SCHEDULE 1

SPACE NK LIMITED PURCHASE ORDER TERMS AND CONDITIONS FOR THIRD PARTY SUPPLIERS

Notice to Supplier: Supplier’s agreement to comply with all terms and conditions on this Purchase Order is a condition of doing business with Space NK Limited (“Purchaser”). Unless otherwise expressly agreed in writing by Purchaser, Supplier’s acceptance of any Purchase Order shall be deemed an acceptance of these terms and conditions.

1. This Purchase Order (PO) shall not be binding on Purchaser unless signed by either:

   i. your relevant merchandiser

   or

   ii. Head of Merchandising

Any PO with a value higher than £250,000 (Two Hundred and Fifty Thousand Pounds) must be countersigned by the Chief Financial Officer of Purchaser

2. This PO, including these terms and conditions, shall be binding on Supplier and its subsidiary and affiliated companies (“Supplier”) if no formal, express written exception is received by Purchaser within 10 days from the PO date. Acceptance is expressly limited to the terms herein (regardless of whether or when Supplier may have submitted or may submit its own terms and/or other documentation) and any additional terms or modifications submitted by Supplier shall be void unless specifically agreed to beforehand and in writing by Purchaser.
3. Purchaser shall not be deemed to have accepted any goods until it has had fourteen (14) business days to inspect them following delivery, or, in the case of a latent defect in the goods, until the expiration of fourteen (14) days after the latent defect has become apparent. If any goods delivered to Purchaser do not comply with or are not or are not likely to be as warranted pursuant to this PO (including but not limited to bearing labels as warranted) or are otherwise not in conformity with these terms, then without limiting any other right or remedy Purchaser may have, Purchaser may reject such goods and: (a) require Supplier to repair or replace the rejected goods at Supplier’s risk and expense within five (5) business days of being requested to do so; or, (b) require Supplier to repay the price of the rejected goods in full (whether or not Purchaser has previously required Supplier to repair or replace the rejected goods); and, (c) claim damages and any other costs, expenses or losses resulting from Supplier’s delivery of goods not in conformity with these terms.
4. If any goods, having been accepted by Purchaser and sold to a customer are said by the customer not to comply with their warranties, then without limiting any other right or remedy Purchaser may have, Purchaser may (in its discretion): (a) if capable of repair, return the goods to Supplier for repair or replacement at Supplier’s risk and expense within five (5) business days of receipt of the goods; or (b) if not capable of repair or if repair is not adequate to remedy the defect, provide the customer with a replacement product in which case the Supplier shall be required to repay the customer sale price of the product in full. Supplier shall fully indemnify Purchaser for all losses, expenses and damages suffered or incurred by Purchaser arising out of or in connection with the return, repair and/or replacement of goods which are not in conformity with their warranties or any of these terms. For the avoidance of doubt, these obligations shall also apply to any repaired or replacement goods.
5. SUPPLIER ACKNOWLEDGES AND AGREES THAT TIME IS OF THE ESSENCE AND THAT DELIVERY OF ANY GOODS AFTER THE DUE DATE SHALL CONSTITUTE A MATERIAL BREACH OF THIS PO, even if goods are nonetheless accepted after said due date. If an order is not delivered on the specified due date, Purchaser may (without prejudice to any other rights and remedies to which Purchaser may be entitled) cancel the order and any return transportation and other charges shall be for the account of Supplier. For the avoidance of doubt, in this event Purchaser is not obligated to place a new order for the cancelled goods and any such order shall be entirely at Purchaser’s discretion
6. The PO cost shall be binding on Supplier notwithstanding fluctuations in exchange rates or the monetary system of any currency.
7. If any goods are received at the Purchaser’s distribution centre after the due date, or if Supplier otherwise breaches any term of this PO, Purchaser may, at its sole option and without waiving any of its other rights and remedies, accept the goods or any portion of them and offset their cost by all actual or estimated losses, expenses and damages of Purchaser including (1) expedited delivery costs; (2) reduced gross margins; and/or (3) any other damages arising from Supplier’s delay or breach of any provision of this or any other PO.
