WHOLESALE TERMS OF SALE
1. GENERAL TERMS:
The terms and conditions stated herein shall govern all wholesale sales of products made by MNG 2005, Inc. d/b/a MNG Brands (“MNG Brands”), regardless of the terms and conditions stated in any purchase order submitted by the purchaser ("Purchaser"). MNG Brands hereby disclaims and rejects any terms and conditions appearing in a purchase order from Purchaser that are in addition to, or inconsistent with, the terms and conditions stated herein. Any such additional or inconsistent terms and conditions shall not be a part of the contract and shall not be binding on MNG Brands. These terms and conditions are subject to change at any time without prior written notice by MNG Brands. Please review these terms and conditions in their entirety prior to engaging in any transaction with MNG Brands.
CERTIFICATION:
To qualify to open a wholesale account with MNG Brands, Purchaser must certify and document that it is in the business of reselling products to its customers or to the public. For documentation purposes, MNG Brands requires that Purchaser provide a state-issued Resale Certificate to MNG Brands at the time of order. If Purchaser does not have a Resale Certificate, Purchaser may still establish a wholesale account by providing a signed W9 form to MNG Brands.
TAXES AND OTHER CHARGES:
Purchaser is responsible for all sales, VAT, or related taxes applicable to the purchase of MNG Brands products. MNG Brands will add such taxes to the invoice and Purchaser will be responsible for payment of such taxes, unless Purchaser provides to MNG Brands a valid exemption certificate or other document acceptable to the authority imposing the tax. Purchaser is responsible for all duties and other government fees applicable to the purchase and import of MNG Brands products, unless the Delivery Terms are DDP.
OWNERSHIP/INTENDED USE:
MNG Brands’ products are intended and manufactured SOLELY for direct consumption by the Purchaser and/or for resale purposes. Purchaser shall resale MNG Brands’ products “as-is”, without re-packaging any products or otherwise infringing upon MNG Brands’ registered trademarks, copyrights, and other intellectual property, unless otherwise agreed to in writing. Purchaser shall use MNG Brands’ products in accordance with the aforementioned intended use.
All intellectual property is and shall continue to be the property of MNG Brands or its content suppliers and is protected under applicable copyright, patent, trademark, and other proprietary rights. Any copying, redistribution, use or publication by Purchaser of any such content is prohibited, except as expressly permitted in this Agreement. Under no circumstances will Purchaser acquire any ownership rights or other interest in any content by or through Purchaser’s purchase of products.
Purchaser further acknowledges and agrees that the purchased products contain proprietary and confidential information that is the property of MNG Brands and its licensors and is protected by applicable intellectual property and other laws. No rights or title to any of the products used in connection with any Service is provided, transferred or assigned to Purchaser.
PURCHASE ORDERS:
Unless otherwise specified, MNG Brands products will not be shipped until the Purchaser has submitted a written purchase order. Purchase orders shall state: the MNG Brands products ordered, including SKUs, if applicable; quantity; requested delivery dates; billing address; shipping address; and shipping instructions. Purchase orders should be submitted online at order.mngbrands.com or directly through an authorized MNG Brands sales representative,
CANCELLATIONS:
Purchaser may request cancellation of a purchase order, but such cancellation will not be approved if the order has already shipped. Purchaser must notify MNG Brands in writing within 3 days of receipt of the order for return of products in the following scenarios:
i.over ordered;
ii.Purchaser ordered the incorrect product; or
iii.Purchaser received an incorrect product.
Circumstances outside of those outlined in VI(A) will be assessed on a case-by-case basis.Except as outlined in VI(A), no refund or cancellation will be issued without MNG Brands’ prior written consent and upon terms which indemnify MNG Brands against loss.
QUOTATIONS:
Unless otherwise stated, all MNG Brands quotations are valid for a period of thirty (30) days from the date of quotation.
DELIVERY TERMS:
Title to and risk of loss of goods shall pass to the Purchaser upon delivery F.O.B. at MNG Brands’ warehouse to an agent of the buyer including a common carrier, notwithstanding any prepayment or allowance of freight by the Purchaser.
Unless otherwise requested in writing by Purchaser, all freight and handling charges will be prepaid by MNG Brands and, when applicable, added to the invoice plus a convenience markup at MNG Brands’ discretion, unless otherwise arranged by the Purchaser with MNG Brands.
DELIVERY DATE:
Any date of delivery furnished by MNG Brands to Purchaser is determined from the date of MNG Brands’ receipt of Purchaser's purchase order and its agreement to payment terms as shown below. This date is only an estimate of the date of delivery and is not a guarantee of a particular delivery date. MNG Brands shall not be liable for a failure or delay in shipment.
ERRORS OR OMISSIONS:
Errors or omissions in any MNG Brands quotation, acceptance, specification or other document shall be subject to correction at MNG Brands’ discretion.
PAYMENT TERMS:
Notwithstanding any Payment Agreement, except as otherwise agreed upon by MNG Brands and the Purchaser, all first-time/initial orders from any Purchaser must be fully paid in advance prior to shipment. Payment options include electronic payment (domestic ACH or bank wire) and credit card Visa, MasterCard, and Discover Card are accepted credit cards. For all credit card purchases, an additional 4% credit card service fee will be included in the final invoice. If MNG Brands reasonably believes that Purchaser’s financial condition compromises the ability to make timely payment per this paragraph, MNG Brands may delay or postpone the delivery of products and condition shipment of products on full or partial advance payment or letter of credit.
