MOMO ORCHARD HOLDINGS, INC. 

 

THESE TERMS AND CONDITIONS (“Terms and Conditions”), TOGETHER WITH ANY ADDITIONAL TERMS WHICH MAY SEPARATELY BE APPLICABLE BETWEEN MOMO ORCHARD HOLDINGS, INC. (“COMPANY”) AND ANY PURCHASER OF PRODUCTS (“BUYER”) FROM THE https://shop.momofuku.com/ WEBSITE (THE “MAIN WEBSITE”), AND/OR THE WHOLESALE PURCHASE LINK INCLUDED ON THE FOREGOING WEBSITE, https://www.faire.com/user/sign-up?fdb=momofuku (THE “WHOLESALE WEBSITE”, AND TOGETHER WITH THE MAIN WEBSITE AND ALL RELATED WEBSITES, COLLECTIVELY, THE “WEBSITE”), GOVERN THE PURCHASE AND SALE OF ALL PRODUCTS OFFERED BY COMPANY FROM TIME TO TIME ON THE WEBSITE (THE "PRODUCTS”).  FOR THE AVOIDANCE OF DOUBT, ADDITIONAL TERMS AND CONDITIONS APPLY TO USE OF THE WHOLESALE WEBSITE.

 

• FORMATION OF CONTRACT / ORDERS.  A contract for the sale of Products will be formed only if and when an order from Buyer is accepted or confirmed by acknowledgement in writing by an authorized representative of Company, Company charges the Buyer for the ordered Products and/or Services, or Company ships the Products (“Order”).  An Order may only be cancelled or modified if the request for cancellation or modification is received at least two (2) business days prior to shipment.  This means that in many cases, given Company’s prompt shipping practices, an Order will not be subject to cancellation or modification once placed.  In addition, given the nature of the Products, Orders are not subject to return to Company once delivered, for any reason.
  
  
• BACKORDERS. Company does its best to maintain an "in stock" status on all Products.  In the event that a Product goes on backorder after a Buyer has placed an Order, or in the event that a Buyer’s entire Order for whatever reason cannot be fulfilled, Company will contact the Buyer via e-mail to the email address provided at the time of Order, and Company will attempt to accommodate the Buyer’s stated preference.  However, in no event will Company be required to purchase any Products and/or Services in the marketplace to meet its Order obligations hereunder or be required to purchase materials and/or services necessary upon unreasonable terms and/or at unreasonable prices.  During any shortage of Products, Company reserves the right to cancel, without liability, any Order, the shipment of which is or may be delayed by reason of any cause or causes beyond its control.
   
• DELIVERY AND SHIPPING.  Accepted Orders are subject to Company’s commercially reasonable efforts to promptly deliver the Products based on the standard shipping times of Company’s third party warehouses and service providers, subject to circumstances beyond Company’s reasonable control, including without limitation, Product availability and the actions of such warehouses, service providers and shippers / carriers.  Company is not responsible for late or erroneous shipments, for shipping mistakes or issues, or for unintended mis-shipments (or for any liabilities, costs or expenses incurred by Buyer in connection with same) in any case, including where due to circumstances beyond Company reasonable control, whether due to an act of God, issues arising by reason of pandemic / epidemic or any contagious disease situation (including Company’s compliance with any regulations, recommendations, warnings, or guidelines relating thereto), an unforeseeable occurrence, supplier or service provider issues including Company’s inability to secure ingredients from its suppliers, a carrier or service provider issue, or any other event, without exception.  Company is also not responsible for the shipping and delivery time frames of the shipper / delivery service.
  
  Buyer is expected to work cooperatively and in good faith with Company to manage and resolve any carrier loss or damage claims.  If the delivery carrier does not deliver any given package or claims to have made the delivery but the Buyer has not received it, Company will use reasonable efforts to help the Buyer locate the package, but Company shall not be responsible for lost or undelivered Orders or packages as Company is NOT the delivery carrier. Company shall not be obligated to provide a refund for or to reship an Order or a package that is lost or otherwise not received, as it is the responsibility of the delivery carrier to ensure that the Order / package ultimately reaches the Buyer.  The Buyer is responsible for any errors in shipping information provided.  This applies whether the Products cannot be delivered due to the unavailability of Buyer or the delivery premises for delivery, a Buyer’s refusal of any tendered delivery, or otherwise any issue with a Buyer-provided delivery address. Buyer agrees that Company shall be authorized to charge the original method of payment for such charges in such event.
  
