Wholesale General Conditions of Sale

Patagonia Europe Coöperatief U.A. Terms And Conditions of Sale for Dealers

• Grant to Sell and Advertise Products
  1. Patagonia grants to Dealer the non-exclusive right to sell Patagonia products ("Products") on the express condition that the Products are sold in compliance with all requirements set forth in this Agreement and any associated sales policies, which may be updated by Patagonia from time to time.
  2. Dealer may sell and advertise Products from physical retail selling spaces (each, a 'Dealer Physical Space') pre-approved in writing by Patagonia. Dealer may also sell and advertise Products online, through the specific website/storefront pre-approved by Patagonia in writing (“Dealer Website”). Dealer is prohibited from selling and advertising Products on unauthorized third-party platforms (such as amazon.com, eBay, or similar marketplaces) or any social media platforms, without prior written consent from Patagonia.
  3. Dealer is prohibited from: (i) exporting, selling or shipping Products outside the European Economic Area (EEA) except to the United Kingdom (UK) and Switzerland (CH); (ii) selling Products to freight forwarders, wholesalers, or others who could reasonably be expected to resell such Products outside of the EEA, UK and CH. Dealer must implement and make best efforts to identify and prevent salesidentified in this Section and will report any such transaction or proposed transaction to Patagonia, together with the name and lawfullycollected contact information belonging to the customer (if known).
  4. Dealer may not sell Products to teams, companies, or other organizations for use as uniforms, employee giveaways, or other similar uses, without prior written consent from Patagonia.
  5. Where Dealer offers repair or resale of used and/or previously worn Products, Dealer shall carry out such services or sales in accordance with any guidelines provided by Patagonia from time to time in connection with the repair, resale or recycling of Products, and shall adhere to any additional terms set by Patagonia in connection with such services for the Products (for example, but not limited to, audit and quality standards, access to materials and reporting). If Dealer does not offer such services, they shall use their best efforts to make end-consumers aware of Patagonia's own repair service.
  6. Dealer acknowledges and agrees that Patagonia invests substantial resources into its sales and merchandising programs including the careful selection of dealers as authorized sellers of the Products, all to promote, maintain and enhance the image of Patagonia and the Products. As licensees of Patagonia’s valuable intellectual property (subject to the restrictions detailed in Section VI) that is used to identify, brand and market these Products, Patagonia expects that its dealers will commit themselves to partnering with Patagonia to guard against unauthorized or otherwise out-of-channel sales that harm or threaten to harm Patagonia, its brand and/or its intellectual property. Patagonia expressly reserves its right to immediately terminate and/or cancel orders for Product not already delivered to Dealer in the event of any breach of this Agreement by Dealer, including without limitation, this Section I. Nothing in this Agreement shall restrict the Dealer’s ability to determine its own resale prices for the Products.
• Dealer Obligations
  1. Dealer shall in accordance with all Policies:
     • display, promote, market, and sell the Products;
     • maintain and stock: (i) an adequate supply of the Products to satisfy the demand of its customers and (ii) a representative sample of Products;
     • maintain qualified personnel with knowledge of the specifications, features and use of the Products;
     • maintain a place of business, satisfactory to Patagonia at all times, and Patagonia shall have the right at all reasonable times during normal business hours to inspect the place of business and/or display room;
     • provide quality post-sale support for all consumers that purchase Products;
     • preserve and enhance the reputation and goodwill of Patagonia and the Products and avoid any illegal or unethical actions, including without limitation “bait and switch” practices;
     • conduct and maintain its operation in compliance with all applicable laws, rules and regulations;
     • only purchase Products directly from Patagonia; and
     • make no claim as to the Products features or capabilities in the Dealer’s advertising which has not been currently pre-approved and disseminated directly to Dealer by Patagonia.
  2. Dealer agrees not to engage in any unfair or deceptive trade practices. Dealer shall indemnify, defend and hold harmless Patagonia, its affiliates and their respective officers, directors, shareholders, employees, representatives and agents from any cost, loss, damage, claim or liability, including without limitation, costs of litigation and attorney's fees, arising out of or relating to (i) a breach by Dealer of any representation, warranty, covenant or agreement contained herein or (ii) the negligence or willful misconduct of Dealer, its employees or agents.
• Purchase Orders
  1. Dealer’s Purchase Order shall be submitted as directed by Patagonia.
  2. Any shipment of Patagonia products to Dealer, whether in whole or in partial fulfillment of any Purchase Order submitted by Dealer, shall not be considered an acceptance by Patagonia of any of Dealer’s terms and conditions of that Purchase Order, except as to the identification of the Patagonia products and the quantities involved.
