Mercado Marketplace Terms of Use

"Access Agreement" means the binding agreement entered into by and between Participant and Mercado whereby Participant agrees to these Terms of Use and other supplemental agreements and Policies in consideration for access to the Mercado Services, Mercado Website, and Mercado Marketplace.

"Bid" means a Participant's indication of an intent to accept an Offer to enter into a Contract to buy goods on the Mercado Marketplace.

"Broker-dealer" means person engaged in the business of buying and selling securities under the Securities Exchange Act of 1934.

"Buyer" means a person or entity who buys or contracts to buy goods.

"Contract" means a binding agreement to buy or sell goods entered between Participants on the Mercado Marketplace.

"Contract Confirmation" means an e-mail notification to the Parties evidencing a Contract made on the Mercado Marketplace to buy and sell goods.

"Counterparty" means a Participant who has entered into a Contract with an opposing Party.

"INCO Terms" means the most recently published Incoterms rules (which are the Incoterms 2020 rules as of June 1, 2022) published by the International Chamber of Commerce that determine the responsibilities of buyers and sellers for the delivery of goods under sales contracts.

"Mercado Services" means the digital and business solutions provided by Mercado to Participants, including transaction facilitation, data analytics, trade and activity dashboards, and reporting tools.

"Mercado Intellectual Property" means all legally protectable intellectual property owned,created, or rightfully used by Mercado, including but not limited to the Mercado Website, the Mercado Marketplace, computer code, software, trademarks, copyrights, and patents.

"Mercado Marketplace" means the web page or location within a Mercado Website that enables authorized Participants to make Bids, Offers, and Contracts to buy and sell goods.

"Mercado Website" means the digital platform provided by Mercado and accessed by Participants that includes publicly available information, Policies, Terms of Use, and Participant Contract Terms & Conditions. The Mercado Website may also include a "Log In" mechanism that enables authorized Participants to access the Mercado Marketplace. For the purposes of these Terms of Use, a "Mercado Website" shall include Mercado trading platforms built specifically for Mercado clients as well as Mercado platforms that provide an open marketplace for Participants.

"Merchant" means a person who deals in goods of the kind or otherwise by his or her occupation holds himself or herself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his or her employment of an agent or broker or other intermediary who by his or her occupation holds himself or herself out as having such knowledge or skill.

"Offer" means a Participant's indication of an intent to enter into a Contract to sell goods on the Mercado Marketplace.

"Participant" means a legal entity or natural person who is authorized to buy or sell goods on the Mercado Marketplace.

"Party" means a Participant who enters into a Contract with a "Counterparty" Participant on the Mercado Marketplace.

"Participant Contract Terms & Conditions" means the Terms & Conditions attached as Exhibit A which Buyer and Seller agree shall apply to the Contract between Buyer and Seller unless expressly superseded, in whole or in part, by alternative written agreement(s) between Buyer and Seller.

"Policy" means the policy or policies posted or otherwise communicated by Mercado that apply to the activities taking place on and regarding the Mercado Website and Mercado Marketplace.

"Seller" means a person or entity who sells or contracts to sell goods.

Registration: Potential Participants may gain access to the Mercado Marketplace and Mercado Services by registering on the Mercado Website and complying with Mercado's application process. During the registration, the potential Participant provides required information, agrees to these Terms of Use and applicable Policies (e.g. Privacy and Confidentiality Policies), and other terms and conditions.

Establishment of Credit: Mercado may require a Participant to establish creditworthiness prior to accessing the Mercado Marketplace. Potential Participants agree to provide all information required to determine creditworthiness and credit limits and consent to a credit check by Mercado or a third-party. Potential Participant authorizes Mercado or its agent to take whatever measures are required at its discretion to confirm the correctness of Potential Participant's supplied information, including but not limited to periodically requesting and obtaining Participant credit and financial information from such sources as may be relevant to access Participant's creditworthiness. Mercado reserves all rights to restrict Participant's access to the Marketplace at any time if, in Mercado's judgement, Participant's creditworthiness is uncertain.

Subscription Fees: Participants agree to pay a Subscription Fee in consideration for access to the Mercado Marketplace and Mercado Services. The Subscription Fee amount shall be as determined by Mercado and agreed to by Participant, depending on the Mercado Services, the number of users, and other factors.

