Wholesale Terms & conditions of sale

“Europe” means any Member State of the European Union or the European Economic Area from time to time, UK and Switzerland.

“Merchandise” means but not limited to, skin and hair care products, sundry items, accessories, and shall also include labels, packaging and promotional and other materials

1.1 The General Terms and Conditions of Sale set out herein (hereafter, the “Conditions”) govern the sale of all Merchandise by Aesop Switzerland AG registered in Switzerland under company number: 113.836.907 (hereafter, the “Company” to its wholesale customers, including but not limited to its distributors, its wholesalers and its stockists (each hereafter referred to as the “Purchaser”), in Europe. These Conditions are without prejudice to and subject to the contractual obligations of Purchaser to purchase Merchandise from Company as set out in the main body of this Agreement.

1.2 No agreement, promise, warranty, representation or statement express of implied, whether written or oral, shall vary or supplement these Conditions except with the prior written agreement of an authorised representative of Company.

1.3 Orders made by the Purchaser are accepted by Company upon receipt by the Purchaser of an email from the Company confirming acceptance of the order and on the condition that the Purchaser accepts these Conditions and Company’s failure to object to inconsistent or supplementary provisions contained in the Purchaser’s purchase order or other communications shall not be deemed to be a waiver or modification of these Conditions or an acceptance of such provisions. Without prejudice to the foregoing, the delivery of the Merchandise or the acceptance of the Merchandise or any other act or conduct of the Purchaser in confirmation of the supply of goods by Company shall constitute an unqualified acceptance by the Purchaser of these Conditions.

2. PRODUCT ORDERS & PURCHASE – SELECTIVE DISTRIBUTION

2.1 The Purchaser’s order for Merchandise is accepted by Company upon receipt by the Purchaser of an email from the Company confirming acceptance of the order and the contract for the sale of that Merchandise to the Purchaser which incorporates and is subject to the Conditions (hereafter, the “Contract”) is concluded when Company, or an agent thereof, commences delivery of the Merchandise to the Purchaser.

2.2 For the avoidance of doubt, Company may disregard all or part of any order for Merchandise which:

(a) does not contain as a minimum the description, name and code of Merchandise, together with delivery particulars thereof or which in Company’s view, contains insufficient information to permit Company to conclude the Contract;

(b) is for Merchandise not notified by Company to the Purchaser as available for ordering;

(d) is out of stock, is unavailable for whatever reason or is, in Company’s opinion, available in insufficient quantities;

(e) does not comply with the bulk ordering policy which can be found at www.aesop.com/r/terms-conditions-of-sale the “Bulk Policy”

2.3 Company may, without prior notice, vary the presentation, form, dimensions, materials and ingredients and/or make-up of the Merchandise at any time prior to formation of the Contract relating to that Merchandise.

2.4 Company may recover from the Purchaser any costs incurred as a result of the Purchaser cancelling or modifying an order for Merchandise.

3. SELECTIVE DISTRIBUTION NETWORK

3.1 The Company operates a selective distribution system for the promotion and sale of Merchandise in Europe in which it only sells Merchandise to approved purchasers the “Selective Network” who are selected according to a selective criteria designed to preserve the characteristics and in particular the image and allure of Merchandise, which criteria are listed at www.aesop.com/r/terms-conditions-of-sale the “Selective Criteria”

3.2 The Purchaser will only source the Merchandise from the Company or the Selective Network, or by any supplier explicitly approved by the Company in writing. The Purchaser will only sell Merchandise within the Selective Network or to end consumers for private consumption (not for commercial resale) in accordance with the Selective Criteria.

3.3 The Purchaser shall only offer the Merchandise and/or offer Services relating to the Products to consumers through authorised dedicated store locations or shop in shop which meet the Selective Criteria (“Point of Sale”) and an online environment, which meet the Selective Criteria (“Websites”) approved by the Company.

3.4 The Purchaser’s Point of Sale and Websites must at all times satisfy the Selective Criteria during the term of Purchaser’s appointment in the Selective Network. The Company reserves the right to inspect each of the Purchaser’s authorised Point of Sale at any time during normal business hours as well as each authorised Website for the purpose of assessing whether such Point of Sale and / or Website continue to satisfy the Selective Criteria.

3.5 The Customer will notify the Company if it has reasons to believe that a person posing as an end consumer and seeking to purchase quantities in excess of the Bulk Policy may in fact intend to obtain Merchandise for purpose of its further commercialisation outside the Selective Network.