  3. Each shipment by Patagonia to Dealer, whether in whole or partial fulfillment of any Purchase Order submitted by Dealer or related confirmation, constitutes a separate sale, obligating Dealer to pay Patagonia for the contents of that shipment.
  4. If there is a discrepancy between the price specified in any Purchase Order submitted by Dealer and Patagonia’s approved net list price, the latter prevails.
  5. Delivery dates communicated are estimates only, and time is not of the essence. Dealer's sole remedy in the event that Patagonia is unable to fill an accepted Purchase Order (in whole or in part) within a reasonable time of the estimated delivery date shall be to cancel the Purchase Order(or part thereof), upon written notice to Patagonia, which notice must be received by Patagonia prior to shipment of the Products subject to such Purchase Order.
  6. Patagonia may cancel all or part of any Purchase Order. If Patagonia does so, it will use reasonable efforts to inform the Dealer about the cancellation but otherwise will not be liable to the Dealer as a result of the cancellation. In particular, Patagonia may cancel all or part of any orders not delivered within 12 weeks of the stipulated delivery date.
• Payment Terms: Credit, Collections, Costs, and Guarantees
  1. Dealer agrees to pay Patagonia for any Products ordered unless Patagonia, in accordance with Patagonia’s credit system, and in its exclusive discretion, elects to extend credit to Dealer on open account with specific payment terms.
  2. Dealer agrees to pay all invoiced prices according to the terms stated in the applicable invoice, and agrees that failure to pay on a timely basis entitles Patagonia to add a monthly service charge of 1.5% to late pay or past due invoices. This is an administrative charge calculated to compensate Patagonia for time and expense of collection, the actual costs of which are difficult and impracticable to establish in advance.
  3. If Patagonia elects to extend credit to Dealer, Dealer will comply on a continuing basis with all of Patagonia’s credit terms. Dealer further agrees to supply Patagonia with such current financial information as Patagonia may request from time to time, in form and substance acceptable to Patagonia in all respects.
  4. Dealer agrees that it will pay all costs, including without limitation, costs of investigation, attorneys’ fees and costs and courts costs, incurred in any collection proceeding initiated as a result of Dealer’s default on its obligation to make payments to Patagonia when due.
  5. Dealer agrees that if it fails to meet payment schedules, other credit or financial requirements established by Patagonia and/or any of the terms set forth in this Section IV or the applicable invoice, in addition to all other remedies available to Patagonia, Patagonia will have the right, in its sole discretion, to cancel any Purchase Order, delay any or all shipments of Products, rescind or withhold any and all discounts applicable to any Products and/or rescind or withhold any right of Dealer to participate in any promotions of the Products.
  6. If Patagonia has extended Dealer credit, Dealer will, if any present endorser, surety or guarantor dies or initiates a proceeding in bankruptcy or receivership or any like transaction, pay all of Dealer’s then outstanding indebtedness or substitute an endorser, surety or guarantor acceptable to Patagonia, to be determined in Patagonia’s sole discretion.
  7. Dealer shall immediately notify Patagonia of any and all events that have had or may have a material adverse effect on Dealer’s business or financial condition, including any change in management, sale, lease or exchange of a material portion of Dealer's assets, a change of Control or ownership, or breach of any loan covenants or other material obligations of Dealer to its lenders. If, at any time, Patagonia determines in its sole discretion that Dealer’s financial condition or creditworthiness is inadequate or unsatisfactory, then in addition to Patagonia’s other rights under this Agreement, at law or in equity, Patagonia may without liability or penalty, take any of the following actions:
     • modify the payment terms specified for outstanding and future purchases, including requiring Dealer to pay cash in advance or cash on delivery;
     • reject any Purchase Order received from Dealer;
     • cancel any previously accepted Purchase Orders;
     • delay any further shipment of Products to Dealer;
     • stop delivery of any Products in transit in the possession of a common carrier or bailee and cause the Products in transit to be returned to Patagonia;
     • immediately terminate this Agreement; or
     • accelerate the due date of all amounts owing by Reseller to Supplier, and/or exercise its rights under section V.7.
• Shipping Terms, Risk and Title
  1. All shipments are DDP (Incoterms 2020) to Dealer’s pre-approved warehouse, shipments elsewhere in Europe are Ex-Works Patagonia’s distribution centre in NL, unless otherwise agreed. Notwithstanding the foregoing, Shipment costs may be charged by Patagonia to Dealer as applicable and are subject to change from time to time. Patagonia will communicate in writing the shipments costs which will be charged.
  2. Risk of loss, deterioration or damage to the Products shall be determined in accordance with the specific Incoterms 2020 (or latest version) specified by Patagonia in the invoice.
