Wholesale Terms & Conditions of Supply

1. Definitions and interpretation

In these Terms:

"Affiliate" means a company, firm or individual that Controls, is Controlled by, or is under common Control with the relevant company or firm;

"Business Day" means any day, other than Saturday, Sunday or any day that is a bank or public holiday in England;

"Business Hours" means between 09:00 and 17:00 (London time) on a Business Day;

"Confidential Information" means any information supplied (whether supplied in writing, orally or otherwise) by one party to the other party marked as "confidential", described as "confidential" or reasonably understood to be confidential; and

"Contract" means a contract between the parties for the sale and supply of Products entered into in accordance with Clause 3;

"Control" means:

1. the legal power to directly or indirectly control the management of a company, firm or other entity;
2. the right to select the majority of the directors (or their equivalent) of a company, firm or other entity; and/or
3. ownership of more than 50% of the voting shares in a company;

and "Controlled" will be construed accordingly;

"Customer" means the customer for the Products as specified in the Customer Information Form or in the Contract;

"Customer Information Form" means the form setting out the information set out in Schedule 1, as agreed by the parties in writing from time to time;

"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

"Order" means a purchase order for Products given by the Customer in accordance with clause 3.1;

"Price List" means the list of the Supplier's prices for the Products, as notified to the Customer by the Supplier from time to time;

"Prices" means the prices for the Products set out in the Price List;

"Product Liability Claim" means any claim, dispute and/or proceedings resulting from or arising in connection with any death, personal injury or damage to property caused in whole or part by a failure of the Products to comply with the warranties in Clause 8;

"Products" means the products which may be or are purchased by the Customer from the Supplier under these Terms;

"Supplier" means Pai Skincare, a limited company incorporated in England and Wales (registration number 05887401) having its registered office at Milton House, Gatehouse Road, Aylesbury, Bucks HP19 8EA;

"Terms" means these terms and conditions of supply;

"Territory" means the countries and/or areas specified in the Customer Information Form. If the customer has not completed a Customer Information Form, then Territory means the country in which the customer has its store(s). The customer may not sell the products outside the territory without the prior written agreement of the Supplier, save that if the Territory is located within the European Economic Area (EEA), the customer may sell its products in any country within the EEA. These Terms and Conditions only give permission for the customer to sell in a single territory. ; and

"Trade Marketing Agreement" means the agreement between the Supplier and the Customer governing the Customer's marketing obligations in respect of the Products, either in-store or online.

In these Terms, a reference to a statute or statutory provision includes a reference to:

1. that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
2. any subordinate legislation made under that statute or statutory provision.

The Clause headings do not affect the interpretation of these Terms.

In these Terms, "persons" include companies, partnerships, limited liability partnerships, unincorporated associations and trusts.

The ejusdem generis rule is not intended to be used in the interpretation of these Terms; it follows that a general concept or category utilised in these Terms will not be limited by any specific examples or instances utilised in relation to such a concept or category.

2. These Terms

These Terms and the Schedules (together with the Price List, the Customer Information Form and the Trade Marketing Agreement (if any)) contain the only conditions upon which the Supplier will deal with the Customer, and they govern all Contracts to the exclusion of all other terms and conditions.

Without prejudice to the generality of Clause 2.1, any reference to any of the Customer's terms and conditions in any document forming part of or evidencing a Contract will not have the effect of incorporating any such terms and conditions into the Contract, nor of forming any other contract between the parties for the purchase of the Products.

The Customer hereby waives any right it might otherwise have to rely upon the Customer's terms and conditions referred to in Clause 2.2 or any other terms and conditions implied by trade, custom, practice or in the course of dealing.

3. Contracts

Each Order for Products given by the Customer to the Supplier will be deemed to be an offer by the Customer to purchase Products from the Supplier subject to these Terms.

In order for a Contract to come into force:

1. the Customer must submit an Order to the Supplier; and
2. the Supplier must send to the Customer an Order confirmation or invoice;

and upon the issue of an Order confirmation or invoice by the Supplier a Contract will come into force between the parties.

The Supplier may cancel a Contract insofar as it relates to particular Products, by giving to the Customer written notice of cancellation at any time before delivery of those Products, if a Force Majeure Event prevents the delivery of the Products under the Contract on the agreed date or during the agreed period.