3.6 Should the Purchaser breach any of its obligations in this clause 3, the Company, shall have the right, without prejudice to its other legal rights and remedies to terminate this Agreement or to suspend this Agreement and remove Purchaser’s approval status as authorised seller in the Selective Network, with immediate effect

4. DELIVERY

4.1 Delivery of the Merchandise to the Purchaser’s nominated address shall be at the Purchaser’s expense unless otherwise agreed by Company.

4.2 Risk in the Merchandise transfers to the Purchaser with effect from the time at which Company transfers/hands/releases the Merchandise to the Purchaser, or to an agent thereof, whether delivered to the Purchaser’s nominated address or collected from Company’s UK premises for onward transportation.

4.3 Following delivery of the Merchandise pursuant to Condition 3.1, the Purchaser shall, at its expense, promptly inspect the Merchandise and promptly notify Company in writing no later than three (3) calendar days from the date of delivery of any damage, imperfections or discrepancies between the Merchandise and the order placed.

4.4 Where Company is notified by the Purchaser pursuant to Condition 3.3 that delivery has been made of excessive quantities of Merchandise, Company shall, subject to investigation, either collect the excess from the Purchaser (provided that any excess Merchandise returned to Company shall be invoiced to the Purchaser where it is not returned in its original state) or allow the Purchaser to retain the excessive quantity, which shall be invoiced and paid for in the same manner as the Merchandise ordered. Any incorrect quantities of Merchandise not notified to Company pursuant to Condition 3.3 shall be invoiced to the Purchaser at its full price.

4.5 Where Company is notified by the Purchaser pursuant to Condition 3.3 that delivery has been made of damaged or imperfect Merchandise or Merchandise which, subject to Condition 2.3, does not correspond with an order, Company shall, subject to investigation and upon receipt from the Purchaser of a duly completed Company discrepancy note or upon issue by Company of a returns note for the Merchandise, at its expense and option either refund the price of that Merchandise or replace that Merchandise. Any damaged or imperfect Merchandise not notified to Company pursuant to Condition 3.3 shall be invoiced to the Purchaser at its full price.

4.6 Purchaser acknowledges and agrees that Company shall not process claims nor be liable for the over- or under-shipment of goods, where the value of the over- or under-shipment of any single consignment is less than £30 OR €40 wholesale or £10 OR €12 direct-to-store, and Purchaser shall not report over- or under-shipments falling below this value to Company.

5. DELAYS IN DELIVERY

5.1 If delivery of the Merchandise is delayed, at the request of the Purchaser and with the consent of Company, the Merchandise shall be stored at the Purchaser’s risk and expense until its delivery to the Purchaser pursuant to Condition 3.1. Payment for such Merchandise shall be made pursuant to Condition 6 below.

5.2 Delivery dates or periods specified in orders accepted by Company are given in good faith and can be regarded as firm estimates provided that Company is in possession of all information and documents necessary to permit it to proceed to fill such order in a timely manner with interruption. However, in all cases of delay in delivery, Company’s liability shall be limited as described in Condition 9 hereto.

6. PRICE

6.1 The price of the Merchandise is the price in force on the date the Contract for the Merchandise is concluded pursuant to Condition 2.1, subject to any discounts set out herein or agreed in writing by Company as at the date of the order. Prices are exclusive of all taxes (including value added or sales taxes), duties, imposts or transport costs (unless otherwise agreed).

6.2 Company reserves the right to correct errors at any time in quoted prices and in the event of such correction the Purchaser shall not be entitled to any damages or costs by reason of such correction.

6.3 The Purchaser will be responsible for any extra costs incurred as a result of any subsequent amendment to the Purchaser’s requirements not provided for in the accepted order.

7. PAYMENT

7.1 Unless otherwise specified in writing by Company or otherwise specified in the Conditions, the Purchaser shall pay for the Merchandise within (30) days of the date of the invoice relating to that Merchandise. Company reserves the right to amend the terms of payment, or to impose a maximum credit limit, or to insist on receiving cash in advance or request additional security if Company in its sole discretion has reason to be concerned about Purchaser’s credit-worthiness.

7.2 The Purchaser shall have no right to withhold or set-off payment for the Merchandise against any actual or alleged default by Company of its obligations under the Contract and/or under any other agreement and the Purchaser’s sole remedy in respect of such breach shall be recovery from Company of such sums as may be due from Company.