  If an Order arrives damaged or defective in any way, the Buyer is expected to, and agrees to, contact Company right away (in any event within 36 hours of delivery) at customerservice@momofuku.com.  Photographic images of the damage or defect will be required, including photos of both the affected Products and of the Product packaging, and the Buyer will need to make the damaged or defective Product and Product packaging available to the carrier for pick-up.  Note that Company is generally unable to issue a refund for delivered damaged or defective Products, but Company will provide replacement Products for any Products received with damage or defects.  The replacement Products will generally be shipped as soon as reasonably practicable after the damage or defect from the original delivery has been confirmed, but the applicable carrier’s practices in this regard will apply. Buyer waives its right to receive a replacement Product if he or she does not advise Company of a Product defect or delivery damage at customerservice@momofuku.com within 36 hours of delivery, and simultaneously or promptly thereafter provide the required photographic images.  Moreover, except to the extent prohibited by applicable law, Buyer agrees to be responsible for, and hereby waives and releases Company from, any claims, demands, injuries, damages, issues, liabilities, losses, costs or expenses (including reasonable attorneys’ fees) to the extent arising from or as a result of Buyer’s breach of obligations contained in these Terms and Conditions or Buyer’s use of the Products (collectively, “Claims”).  In addition, Buyers purchasing the Products from the Wholesale Website agree to indemnify, defend and hold harmless Company from and against any such Claims.
  
  
• PRICES AND PRODUCT INFORMATION.  Unless otherwise provided by Company in writing, all prices stated are in U.S. dollars.  Prices are subject to change without notice.  Company is not responsible for typos or errors in pricing, and Company’s sole obligation in the event of an error in a posted price for a Product will be to promptly correct the error when identified, and promptly advise the Buyer of the issue, along with the correct price for the Order.  Company reserves the right to change Product ingredients, recipes, specifications, packaging, or any of the descriptions and/or information provided relating to any Product at its sole discretion, at any time. 
  
  
• PAYMENT.  Company reserves the right to change its credit, payment and shipping terms at any time, including without limitation the right to change the method of payment accepted, whether pricing includes shipping, etc.  Company reserves the right, among other remedies, to refuse to accept further Orders, to terminate any Order for Products, to suspend deliveries of Products and/or to recall Products in transit, retake the same and/or repossess all Products if at any time in Company sole discretion Buyer’s creditworthiness is impaired, Buyer stops or disputes a payment made for any given Order or Product ordered, or in the event Buyer otherwise fails to timely make, or to revoke, an owed payment relating to an Order.  Company will not be obligated to sell Products to any individual consumer in any instance, and Company may reject or refuse to accept any Order, or revoke its acceptance of any Order, for any customer, at any time, at its discretion, for any or no reason.
  
  
• DISCOUNTS AND PROMOTIONAL OFFERS.  Any claims relating to prices, discounts, promotional offers, or other benefits pertaining to Product purchases and/or this Agreement will be deemed waived unless submitted by the earlier of: (i) the end of the defined promotional period applicable to the discount or promotional offer; and (ii) thirty (30) days from the Order date. No claim will be made against Company relating to any Order that was placed or Product that was purchased more than 30 days earlier, and any claim asserted by Buyer shall be supported with such documentation as Company may reasonably require (such as without limitation, a dated consumer delivery or sales receipt, copies of credit card / debit card payment documentation and the like). Claims relating to discounts or other promotional offers made available by Company from time to time regarding specific Products are subject to the terms and conditions applicable to that particular offer or program, as announced by Company. 
  