  3. Ownership of the Products shall not pass to the Dealer until Patagonia has received payment in full cleared funds for the Products, including any interest due, and no other amounts are outstanding from the Dealer to Patagonia in respect of any other Products supplied by Patagonia.
  4. Dealer may sell the Products in the normal course of its retail business, but until such time as all amounts outstanding to Patagonia are paid in accordance with Clause IV.2, the Dealer shall not, without Patagonia’s written consent, pledge, charge or offer as security any of the Products and if it does so all monies owing to Patagonia shall become immediately due and payable.
  5. Dealer’s right to possession of the Products shall terminate immediately if it enters into liquidation whether compulsorily or voluntarily or compounds with its creditors or has an administrator, receiver or administrative receiver appointed over all or any part of its assets.
  6. If a third party seizes or attaches the Products, Dealer shall immediately inform Patagonia.
  7. For as long as the Products are not fully paid for and the purchase price is past due, Dealer grants Patagonia, its agents and employees an irrevocable right at any time to enter any premises where the Products are or Patagonia has reasonable basis to believe may be stored in order to inspect or to recover them. All transportation costs of such recovery, if any, shall be borne by the Dealer.
  8. Patagonia is excused for any delay or failure in performance due to causes beyond its reasonable control, including without limitation, strikes, lockouts or other industrial disturbances, delays in transportation, acts of terrorism, war, insurrections, civil disturbances, riots, government orders or restraints of any kind, utility failures and natural disasters
  9. Dealer may not return Products to Patagonia without Patagonia’s prior written authorization. In the case of defective product:
     • Dealer must notify Patagonia in writing within fourteen (14) calendar days after Dealer's receipt of any Goods of any claims for nonconformity, discrepancies, patent defects, or damages. Dealer's failure to notify Patagonia of any non-conformity, discrepancies, patent defects, or damages within such time frame will bar any return or claim relating thereto.
     • Patagonia will carefully consider in good faith all quality claims which the Dealer may submit in accordance with clause V.9.a and if the Products are defective at the time of delivery, Patagonia may at its option, either replace the defective or non-conforming Product, refund or credit the purchase price, or repair the defect.
     • If Patagonia replaces the Products with a non-defective product or issues Dealer with a refund, it shall have no further liability in respect of any defect in the Product. If Patagonia repairs a defective product which remains defective notwithstanding such repair(s), Dealer and Patagonia shall proceed pursuant to V.9.a V.9b until the matter of the defect has been resolved.
     • All returns to Patagonia for defectiveness or other reasons will require a Return’s Authorisation Number which may be obtained from Patagonia Customer Service upon request. No returned Products will be accepted by Patagonia without any Return’s Authorisation number and return authorization label (the “RA Label”). Returns without the RA Label will be refused.
• Intellectual Property
  1. Dealer acknowledges and agrees that Patagonia is the exclusive owner and/or licensed user of various trademarks on the Products as well as copyrights on images and descriptions associated with the Products.
  2. Patagonia grants Dealer a non-exclusive, non-transferable, revocable, limited license to use the intellectual property provided by Patagonia in writing in the approved image or form provided by Patagonia (the "Licensed IP") for the sole purpose of advertising and promoting the sale of Products to End-Users in the Dealer Physical Space(s) and/or Dealer Website(s) and as approved by Patagonia. The Dealer must obtain approval from Patagonia in writing before using any of Patagonia's intellectual property on anything not provided to Dealer by Patagonia regarding the way the Licensed IP is presented.
  3. Dealer may not use any of Patagonia's intellectual property (e.g., Patagonia’s copyrighted product photographs) on the Internet (including without limitation, amazon.com, eBay, Facebook or any other online marketplace) or any social media platform, other than the limited license to use the Licensed IP for the sole purpose of advertising and promoting the sale of Products to End-Users in the Physical Space(s) and/or on the Dealer Website(s) as pre-approved in writing by Patagonia.
  4. Dealer will ensure that all uses of the Licensed IP is: (i) used in conjunction with the ®, © or ™ designations as directed by Patagonia (see Annex I); (ii) not modified in any manner without the prior written consent of Patagonia; (iii) used alone without any other terms, marks or designs which may detract from Patagonia's intellectual property and other rights therein and (iv) displayed according to specifications which Patagonia may provide or amend from time to time.