8. Supplier assumes all risk of loss prior to delivery and unloading of goods to Purchaser at Units 5 & 10 Telford Way, East Acton, W3 7XS London, United Kingdom (or any different location specified by Purchaser) (“Delivery Location”) at which time risk in the goods shall pass to Purchaser. Title to the goods delivered to the Delivery Location shall pass to Purchaser on such delivery. The PO cost includes all packing, freight and other costs necessary to deliver goods in the case of CIF and all packing costs necessary to deliver the goods in the case of ex-works and FOB and in all cases all applicable taxes.
9. SUPPLIER REPRESENTS AND WARRANTS THAT: (A) all goods supplied to Purchaser are of the highest quality; (B) all goods supplied to Purchaser are merchantable and fit for the use and purpose for which they are intended; (C) all goods supplied to Purchaser are free from any defects in design, material and workmanship and any matter injurious to persons or property; (D) all goods supplied to Purchaser correspond with their description and any applicable specification agreed in writing by Purchaser and Supplier; (E) all goods supplied to Purchaser are of satisfactory quality (within the meaning of the Sale of Products Act 1979); (F) all goods supplied to Purchaser have a shelf life of at least thirty (30) months; (G) all goods supplied to Purchaser have undergone a suitably robust product testing regime to determine product stability and durability; (H) all goods supplied to Purchaser are fit for any purpose held out by Supplier or made known to Supplier by Purchaser expressly or by implication and in this respect Purchaser relies on Supplier’s skill and judgment; (I) in the case of cosmetic products, all goods supplied to Purchaser (i) have undergone and passed a full and proper safety assessment of their components by suitably qualified persons on behalf of Supplier prior to placing them on the market for sale in accordance with applicable laws; and (ii) bear individual identification (e.g., batch number); and, (iii) are packed and secured in such manner as to enable them to reach the Delivery Location in the same condition they were in when they were dispatched by Supplier; (J) Supplier has and shall comply with all local, foreign, domestic and other laws, rules, regulations and requirements, including but not limited to any wage and hour, child labour and all other labour laws, price discrimination laws, those relating to standards for weights, measures, sizes, quantities and ingredients, trademark, copyright, patent, unfair competition and all other intellectual property laws, all customs laws and all country of origin requirements set forth therein and any similar laws including any applicable labelling laws and any laws relating to or affecting the manufacture, possession, use, import, export, sale, packaging, packing, storage, transport, handling, delivery, promotion, advertising and marketing of the goods, (K) Supplier has timely, fully and accurately applied for, completed and provided all necessary licenses, permits, authorisations, consents, permissions, certificates of origin and other documentation required by law or by Purchaser and has provided a copy of these to Purchaser at its own cost upon Purchaser’s request, (L) all goods shipped pursuant to this PO will clear customs at the country of importation and will not be seized or embargoed, (M) all goods shipped pursuant to this PO meet all industry and quality standards and Good Industry Practice (the exercise of the best skill, expertise, care, professionalism, prudence, diligence, efficiency, foresight and timeliness as would be expected from a leading company within the relevant industry, profession or trade). Supplier agrees that the rights of Purchaser under the warranties set out above are in addition to the statutory conditions implied in favour of Purchaser by the Sale of Goods Act 1979.
