HYDRAFACIAL UK LIMITED

TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS

About Us

HydraFacial UK Limited (company number 11776522) (“HF”, “we”, “us”) is a company registered in England and Wales and operating in the UK and Ireland and our registered office is at 3rd Floor 1 Ashley Road, Altrincham, Cheshire, United Kingdom, WA14 2DT.

Our contract with you

2.1. These terms and conditions (“Terms”) apply to all orders for Goods (as defined at clause 3.1) by you (“Order”) and the supply of Goods by us to you (“Agreement”). No other terms are implied by trade, custom, practice or course of dealing. We may update these Terms from time to time, so you should keep a copy of these Terms on our acceptance of your Order for future reference.

2.2. The Agreement is the entire agreement between us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Agreement.

Placing an order and its acceptance

3.1. Each Order is an offer by you to buy the goods specified in the Order (“Goods”) subject to these Terms. Reference to ‘Goods’ in these Terms shall also include ‘Equipment’ (as defined at clause 4.1 below), unless otherwise expressly stated.

3.2. You are responsible for ensuring that your Order is complete and accurate.

3.3. Our acceptance of your Order takes place when we send you a written quotation or invoice, or when we sign a purchase order form, at which point the Agreement between you and us will come into existence.

3.4. Any Order shall be accepted entirely at our discretion.

3.5. Any quotation or estimate provided by us is subject to these Terms. Without prejudice to our right not to accept an Order, quotations will be valid for 30 days from date of issue.

Limited Warranty; Care and Use of Goods

4.1. The equipment as described in the Order (“Equipment”) comes with a standard one (1) year limited warranty, which is set out in the user guide provided with the Equipment and accessible via our portal (“User Guide”).

4.2. We shall provide the following warranties:

• Equipment  – the warranties are set out in the User Guide and any optional extended services plan. Your HF sales representative can provide you with additional detail and materials regarding the extended service plan upon request.
• Goods (other than Equipment) – we warrant that on delivery, such Goods shall conform in all material respects with their description and any applicable specification.

4.3. If you wish to purchase an optional extended services plan, you must do so prior to the end of the one (1) year limited warranty you receive with your purchase of the Equipment.

4.4. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Agreement.

4.5. You agree to:

• use the Equipment solely in your business and in a careful and proper manner. This includes (i) only operating the Equipment in accordance with the User Guide, and (ii) only allowing persons who have been properly trained in the proper use of the Equipment to use it / administer treatments;
• keep the Equipment in good working condition;
• not make any alterations or modifications to the Equipment without our prior written consent; and
• only use Consumables (as defined at clause 10.1) when performing treatments using the Equipment in the ordinary course of your business.

4.6. We will not be liable for breach of the warranty set out in clause 4.2 if:

• you make any further use of the Goods after giving notice to us under clause 4.8;
• you alter or repair the Goods without our prior written consent;
• the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
• the Goods differ from their description or specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
• if you breach clause 4.5.

4.7. Failure to comply with clause 4.5 will also have other implications such as (i) being removed from HF’s list of verified providers of HydraFacial®services, (ii) termination of your access to HF’s resources and support personnel and (iii) revocation of the licence at clause 11.1 to offer HydraFacial® treatments, use our trade marks and copyright-protected marketing materials.

4.8. Subject to clause 4.6, if:

• you give us notice in writing in accordance with the timeframes set out at clause 5.6 that some or all of the Goods do not comply with the warranty set out in clause 4.2;
• we are given a reasonable opportunity of examining the Goods; and
• we ask you to do so, you return the Goods to us at your cost, we will, if the Goods are found to be defective, at our option and cost, repair or replace the defective Goods and refund the reasonable costs incurred by you in returning the Goods to us.

4.9. We will only be liable to you for the Goods’ failure to comply with the warranty set out in clause 4.2 to the extent set out in this clause 4.

4.10. These Terms also apply to any repaired or replacement Goods supplied by us to you.

Delivery, transfer of risk, title, Acceptance, Installation and Initial Training

5.1. We will use reasonable endeavours to deliver Goods to the delivery address by the delivery date set out in the Order and if a delivery date is not specified in the Order, we will deliver the Goods within a reasonable time. The delivery date is intended to be an estimate only and time for delivery shall not be of the essence.

5.2. Delivery is complete once the Goods have been unloaded at the address for delivery set out in the Order and the Goods will be at your risk from that time.