4. Delivery

Unless otherwise agreed in writing:

1. all Products will be delivered by the Supplier to the Customer's premises;
2. the Supplier will be responsible for arranging loading, carriage, transport, unloading and insurance for the Products;
3. the Supplier will be responsible for paying all costs relating to loading, carriage, transport, unloading and insurance of the Products; and
4. risk in the Products will pass from the Supplier to the Customer when the Products are delivered to the Customer.

If the parties agree that delivery of the Products under a Contract will be by instalments, each instalment will constitute part of a single Contract, and not separate Contracts.

Any date or dates for the delivery of the Products agreed by the parties as part of a Contract will not be of the essence of the Contract and the Supplier shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.

5. Title

Legal and equitable title to the Products will pass from the Supplier to the Customer upon the later of:

1. delivery of the Products; and
2. receipt by the Supplier of all amounts due from the Customer to the Supplier under any Contract or other agreement.

Until title to the Products has passed to the Customer (following delivery of the Products), the Customer shall:

1. hold the Products as fiduciary agent and bailee of the Supplier;
2. (i) store the Products in a secure, safe, dry and clean environment separately from other products and goods; (ii) ensure that the Products are easily identifiable as belonging to the Supplier; (iii) not deface, destroy, alter or obscure any identifying mark on the Products or their packaging; (iv) ensure that no charge, lien or other encumbrance is created over the Products; (v) notify the Supplier immediately if it becomes subject to any of the events listed in clause 12.3; and (vi) deliver up the Products to the Supplier upon demand.

The Supplier may deliver the Products by instalments and any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

The Supplier shall be entitled without further notice to inspect or recover possession of any Products to which it retains title.

The Supplier may bring an action for the Prices of Products, and any other amounts due under a Contract, notwithstanding that title to the Products has not passed to Customer.

6. Customer's obligations

The Customer will:

1. work diligently to promote sale of the Products within the Customer's stores (if applicable);
2. make reasonable efforts to promote the Products within the Customer's stores (if applicable) by running an advertisement campaign, demonstrations, window and in-store display or any other way of promotion as permitted by the Supplier;
3. give maximum exposure to the Products within the Customer's stores (if applicable) and ensure that the display of the Products complies with the requirements of the Supplier as detailed in Schedule 2;
4. request reasonable technical assistance and / or training to enable the Customer to sell the Products;
5. comply with the terms of the Trade Marketing Agreement (if applicable); and
6. actively promote and sell the Products only within the Territory (as it may be amended from time to time by the Supplier by notice in writing) and comply with all lawful requirements relating to the promotion and sale of the Products any part of the Territory specified in any Territory supplement.

The Customer will not:

1. represent to any person that it is an agent or sole or exclusive distributor of the Supplier;
2. pledge or purport to pledge the Supplier's credit;
3. commit or purport to commit the Supplier to any contracts; or
4. otherwise incur any liability or potential liability on behalf of the Supplier.
5. advertise or make the Products available for sale via any website unless approval is given in the Customer Information Form or written permission to do so is otherwise given. Permission will not be unreasonably withheld if the Customer's website fulfils the objective criteria set out in Schedule 2 and the Trade Marketing Agreement (if applicable).
6. Apply for or register trademarks that include the term "Pai" or any of the Supplier's product names, capsule names and sub brands.

The Customer will not take any action or do any thing which would or would be likely to damage the reputation or goodwill of the Supplier, or bring the Supplier into disrepute.

The Customer will not without the Supplier's prior written consent make or give any promises, representations, warranties or guarantees:

1. on behalf of the Supplier; or
2. in relation to the Products (other than those set out in a Contract in relation to the Products or otherwise mandatory under applicable law).

Without prejudice to the Supplier's obligations under Clause 8, the Customer must comply with all applicable laws, rules and regulations relating to, and must obtain all licences, permits and approvals required in relation to:

1. the marketing, promotion and advertising of the Products; and
2. import, export, distribution, sale, supply and delivery of the Products.

The Customer will not without the Supplier's prior written consent alter, modify, disassemble, sample or reverse engineer any of the Products except as mandated by applicable law.

The Customer must notify the Supplier if it wishes to sell or distribute the Products via any warehouse or other outlet in the People's Republic of China (or in any other country or region wher it is known that the Products could thereby become subject to pre- or post-market animal testing) and shall not do so without the written consent of the Supplier, which may be withheld at the Supplier's discretion.

7. Prices and payment

The Supplier may issue an invoice for the Prices under a Contract to the Customer at any time after receipt of an Order from the Customer.

The Customer will pay the Prices to the Supplier in accordance with the payment terms specified in the Customer Information Form (unless otherwise agreed by both parties in relation to any Contract).

