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Terms and Conditions

TERMS AND CONDITIONS

  • Last Updated: February 16, 2020

     


 

 

These Purchase Order Portal Terms and Conditions (the “Purchase Terms”) and the rights and obligations contained herein are in addition to and incorporated into MPL Brands NV, Inc. d.b.a Patco Brands’ (“Patco”) general website Terms of Service and Privacy Policy (collectively, the “Terms”). Nothing in these Purchase Terms will be deemed to modify, waive, amend or recent any other term of the Terms. Any capitalized terms not defined herein have the same meaning set forth in the Terms.

 

Binding Agreement

The following, along with the Terms, sets forth the terms and conditions upon which you as a distributor and/or other customer (“Buyer” or “you”) can use and access the online purchase order portal (the “Portal”) and submit purchase orders (each, a “Purchase Order”)  to purchase Patco products (each, a “Product”), both via your own internal systems or via an Account created on the Patco website. These Purchase Terms govern the sale of any Product(s) by Patco to you, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Patco hereby objects to and rejects any additional or different terms proposed by Buyer including Buyer’s terms of purchase, purchase order terms, or other document. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Purchase Terms.

 

You understand and agree that by completing and submitting an electronic Purchase Order through the Portal, you are making an offer to purchase goods which, if accepted by Patco, will result in a binding contract. Additionally, by submitted a Purchase Order via the Portal, you agree to the terms of these Purchase Terms without modification and enter into a binding contract with Patco to abide by these Purchase Terms.

 

Portal Access and Accounts

 

All Buyers are required to submit Purchase Orders through the Portal to purchase Products. If you are a Buyer with an internal system connected to Patco’s Portal, Purchase Orders will be submitted through your own internal system and automatically sent to Patco, and you will not be required to create an Account. Notwithstanding the foregoing, all such Purchase Orders submitted through your internal system will be deemed to have been submitted through the Portal for purposes of these Purchase Terms.

If you do not have an internal system connected to our Portal, in order to submit a Purchase Order, you will be required to register and have an account created (“Account”). As part of the registration process, you may be asked to submit your entity name, address, phone number, an authorized representative’s name, title, email address, and/or similar information. You agree that all information you provide to Patco for purposes of Account creation or otherwise registering (“Registration Information”) will be true, accurate, current and complete. Your failure to provide true, accurate, current and/or complete information shall constitute a breach of these Portal Terms and may result in the immediate termination of your Account. You shall promptly update your Registration Information to keep it true, accurate, current and complete at all times.

 

After receiving all required Registration Information, Patco will create an Account on your behalf and will send you a notification via the e-mail provided with your username and temporary password. You will be required to reset your password upon your first login to the Portal. You agree to maintain the confidentiality of your password, and agree that you will not allow any other party to use your Account and/or password except as set forth herein. If you are registering and/or having an Account created on behalf of an entity, or other organization, you hereby represent and warrant that you are authorized to do so.

 

You agree to (i) keep your password and user name secure and strictly confidential, providing it only to authorized users of your Account, (ii) instruct each person to whom you give your user name and password that he or she is not to disclose it to any unauthorized person, and (iii) notify us immediately and select a new user name and password if you believe your password for your Account may have become known to an unauthorized person.  Further, if we suspect any unauthorized access to your Account, upon our request, you agree to promptly change your password and take any other related action as we may reasonably request.
 
We discourage you from giving anyone access to your Account.  However, if you do give someone your user name and password, or if you fail to adequately safeguard such information, you are responsible for any and all transactions that the person performs while using your Account, even those transactions that are fraudulent or that you did not intend or want performed.   We are not responsible for any loss or damage arising from your failure to maintain the confidentiality of your password, and have no liability to you for unauthorized transactions made using your Account.

 

We reserve the right to refuse service, terminate Accounts, remove or edit content, or cancel transactions in our sole discretion at any time without notice. For example, if we have reasonable grounds to suspect your Registration Information is fraudulent or inaccurate, we may suspend or terminate your account and refuse any and all current or future use of the Portal.