5.3. You own the Goods once we have received cleared payment in full, including of all applicable delivery charges.

5.4. Until you have paid for the Goods in full in accordance with clause 5.3:

• you shall hold the Goods on a fiduciary basis as our bailee;
• you shall store the Goods at your premises in a proper manner in conditions which adequately protect and preserve the Goods and shall insure them and not tamper with any identification on the Goods or their packaging and shall store them separately from any other goods and that the Goods are clearly identifiable as belonging to us and we are entitled to examine any such Goods in storage at any time during normal business hours upon giving you reasonable notice;
• we may at any time, on demand and without prior notice, require you to deliver the Goods to us and we may repossess and resell the Goods if any of the events specified in clause 12.1(b) to 12.1(d) occurs or if any sum due to us under the Agreement is not paid when due;
• for the purposes of this clause 5.4, you shall ensure that we, our employees, agents and sub-contractors are entitled to free and unrestricted access to any premises owned, occupied or controlled by you and/or any other location where any of the Goods are situated at any time without prior notice; and
• we are entitled to maintain an action against you for the price of the Goods despite that ownership in the Goods has not passed to you,

however, you may use the Goods in the ordinary course of your business unless an event set out in clause 12.1(b) to 12.1(d) occurs, or we terminate the Agreement, or if any sum owed to us is not paid when due. At our request, you shall assign to us all claims that then we may have against purchasers of the Goods from you.

5.5. Our rights and remedies set out in clause 5.4 are in addition to and shall not in any way prejudice, limit or restrict any of our other rights or remedies under the Agreement or in law or equity.

5.6. You will be deemed to have accepted the Goods as being in accordance with the Agreement unless you notify us in writing of any defect or other failure of the Goods to conform with the Agreement on the date of delivery of the Goods where the defect or failure would be apparent on delivery of the Goods, or within a reasonable time where the defect or failure would not be so apparent on the date of delivery, failing which you will not be entitled to reject the Goods and we shall have no liability for such defect or failure.

5.7. A HF sales consultant will contact you to schedule a date and time for the installation of the Equipment and to train your staff on its general use (though they should always comply with the User Guide).

5.8. To facilitate installation of the Equipment, you shall at your sole expense provide access and suitable working conditions to enable installation to be carried out safely and expeditiously.

Price of Goods and how to pay

6.1. The price of Goods will be set out in our price list in force as at the date of our quotation or invoice. We reserve the right to update our price list from time to time in our sole discretion.

6.2. Unless otherwise agreed by us in writing:

• all orders for Equipment and Goods set out in a purchase order form are payable in full in accordance with the payment terms set out in our quotation; and
• all future orders for Goods are payable in full within thirty (30) days from the date of our invoice.

6.3. We reserve the right to request a deposit for any Equipment which we supply to you under an Agreement.

6.4. Payment shall be made to the bank account nominated in writing by us.

6.5. You shall make all payments without any deduction whether by way of set-off, withholding, counterclaim, discount, abatement or otherwise.

6.6. If any sum you owe to us is not paid on or before the due date for payment, then all sums you owe to us will become due and payable immediately and we will be entitled to:

• cancel or suspend our performance of the Agreement or any order including suspending deliveries of the Goods;
• require you to pay for Goods prior to their dispatch;
• charge interest calculated on a daily basis on all overdue amounts (both before and after judgment) until actual payment at the rate of eight per cent (8%) per annum above the official dealing rate prevailing from time to time until payment is made in full;
• reasonable debt recovery costs; and
• the cost of obtaining judgment or payment to include all reasonable professional costs (including legal fees) and other costs of issuing proceedings or otherwise pursuing a debt recovery procedure.

Taxes

7.1. Taxes. The parties’ respective responsibilities for taxes arising under or in connection with a Contract shall be as follows:

• Respective Taxes. Each party shall be responsible for any of its own personal property taxes on property it owns or leases, for franchise and privilege taxes on its business, and for taxes based on its net income or gross receipts.
• Taxes in general
• All amounts due from you to us for the purchase of HF products, services, or otherwise exclude all transaction taxes including, but not limited to, sales, use, value added, goods and services tax, and similar taxes (“Transaction Taxes”). Any such Transaction Taxes eligible to be collected by us under applicable law shall be stated separately as applicable on our invoices to you.
• All amounts payable by you to us under a Contract shall be made without withholding or deduction for or on account of any present or future taxes, duties, or governmental charges whatsoever imposed by any taxing jurisdiction unless required by law (“Withholding Tax”). In that event, you shall pay such additional amounts as may be necessary in order that the net amounts received by us after such withholding or deduction equal the amount that would have been received if no withholding or deduction had been made. To the extent that you are required by applicable law to withhold such amounts, you shall as soon as practicable provide the appropriate notification of payment of such taxes to us.
• The parties agree to cooperate to support any reduction of or exemption from any Transaction Tax or Withholding Tax including a claim for the application of any applicable income tax convention or any exemption contained in any applicable tax laws or regulations. In support of such claims, the parties agree to provide all forms and information which may be reasonably needed to substantiate a claim to the benefit of any such tax convention or exemption.

Our liability

8.1. References to liability in this clause 7 include every kind of liability arising under or in connection with the Agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

8.2. Nothing in the Agreement limits or excludes our liability for:

• death or personal injury caused by our negligence;
• fraud or fraudulent misrepresentation;
• breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
• any other liability that cannot be limited or excluded by law.