Other Fees: Participant agrees to pay Other Fees as may be determined by Mercado from time to time.

Fee Payments: Participant shall pay all Mercado fees within 14 days of Mercado's invoice date. If the invoice is not paid within 14 days, Mercado reserves the right to suspend access to the Mercado Marketplace, to terminate the Participant's ability to access the Mercado Marketplace, and to pursue other remedies for default.

The Access Agreement between Mercado and Participant shall be for an initial period and shall automatically renew for additional periods indefinitely unless Participant provides Mercado with written notice of its intent to terminate, with such notice delivered at least 15 calendar days prior to the last day of the then-effective term. Participant may deliver effective written notice by sending a notice of termination e-mail to Mercado at Mercado's designated e-mail address (support@mercadonuts.com).

Participant's access rights under the Access Agreement may be automatically terminated without notice for failure to comply with any of its terms, or the terms of any applicable Policies. In case of such termination, Mercado may immediately revoke Participant's access to the Mercado Marketplace and Services. Mercado's failure to insist upon or enforce strict compliance with these Terms of Use shall not constitute a waiver of any of its rights. Client may not assign or transfer any rights or obligations hereunder, whether by merger, acquisition, or otherwise, without the prior written consent of Mercado (through its Chief Executive Officer or General Counsel).

Mercado provides access to the Mercado Website, Mercado Marketplace, and Mercado Services to Participants. Mercado does not engage in, advise, or otherwise recommend any transaction between Participants and such transactions are made at the sole discretion of the Participants. Contracts made between Participants within the Marketplace are solely regarding the purchase and sale of goods for physical delivery and are made directly and solely between those Participants. Mercado is not responsible for examining or evaluating, and does not warrant, the offerings of any Participants or such Participant's ability to perform its obligations under any Contract. All risks associated with or arising from any Contract occurring within the Marketplace are solely borne by the Parties to the Contract, including but not limited to performance risk, price risk, credit risk, or other risk that may adversely affect the Contract or the Parties thereto.

There are no fiduciary duties owed by or between the Participants and Mercado and Participants expressly agree that Mercado is not and shall not be any Participant's advisor, agent, broker or fiduciary in regard to any Contract. Mercado does not assume any responsibility or liability for the actions or inactions of the Participants, or the representations or misrepresentations of Participants. Mercado's preliminary credit check of Participant and on-going rights to determine creditworthiness SHALL NOT be relied upon the Participants when deciding to engage in a Contract with any Participant. There are no third-party beneficiaries to this Agreement.

By accepting these Terms and Conditions, the Participant agrees their company trademark logo can be used on the Mercado website for marketing purposes.

Participant agrees, represents, and warrants that:

• Participant’s application is true and complete, and that Participant will immediately provide written Notice to Mercado of any material changes.
• Participant: (i) is authorized under its governing documents and in the jurisdictions in which it is organized or regulated to enter the Access Agreement and trade the products it selects; (ii) is under no legal incapacity; and (iii) that persons identified to enter Bids and Offers have proper authority and have sufficient knowledge and experience to understand the nature and risks of the contemplated transactions.
• Participant is not acting as a broker-dealer; futures commission merchant; regulated investment professional; or affiliate, associated person or employee thereof, while engaged on the Mercado Marketplace.
• Participant qualifies as and is a “Merchant” as defined by the UCC, meaning Participant is a highly skilled person or business entity that deals professionally in the purchase and sale of the types of goods transacted on the Mercado Marketplace.
• Participant will not seek, accept, or rely on any advice from Mercado or its representatives, or any communication that could be construed as such. Because Mercado does not provide advice, Mercado is not responsible for the suitability or appropriateness of any Bid or Offer of Participant.
• Participant is responsible for the confidentiality and use of and will reasonably safeguard and will not permit others to use, Participant's account credentials, such as Participant's username or password. Participant agrees to provide immediate notice to Mercado of any theft or loss of such credentials, or any unauthorized access to Participant's account. Use of Participant's credentials to affect any action will constitute conclusive evidence that Mercado may treat such action as authorized. Participant is responsible for all Mercado Marketplace Terms of Use – Mercado, LLC transactions entered using Participant's credentials. Mercado is not liable for loss or damages caused by any third-party using Participant's credentials. Unless Mercado agrees in a writing executed by its Chief Executive Officer or General Counsel, Client will not permit any third party to access Client's account using Client's account credentials.
• Mercado has no responsibility for Participant's transmission of Bids or Offers that are inaccurate or not received or displayed on the Mercado Marketplace.
• Participant agrees to the provision of these Terms of Use in English and represents that Participant understands its terms and conditions.
• Participant authorizes Mercado directly or through third parties, to make any inquiries that Mercado considers necessary to conduct business with Participant. This may include ordering a credit report, performing other credit checks, and performing an investigation in the event of any default or breach of the obligations herein by Participant, or verifying the information Participant provides against third-party databases