 

You may cancel your Account at any time by contacting us at info@patcobrands.com and cancellation will take effect immediately. We reserve the right to temporarily or permanently restrict or block access to the Portal to any users who have had their Accounts cancelled.

 

Ordering, Pricing and Payment

 

Products available for sale to you will be listed on the Portal. Through the Portal, you will be able to select the Products and quantities you wish you purchase by adding the Products to your cart and completing the check out process. Your Purchase Order will be reviewed, and once accepted, you will receive an email to confirm your Purchase Order (“Confirmation”). Confirmation will confirm which Products you have ordered, but it may not constitute an acceptance of your Purchase Order.

 

Patco does not have to accept your order, and for example, Patco will not accept your order if: (i) We do not have the Products in stock or (ii) there is an error on the Portal regarding the price or other details of the Products.

 

If, for any reason, Patco is unable to supply the total demand of Products ordered, Patco will provide written notice and you must confirm if you would like to: (i) confirm the entire Purchase Order and make partial shipments as the out of stock Product is available, or (ii) remove the out of stock Product from the Purchase Order. If no response is received from you within five (5) days, it shall constitute confirmation of the entire Purchase Order and authorization for Patco to make partial shipments.

By submitted a Purchase Order Buyer further agrees:

 

      You will comply with all applicable federal, state and local laws, regulations, rules and ordinances in connection with your purchase of any Products;

 

      You will not use the Portal for any illegal or immoral purposes, or for any purpose that is reasonably likely to reflect negatively on Patco;

 

      You will submit a Purchase Order only after you have obtained all necessary consents and authorizations needed to submit the Purchase Order;

 

      You currently have and will maintain any necessary licenses and permits required for your purchase of the Products;

 

      You understand that the information in listings on the Portal are not guaranteed to be current or accurate;

 

      You agree to respond promptly and completely to requests from Patco for additional information that Patco deems necessary

 

Buyer shall purchase the Products from Patco at the price set forth on the Portal, unless otherwise stated in Patco’s order confirmation or invoice (the “Purchase Price”). Purchase Prices will be either CIF or FOB Patco’s warehouse. Unless otherwise agreed to by Patco and Buyer, Buyer shall pay all invoiced amounts due to Patco within thirty (30) days of Patco's invoice. Buyer shall make all payments hereunder in US dollars. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Patco for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under these Purchase Terms or at law (which Patco does not waive by the exercise of any rights hereunder), Patco shall be entitled to suspend the delivery of any Products if Buyer fails to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Patco, whether relating to Patco's breach, bankruptcy or otherwise.

 

Patco reserves the right to change its Purchase Prices if increases or decreases in costs occur subsequent to contract conclusion, in particular as a result of labor agreements, government regulations, market conditions, unforeseen events, or changes in prices of raw materials. Patco will notify the Buyer with any price adjustment and/or price adjustments will be indicated in the Portal.

 

Order Fulfillment

 

If Buyer is purchasing products FOB Patco’s warehouse, Buyer must arrange for their carrier to contact Patco’s warehouse to schedule a pickup. Patco is not responsible, and has no liability, for Buyer’s failure or inability to arrange for pickup of the Products. Patco shall not be liable for any delays, loss or damage in transit.

 

If Buyer is purchasing products CIF, Patco’s carrier will contact Buyer to arrange a delivery appointment. Unless otherwise agreed in writing by the parties, Patco shall deliver the Products to the address provided by Buyer on the BOL (the "Delivery Point") using Patco's standard methods for packaging and shipping such Products. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Products at the Delivery Point. Patco is not responsible, and shall not be liable for any delay in delivery of the Products due to Buyer’s scheduling of a delivery appointment.