All amounts payable under a Contract are exclusive of all applicable value-added and other taxes and duties which will be payable by the Customer (except for taxes payable on the Supplier's net income, which will be payable by the Supplier).

Prices must be paid by debit or credit card, direct debit, bank transfer or by cheque (using such payment details as are notified by the Supplier to the Customer from time to time). The Supplier may add a transaction charge in the case of payments by card or PayPal, as set out in the Price List.

If the Customer does not pay any amount properly due to the Supplier under or in connection with a Contract, the Supplier may:

1. charge the Customer interest on the overdue amount at the rate of 8% per year above the base rate of HSBC Bank Plc from time to time (which interest will accrue daily until the date of actual payment, be compounded quarterly, and be payable on demand); or
2. claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

8. Warranties

The Supplier warrants that:

1. the Supplier has (or will have at the relevant time) the right to sell the Products;
2. the Products are free from any charge or encumbrance, subject to Clause 5;
3. the Customer shall enjoy quiet possession of the Products, subject to the rights
4. the Products correspond to any description of the Products supplied by the Supplier to the Customer;
5. the Products are of satisfactory quality (within the meaning of the Sale of Goods Act 1979);
6. the Products are fit for any purpose expressly made known by the Customer to the Supplier before the relevant Contract is made;
7. the Products correspond to any sample of the Products supplied by the Supplier to the Customer, and will be free from any defect making their quality unsatisfactory, which would not be apparent on reasonable examination of the sample;
8. the Products will comply with all laws, rules, regulations applicable to the marketing and sale of the Products in the Territory and all standards agreed between the parties; and
9. the Products will bear all mandatory marks and signs associated with the laws, rules, regulations and standards referred to in Clause 8.1(h).

All of the parties' warranties, liabilities and obligations in respect of the subject matter of each Contract are expressly contained in these Terms or elsewhere in the relevant Contract. Subject to Clause 10.1 and to the maximum extent permitted by applicable law, no other terms concerning the subject matter of a Contract will be implied into that Contract or any related contract.

9. Complaints, credits and replacements

The Supplier will promptly and in any event within 10 Business Days, fully respond to all reasonable enquiries and complaints by the Customer relating to the quality, performance and durability of the Products.

If Products do not comply with any warranty given by the Supplier under a Contract, the Customer may with the prior agreement of the Supplier (not to be unreasonably withheld or delayed) return those Products for either (at the option of the Supplier):

1. a full credit of the price paid to the Supplier for such Products;
2. replacement Products; or
3. a credit note in respect of the Price of the Products (to be offset against future purchases from the Supplier).

Products returned under Clause 9.2 must be properly packed and returned to 18 Colville Road, London W3 8BL within 30 Business Days of receipt of the Products by the Customer. Any Products returned in contravention of this Clause will not be the subject of any credits or replacements and the Customer will continue to be liable for payment of the Price in respect of such Products.

10. Limitations and exclusions of liability

Nothing in the Contract will:

1. limit or exclude the liability of a party for death or personal injury resulting from negligence;
2. limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
3. limit or exclude any liability of a party under Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982 or for defective products under the Consumer Protection Act 1987;
4. limit any liability of a party in any way that is not permitted under applicable law; or
5. exclude any liability of a party that may not be excluded under applicable law.

The limitations and exclusions of liability set out in this Clause 10 and elsewhere in the Contract:

1. are subject to Clause 10.1; and
2. govern all liabilities arising under the Contract or in relation to the subject matter of the Contract, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty.

The Supplier will not be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.

The Supplier will not be liable for any loss of business, contracts or commercial opportunities.

The Supplier will not be liable for any loss of or damage to goodwill or reputation.

The Supplier will not be liable in respect of any loss or corruption of any data, database or software.

The Supplier will not be liable in respect of any special, indirect or consequential loss or damage.

The Supplier will not be liable for any losses arising out of a Force Majeure Event.

The Supplier's aggregate liability under a Contract will not exceed the total amount paid and payable by the Customer to the Supplier under the Contract and the Supplier's aggregate liability under all Contracts shall not exceed £100,000.

11. Force majeure

Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under a Contract (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.

A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under a Contract, will:

1. forthwith notify the other; and
2. will inform the other of the period for which it is estimated that such failure or delay will continue.

The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.