Mercado has no responsibility or liability for any aspect of the interactions between Participants. In no event will Mercado, or any Mercado affiliate, be liable for consequential, incidental, special or indirect damages. Without limiting the Disclaimer of Warranties and Limitation of Liability, unless otherwise required by applicable law, in no event will Mercado’s aggregate liability with respect to any claim arising from or related to the Access Agreement or Participant’s use of the Mercado Marketplace exceed the Annual Fees paid by a Participant claiming damages. Reliance on quotes, data or other information is at Client's own risk.

MERCADO (AND ANY AFFILIATE OF MERCADO) SHALL NOT BE LIABLE TO PARTICIPANT BY REASON OF DELAYS OR INTERRUPTIONS OF SERVICE OR TRANSMISSIONS, OR FAILURES OF PERFORMANCE OF THE MERCADO MARKETPLACE, REGARDLESS OF CAUSE, INCLUDING, BUT NOT LIMITED TO: THOSE CAUSED BY HARDWARE OR SOFTWARE MALFUNCTION; MERCADO'S INTENTIONAL ACTS; OR MERCADO'S FAILURE TO ACT TO PREVENT SERVICE DISRUPTION OR SYSTEM FAILURE. PARTICIPANT RECOGNIZES THAT THERE MAY BE DELAYS OR INTERRUPTIONS IN THE USE OF THE MERCADO MARKETPLACE, INCLUDING, FOR EXAMPLE, THOSE CAUSED INTENTIONALLY BY MERCADO FOR PURPOSES OF SERVICING THE MERCADO SYSTEM.

The Access Agreement, including these Terms of Use, have been subject to negotiation and mutual drafting between Mercado and Participant and therefore no rule requiring ambiguities be construed against the drafter shall apply. In the case of a conflict between the Terms of Use and other written and fully executed supplemental agreements between Mercado and Participant, the terms of the written and fully executed supplemental agreements shall apply to the extent that such supplemental agreements clearly provide different or additional terms.

1. CONTRACT & CONTRACT CONFIRMATION: Within the Mercado Marketplace, a Contract for the purchase and sale of goods is instantaneously entered into between the Bidding Party (hereafter “Buyer”) and the Offering Party (hereafter “Seller”) when Bid and Offer terms are matched. Both Parties are informed of the Contract via a “Contract Confirmation” e-mail. The Contract Confirmation contains relevant information about the Contract, including the names of each Party and the basic terms. In the case the Contract Confirmation is erroneous, either Party may file a written objection to the other Party within three working days from the date of Contract Confirmation. If no written objection is provided by either party, the e-mail shall serve as evidence of the terms of the Contract.
2. ADDITIONAL CONTACT TERMS. In addition to the Contract Confirmation, these Participant Contract Terms and Conditions shall be made part of the Contract and shall set forth the understanding between the Seller and Buyer except where the Parties have expressly agreed in a separate written agreement to different or additional terms, in which case such different or additional terms of that written agreement shall apply.
3. REPRESENTATIONS AND WARRANTIES. Seller represents, warrants and covenants that: (i) the goods (and the manufacture, packaging, storage, handling, transportation and delivery thereof) supplied:

   • (a) will comply with all applicable laws, rules, regulations, codes and ordinances of the country(ies)/state(s) of manufacture, country(ies)/state(s) of intended use and country(ies)/state(s) of delivery;

   • (b) will conform to the specifications, drawings, samples or other descriptions contained in the Contract Confirmation or provided or approved by Buyer;

   • (c) will be merchantable, of good material and workmanship, and conforming with the description of the goods provided by Seller, if any.

