (the "Products") shall be genuine and authentic and comply with all federal, state and local laws, ordinances, rules and regulations, including, without limitation, the Food, Drug and Cosmetics Act (21 U.S.C. 301 et seq.) and the rules, regulations and guidelines promulgated thereunder (collectively, the "FDC Act"); the Lanham Act (15 U,S,C. §1051 et seq.) and all its state law corollaries; and the Fair Packaging and Labeling Act (16 U,S.C. §1451 et seq.); all as may now or hereafter be amended (collectively, the “Laws"); (c) none of the Products is or will be adulterated or misbranded within the meaning of any of the Laws, nor shall any of the Products be a product or article that under any of the Laws may not be introduced into interstate commerce or that otherwise may not be sold in its current condition; (d) all of the Products when sold to Purchaser shall be owned solely by Seller free and clear of claims, encumbrances, liens, conflicting interests and restrictions of any nature whatsoever (including contractual) on their title or on the right of Seller to sell them to Purchaser; (e) Seller’s sale of the Products to Purchaser does not and will not violate or conflict with any Law, agreement, contract, settlement, court order, judgment, consent order or other restriction or limitation affecting Seller or any of the Products; (f) the Products have been legally manufactured and/or obtained by Seller, without fraud, misrepresentation, concealment of any material fact, tortious interference with contract, malfeasance or any misconduct whatsoever by Seller or, to the best of Seller's knowledge after due inquiry, by any supplier of the Products to Seller, and (g) to the extent that Seller is a reseller, Seller hereby represents and warrants that it has all rights necessary to sell the goods to Purchaser for resale at retail. All warranties of Seller herein or which are implied or imposed by law shall survive any inspection, delivery, acceptance or payment by Purchaser. If Purchaser reasonably believes that any of the Products may (a) not be not genuine, (b) have been procured by fraud, (c) violate any of the Laws, (d) be short-dated or (d) otherwise do not comply with the terms of this Order, Seller, at Seller's sole cost and expense, shall accept the return from Purchaser thereof and shall promptly refund to Purchaser all amounts paid by Purchaser for such Products. At Purchaser’s option, Purchaser may offset all or part of such amount paid against past or future amounts owed to Seller by Purchaser.
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INDEMNIFICATION and INSURANCE: Seller, at its sole cost and expense, shall indemnify and hold Purchaser and its customers harmless and shall, upon request, defend each of them (through counsel chosen by or acceptable to Purchaser, but at Seller’s expense) from and against any or all claims, demands, litigation or proceedings of whatever kind, and from and against all direct, indirect, special, exemplary, incidental or consequential damages or penalties of every kind whatsoever, arising out of, by reason of, or in any way connected with the goods, any breach by Seller of any of its obligations or warranties hereunder, or any other act, omission or negligence of Seller or any of Seller's employees, workers, servants, agents, subcontractors or suppliers. Seller shall, upon request, promptly pay or reimburse Purchaser or any other party entitled to indemnification hereunder for all costs and expenses, including attorneys' fees, as incurred by Purchaser or such other party in connection with any such claim, demand, litigation, proceeding, loss or damage. Seller shall maintain such insurance (including without limitation commercial general liability insurance and/or advertising injury coverage and/or intellectual property infringement coverage) as will adequately protect Purchaser with respect to this indemnity and hold harmless. Seller agrees to submit evidence of such insurance when requested by Purchaser. PURCHASER'S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS ORDER IS LIMITED TO THE AMOUNT PAID BY PURCHASER FOR THE GOODS AND/OR SERVICES. TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW, PURCHASER SHALL NOT BE LIABLE UNDER THIS ORDER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES EVEN IF PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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EDI: If Seller is on the EDI or EDI to FAX system of Purchaser or of Purchaser’s customer, Seller acknowledges that the terms and conditions herein stated apply to each order placed pursuant to EDI or EDI to FAX, even though these terms and conditions are not separately transmitted with each order.
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MISCELLANEOUS:​
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GOVERNING LAW: The Order, and all transactions relating to it, will be interpreted under and governed by the laws of the State of New York in the United States of America without regard to its conflict of law principles. Purchaser and Seller agree that the exclusive venue for all actions arising in connection herewith will be either (i) the state court in the City and County of New York, or (ii) the federal court for the Southern District of New York, or (iii) the court in which is pending any proceeding subject to indemnification hereunder. The parties agree to submit to each such jurisdiction and to waive any defense of personal jurisdiction and any claim that such courts are an inconvenient forum. Further, the United Nations Convention on the International Sale of Goods (1980) (as amended from time to time) will not apply to the Order or any related transactions.
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JURY TRIAL WAIVER: The Seller and Purchaser hereby waive trial by jury in any action, proceeding, claim or counterclaim, whether in contract or tort, at law or in equity, arising out of or in any way related to this Order.
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ENTIRE AGREEMENT: This Order is intended by the parties as a final expression of their agreement with respect to such terms as are included in it and is intended also as a complete and exclusive statement of the terms of their agreement. No course of prior dealings between the parties and no usage of the trade will be relevant to determine the meaning of this agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection.
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WAIVER; MODIFICATION: No claim or right arising out of a breach of this Order can be discharged in whole or in part by a waiver or renunciation of the claim or right unless supported by consideration and in a writing signed by the aggrieved party. The failure of Purchaser to enforce at any time or for any period of time any of the provisions hereof will not be construed to be a waiver of such provisions or of the right of Purchaser thereafter to enforce each and every such provision. Any oral waivers, oral amendments, oral modifications and/or purported oral terminations are of no force and effect.