10. In the case of food products, SUPPLIER REPRESENTS AND WARRANTS that: (A) where the labelling makes any nutrition and/or health claims for the product (i) each such claim in notified to Purchaser; and (ii) each such claim is not false, ambiguous or misleading; and (iii) each such claim is authorised by being on the EU register of nutrition and/or health claims before being used; and (iv) no claims are prohibited claims; and (v) justification for each claim is based on and substantiated by generally accepted scientific evidence; (B) no trademarks or brand names which imply health or nutritional benefits are used; (C) all mandatory nutrition labelling in accordance with Food Information Regulations 2014 including the name of the food, an ingredients list in which allergens are emphasised, information on certain foods causing allergies or used in the manufacture or preparation, the net quantity of the food, “back of pack” nutrition labelling, a date of minimum durability, any special storage conditions, conditions or use and instructions for use are provided; (D) the labelling is in a minimum font size as determined by Food Information Regulations 2014 and does not mislead the consumer regarding (i) the effects or properties which the product does not possess; and (ii) the labelling does not proclaim special characteristics for the product when all similar foods possess such characteristics; and (iii) there is no suggestion that the product may prevent, treat or cure a human disease.
11. In the case of food supplements, SUPPLIER REPRESENTS AND WARRANTS that (A) the labelling displays (i) the words “food supplement”; and (ii) the name of the category of any vitamin or mineral or other substance with a nutritional or physiological effect which characterises the product, or an indication of the nature of that vitamin or mineral or other substance; and (iii) the portion of the product recommended for daily consumption; and (iv) a warning not to exceed the stated recommended daily dose; and (v) a statement to the effect that food supplements should not be used as a substitute for a varied diet; and (vi) a statement to the effect the product should be stored out of reach of young children; and (vii) the amount of any vitamin or mineral or other substance with a nutritional or physiological effect which is present in the product, accompanied by a Recommended Daily Allowance (RDA).
12. In the case of cosmetic products, SUPPLIER REPRESENTS AND WARRANTS that the labelling for such products clearly shows on the primary and secondary packaging (A) the name of the Responsible Person (in accordance with the Cosmetics Regulations 1223/2009) and the address where the Responsible Person makes readily available the Product Information File (in accordance with such regulations); (B) the country of origin of the products; (C) the batch number of manufacture or the reference for identifying the products; (D) a list of ingredients, preceded by the term “ingredients”; (E) the date of minimum durability; (F) information that is easily understood, accurate and free from error; (G) information that is easily visible, clearly legible and not obscured; (H) information provided in the language understood in the EU country where the product will be sold; (I) all such labelling shall be in accordance with Good Industry Practice and all applicable laws. Supplier further REPRESENTS AND WARRANTS that (J) a copy of the product safety report has been prepared by the product’s manufacturer by a suitably qualified person before placing the product on the market; (K) the product and each ingredient has been notified via the EU’s Cosmetic Product Notification Portal; (L) there is appropriate and adequate scientific evidence to substantiate any efficacy claim; (M) all information, know how, documentation, data and assistance as Purchaser reasonably requires to (i) store and transport the products after delivery in accordance with applicable law; and (ii) verify the labelling complies with the above requirements; and (iii) carry out testing of products or their ingredients to verify they are in compliance with applicable law, have been provided; (N) all information provided to Purchaser is complete, accurate and up to date; and (O) each Product Information File contains (i) an accurate description of the cosmetic product; and (ii) the cosmetic product safety report; and (iii) a description of the method of manufacturing and a statement of compliance with good manufacturing practice; and (iv) where justified by the nature or effect of the cosmetic product, proof of the effect claimed; and (v) data on any animal testing performed by the manufacturer relating to the development or safety assessment of the product or its ingredients; and (vi) any other information and data required by applicable law. For the avoidance of doubt, before any cosmetic product may be shipped to Purchaser Supplier must 1) designate a Responsible Person for it; 2) provide Purchaser with the name and address of the Responsible Person and the location of the Product Information File; and 3) at all times immediately update Purchaser if there is any change to the name and address of the Responsible Person or the location of the Product Information File.
13. SUPPLIER REPRESENTS AND WARRANTS that no products supplied to Purchaser are (A) medicinal products including in accordance with Human Medicines Regulations 2012; or (B) medical devices including in accordance with Medical Devices Regulations 2002.