12. Contract term and termination

Each Contract will come into force in accordance with Clause 3, and will continue in force until the earlier of:

1. the later of completion of: (i) delivery of all Products; and (ii) the receipt by the Supplier of all amounts due to the Supplier under the Contract; and
2. the termination of the Contract in accordance with the provisions of this Clause.

A Contract may be terminated in the following circumstances:

1. either party may terminate a Contract immediately by giving written notice to the other party if the other party commits any material breach of any term of the Contract and (if such breach is capable of remedy) fails to remedy such breach within 14 days of being notified in writing to do so;
2. the Supplier may terminate any Contract immediately by giving written notice to the Customer if the Customer fails to pay to the Supplier any amount due under any Contract by the due date for payment; and
3. the Supplier may terminate any Contract immediately by giving written notice to the Customer if the Customer fails to accept delivery of the Products.

Either party may terminate any Contract immediately by giving written notice to the other party if:

1. the other party: (i) is dissolved; (ii) ceases to conduct all (or substantially all) of its business; (iii) is or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
2. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
3. an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Contract); or
4. (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.

The Supplier may terminate any Contract immediately at any time by giving written notice to the Customer if there is a change of Control of the Customer or any parent undertaking or holding company of the Customer.

Without limiting its other rights and remedies, the Supplier may suspend the provision of the Products under any Contract if the Customer becomes subject to any of the events listed in Clauses 12.2 to 12.4, or if the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under the Contract on the due date for payment.

13. Effects of termination

Upon termination of a Contract, all the provisions of that Contract will cease to have effect, save that the following provisions of these Terms will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 5, 6.3 to 6.5, 7.5, 9, 10, 13, 14 and 16.

Termination of a Contract will not affect either party's accrued rights (including accrued rights to be paid and accrued rights to a remedy for breach of condition or warranty) as at the date of termination.

14. Confidentiality

Each party will keep confidential the Confidential Information of the other party, and will not disclose that Confidential Information except as expressly permitted by this Clause.

Each party will protect the confidentiality of the Confidential Information of the other party using at least reasonable security measures.

The Confidential Information of a party may be disclosed by the other party to its employees and professional advisers, provided that each recipient is legally bound to protect the confidentiality of the Confidential Information.

These obligations of confidentiality will not apply to Confidential Information that:

1. has been published or is known to the public (other than as a result of a breach of a Contract);
2. is known to the receiving party, and can be shown by the receiving party to have been known to it, before disclosure by the other party; or
3. is required to be disclosed by law, or by an order (binding upon the relevant party) of a competent governmental authority, regulatory body or stock exchange.

15. Notices

Any notice given under a Contract must be in writing (whether or not described as "written notice" in these Terms) and must be delivered personally, sent by pre-paid first class post, or sent by fax or email, for the attention of the relevant person, and to the relevant address, fax number or email address given below (or as notified by one party to the other in accordance with this Clause).

The Supplier:
Pai Skincare Limited
18 Colville Road, London W3 8BL
Email: sales@paiskincare.com
Fax: +44 (0) 208 711 3481

The Customer: The address, fax, and email address set out in the Customer Information Form.

A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):

1. where the notice is delivered personally, at the time of delivery;
2. where the notice is sent by first class post, 48 hours after posting; and
3. where the notice is sent by fax or email, at the time of the transmission (providing the sending party retains written evidence of the transmission).

16. General

No breach of any provision of a Contract will be waived except with the express written consent of the party not in breach.

If any provision of a Contract is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Contract will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

Contracts may not be varied except by a written document signed by or on behalf of each of the parties.

The Supplier may freely assign its rights and obligations under a Contract without the Customer's consent to any Affiliate of the Supplier or any successor to all or a substantial part of the business of the Supplier from time to time. Save as expressly provided in this Clause or elsewhere in a Contract, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in a Contract or any rights or obligations under a Contract.

Each Contract is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to a Contract are not subject to the consent of any third party.

Subject to Clause 10.1:

1. these Terms (including the Schedules) and the Customer Information Form, Price List and Trade Marketing Agreement (if any) will constitute the entire agreement between the parties in relation to the subject matter of the Contract, and supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter;
2. neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into a Contract; and
3. neither party will have any liability other than pursuant to the express terms of a Contract.

Nothing contained in these Terms will be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Terms shall be deemed to construe either of the parties as the agent of the other.

Contracts will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute (including non-contractual disputes or claims) arising under or in connection with a Contract.

1. Stores

2. ADVERTISING AND PROMOTIONAL ACTIVITIES OF THE CUSTOMER

3. WEB SITES, MAIL ORDER & INTERNET