4. PACKAGING. The packaging shall be provided with the brands and wording legally required in the country of origin. The packaging shall also feature the brands and wording that the Buyer stipulate in writing upon inception of the Contract. The costs associated with meeting the requirements for packaging, labeling, stamping and palletizing established upon inception of the Contract shall be borne by the Buyer.

5. BUYER’S INSTRUCTIONS.

   • (a) Buyer shall be obligated to issue instructions for delivery fully and at such notice address as to enable the Seller to deliver within the agreed term.

   • (b) If Buyer fails to issue instructions on time, the Seller shall be entitled to invoice the goods as of the last delivery day resulting from the purchase and demand payment as if the same had been supplied on said day, provided that said goods remain available for the Buyer at the latter’s expense and risk. In that event, the Seller shall also be entitled to cancel the Contract in accordance with these Participant Terms & Conditions and recover damages for breach of the Contract.

   • (c) All reasonable costs caused by or resulting from the drafting and delivery of the required documents shall be borne by Buyer, unless otherwise agreed.

6. DELIVERY. The transport and delivery terms employed in quotations, contracts of sale or confirmations of purchase shall be interpreted in accordance with the description provided in the INCO terms applicable at the time of the Contract, in so far as not otherwise provided in said documents. If delivery in installments is agreed upon, the called or delivered quantity shall be considered to constitute a separate Contract in respect of the quality and other properties of the goods delivered as well as payment.

7. SAMPLING AND ANALYSIS. Buyer may, prior to delivery, have an attested sampler take samples in triplicate in the customary manner. Buyer and Seller may stipulate that said sampling be monitored. If no samples are taken at the time of delivery, sampling may take place later. Assessment and analysis can then only provide an indication of the quality at the time and site of the delivery. In the event of any disputes about quality and/or composition, one of the samples shall be subjected to an analysis by an accredited laboratory as soon as possible and in any event within fourteen days. The findings of the analysis shall be binding, without prejudice to each of the Parties’ right to demand a reappraisal within 10 working days of publication of the findings, which reappraisal shall consist of an analysis of a sample other than the one previously taken, conducted by an impartial laboratory that may be the same laboratory as hereinbefore referred to. The findings of the reappraisal shall be binding upon both parties. The associated costs shall be borne by the party ruled against as evidenced by the final findings of the analyses referred to.

8. ACCEPTANCE. Buyer will have a reasonable period of time after delivery or performance within which to inspect and accept the goods. Rightfully rejected goods may be returned to Seller or otherwise disposed of at Seller’s cost and expense. Buyer shall make reasonable efforts to mitigate Seller’s loses.

9. PRICE AND TAXES. Price and delivery terms are as agreed in the Contract Confirmation. Unless otherwise agreed, the price includes (i) all costs to comply with the Participant Contract Terms and Conditions, (ii) any and all taxes, including sales, use, excise, value added and other taxes, and (iii) fees, duties, or other governmental impositions on the sale of the goods. If Buyer or Buyer’s customer is required to pay any taxes or other impositions, Seller will promptly reimburse Buyer. Notwithstanding the foregoing, Buyer shall pay G.S.T./H.S.T. and provincial sales tax, if applicable.

10. INVOICING AND PAYMENT. Seller will invoice Buyer for the amounts due. Except as otherwise agreed, Buyer will pay Seller all amounts due as agreed in the Contract Confirmation. Payments may be withheld by Buyer on account of defective goods not remedied.

    • (a) If no other payment condition is agreed upon, payment of the agreed price invoiced by the Seller shall be affected upon delivery.

    • (b) Irrespective of any understandings between Seller and Buyer with regard to the credit terms, Seller shall be entitled to require Buyer to provide adequate security for payment before effecting the delivery. If said security for payment is not provided or - to be reasonably decided by the Seller - not satisfactory, Seller shall be entitled to defer fulfillment of (or the rest of) Seller’s obligations under the contract by written notice. Seller shall then in no event be liable for any loss that the Buyer may sustain as a result of said deferral.

