General Purchase Order Terms
Applicability. These General Purchase Order Terms (“Terms”) govern any purchase order issued by Unique Wholesale Distributors LLC or any of its affiliates (each, a “Buyer”) that includes or references these Terms (each, a “PO”). The issuance of a PO to the party identified as Seller in the PO (the “Seller”) is an offer by Buyer for the purchase of goods specified in the PO (the “Goods”) from Seller in accordance with and subject to these Terms. The Terms, together with the terms of the PO, are referred to herein as the “Order”. The Order, together with any documents incorporated therein by reference, is the sole agreement of the parties and supersedes all prior or contemporaneous understandings, agreements, negotiations, and communications, written and oral, with respect thereto, provided that if there is a written supply or pricing agreement signed by both parties covering the sale of the Goods, then the terms and conditions of said agreement shall prevail to the extent they are inconsistent with these Terms. The Order expressly limits Seller’s acceptance to the terms of the Order and expressly excludes any document issued by Seller in connection with the Order. These Terms apply to any repaired or replacement Goods provided by Seller hereunder. Buyer is not obligated to any minimum purchase or future purchase obligations under the Order.
Acceptance; Price; Quantity. The Order is not binding on Buyer until Seller accepts the Order by written confirmation (email sufficient). Buyer may withdraw the Order at any time before it is accepted by Seller. The price of the Goods is the price stated in the PO (the “Price”). Unless otherwise specified in the Order, the Price includes all fees and applicable taxes, including, but not limited to, all sales, use or excise taxes, and import/export taxes and duties. No increase in the Price is effective, whether due to increased material, labor, or transportation costs or otherwise, without the prior written consent of Buyer. If Seller delivers more than 5% of the quantity of Goods ordered without prior written approval from Buyer, Buyer will not be obligated to pay for any such excess Goods. Seller shall in no event deliver to Buyer less than the quantity of Goods ordered except with Buyer’s express prior written consent, which may be withheld in Buyer’s discretion. No change to the Order is binding upon Buyer unless it is in writing, specifically states that it amends the Order, and is signed by an authorized representative of Buyer.
Shipping and Delivery. Seller shall deliver the Goods in the quantities and on the date(s) specified in the PO; if no delivery date is specified, Seller shall deliver the Goods by the delivery date specified on the PO (and if no such date is specified, within 30 days of Buyer’s issuance of the PO) (the “Delivery Date”). Timely delivery of the Goods is of the essence. If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may agree in writing to a different Delivery Date or terminate the Order immediately without liability to Seller by providing written notice to Seller, and in either case Seller shall indemnify Buyer against any losses, claims, and reasonable costs and expenses attributable to Seller’s failure to deliver the Goods on the Delivery Date. Buyer has the right to return any Goods delivered prior to the Delivery Date at Seller’s expense, and Seller shall redeliver such Goods on the Delivery Date. Seller shall deliver the Goods to the address specified in the PO (the “Delivery Point”) during Buyer’s normal business hours or as otherwise instructed by Buyer. Title passes to Buyer upon delivery of the Goods to the Delivery Point. Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Point. Seller shall package the Goods and arrange shipping according to Buyer’s instructions and in any event in a manner sufficient to ensure that the Goods are timely delivered in undamaged condition and in compliance with the terms and conditions of the Order, industry standards, and applicable law. Seller shall pay all costs of carriage and insuring the Goods in transit to the Delivery Point. Unless otherwise specified in the Purchase Order, the Price includes all insurance, customs duties, packaging, and transportation costs to the Delivery Point. Seller shall give written notice to Buyer when the Goods are delivered to a carrier for transportation. Seller shall provide Buyer all shipping documents, including, but not limited to, the commercial invoice, packing list, air waybill/bill of lading, and any other documents necessary to release the Goods to Buyer within 3 business days after Seller delivers the Goods to the transportation carrier. The PO number must appear on all documents pertaining to the Order. Unless otherwise specified in the PO or approved by Buyer in writing, Seller may not make partial shipments of Goods to Buyer.
Payment. Seller shall issue an invoice to Buyer on or any time after delivery, in accordance with the Terms. Buyer shall pay all properly invoiced and undisputed amounts due to Seller within the time specified on the PO (or if no time is specified, then within 60 days) after Buyer’s receipt of such invoice. All payments hereunder must be in US dollars. Buyer reserves the right to set off any amount owed to it by Seller against any amount payable by Buyer to Seller.
Nonconforming Goods. The Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are damaged, defective, or otherwise nonconforming. If Buyer rejects any portion of the Goods, Buyer has the right, at its sole option and effective upon written notice to Seller, to: (a) terminate the Order in its entirety, without liability to Seller; (b) accept the Goods at a reasonably reduced price; or (c) require Seller to promptly repair or replace the rejected Goods, at Seller’s sole risk and expense. If Seller fails to timely deliver repaired or replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate the Order for cause.