8. DELAYS IN PAYMENT

8.1 Where the Purchaser is in arrears in respect of any payments under Condition 6, Company may:

(a) suspend all deliveries of Merchandise to the Purchaser and disregard all orders received from the Purchaser;

(b) without prior notice and without prejudice to any other of its rights, rescind all Contracts with the Purchaser for which payment remains due and to that end Company may demand the immediate return by the Purchaser, at its expense, of all Merchandise delivered under those Contracts; and any such amounts in arrears shall bear interest at the rate of four (4) per-cent above the Barclays Bank Base Rate in force from time to time from their original due date to the date of actual payment and the Purchaser shall pay Company such interest so charged forthwith on demand by Company.

8.2 Where the Purchaser is, or has at any time been, in arrears in respect of any payment due to Company, Company may require that the Purchaser pay for future Merchandise on or prior to delivery and/or by way of cleared funds.

9. TITLE

9.1 Title and ownership in the Merchandise remains with Company until such time as the price of the Merchandise has been paid in cleared funds to Company pursuant to Condition 6.

9.2 Until such time as title to the Merchandise passes to the Purchaser, the Purchaser shall hold the Merchandise as Company’s fiduciary agent and bailee and shall keep the Merchandise property stored, protected and insured, separate and clearly marked and identified as the Merchandise of Company and shall identify it to Company on demand. If the Purchaser shall sell or otherwise dispose of the Merchandise or make any insurance claim in respect of the Merchandise prior to making payment in full to Company for the Merchandise, it shall not give any warranties or incur any liability on behalf of Company. Company shall be entitled to trace the proceeds of sale and any insurance proceeds in respect of the Merchandise which are the absolute property of Company. Such proceeds shall be paid into a separate bank account and shall be held by the Purchaser on trust for Company.

9.3 Before placing every order, the Purchaser warrants that being an individual he is not insolvent nor has he committed any act of bankruptcy and being a company neither that company nor any director knows of any circumstances that would entitle a debenture holder or secured creditor to appoint a receiver or to petition for winding up or apply to the Court for the appointment of any administrator or exercise any other rights over or against the Purchaser’s assets.

9.4 If the Purchaser shall fail to make all payments when due or shall become subject to any applicable insolvency or bankruptcy laws or enter into any composition with its creditors or enter into liquidation or suffer a receiver or manager to be appointed for all or part of its assets Company shall have the right, without prejudice to any other remedy of Company, to repossess the Merchandise without prior notice and to enter any premises for the purpose of such repossession.

9.5 Nothing in these Conditions shall give the Purchaser any right to return the Merchandise to be bought hereunder. Company may sue the Purchaser for the price when due notwithstanding that the title to the Merchandise may not have passed to the Purchaser. The Merchandise shall, once the risk has passed to the Purchaser in accordance with Condition 3.2 or otherwise, be and remain at the Purchaser’s risk at all times unless and until Company has retaken possession of it.

10. LIABILITY

10.1 Except in respect of death or personal injury caused by Company’s negligence, Company shall not be liable to the Purchaser by reason of any representation (unless fraudulent), warranty, condition or other term (in each case whether implied or express) or any duty at common law, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of Company, its employees or agents or otherwise) which arise out of or in connection with the supply and/or delivery of the Merchandise or its use or resale by the Purchaser save for an amount not exceeding the price of the Merchandise, except as expressly otherwise provided in these Conditions.

11. COMPANY INDEMNITY

11.1 If any claim is made against the Purchaser that the Merchandise infringes or that its use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, then unless the claim arises from the use of any drawing, design or specification supplied by the Purchaser, Company shall indemnify the Purchaser against all loss, damages, reasonable costs and expenses awarded against or incurred by the Purchaser in connection with the claim, or paid or agreed to be paid by the Purchaser in settlement of the claim, provided that:

(a) Company is given full control of any proceedings or negotiations in connection with any such claim;

(b) the Purchaser shall give Company all reasonable assistance for the purposes of any such proceedings or negotiations;

(c) except pursuant to a final award, the Purchaser shall not pay or accept any such claim or compromise any such proceedings without the consent of Company (which shall not be unreasonably withheld);

(d) the Purchaser shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Purchaser may have in relation to such infringement and this indemnity shall not apply to the extent that the Purchaser recovers any sums under any such policy or cover (which the Purchaser shall use its best endeavours to collect);

(e) Company shall be entitled to the benefit of, and the Purchaser shall accordingly account to Company for, all damages and costs (if any) awarded in favour of the Purchaser which are payable by, or agreed with the consent of the Purchaser (which consent shall not be unreasonably withheld) to be paid by, any other party in respect of any such claim; and

(f) without prejudice to any duty of the Purchaser at common law, Company shall be entitled to require the Purchaser to take such steps as Company may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which Company is liable to indemnify the Purchaser under this condition.