 

Delivery dates communicated or acknowledged by Patco (if any) are approximate and may be changed by Patco. Patco may deliver the Products in installments. Patco will not be liable for, nor will Patco be in breach of its obligations to Buyer, for any changed or missed delivery date.

 

Changes, Cancellations & Returns

 

Once Distributor has submitted a Purchase Order to Patco, Buyer acknowledges and agrees that the Purchase Order may only be cancelled or modified by Buyer with the written consent of Patco. All purchases are nonrefundable and all Products are nonreturnable, except as otherwise expressly provided herein.

 

Patco reserves the right to cancel any Purchase Order owing to (i) its inability to perform due to a Force Majeure Event; (ii) any of the events giving rise to termination of these Purchase Terms by Patco; or (iii) any other reason that Patco finds it impossible, despite its best efforts, to perform hereunder.

 

Risk of Loss & Damaged Goods

 

If purchasing the Products FOB Patco’s warehouse, title and risk of loss passes to Buyer upon tender of the Products to Buyer’s carrier, regardless of any agreement to the contrary, including any agreement to pay freight, express or other transportation, or insurance charges. If purchasing the Products CIF, title and risk of loss passes to Buyer upon delivery of the Products at the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Products at the Delivery Point. Patco may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. In any event, Buyer agrees Patco shall not be liable for any delays, loss or damage in transit.

 

As collateral security for the payment of the Purchase Price of the Products, Buyer hereby grants to Patco a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code of the State of Nevada and of the state in which Buyer is organized Buyer hereby irrevocably authorizes Patco at any time and from time to time to file in any relevant jurisdiction any financing statements and amendments thereto that contain the information required by Article 9 of the applicable Uniform Commercial Code, including continuation statements for the purpose of perfecting, confirming, continuing, enforcing or protecting the security interest granted hereunder.

 

Products are deemed accepted unless Buyer gives Patco written notice of Nonconforming Products and supporting documentation reasonably required by Patco within ten (10) business days of Buyer’s receipt of Products (“Inspection Period”). “Nonconforming Products” means: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents. If Buyer timely notifies Patco of any Nonconforming Products, then Patco, in its discretion, will either replace Nonconforming Products, or credit or refund the Purchase Price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer for such Products. Buyer will ship, at its expense and risk of loss, Nonconforming Products to the Patco facility from which they were shipped. If after receiving Buyer’s shipment Patco elects to replace Nonconforming Products, Patco will ship to Buyer the replaced Products to the Delivery Location. Buyer will bear shipping expense for the replaced Products.

 

THE REMEDIES IN THIS SECTION ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES AND PATCO’S SOLE LIABILITY FOR DELIVERY OF NONCONFORMING PRODUCTS.

 

Force Majeure

 

Patco shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached these Purchase Terms, for any failure or delay in fulfilling or performing any term of these Purchase Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Patco including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of sixty (60) days, Buyer shall be entitled to give notice in writing to Patco to terminate these Purchase Terms.

 

Representations and Warranties; Indemnification

 

You represent that: (i) You are 21 years of age or older and have the full power to enter into these Purchase Terms without further consents or approvals. If you are using the Portal on behalf of a company or other organization, that the person creating your Account is authorized to bind such company or organization to these Purchase Terms and to act on behalf of such company with respect to any actions you take in connection with the Portal (in such event, “you” and “your” as used herein will also refer and apply to that company or other organization); (ii) Your entering into these Purchase Terms will not conflict with or violate the terms of any other agreement to which you are a party; (iii) You shall comply with all applicable Federal, state and local laws and regulations in connection with your use of the Portal and purchasing of the Products; and (iii) You are solely responsible for making all payments due and you have sufficient funds, financing and/or insurance to honor all of your obligations. This section shall survive the expiration or termination of these Purchase Terms.