Warranties. Seller represents, warrants, and covenants to Buyer that: (a) for a period of 24 months from the Delivery Date, all Goods will: (i) be free from any defects in workmanship, material, and design; (ii) conform to applicable specifications, designs, samples, or other requirements specified by Buyer; (iii) be fit and safe for their intended purpose and operate as intended; (iv) be merchantable; and (v) be manufactured, packaged, and labeled in accordance with all applicable laws; (b) no claim, lien, or action exists or is threatened against Seller that would interfere with Buyer’s use or sale of the Goods; (c) the Goods do not and will not infringe or misappropriate any third party’s patent or other intellectual property rights; (d) Buyer will receive good and valid title to the Goods, free and clear of all encumbrances and liens of any kind; (e) Seller is in compliance with and shall comply with all applicable laws, regulations, and ordinances; (f) Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits to carry out its obligations under the Order. These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods with the foregoing warranties.
Indemnification. Seller shall defend, indemnify, and hold harmless Buyer and Buyer’s parent companies, subsidiaries, affiliates, successors and assigns, and its and their respective directors, officers, managers, members, employees and agents (collectively, “Indemnitees”) from and against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, or expense, including, but not limited to reasonable attorneys fees and costs of enforcing rights to indemnification and/or pursuing any insurance providers (collectively, “Losses”), arising out of or occurring in connection with (i) the Goods, (ii) Seller’s negligence, willful misconduct, or breach of any provision of the Order, or (iii) any claim that an Indemnitee’s use or possession of the Goods infringes or misappropriates intellectual property rights. Seller shall not enter any settlement without Buyer’s (or as applicable, another Indemnitee’s) prior written consent.
Insurance. During the term of the Order and for a period of 24 months thereafter, Seller shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including but not limited to product liability) with limits no less than $1 million for each occurrence and $5 million in the aggregate with financially sound and reputable insurers. Upon Buyer’s request, Seller shall provide Buyer with a certificate of insurance from Seller’s insurer evidencing the insurance coverage specified herein. The certificate of insurance shall name Buyer and its affiliates as additional insureds. Seller shall provide Buyer with 30 days’ advance written notice in the event of a cancellation or material change in Seller’s insurance policy(ies). Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Buyer’s insurers, Buyer, and any other Indemnitees.
Termination. Buyer may terminate the Order, in whole or in part, at any time with or without cause for undelivered Goods on 30 days’ written notice to Seller (45 days for Goods produced internationally). In addition to any other remedies available hereunder, Buyer may terminate the Order with immediate effect upon written notice to Seller if Seller has not performed or complied with the Order, in whole or in part. If Seller becomes insolvent, files a petition for bankruptcy, or begins proceedings relating to bankruptcy, reorganization, or assignment for the benefit of creditors, then Buyer may terminate the Order upon written notice to Seller. If Buyer terminates the Order for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted by Buyer prior to termination.
Limitation of Liability. Except as prohibited by law and excluding INDEMNIFICATION OBLIGATIONS, NEITHER party’s maximum liability to the other party shall exceed the aggregate amount payable under the Order.
Confidential Information. All non-public, confidential, or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic, or other form or medium, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with the Order is confidential, may only be used for the purpose of performing the Order and may not be disclosed unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party.
Force Majeure. No party shall be liable for any failure or delay in performance to the extent caused by a force majeure event beyond its reasonable control, such as an act of God; flood, fire, earthquake; war, invasion, hostilities, terrorist threats or acts, riots or other civil unrest; government order, law, or action; embargoes or blockades; or national or regional emergency, provided that the impacted party gives the other party prompt notice of the force majeure event and uses diligent efforts to mitigate the effects of such force majeure event. If the impacted party’s failure or delay remains uncured for a period of 15 consecutive days, either party may terminate this Agreement upon five days’ written notice.
Miscellaneous. Seller shall not assign, transfer, delegate, or subcontract any of its rights or obligations under the Order without the prior written consent of Buyer. Any purported assignment or delegation in violation of the foregoing shall be null and void. The relationship between the parties is that of independent contractors and nothing herein shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. All matters arising out of or relating to each Order shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of New York. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the state and federal courts located in New York, New York. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth in the PO or to any other address that may be designated by the receiving party in writing. Notices must be delivered by personal delivery, nationally recognized overnight courier (fees prepaid), email (with confirmation of receipt), or certified or registered mail (return receipt requested, postage prepaid). If any term or provision of the Order is found to be invalid, illegal, or unenforceable, such term shall be limited or eliminated to the minimum extent so that the remaining terms remain in full effect and enforceable. Any provision in the Order that, to give proper effect to its intent, should survive such expiration or termination of the Order, shall so survive. Except as otherwise set forth in the Order, no failure or delay in exercising any right, remedy, power, or privilege arising from the Order shall operate or be construed as a waiver thereof, and no waivers shall be effective unless explicitly set forth in writing and signed by the party so waiving.