    • (c) Interest compensation shall be owed regarding the amounts owed by the parties equal to the prime rate as reported by the Federal Reserve Bank of New York as of the date
      such payment was due and payable.

11. RETENTION OF TITLE - Any and all goods delivered by Seller to the Buyer shall remain the exclusive property of the Seller until all the Seller’s receivables relating to goods delivered or to be delivered have been fully settled and until any receivables due to non-fulfillment of such Contract (including expenses and interest) have been fully settled. Goods that are subject to a retention of title for the Seller shall in no event be sold.

12. PREMATURE CANCELLATION - If any of the Parties should default or continue to default on fulfilling any of their obligations towards the other Party with regard to the term of delivery or credit term, or in the event of their moratorium, bankruptcy, death or liquidation, the other Party shall be entitled to cancel the Contract in whole or in part without any notice of default or intervention of the court by means of written notice being required, without prejudice to the right to claim damages.

13. COMPLAINTS AND LIABILITY - If, upon delivery, an item delivered does not meet the standards set out in the Contract because it displays a defect in quality and/or composition, any complaints about it shall only be taken into consideration if submitted to the Seller in writing within two weeks of delivery.

    • (a) If a defect only becomes apparent sometime after delivery, Buyer may only invoke non-compliance of the item with the standards set out in the Contract if notice to Seller is provided within two working days after the defect is detected or reasonably should have detected; in assessing whether and when a Buyer reasonably should have detected a defect, the Buyer’s obligation to observe the standards of supervision and care dictated by practice and statutory regulations in respect of the receipt and storage of the goods shall be taken into account.

    • (b) Without prejudice to the provisions of preceding paragraph, Seller shall only have to take a complaint into consideration if the Buyer has paid the relevant invoice or has placed the item in question at the Seller’s disposal.

    • (c) If the item delivered proves not to meet the standards set out in the Contract, the Seller may supply a substitute consignment within a maximum of 10 working days from the day on which the non-conformity was established. If the item in question cannot be taken back or if the substitute consignment does not meet the standards set out in the Contract either, the Buyer shall be entitled to cancel the Contract with or without claiming damages or to retain the item delivered at a lower price to be set by means of arbitration if no agreement (whether or not via mediation) can be reached thereon.

    • (d) Without prejudice to any obligation on the part of the Seller to refund the purchase price paid or any part thereof, the Seller's liability for any loss incurred and/or to be incurred, directly or indirectly, of whatever nature and howsoever arising, even if the delivered goods have already been processed, by the other party as a result of shortcomings in the delivered goods, shall never exceed the invoice amount of the delivery in question.

    • (e) If the contract is cancelled by the Seller and/or Buyer and the goods are subject to a retention of title, Buyer shall place said goods immediately at Seller’s disposal; the Buyer shall not be entitled to set off any claims he may have on the Seller or, based on such claims, defer his obligation to place said goods at the Seller’s disposal.

14. CONFIDENTIALITY. Buyer and Seller agree to keep confidential the terms and conditions of the Contract.

15. RISK OF LOSS. Except as otherwise set forth in the delivery terms on the face of the Contract Confirmation or if otherwise agreed to in writing between the Parties, Seller will retain the risk of loss and/or damage to the goods until the goods are physically delivered to Buyer at the delivery point agreed by the Parties.

16. INDEMNIFICATION. To the fullest extent permitted by law, each Party agrees to indemnify and hold harmless the other Party, its affiliates and their directors, officers, employees, agents, and representatives from and against any and all liability, loss, damage, fine, cost or expense (including reasonable attorneys’ fees) to the extent arising out of or resulting from (i) such Party’s delivery of non-conforming good; (ii) such Party’s alleged or actual, direct or contributory infringement or misappropriation of any patent, copyright, trade secret or other proprietary right; (iii) such Party’s breach of any term or condition contained in the Contract; the (vi) such Party’s negligent acts or omissions, or willful misconduct.

17. FAILURE TO PERFORM. In the event of a Party’s failure to perform any of its obligations hereunder, the non-breaching Party may, at its option, recover from the breaching Party any losses including reasonable attorneys’ fees, and any other actual damages, and may exercise all rights and remedies as may be available.