  5. Dealer will have no right, title or interest in any of Patagonia's intellectual property. All use of the Licensed IP and the goodwill associated with it will inure to the benefit of Patagonia. Dealer will not, during the term of this Agreement or after, challenge the validity of any of Patagonia's intellectual property or Patagonia's title to or rights in such intellectual property. Dealer shall not use any of Patagonia's intellectual property in a manner that disparages Patagonia or the Products, blurs, dilutes or otherwise diminishes such intellectual property (including, without limitation, by developing or selling any "knock-off" or "look-alike" products), or portrays Patagonia or the Products in a false, competitively adverse or poor light.
  6. Dealer will promptly inform Patagonia of any action or conduct of any person which may infringe upon any of Patagonia's intellectual property rights. Patagonia will have the sole discretion whether to take legal action against any such infringement and any damages or other monies recovered on account of such infringement, whether by judgment, settlement or otherwise, shall belong exclusively to Patagonia. Dealer shall cooperate fully with Patagonia in connection with any legal action taken by Patagonia in connection with any such infringement.
  7. Dealer agrees that if it uses Patagonia’s intellectual property in violation of this Section VII, in addition to all other remedies available to Patagonia, Dealer will immediately (i) return to Patagonia all advertising or promotional support, including all materials displaying any of Patagonia's intellectual property, that Patagonia has provided to Dealer and (ii) reimburse Patagonia for any costs incurred by Patagonia in connection with violation of this Section VI, including without limitation, any costs of investigation, attorneys’ fees and court costs.
• Miscellaneous
  1. Taxes. Dealer agrees it is solely responsible for any sales, excise, use, property or other tax, tariff, duty or assessment for sale of any Product. Dealer hereby warrants, represents and covenantsthat it has, and will maintain at all times during the term of this Agreement, a valid seller’s permit.
  2. Products (Changes, Warranties). Patagonia may change the design or specifications of any Product(s) at any time without notice and without obligation to make the same or any similar change upon any Products previously purchased by or shipped to Dealer. In addition, Patagonia may discontinue any Products at any time in its sole discretion. Patagonia warrants the Products to be first quality merchandise, except where delivery of seconds is agreed upon.
  3. Disclaimer of Warranties; Limitations of Liability. Except as otherwise specified herein, Dealer agrees that there are no other representation or warranties of any nature, direct or indirect express or implied, including as to the suitability, fitness for use, or merchantability of the Products. This exclusion does not affect any mandatory warranties that apply under statutory law. Dealer specifically waives all right to make claims against Patagonia and Patagonia shall not be liable to Dealer for any loss, damages or expenses of any kind or nature, including but not limited to consequential, incidental, special or exemplary damages, caused directly or indirectly by Products or their use or failure, or for any loss of business or damage whatsoever and howsoever caused, even if Patagonia has been apprised of the likelihood of such damaged occurring. In no event shall Patagonia’s liability with respect to any Purchase Order exceed the amount actually paid by Dealer with respect to such Purchase Order. This Section VII(3) shall survive termination of this Agreement.
  4. Warranties/Instructions. Dealer agrees to deliver to its customers all Product warranties, specifications, instructions and warnings which Patagonia specifies, including those supplied with the Products. Dealer agrees not to make any representation or warranty concerning Patagonia or its Products other than as stated in such documents
  5. Reporting. Patagonia reserves the right to request from Dealer reports of inventories, sales and other pertinent information regarding its handling of Products purchased from Patagonia (“sell-through data”), as Patagonia may from time to time reasonably request. Patagonia commits to treat the sell-through data with strict confidentiality not disclosing, sharing or distributing it to any third party without the prior written consent of the Dealer. Patagonia will provide a template for the Dealer to use to provide its sell-through data in the most pertinent form. Patagonia will use the sell-through data solely for the purpose of legitimate business operations related to the sale and distribution of the Products. Patagonia shall grant Dealer at least thirty (30) days with which to comply with such request.
  6. Notification of Potential Claims. Dealer will immediately notify Patagonia of any adverse or unexpected results of consequences arising out of the use of any Product, any actual or potential government action relevant to any Product or any serious injury or death in which any Product could be implicated within 24 hours of Dealer becoming aware of same.
  7. Suspension or Recall of Product. In the event of a recall of any Product, or instructions from Patagonia to suspend sales of any Product for any reason, Dealer will immediately cease any and all sales activity and will fully cooperate in the recall of such Product(s). Patagonia will provide clear instructions on the process for returning or handling recalled products. Dealer shall communicate promptly with consumers regarding any recall or suspension and facilitate the process of returning, replacing, or refunding the affected products as directed by Patagonia.
