PANGAIA STANDARD TERMS AND CONDITIONS OF SALE

1. Interpretation

1.1 The following definitions and rules of interpretation in this clause apply in this agreement.

1 Affected Party: has the meaning given in Clause 20.1.

2 Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

3 Claim: has the meaning given in Clause 14.2.

4 Confirmation: PANGAIA’s written confirmation of an Order (and Confirmed shall be interpreted accordingly).

5 Confidential Information: has the meaning given in Clause 17.1.

6 Contract: means the contract between PANGAIA and the Buyer for the sale and purchase of Products to which an Order and these Terms and Conditions apply.

7 Delivery: completion of delivery of Products specified in an Order in accordance with Clause 6.2 or Clause 6.4(a).

8 Delivery Date: the date specified for delivery of Products specified in an Order in accordance with Clause 6.

9 Delivery Location: the location specified for delivery of Products specified in an Order in accordance with Clause 6.

10 Force Majeure Event: means any circumstance not within a party’s reasonable control including acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; government ordered lockdown or shelter in place equivalents; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority, including imposing an export or import restriction or actions due to a pandemic or other national or international health or environmental emergency, quota or prohibition, or failing to grant a necessary licence or consent where such failure is not reasonably foreseeable; collapse of buildings, fire, explosion or accident; any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party); non-performance by manufacturers suppliers or subcontractors for whatever reason; interruption or failure of utility service.

11 Group: in relation to a company, that company and any subsidiary or holding company from time to time (as such is defined in section 1159 of the Companies Act 2006) of that company.

12 holding company: has the meaning given in Clause 1.7.

13 Improvement: any improvement, development, enhancement, modification or derivative of the Products, or their design or manufacturing process, which would make the Product cheaper, more effective, more useful or more valuable, or would in any other way render the Product more commercially competitive.

14 Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

15 month: a calendar month.

16 Order: an order for Products submitted by the Buyer in accordance with Clause 4.

17 Order Number: the reference number to be applied to an Order by PANGAIA in accordance with Clause 4.5.

18 Payment: cleared funds received into PANGAIA’s nominated bank account.

19 Products: the products which are produced by PANGAIA bearing its trademarks, which are ordered by and supplied to the Buyer.

20 Product Prices: the prices of the Products as determined in accordance with Clause 9.1 and Product Price means the price of an individual Product as determined in accordance with that clause.

21 Sales/Distribution Channel(s) means a specific category or classification of retailers listed in the Order or as otherwise agreed between the parties.

22 subsidiary: has the meaning given in Clause 1.7.

23 Terms and Conditions: means these terms and conditions together with any additional terms provided by PANGAIA to the Buyer at any time during the life of the Contract.

24 Trademarks: the registered and unregistered trademarks as notified to the Buyer by PANGAIA from time to time.

25 VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.

26 year: 1 January to the following 31 December.

1.2 These Terms and Conditions shall apply to the Contract and form part of all Orders and other contracts for the sale or supply of Products by PANGAIA to the Buyer.

1.3 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.

1.4 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.5 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement and any reference to this agreement includes the Schedules.

1.6 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.7 A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in sections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee), whether by way of security or in connection with the taking of security, or (b) its nominee]. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sections 1159(1)(a) and (c) to voting rights are to the members’ rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.

1.8 Unless the context otherwise requires, words in the singular shall include the plural and vice versa.

1.9 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.10 Unless expressly provided otherwise in this agreement, a reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.

1.11 Unless expressly provided otherwise in this agreement, a reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provisions.

1.12 A reference to writing or written includes email.

1.13 Any obligation in this agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.

1.14 A reference to this agreement or to any other agreement or document is a reference to this agreement or such other agreement or document, in each case as varied from time to time.

1.15 References to clauses and Schedules are to the clauses and Schedules of this agreement; references to paragraphs are to paragraphs of the relevant Schedule.

1.16 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. Supply of the products

2.1 PANGAIA shall supply, and the Buyer shall purchase, such quantities of Products as the Buyer may order under Clause 4 in accordance with the terms and conditions of this agreement, which may be amended by PANGAIA from time to time and notified in writing to the Buyer.

2.2 Where specified in any Order, the Buyer shall in each year purchase the amount of Product agreed from the PANGAIA. The combined Product Price of the Products purchased by the Buyer in a year (or part year) shall be calculated by reference to the Product Prices in force on the first day of that year (or part year), exclusive of VAT, discounts and any other incidental costs payable in respect of purchases of the Products.