 

You will indemnify and defend Patco, our affiliates, clients and each of our respective directors, officers, agents, contractors, sub-contractors and employees from and against any and all actions, claims, demands, suits, loss, liability, damage, cost or expense (including reasonable attorneys’ fees and costs) arising out of or related to: (i) Any breach by you of any of your representations, warranties, agreements, or obligations under these Purchase Terms; (ii) Any misuse or alleged misuse or material modification or alleged material modification of any intellectually property belonging to Patco, any third party; (iii) and/or otherwise arising out of or related to your use of the Portal. This section shall survive the expiration or termination of these Purchase Terms.

 

Disclaimers

 

Patco does not guarantee (i) the truth or accuracy of the information, copy, images or other content and materials contained on the Portal; (ii) the quality, condition, safety or availability of any Product listed on the Portal; (iii) any third party’s compliance with any applicable laws, rules and regulations in connection with the fulfillment of any Purchase Order; or (iv) that the Products purchased will be delivered when expected or in a satisfactory manner.

 

Patco has not responsibility to you for, and hereby disclaims all liability arising from, the acts or omissions of any third parties, including the transportation providers and any other third parties assisting with the fulfillment of any Purchase Order. 

 

You acknowledge and agree that, as a Buyer, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who use and/or access the Portal from your Account and/or at your request. Patco does not, and shall not be deemed to, direct or control you generally or in your use of the Portal. You acknowledge and agree that you have complete discretion whether to submit Purchase Orders, or otherwise engage in other activities on the Portal.

 

TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PORTAL AND THE PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. PATCO MAKES NO WARRANTY AS TO THE QUALITY, ACCURACY, CURRENTNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE PORTAL. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE PORTAL IS AT YOUR SOLE RISK. PATCO DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE PORTAL AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE OPERATION OF THE PORTAL WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; THAT THE PORTAL IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

 

The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, will be limited to the maximum extent permitted by law. 

 

Limited Warranty

 

Patco warrants to Buyer that the Products and are free from material defects in material.

EXCEPT FOR THE PRECEDING WARRANTY, PATCO MAKES NO WARRANTY WHATSOEVER, AND HEREBY EXPRESSLY DECLAIMS ANY AND ALL OTHER WARRANTIES, WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY OF TITLE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

 

Patco shall not be liable for a breach of warranty unless: (i) Buyer gives written notice of the defect, reasonably described, to Patco within thirty (30) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Patco is given a reasonable opportunity after receiving the notice to examine such Products and Buyer (if requested to do so by Patco) returns such Products to Patco's place of business at Patco's cost for the examination to take place there; and (iii) Patco reasonably verifies Buyer's claim that the Products are defective. Subject to the above, with respect to any such Products, Patco shall, in its sole discretion, either: (i) repair or replace such Products (or the defective part) or (ii) credit or refund the Purchase Price of such Products at the pro rata contract rate provided that, if Patco so requests, Buyer shall, at Patco's expense, return such Products to Patco.

 

THE REMEDIES SET FORTH HEREIN SHALL BE BUYER'S SOLE AND EXCLUSIVE REMEDY AND PATCO'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN.

 

Taxes and Expenses

 

You are solely responsible for determining which, if any, sales, use, amusement, value added, consumption, excise and other taxes, duties, levies and charges (collectively, "Taxes") apply to your purchase of Products. You agree that it is your sole responsibility to, and that you will, collect and remit the correct amounts of all such Taxes to the applicable governmental authorities. Notwithstanding the foregoing, Patco reserves the right to collect and remit any Taxes that Patco is legally required to collect and remit by the applicable taxing authority. In the event that Patco is required to collect and remit any such Taxes, you will be responsible for paying such Taxes, and agree that Patco may invoice you and you agree to pay such Taxes. The Purchase Price for the Products includes only those taxes previously agreed upon pursuant to the distribution agreement with Patco, if any.