12. WAIVER

12.1 Failure by Company to exercise or enforce any right conferred by this Contract shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof or of any other right on any later occasion.

13. FORCE MAJEURE

13.1 Company may suspend delivery of Merchandise to the Purchaser where any event beyond the reasonable control of Company (including, without limitation, strikes, war, riot, fire and flood) prevents Company from sourcing, manufacturing or delivering the Merchandise and Company shall promptly notify the Purchaser of the occurrence of any of the above events.

13.2 Where an event in Condition 12.1 persists for more than (30) days, either party may rescind the Contract for the Merchandise whose delivery has been suspended and Company shall promptly refund to the Purchaser any payment received from the Purchaser in respect of the rescinded Contract.

14. SEVERABILITY

14.1 Should any one or more Conditions be found to be or become invalid, illegal or unenforceable in any respect under any law the enforceability and validity of the remaining Conditions shall not in any way be affected or impaired thereby.

15. LAW & JURISDICTION

15.1 Each Contract shall be governed and construed in accordance with English Law. The Purchaser hereby irrevocably submits to the jurisdiction of the English Courts but Company reserves the right to proceed under this Contract in the courts of any other country claiming or having jurisdiction in respect thereof and the taking of proceedings in one or more jurisdictions by Company shall not preclude its taking of proceedings in any other jurisdiction whether concurrently or not.

16. PURCHASER REPRESENTATIONS, WARRANTIES & INDEMNITY

16.1 Neither the Purchaser nor Purchaser’s personnel will, directly or indirectly, pay, offer, promise to pay or authorize the payment of, any monies or financial or other advantage in violation of Anti-Corruption Laws (meaning any applicable foreign or domestic anti-money laundering, anti-bribery and anti-corruption laws and regulations, as amended from time to time, including the UK Bribery Act 2010, the US Foreign Corrupt Practices Act 1977 and any laws intended to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions). Further, neither the Purchaser nor Purchaser’s personnel has taken or will take, directly or indirectly, any action that would cause Company or Company’s officers, directors, employees and/or affiliates to be in violation of Anti-Corruption Laws. Purchaser agrees to make all of its personnel keep full and accurate books and records of all payments made in respect of any transaction or business effected in connection with this Contract, and to make all such books and records available to Company’s duly authorized representatives as deemed necessary by Company to verify Purchaser’s compliance with Anti-Corruption Laws and this Contract. Purchaser shall indemnify Company from any claims, suits, investigations, penalties and fines of any kind arising from any breach of this provision. This provision shall survive any termination of the Contract.

16.2 Purchaser:

(a) warrants that (i) it is not the target of any Economic Sanctions, and (ii) to the best of its knowledge, it is not controlled or beneficially owned by any person subject to Economic Sanctions and (iii) it is not engaged in any proceedings or subject to any investigations from authorities for the alleged breach of any Economic Sanctions Law.

(b) will comply with all Economic Sanctions Laws. Without limiting the generality of the foregoing, Purchaser will not (i) directly or indirectly export, re-export, trans-ship or otherwise deliver the Merchandise or any portion thereof in violation of any Economic Sanctions Law, or (ii) broker, finance or otherwise facilitate any transaction in violation of any Economic Sanctions Law.

(c) Purchaser will ensure that no slavery and human trafficking takes place in its own business and Purchaser will take reasonable steps to ensure that no slavery and human trafficking takes place in Purchaser’s supply chain, and will at all times comply with applicable Modern Slavery Law.

(d) For the purpose of this Condition 15.2 “Economic Sanctions” means any economic sanctions, restrictive measures or trade embargoes adopted by the UN Security Council, the European Union, the United States of America or any other sovereign government; “Economic Sanctions Laws” means any law, regulation or decision enacting Economic Sanctions; and “Modern Slavery Law” means the UK Modern Slavery Act 2015 or any other applicable law in any jurisdiction making provision about slavery, servitude and forced or compulsory labour and about human trafficking, or imposing an obligation for transparency in the supply chain vis-à-vis steps taken to ensure human trafficking does not take place in the supply chain.

16.3 Any breach by Purchaser of Conditions 15.1, and 15.2 will be deemed a repudiatory breach of this Contract, whereupon Company will be entitled to affirm or to terminate this Contract and/or to claim damages, whereupon Purchaser will not be entitled to claim compensation or any further remuneration, regardless of any activities or agreements with additional third parties entered into before termination.