  
• RESELLING.  Products that are purchased from the Main Website, with or without a discount code and subject to, or not subject to any promotional offer, are for personal use by the Buyer and shall not be resold without Company’s prior written consent. Products that are purchased from the Wholesale Website and intended to be resold at retail to an end user consumer may only be resold to such end user consumers within the United States and shall not under any circumstances be resold on the Amazon marketplace platform.  Company reserves the right to refuse to accept Orders from, or sell the Products to, any Buyer at any time and for any reason, including, without limitation, in the event a Buyer breaches its obligations under these Terms and Conditions.
  
  
• TITLE AND RISK OF LOSS.  Title and risk of loss to Products shall pass to Buyer when Products are delivered to Buyer and Company is not responsible for any damage or loss to a Product, or for  any Product defect or condition, that occurs after delivery, for any reason.  This includes, without limitation, Buyer’s failure to properly store, refrigerate, secure, use or otherwise handle the Products by the “Best By” date and otherwise in accordance with the Product instructions, at any time after delivery.
  
  
• WARRANTIES, LIMITATION OF LIABILITY. COMPANY MAKES NO WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, REGARDING ANY PRODUCTS, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, SUITABILITY FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.  If any court having jurisdiction finally holds that this limitation of remedies is void or unenforceable, COMPANY’s liability for any claim shall be limited to the amounts paid by Buyer for the Products and/or Services giving rise to the claim.  In addition, in no event will COMPANY or its affiliates be liable to Buyer,  or any other party for incidental, consequential, indirect or special damages (including without limitation, lost profits, lost opportunities, economic loss, loss of use, lost productivity, synergies or efficiencies, overhead or administrative expenses, lost data, or damage to reputation or goodwill), irrespective of the nature of any claim asserted, and even if COMPANY has been advised of the possibility of such damages and even if such damages result from negligence or other fault. COMPANY’s sole obligation in the event of any Product issue will be to replace the affected Product, at COMPANY’s sole option. In no event will COMPANY be responsible for damages in excess of the purchase price paid for the affected Products, in any instance.
  
  
• COSTS AND EXPENSES OF COLLECTION.  In the event that Buyer fails to make full payment for delivered Products (by improperly disputing a credit card charge or revoking payment authorization, for instance), Buyer shall be liable to Company for payment of all costs and expenses incurred by Company or its affiliates in seeking collection of the amounts owed by Buyer, including but not limited to the costs of collection agencies and reasonable attorneys’ fees incurred by Company or its affiliates.  In addition, in the event of Buyer’s default in payment for delivered Products, Company shall be entitled to collect an interest charge of the lesser of 1.5% of the outstanding balance per month or the maximum amount allowed by applicable law, along with a late payment fee equal to fifteen percent (15%) of the total Order cost.
  
  
• GENERAL PROVISIONS.  If any provision of these Terms and Conditions is finally determined to be invalid or unenforceable by any court of competent jurisdiction, such determination shall not affect any other provision hereof, and all such other provisions will remain in full force and effect.  Once placed, no Order may be cancelled or assigned by Buyer except with the prior written consent of Company. Company’s waiver of any breach or failure to enforce any of Buyer’s obligations under these Terms and Conditions at any time shall not limit or waive Company’s right thereafter to enforce strict compliance with the terms and conditions hereof.  The validity, construction and performance of these Terms and Conditions and the Contract formed between the parties shall be governed by the laws of the State of New York (without giving effect to its principles of conflict of laws).  Buyer, by submitting an Order for Products and/or Services with Company, irrevocably and unconditionally submits and waives any objection to the jurisdiction of the federal and state courts located in New York for purposes of any suit, action or proceeding arising out of or relating to these Terms and Conditions or the Contract formed between the parties, and agrees to take any and all future action necessary to submit to the jurisdiction of such courts.  However, Company may at its option bring suit, or institute other judicial proceedings, against Buyer in any court in any place where Buyer or any of its assets may be found. The United Nations Convention on Contracts for the International Sale of Goods shall not govern these Terms and Conditions or any sales contract formed between the parties.