3. Forecasts

3.1 Where applicable, the Buyer shall give PANGAIA:

(a) not less than ten (10) Business Days before the beginning of each month, a forecast of the Products it expects to purchase during the three months following that month; and

(b) not less than one month before the end of each year, a forecast of the Products it expects to purchase during the following year.

3.2 Forecasts shall be given in writing or, if given orally, shall be confirmed in writing within 2 (two) Business Days. The Buyer shall act in good faith when forecasting its requirements for Products.

3.3 Forecasts provided under this Clause 3 do not constitute an Order. If PANGAIA anticipates that it will be unable to meet the Buyer’s forecasted requirements provided in accordance with this Clause 3 , PANGAIA shall inform the Buyer as soon as practicable and where possible, substitute Products purchased from a third party, as a result of PANGAIA anticipating being unable to meet the Buyer’s forecasted requirements for Products shall for the purposes of Clause 2.2 be deemed to have been purchased from Pangaia.

4. Orders

4.1 All orders for the Products shall be deemed to be an offer by the Buyer to purchase the Products in accordance with these Terms and Conditions and any other conditions notified by PANGAIA to the Buyer. No request for products, information about product, or quotations received by the Buyer will constitute an offer.

4.2 Acceptance of orders shall be at the entire discretion of PANGAIA, and no order is binding until PANGAIA has issued a Confirmation, at which point it becomes an Order.

4.3 Each Order shall:

(a) be given in writing or, if given orally, shall be confirmed in writing within two [2] Business Days;

(b) specify the type and quantity of Products ordered; and

(c) specify the Delivery Date by which the Products ordered are to be delivered, and the Delivery Location. If the Delivery Date and/or Delivery Location are to be specified after the placing of an Order, the Buyer shall give the PANGAIA reasonable advance notice of the relevant information.

4.4 The Buyer is responsible for the accuracy and completeness of the terms of the Order. If there are any obvious errors in any sales literature, quotations, price lists, Confirmations, invoices, delivery notes or other documents or information issued by Pangaia, then these can be corrected by PANGAIA without any liability for Pangaia.

4.5 PANGAIA shall be entitled:

(i) to accept all or part of any order submitted to it by the Buyer; and/or

(ii) (notwithstanding the acceptance of any Order or part thereof), to reduce the quantity of the Products delivered to the Buyer to reflect the demand of the Channels PANGAIA believed the Products were originally intended for at the time the Order was placed. If the PANGAIA reduces the quantity supplied to the Buyer in accordance with this Clause

4.6(ii), the Buyer shall keep PANGAIA regularly informed of its sales or use (as applicable), of the Products.

4.6 PANGAIA shall assign an Order Number to each Order received from the Buyer and notify such Order Numbers to the Buyer. Each party shall use the relevant Order Number in all subsequent correspondence relating to the Order.

4.7 The Buyer may within two (2) Business Days of placing an Order amend or cancel an Order by written notice to the Pangaia. If the Buyer amends or cancels an Order, its liability to PANGAIA shall be limited to payment to PANGAIA of all costs reasonably incurred by PANGAIA in fulfilling the Order up until the date of receipt of the notice of amendment or cancellation, except that the Buyer shall have no liability to PANGAIA where the amendment or cancellation results from PANGAIA's failure to comply with its obligations under this agreement.

5. Manufacture, quality and packing

5.1 PANGAIA shall ensure that the Products are properly packed and secured in such manner as to enable them to reach their destination in good condition.

5.2 PANGAIA shall obtain and maintain in force for the Term all licences, permissions, authorisations, consents and permits needed to supply the Products in accordance with the terms of this agreement.

6. Delivery

6.1 All Delivery Dates and times are estimations only given in good faith but without any responsibility on the part of PANGAIA. The Delivery Date shall not be of the essence of the Contract.

6.2 Delivery of an Order shall be complete in the following circumstances:

1. i) on its delivery by PANGAIA to an agreed carrier;
2. ii) the completion of unloading of the Order at the Delivery Location;

iii) where collected by the Buyer (or Buyer’s nominee) from Pangaia, on completion of loading of the Products.