14. SUPPLIER REPRESENTS AND WARRANTS that all goods supplied to Purchaser shall comply with any industry code of conduct or guidance including but not limited to (A) guidance issued by Trading Standards; (B) the CAP Code and guidance on the CAP Code published by the ASA (Advertising Standards Authority); and (C) where relevant to a particular product (i) the Food Supplements (England) Regulations 2003 and the Food Supplements Directive 2002/46/EC and 2015/414; (ii) the Nutritional & Health Claims (England) Regulations 2007; (iii) the Food Information Regulations 2014; and (iv) the Cosmetics Regulation 1223/2009.
15. If either party is the subject of a request, court order or other directive of a governmental or regulatory authority to withdraw any of the products ordered pursuant to this PO from the market (“Recall Notice”) it shall immediately (a) notify the other party in writing enclosing a copy of the Recall Notice; and (b) proactively co-operate with the other party and/or the governmental or regulatory authority to remove the products from sale. In the event a product ordered pursuant to this PO is recalled or removed from sale because (a) Purchaser considers that it is not or not likely to be as warranted; or (b) the necessary licenses, permissions, authorisations, consents and/or permits needed are missing; or (c) the product is subject to a Recall Notice, such recall or removal shall be at Supplier’s sole cost and expense and Supplier shall have the sole responsibility, as a matter of urgency, to manage such recall and communicate with all relevant governmental or regulatory authorities, provided that Purchaser shall (at the Supplier’s cost and expense) give any reasonable assistance to Supplier to assist in the recall.
16. Supplier agrees to defend, indemnify and hold Purchaser harmless from any and all claims, actions, liabilities, losses, damages and expenses (including reasonable attorney’s fees) arising out of or related in any way to: (1) the design, manufacture or shipment of any goods relating to this PO; (2) the purchase or use of such goods by customers of Purchaser or by any other person or entity; (3) the breach of or failure to perform under any provision of this PO, including all documents specifically incorporated herein; (4) the breach of any representation or warranty set forth herein; (5) removing the goods from sale, conducting inspections and taking samples for testing; (6) the issuing of a recall notice and the implementation of the removal of the goods from sale; (7) any claim made against Purchaser by a third party for death, personal injury or damage to property arising out of or in connection with the use of a sample or tester product or demonstration of a product in one of Purchaser’s stores or other premises; (8) breach of any applicable anti-bribery provisions; or (9) any dispute with a subcontractor, employee, independent contractor, manufacturer, agent, supplier or other person related in any way to this PO.
17. Throughout the period Supplier supplies goods to Purchaser and for a period of one year afterwards, Supplier shall maintain in force the following insurance policies with reputable insurance companies and with Purchaser’s interest noted on each: (A) public liability insurance at a suitable and adequate level and in any event for not less than £5 million per claim; (B) product liability insurance of a suitable and adequate level for the type of product supplied and in any event for not less than £5 million per claim; (C) product guarantee insurance at a suitable and adequate level for the type of product supplied and in any event for not less than £5 million per claim; (D) product recall insurance at a suitable and adequate level for the type of product supplied and in any event for not less than £5 million per claim. A copy of each such insurance policy shall be provided together with a copy of a receipt for payment of the premium to Purchaser on initiation and renewal of each policy. Supplier shall ensure that any sub-contractors also maintain adequate insurance having regard to the obligations under these terms. Supplier shall do nothing to invalidate any insurance to prejudice Purchaser and shall notify Purchaser if any policy is or will be cancelled or if its terms are or will be subject to any material change. For the avoidance of doubt, Supplier’s liabilities under these terms shall not be deemed to be released or limited by virtue of Supplier taking out the insurance herein required.