SECURITY INTEREST:
Purchaser hereby grants to MNG Brands, and MNG Brands hereby reserves a security interest in the products to secure Purchaser’s obligation to pay the invoice amount. Purchaser agrees to cooperate in all respects in order that MNG Brands may perfect such security interest. MNG Brands shall release the security interest upon payment in full of the invoice amount.
SHIPPING METHOD:
Unless otherwise requested in writing by Purchaser, all MNG Brands products will be shipped by whatever means and carrier that MNG Brands considers to be the most appropriate method of transportation.
PRODUCT CONTROL:
Unless otherwise specified upon MNG Brands’ acceptance of purchase order, all products are produced in accordance with MNG Brands’ standard production processes. Specifications provided in MNG Brands’ literature are subject to change without notice. MNG Brands reserves the right to add, delete, alter or modify products at its discretion.
MINIMUM ADVERTISED PRICE (“MAP”):
Minimum Advertised Price (MAP) Requirement: Purchaser agrees to adhere to the Manufacturer's Suggested Retail Price (MSRP) as set forth by MNG Brands. Under no circumstances shall the Purchaser advertise, market, or sell the Products at a price lower than the MSRP without prior written approval from MNG Brands.
Promotions and Sales: The Purchaser may offer promotions or sales on the Products only if such promotions or sales have been pre-approved in writing by MNG Brands. Any requests for approval of promotions or sales must be submitted to MNG Brands at least 10 business days in advance of the proposed start date of the promotion or sale. The request must include details of the proposed pricing, duration, and nature of the promotion or sale.
Compliance and Monitoring: MNG Brands reserves the right to monitor the advertised prices of the Products to ensure compliance with this MAP Policy. In the event that the Purchaser is found to be in violation of this MAP Policy, MNG Brands reserves the right to take corrective actions, including but not limited to, suspension or termination of the Purchaser’s account, withholding of future shipments, or other remedies as deemed appropriate by MNG Brands.
Exceptions: MNG Brands may, at its sole discretion, modify or suspend the MAP Policy for specific products or periods, such as during special promotions initiated by MNG Brands. Any such modifications or suspensions will be communicated in writing to the Purchaser.
Enforcement. Purchaser acknowledges that adherence to the MAP Policy is a condition of their wholesale agreement with MNG Brands. Continued violations of this policy will constitute a breach of the wholesale agreement, subjecting the Purchaser to potential legal and financial penalties as determined by MNG Brands.
PURCHASER'S DUTIES:
Assumption of risk: By accepting delivery of any MNG Brands product, the Purchaser agrees to use that product only for its Intended Use. The Purchaser assumes, without limitation, all risk of injury, damage, or otherwise arising out of any use other than the Intended Use of a MNG Brands product.
Compliance with law: Purchaser is in compliance with and shall comply with all applicable laws, regulations and ordinances. Purchaser has and shall maintain in effect all licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms of Sale. Breach of the provision shall result in termination of the Sale.
INDEMNIFICATION:
Subject to the terms and conditions of this Agreement, Purchaser shall indemnify, hold harmless, and defend MNG Brands and its parent, officers, directors, partners, members, shareholders, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, relating to any claim of a third party arising out of or occurring in connection with:
Purchaser’s breach of these Terms of Sale;
Purchaser’s advertising or representations that warrant performance of Goods beyond that provided by MNG Brands' written warranty or based upon Purchaser’s business or trade practices;
any failure by Purchaser or its personnel to comply with any applicable Laws; or
allegations that Purchaser breached its agreement with a third party as a result of or in connection with entering into, performing under or terminating this Agreement.
NOTIFICATION OF COMPLAINTS:
Purchaser shall notify MNG Brands within three (3) business days of receipt of MNG Brands products regarding any defect or deficiency therein, including questions regarding the invoice, mis-shipments or lost or damaged shipment. Failure to provide such notice to MNG Brands shall be deemed acceptance of such MNG Brands products as complete and satisfactory to Purchaser.
WARRANTIES:
MNG Brands products are sold on an “AS IS” basis. MNG BRANDS SHALL IN NO EVENT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE, EVEN IF MNG BRANDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MNG Brands's liability, if any, for defective products, is limited to replacement, repair or refund of the defective Goods, at MNG Brands' option.
RETURNS:
Purchaser shall contact MNG Brands within 3 business days for the return of any unused or damaged MNG Brands product. Purchaser shall obtain the appropriate forms and approval from MNG Brands prior to returning any product. Items returned without proper MNG Brands forms will be delayed in processing. MNG Brands, at its discretion, may charge a restocking fee for products returned for reasons other than warranty or exchange.
AMENDMENTS. No amendment to this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
ASSIGNMENTS. Purchaser shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of MNG Brands. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Purchaser of any of its obligations hereunder.
NO WAIVER. MNG Brands shall have the right at all times to enforce the covenants and conditions of this Agreement in strict accordance with the terms thereof, regardless of whether MNG Brands has enforced such covenants and conditions in the past.
CHOICE OF LAW AND FORUM.
These Terms of Sale, and all matters arising out of or relating to these Terms of Sale, are governed by, and construed in accordance with, the laws of the State of Missouri, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Missouri.
Each Party irrevocably and unconditionally agrees that it submits to the exclusive jurisdiction of, and will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, in any forum other than the courts of the State of Missouri sitting in St. Louis County, and any appellate court from any thereof.