 

Limitation Of Liability

 

IN NO EVENT SHALL PATCO  BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE PURCHASE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. REGARDLESS OF PRIOR DEALINGS, ANY CLAIM BY BUYER RELATED TO THE PRODUCT OR DELIVERY SHALL BE DEEMED WAIVED UNLESS PRESENTED IN WRITING TO PATCO AND FILED IN A COURT SPECIFIED IN HEREIN WITHIN 1 YEAR FROM THE DATE OF DELIVERY.

 

 

Governing Law

 

These Purchase Terms , and the parties’ conduct arising out of or related to it shall be governed by Nevada law, without regard to its choice of law rules.

 

Survival

 

The provisions of these Purchase Terms that by their nature extend beyond the expiration or termination of these Purchase Terms shall survive such termination or expiration.

 

Severability

 

The illegality, invalidity or unenforceability of any provision of these Purchase Terms under the law of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction nor the legality, validity or enforceability of any other provision.

 

Non Exclusive Remedies; Collections

 

Patco reserves the right to pursue any late and unpaid amounts due and owing to Patco for collections if such amounts are not paid within thirty (30) days after the date due. In addition, Buyer agrees to promptly and fully reimburse Patco upon demand for all out-of-pocket costs and expenses, including without limitation, reasonable attorneys' fees and expenses, incurred by Patco in collecting past due amounts or any other amounts due and owing from Buyer under these Purchase Terms, the Terms or any or other applicable agreement between Patco and Buyer. Buyer agrees that if Patco must seek collections for past due amounts and Buyer does not respond or pay in full after receiving a collection notice, Patco reserves the right to pursue outstanding balances through judicial proceedings.

 

Entire Agreement

 

These Purchase Terms, along with the Terms, and any other written agreements entered into between Patco and Buyer, is the entire agreement of the parties and supersedes any prior agreements between us, whether written or oral, with respect to the subject matter hereof. These Purchase Terms are a binding agreement and, subject to the following, may only be modified or superseded if a separate written agreement is entered into by the parties explicitly superseding these Purchase Terms, and then only to the extent the separate written agreement explicitly modifies or supersedes specific terms of these Purchase Terms. No waiver of any default hereunder or any terms or conditions of these Purchase Terms will be deemed to be a waiver of any other or subsequent default of any other term or condition.

 

Notwithstanding the foregoing, Patco reserves the right to amend, update, or revise the terms of these Purchase Terms at any time for any reason. Patco will notify you via the email address provided in the event any material changes are made to these Purchase Terms . Any changes to these Purchase Terms will be effective immediately upon posting to the Portal.

 

Any continued use by you of the Portal after changes have been posted constitutes your acceptance of those changes. Although we may attempt to notify you when material changes are made to these Purchase Terms , it is your responsibility to periodically review these Purchase Terms from time to time for changes. If at any time you find these Purchase Terms unacceptable, you must immediately cease all use of the Portal as a Buyer.

 

 

ACKNOWLEDGEMENT

 

YOU ACKNOWLEDGE THAT YOU HAVE READ THESE PURCHASE TERMS AND AGREE TO BE BOUND BY THEM, AND YOU UNDERSTAND THAT BY VISITING THE PORTAL AND ACCESSING, VIEWING, OR OTHERWISE USING ANY CONTENT OR SERVICES THAT PATCO OFFERS, YOU ARE INDICATING YOUR CONTINUING AGREEMENT TO THESE PURCHASE TERMS.

 

International Users

 

The Portal is operated from the United States. Patco does not represent or warrant that the Portal (or any part thereof) is appropriate or available for use in any particular country other than the United States. In choosing to access the Portal you do so on your own risk, and are responsible for complying with all local laws, rules and regulations. Patco will only accept overseas orders from Australia, United Kingdom, Canada and the USA. 

 

Other Terms and Conditions

 

Buyer shall not assign any of its rights or delegate any of its obligations under these Purchase Terms without the prior written consent of Patco. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

The relationship between the parties is that of independent contractors. Nothing contained in these Purchase Terms 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.

 

 
 
 
 

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