6.3 PANGAIA may deliver Orders by instalments of such quantities and at such intervals as it may decide and any express provision as to instalments in the Contract shall be in addition to and not in derogation of this right. Where PANGAIA exercises its right under this Clause 6.3, each instalment shall constitute a separate contract and any failure or defect in Delivery of any one or more instalments shall not entitle the Buyer to repudiate the Contract as a whole nor to cancel any subsequent instalments.

6.4 If the Buyer fails to accept delivery of an Order on the specified Delivery Date, then, except where such failure or delay is caused by PANGAIA's failure to comply with its obligations under this agreement:

(a) the Order shall be deemed to have been delivered at 9.00am on the Delivery Date; and

(b) PANGAIA shall store the Order until delivery takes place and charge the Buyer for all related costs and expenses (including insurance).

6.5 Each delivery of Products shall be accompanied by a delivery note from PANGAIA showing the Order Number, the date of the Order, the type and quantity of Products included in the Order and, in the case of Products being delivered by instalments, the outstanding balance of Products specified in an Order remaining to be delivered.

6.6 PANGAIA shall be entitled to delay or cancel Delivery or to reduce the amount delivered if it is prevented from, or hindered in or delayed in manufacturing, obtaining or delivering the Products by normal route or means of Delivery through any circumstances beyond its reasonable control including through a Force Majeure Event.

6.7 If for any reason the Buyer is unable to accept Delivery of the Products at the time when the Products are due and ready for delivery, PANGAIA may at its sole discretion , by whatever means it thinks most appropriate, without prejudice to its other rights and for such period as the PANGAIA may determine, store the Products at the Buyer’s risk and cost, and take all reasonable steps to safeguard and insure them at the Buyer’s cost.

6.8 The parties agree that if in respect of an Order PANGAIA delivers five percent (5%) or more than the quantity of Products ordered, the Buyer shall not be entitled to reject the Order, but a pro rata adjustment shall be made to the Order invoice.

6.9 If PANGAIA requires the Buyer to return any packaging materials to PANGAIA, that fact must be clearly stated on the delivery note accompanying the relevant Order, and any such returns shall be at PANGAIA's expense.

6.10 It is the Buyer’s responsibility to inspect the Products on Delivery and any errors must be communicated to PANGAIA in writing within 48 hours of Delivery.

7. Shortages, defective products and liability

7.1 Unless otherwise agreed in writing by PANGAIA, no liability whether in contract (including without limit, fundamental breach), tort (including without limit, negligence or otherwise) for non-delivery or for an alleged shortage of Products or discrepancy in an invoice relating to Products, will attach to PANGAIA unless claims are notified in writing to PANGAIA within two (2) Business Days following Delivery.

7.2 In the event of a valid claim for shortages or non-delivery of the Products notified in accordance with Clause 7.2, the sole liability of PANGAIA shall be, at its option, to either credit the Buyer with the price paid by the Buyer to PANGAIA for the items of the Products concerned or replace it.

7.3 If the Buyer fails to notify PANGAIA in accordance with this Clause 7, the items delivered shall be deemed to be in all respects in accordance with the Contract and all claims for shortages or non-delivery (save as set out below) shall thereafter be wholly barred.

7.4 The Buyer shall inform PANGAIA as soon as reasonably possible of Products delivered which do not comply with Clause 5.2 or are otherwise not in conformity with the Contract.

7.5 PANGAIA reserves the right to inspect all Products which are deemed to be non-compliant with Clause 5.2, or not in conformity with the Contract. Any Products agreed to be such may at PANGAIA’s sole discretion:

(a) be repaired or replaced at PANGAIA’s risk and expense within ten (10) Business Days of being requested to do so; or

(b) be collected by or authorised to be returned to PANGAIA and appropriate credit to the Buyer arranged. PANGAIA may not accept alleged non-compliant or non-conforming Products back unless PANGAIA has inspected such Products and duly authorised them as such.

7.6 Where the Products are delivered in instalments any non-conformity or non-compliance in any instalment shall not be a ground for cancellation of the remainder of the instalments and the Buyer shall be bound to accept Delivery thereof and to pay for the Products in accordance with the Contract.

7.7 Save as expressly provided in this Clause 7, PANGAIA shall not be liable for:

(b) any delay in Delivery;

(c) any slight variation in colour, texture shade of Product;

(d) any loss of profit or goodwill suffered or incurred by the Buyer or any third parties;

(e) any indirect, special or consequential loss of any kind whatsoever;

(f) the cost of substitute products.