18. FORCE MAJEURE. Each Party may be excused from a failure to perform or a delay in performance, in whole or in part, in the event of, and to the extent that, acts of God, disease, war, riot, fire, explosion, accident, flood, sabotage, compliance with governmental laws or regulations, change of governmental law or regulation, orders or action, national defense requirements, or any other event beyond the reasonable control of such Party which prevents the manufacture, shipment, acceptance or use of any goods or services hereunder (each a “Force Majeure” event). However, this section is not intended to buffer a Party against the normal risks inherent in commercial contracts, including strikes or personnel disputes within the Party claiming Force Majeure. If possible under the circumstances, the Party claiming excuse from performance must take reasonable efforts to remove the cause of its inability to perform or its delay in performance. The Party claiming excuse from performance must give prompt written notice to the other Party of such event, specifying its nature and anticipated duration. Notwithstanding, if as a direct result of a Force Majeure Event, either Party fails to carry out or observe any of the terms and conditions of the Contract, such failure or omissions shall not be deemed a breach, and the affected Party’s obligations may be suspended insofar as the Parties agree that performance of such obligation is impracticable. Further, the Party claiming excuse from performance shall be responsible for insuring against any damage or loss incurred due to delay. Nothing in this section shall alleviate the Party claiming excuse from performance for loss or damage to any goods in its possession. If Seller’s or Buyer’s performance is excused or delayed for more than 30 calendar days, Buyer may, at Buyer’s option, terminate the Agreement by giving written notice, which termination will become effective upon receipt of such notice. If Buyer terminates the Order, Buyer’s sole liability will be to pay any balance due for conforming goods and services delivered by Seller before receipt of Buyer’s termination notice. If delivery in installments is stipulated, these provisions shall apply to each individual installment.

19. ORIGIN CONTROL CLAUSE. Seller represents and warrants that neither it nor any person or entity that owns or controls it is a designated target of economic trade sanctions promulgated by the US, EU, UN, or the country of origin of the goods (Sanction Laws). Seller undertakes (i) that Seller and its agents and representatives will fully comply with all applicable Sanction Laws in their performance hereunder; and (ii) that the goods will not directly or indirectly originate from, be provided by or be transported on a vessel, or with any carrier, owned, controlled, flagged or chartered by any country, person or entity that would cause Buyer, or any US parent company of Buyer, to be in contravention of applicable Sanction Laws. Seller agrees to cooperate with Buyer’s reasonable requests for information or documentation to verify compliance with this clause.

20. GOVERNING LAW. The laws of the jurisdiction of the address of the Buyer on the face of the Confirmation Contract, disregarding any conflict of law rules in that jurisdiction, will govern the Contract. Any dispute arising from the Contract will be resolved in the courts in the jurisdiction of the Buyer.

21. EXCLUSION OF CONVENTIONS The following international conventions will not apply to the Contract: (i) Uniform Law on International Sale of Goods and Uniform Law on Formation of Contracts for International Sale of Goods, both concluded at the Hague on 1 July 1964, (ii) United Nations Convention on Contracts for International Sale of Goods of 1980 and (iii) United Nations Convention on Limitations Period in the International Sale of Goods, concluded in New York on 14 June, 1974, and Protocol Amending the Convention on Limitations Period in the International Sale of Goods, concluded in Vienna on 11 April, 1980.

22. WAIVER. A Party’s failure or delay in exercising any right or remedy will not operate as a waiver of that right or remedy. Any waiver of a right or remedy must be in writing.

23. ASSIGNMENT/SUBCONTRACTING. Neither Party may assign or subcontract its rights and obligations under the Contract without the prior written consent of the other Party.

24. SEVERABILITY. If any provision of the Contract is held by any court to be invalid, illegal or unenforceable, either in whole or in part, that holding will not affect the validity, legality or enforceability of the remaining provisions, or any part thereof, of the Contract, all of which will remain in full force and effect.

25. APPLICABLE LAW. Any and all Contracts entered into by and between the Parties shall be governed by the law of the state of Buyer’s address as shown on the Confirmation Contract