Wholesale Terms & Conditions of Supply
Please read these Terms carefully, as they set out our and your legal rights and obligations in relation to the Products that we sell.
Contact your account manger or the sales team to request the Schedule 1: Customer Information Form and Price List.
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;
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:
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.
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:
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.
Unless otherwise agreed in writing:
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.
Legal and equitable title to the Products will pass from the Supplier to the Customer upon the later of:
Until title to the Products has passed to the Customer (following delivery of the Products), the Customer shall:
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:
The Customer will not:
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:
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:
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:
The Supplier warrants that:
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):
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:
The limitations and exclusions of liability set out in this Clause 10 and elsewhere in the Contract:
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:
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:
A Contract may be terminated in the following circumstances:
Either party may terminate any Contract immediately by giving written notice to the other party if:
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.
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:
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 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):
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:
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.
SCHEDULE 2: STORES & PRODUCTS
|In order to maintain the "PAI SKINCARE" brand image, the Customer undertakes not to commercialise the Products other than in points-of-sale meeting the criteria for quality and employing competent personnel.
|The trade name of the point of sale or of the Stores, or of the space in which the point of sale or the beauty department is located, must always reflect the premium nature of the Pai Skincare brand. Consequently, the shop sign must be compatible with the principles that govern the distribution of the Pai Skincare Products, which are premium and high quality products. Thus, the Pai Skincare brand shall not be sold by retail outlets under trade names whose image is associated with an absence of or limited customer service, prestige or sophisticated in-store design. No signage at the point of sale may include terms or logos that might damage the image of the Pai Skincare brand or the Products.
|In order to become an approved Pai Skincare retailer (hereinafter referred to as the "Customer") within the selective distribution network, a retailer shall meet the standards of performance as detailed below (hereinafter referred to as the "Selection Criteria").
|The Customer undertakes that the Point Of Sale and the sales staff satisfy the Selection Criteria:
|Fittings and Management of the Point Of Sale.
|The sales area of the Point Of Sale shall always permit the presentation of the Pai Skincare products in a sufficient area. For the avoidance of doubt, “double backing”, where some products are obscured by other products on a shelf, is not permitted.
|Short dated and expired stock must be removed from sale.
|The Customer shall display the Products appropriately. The counters, posters and other POS material, which shall be supplied to it, shall be well positioned.
|The Customer shall affix prominently on the window of the Store or display inside the Point Of Sale, a sign or sticker, which shall be furnished by the Supplier confirming its quality as an approved retailer for Pai Skincare products.
|All items bearing any trademark owned by Pai Skincare used by the Customer on its shop front (such as awning, sign, etc.), in the shop window or inside the Point Of Sale shall be exclusively those supplied by the Supplier or exceptionally those which have received the prior and express written approval of the Supplier.
|It is the Customer’s obligation to arrange training with the Supplier for the staff of its Stores.
|The Customer shall be free to fix its resale prices according to the laws and regulations in force from time to time. The recommended prices that may be communicated to the Customer are only indicative (save to the extent it is permitted by law or regulation in respect of sales of the Products in any country or region outside the EEA and Switzerland to specify either maximum or minimum prices for the Products).
2. ADVERTISING AND PROMOTIONAL ACTIVITIES OF THE CUSTOMER
|Should the Customer wish to carry out advertising and promotional activities of any sort itself, it shall obtain the prior written approval of the Supplier on the content and means of such activities with the exception of price.
|In any event, the Customer shall in such advertising and promotional activities:
|Use exclusively the visual designs, lettering, emblems and logos approved by the Supplier;
|Ensure that the standing and image of the Pai Skincare trademarks are protected.
3. WEB SITES, MAIL ORDER & INTERNET
|The Customer shall not sell Pai Skincare products by mail order or by Internet, unless the Customer has received a prior written authorisation from the Supplier confirming that the objective selection criteria set up for this kind of sale are satisfied, which authorisation shall normally be given in the Customer Information Form.
|The web site or the Mail Order catalogues on which the Pai Skincare products shall be advertised and/or sold shall be submitted to the Supplier for written approval. Such approval shall be granted if the following conditions are met:
|The name, the environment, the presentation and the general standing of the web site or the Mail Order catalogues as well as the way it functions shall be compatible with the Pai Skincare trademarks image.
|The web site or the Mail Order catalogues shall offer to consumers a high quality service for the Products.
|Product presentation: Any images of the Products must be unambiguous and meet the high standards of the Pai Skincare brand.
|Products and features must be described in appropriate detail. Where the Supplier has notified the Customer of inaccuracies or issues with content, these must be rectified within 3 working days.
|The manner in which the Products and the Licensed Trademarks are presented on the web site or in the Mail Order catalogues in connection with the advertising and/or the sale of the Pai Skincare range shall be submitted to the Supplier for written approval. The web site or mail order catalogue may not include or use any of the Licensed Trademarks in the workings (as they exist as of this day or in the future) of the web, and in particular no Licensed Trademark may be included or used in a domain name, an URL address or an e-mail address.
|Where the Customer's website is hosted by a third party platform, the Supplier requires that customers do not visit the Customer's website through a site carrying the name or logo of the third party platform. For the avoidance of doubt, this restriction prohibits the Customer from selling the Products from eBay, Amazon, Etsy, Tmall stores and voucher sites such as Groupon.
|The Customer agrees to maintain a minimum stock level of three units per SKU carried at all times in order to ensure the Products are available to purchase without delay. This requirement is waived if the supply of Products is delayed due to stock availability or shipping issues that are not the responsibility of the Customer. For the avoidance of doubt this prohibits the Customer from employing drop ship methods of distribution whether or not supplied by the Supplier, authorized and unauthorized distributors and wholesalers.
|The Customer’s website shall display a telephone number for customers to contact the Customer’s Customer Services department, which shall be manned, at a minimum, during normal office hours.
|Customers contacting Customer Services by email must normally receive a response within one (1) working day.
|All prices on the Customer’s website shall include relevant taxes for the relevant territory.
|The fastest delivery option must allow the normal delivery of Products within three (3) working days of receipt of an order to customers within the Territory.
|The website terms and conditions and returns policy must be compliant with local laws and regulations in the relevant territory and reflect best practice in the sector.
Updated 22nd September 2016