7.8 The terms of this agreement shall apply to any repaired or replacement Products supplied by the Pangaia.

8. Title and risk

8.1 The risk in Products delivered to the Buyer shall pass to the Buyer on Delivery who shall be solely responsible for their custody and maintenance, but title will not pass until Payment in full in respect of the Products is received by PANGAIA.

8.2 Whilst PANGAIA’s ownership continues, the Buyer, as fiduciary bailee and agent for PANGAIA, shall:

(i) store the Products (at no cost to PANGAIA), separately and identifiable from all other goods in its possession, and shall not destroy, deface or obscure any identifying mark or packaging (including serial numbers and notices that a patent, trademark, design or copyright relating to the Products is owned by PANGAIA or a third party) on or relating to the Products; and

(ii) ensure that the Products are properly maintained in the condition in which they were delivered and shall make good any damage or deterioration to them as directed by Pangaia; and

(iii) keep the Products insured against all risks in an amount at least equal to their full price from the date of Delivery. The Buyer shall, whenever requested by PANGAIA, produce a copy of such insurance together with evidence of payment of the relevant premiums in respect of the same.

1.2 The Buyer shall not pledge, charge or encumber by way of security for any indebtedness any of the Products which are the property of PANGAIA. Without prejudice to the other rights of PANGAIA, if the Buyer does so, all sums owing by the Buyer to PANGAIA shall forthwith become immediately due and payable.

1.3 In the event of failure by the Buyer to pay the price in accordance with the Contract, PANGAIA shall have the power to resell the Products, such power being in addition to (and not in substitution for) any other power of sale arising from operation of law or implication or otherwise and may require the Buyer to deliver up the Products at any time for this purpose.

1.4 The Buyer grants to PANGAIA and its servants, agents and representatives an irrevocable licence at any time on reasonable notice to enter upon any premises or land occupied, controlled or owned by the Buyer (or where PANGAIA reasonably believes the Products are situated) to remove and/or inspect the Products. The Buyer shall provide assistance reasonably required by PANGAIA in making use of the licence under this provision, including without limitation, assisting in locating and removing the Products.

1.5 On termination of the Contract, howsoever caused, PANGAIA’s (but not the Buyer’s) right contained in this Clause 8 shall remain in effect.

9. Product prices

9.1 The Product Prices will be issued by PANGAIA with each Order together with the recommended retail price (MSRP), of the Products.

9.2 The Product Prices are exclusive of amounts in respect of VAT. The Buyer shall, on receipt of a valid VAT invoice from the PANGAIA, pay to the PANGAIA such additional amounts in respect of VAT as are chargeable on a supply of Products.

9.3 The Product Prices are inclusive of the costs of standard packaging of the Products. Any exclusive or customised packaging required by the Buyer e.g. customised hangtag, product bags and/or boxes will incur additional costs.

9.4 Volume discounts shall be calculated by reference to the Product Prices and the volume ordered. The discounts shall be exclusive of any VAT and other discounts, and any incidental costs payable in respect of the Products.

10. Terms of payment

10.1 Terms of payment shall be communicated to the Buyer in the Order Confirmation or separately on successful completion of a credit assessment. Such terms shall be subject to regular review and may be amended at any time at the discretion of PANGAIA by notice in writing to the Buyer. In the absence of formal written confirmation on the terms of payment by PANGAIA, the Buyer shall pay invoices in full and in cleared funds within thirty (30) days of the date of invoice to the bank account nominated in writing by Pangaia. PANGAIA may invoice the Buyer for the Products on or at any time after the completion of Delivery. Each invoice shall quote the relevant Order Numbers.

10.2 The time of Payment is of the essence of the Contract.

10.3 If the Buyer fails to make a payment due to PANGAIA under this agreement by the due date, then, without limiting PANGAIA’s remedies under this Agreement, the Buyer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

10.4 If the Buyer fails to make a payment due to PANGAIA under this agreement by one or more of the due dates then the Buyer will also pay late compensation on any outstanding amount, pursuant to section 5A of the Late Payments of Commercial Debts (Interest) Act 1998.

10.5 All amounts due from the Buyer to PANGAIA shall be paid by the Buyer in full without any setoff, counterclaim, deduction or withholding. The Buyer shall not be entitled to exercise any lien or any other similar right or claim.

10.6 If the Buyer disputes any