  8. No Franchise or Business Opportunity Agreement. Dealer and Patagonia are independent contractors and nothing herein shall be deemed or constructed as creating a joint venture, partnership, agency relationship, franchise, or business opportunity between them. Neither Dealer nor Patagonia will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other. Each party assumes responsibility for the actions of their personnel under this Agreement and will be solely responsible for their supervision, daily direction and control, wage rates, withholding income taxes, disability benefits, or the manner and means through which the work under this Agreement will be accomplished. Except as provided otherwise herein, Dealer has the sole discretion to determine its methods of operation, accounting practices, the types and amounts of insurance it carries, personnel practices, Dealer's advertising and promotion, Dealer's customers, and Dealer's service areas and methods. If any provision of this Agreement is deemed to create a franchise relationship between the parties, then Patagonia may immediately terminate Dealer if the parties cannot negotiate in good faith to modify this Agreement so as to effect the parties’ original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as a Dealer and not a franchisee.
  9. Termination. Either party may terminate this Agreement for any reason by providing 60 days' written notice to the other party.
     Patagonia may terminate this Agreement immediately upon written notice to Dealer in the event of a material breach of this Agreement by Dealer, including, but not limited to, unauthorized use of Patagonia’s intellectual property, failure to comply with Patagonia’s quality standards, or activities that harm or threaten to harm Patagonia’s brand or reputation.
     Dealer may terminate this Agreement immediately upon written notice to Patagonia in the event of a material breach of this Agreement by Patagonia.
     Upon termination of this Agreement, Dealer shall:
     • Immediately discontinue use of Patagonia’s intellectual property.
     • Cease to advertise or represent itself as an authorized dealer of Patagonia Products.
     • Cease to market, advertise, offer to sell, and/or sell any Patagonia Products.
     • Promptly return to Patagonia all confidential information and materials related to Patagonia.
     Dealer agrees to pay all outstanding amounts owed to Patagonia immediately upon termination. Dealer and Patagonia shall discuss any Products on-hand by Dealer as at the date of termination, and Patagonia shall have the option, at its sole discretion, to buyback Product.
     Patagonia reserves the right to cancel any orders for Products not yet delivered to Dealer upon termination.
     The termination of this Agreement shall not affect any rights or obligations that have accrued prior to the date of termination.
  10. Remedies. Because the damages associated with any breach of this Agreement would be difficult, if not impossible to ascertain, Patagonia shall have the right to seek immediate injunctive relief (including but not limited to a temporary restraining order, preliminary and/or permanent injunctive relief) against Dealer for any such breach without having to provide notice to Dealer, post a bond or prove actual damages. Dealer acknowledges that any injunctive relief sought by Patagonia will be subject to the discretion of the Dutch courts, which may include considerations for notice and the requirement of a bond to cover potential damages. Patagonia's right to injunctive relief shall be in addition to and not in lieu of its right to obtain any other damages. Dealer hereby waives its right to an injunction to allow it to continue marketing, advertising, offering for sale, and/or selling Products or to use the Licensed IP once this Agreement has been terminated for any reason. Notwithstanding any statutory provision to the contrary, the Dealer must bring any alleged claims against Patagonia arising under this Agreement or its termination within 180 days of the claim arising or the claim is waived.
  11. Governing Law; Choice of Venue. This Agreement shall be governed by and construed in accordance with the laws of the Netherlands without regard for the conflicts of laws rules thereof. Dealer agrees that all controversies, disputes and claims arising out of this Agreement and/or Dealer's relationship with Patagonia shall be adjudicated exclusively by the courts of Amsterdam, the Netherlands. Dealer irrevocably consents to the jurisdiction and venue of such courts and waives any rights to seek a transfer of venue for any reason or to claim that the forum is inconvenient.
  12. Attorneys’ Fees. If Dealer is found in breach of this Agreement, Dealer agrees that it will pay all costs, including any costs of investigation, attorneys' fees and court costs, incurred by Patagonia in connection with the enforcement of this Agreement, including trademark enforcement, whether or not suit is filed.
  13. No Assignment. Dealer may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Patagonia. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Dealer of any of its obligations under this Agreement. Patagonia may assign any of its rights or delegate any of its obligations without Dealer’s consent.
  14. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
  15. Other Policies. Patagonia may institute policies governing, among other things, advertising, online selling, and marketing, and other aspects of Dealer’s relationship with Patagonia. Dealer is expected to be familiar with these policies and how they apply to Dealer’s sale of the Products.
  16. Amendments and Waivers. Patagonia may amend this Agreement, including without limitation, any Exhibit or policy referenced in this Agreement, at any time by providing notice to Dealer, and such amendment shall become effective immediately upon delivery of such notice. No waiver of any provision at any particular time shall be deemed a permanent waiver of such provision, or a waiver of any other provision of this Agreement. Failure to enforce a provision shall not be deemed a waiver.