18. For any goods supplied to Purchaser to feature in Purchaser’s in-store hotspots or promotional campaigns, Purchaser may (in its sole discretion) elect to return the goods which are not sold. In the event a trial of a product does not meet the agreed sales targets, Purchaser may (in its sole discretion) reduce the customer sale price in a clearance sale provided it has first given Supplier the opportunity to repurchase the products at the price paid by Purchaser. Notwithstanding the above, Purchaser may at any time in its sole discretion return any unsold products to Supplier for a refund of the price paid. For any return pursuant to the above, if it is made within six (6) months of the order date, the refund shall be either a cash payment made to a nominated account or by way of credit against future orders (in Purchaser’s discretion); for any return made more than six (6) months from the order date, the refund shall be made by way of credit against future orders. It shall be Supplier’s responsibility to pay for the costs of packaging, insurance and carriage of the returned products. All credits due or cash refunds shall be provided within thirty (30) days of the date on which Supplier receives the returned products.
19. In the event Supplier breaches any representations or warranties hereunder or fails to comply with any term or requirement of this PO or related PO’s, including but not limited to failure to deliver conforming goods or failure to timely deliver goods ordered, Purchaser shall be entitled to, in addition to any other remedies, at its sole option and without any liability to Supplier: (a) cancel this PO without notice; (b) reject shipments; (c) insist on Supplier’s performance under this PO and offset the PO cost by any actual or reasonably estimated losses incurred by Purchaser; (d) withhold any payments due to Supplier; (e) recover any and all actual, incidental and consequential damages, including but not limited to actual or estimated loss of profits or sales and costs to cover, attorney’s fees, and any penalties or liquidated damages assessed by or paid to the customs authorities of the importing country; and/or (f) offset any amounts due Supplier by any actual or estimated loss incurred by Purchaser. Remedies of Purchaser herein shall not be exclusive but shall be accumulative of any other remedy of Purchaser herein or under any statute or law.
20. If Purchaser has placed other POs with Supplier (whether or not for goods similar or related to goods herein) and Supplier fails to comply with or breaches any obligation, representation or warranty hereunder, Purchaser shall further be entitled to cancel or suspend its performance (in whole or in part) under any other such POs. Conversely, if Supplier fails to comply with or breaches any obligation, representation or warranty under any other PO, Purchaser shall be entitled to cancel this PO or suspend its performance (in whole or in part). Purchaser shall be entitled to set off against any amounts payable to Supplier under this PO or any other POs between Supplier and Purchaser any indebtedness or liability of Supplier or any claims of Purchaser against Supplier arising how or whatsoever.
21. The discontinuance of or substantial interference with Purchaser’s or Supplier’s business, in whole or in part, by reason of fire, flood, earthquake, unusually severe weather, strikes, wars, Acts of God, embargo, civil commotion, governmental regulations or other causes beyond its reasonable control shall give Purchaser the option of cancelling all or any part of this PO without any liability to Supplier.
22. The waiver of any provision under this PO shall not be construed to be a waiver of any other provision or Purchaser’s right to later require strict compliance with each of the provisions herein. If any term of this PO is found to be unenforceable for any reason, all other terms shall remain in full force and effect.
23. SUPPLIER EXPRESSLY AGREES THAT ANY AND ALL DISPUTES, CLAIMS OR LITIGATION ARISING FROM OR RELATED IN ANY WAY TO THIS PO SHALL BE RESOLVED BY THE COURTS IN THE UNITED KINGDOM UNDER ENGLISH LAW.
24. Supplier agrees that it shall be solely responsible for the payment of all wages, fringe benefits, National Insurance, unemployment and similar expenses and taxes applicable to the performance of services under this PO. As required by any applicable law, Supplier warrants and agrees that it has procured and shall maintain in effect full statutory coverage for employer’s liability and disability insurance for all of its employees. Supplier further agrees and warrants that it has and shall comply with all applicable wage and hour and other labour laws, including but not limited to child labour, minimum wage, overtime and safety-related laws. Supplier further agrees to defend, indemnify and hold harmless Purchaser for any and all losses, costs and attorneys’ fees arising out of or relating to any claim or allegation that Supplier or any of its subcontractors, representatives or agents has not fully discharged all obligations under all labour laws or under this paragraph.
25. Supplier represents and warrants that it is in compliance with all applicable data protection laws and regulations.