8.3. Subject to clause 8.2, we will under no circumstances be liable to you for: (a) any loss of profits, sales, business, or revenue (whether direct or indirect) or (b) any indirect or consequential loss.

8.4. Subject to clause 8.2 and clause 8.3, our total liability to you for all losses arising under or in connection with the Agreement will in no circumstances exceed 100% of the price of the Goods paid by you.

8.5. Except as expressly stated in these Terms, we do not give any representations, warranties or undertakings in relation to the Goods. Any representation, condition or warranty which might be implied or incorporated into these Terms by statute, common law or otherwise is excluded to the fullest extent permitted by law.

Multiple Devices/Agreements (as/if applicable)

Many HF customers buy more than one item of Equipment from us. If you already have Equipment, or buy more Equipment from us in the future, these Terms as at the date your Order is accepted shall apply to each order of Equipment.

Consumables

10.1. The Equipment requires certain items including tips and serums for use of the Equipment (“Consumables”). For the avoidance of doubt, these Terms apply to all Orders for Consumables.

10.2. Your designated HF sales representatives are available to assist you in your ordering needs, as is our sales support team.

10.3. As noted above, in order to ensure correct functioning of the Equipment you are only permitted to use HF Consumables when using the Equipment. Provided that you do so, you will (i) be named as our verified provider of HydraFacial®services, (ii) have access to HF resources and support personnel, and (iii) have a licence under clause 11.1 to offer HYDRAFACIAL® treatments, or use our trade marks and/or copyright-protected marketing materials. These requirements are made with both your capital investment and our investments, brand reputation, and other HydraFacial® equipment owners and operators in mind. Additionally, they’re needed to ensure that HF has control over the quality of services provided to the ultimate consumers of treatments under the “HydraFacial®” mark.

Trade Mark Licence

11.1. We own the intellectual property rights in our trade marks. We grant you a non-exclusive and revocable licence to use our trade marks and marketing materials to market and advertise and deliver HydraFacial® treatments or services for the duration set out at clause 11.5 provided that:

• you only use the Equipment when delivering HydraFacial® treatments or services; and
• you only use HF Consumables when using the Equipment.

11.2. You must only use our trade marks and marketing materials for the purposes set out at clause 11.1 and for no other purpose.

11.3. You must not sublicence our trade marks or our marketing materials.

11.4. You must not do or cause any act to be done which impairs or invalidates our right in the trade marks or our marketing materials.

11.5. The licence under clause 11.1 is granted on the date of payment for the Equipment and subject to clause 11.6, continues until terminated by either party on providing at least two (2) months’ written notice.

11.6. Any breach of clause 4.5(c), clause 10.3 or clause 11 shall result in immediate termination of the licence granted to you under clause 11.1.

11.7. On termination of the licence granted at clause 11.1:

• all rights granted under the licence shall cease;
• you must cease to use our trade marks and marketing materials;
• you must stop marketing and advertising and delivering HydraFacial® treatments or services; and
• you must return to us copies of all marketing material in your possession which we provided to you.

11.8. To the fullest extent permitted by law, we are not be liable to you for any costs, expenses, loss or damage (whether direct, indirect or consequential, and whether economic or other) arising from your exercise of the rights granted to you under the licence at clause 11.1.

11.9. You must indemnify us against all liabilities, costs, expenses, damages and losses (including legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by us arising out of or in connection with any claim made against us by a third party for death or personal injury arising out of or in connection with the provision of HydraFacial® treatments or services by you, to the extent attributable to the acts or omissions of you or your employees.

Termination and consequences of termination

12.1. Without limiting any of our other rights, we may suspend the supply or delivery of the Goods to you, or terminate the Agreement with immediate effect by giving written notice to you if:

• you commit a material breach of any term of the Agreement and (if such a breach is remediable) fail to remedy that breach within 30 days of you being notified in writing to do so;
• you fail to pay any amount due under the Agreement on or before the due date for payment;
• you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; or
• your financial position deteriorates to such an extent that in our reasonable opinion your capability to adequately fulfil your obligations under the Agreement has been placed in jeopardy.

12.2. Termination of the Agreement shall not affect your or our rights and remedies that have accrued as at the date of termination.

12.3. Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

Events outside of our control

13.1. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Agreement that is caused by any act or event beyond our reasonable control (“Event Outside Our Control”).

13.2. If an Event Outside Our Control takes place that affects the performance of our obligations under the Agreement:

• we will contact you as soon as reasonably possible to notify you; and
• our obligations under the Agreement will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. Where the Event Outside Our Control affects our delivery of Goods to you, we will arrange a new delivery date with you after the Event Outside Our Control is over.

13.3. You may cancel the Agreement affected by an Event Outside Our Control which has continued for more than 30 days. To cancel please contact us. If you opt to cancel, you will return (at your cost) any relevant Goods you have already received and we will refund the price you have paid.

Communications between us

14.1. When we refer to “in writing” in these Terms, this includes email.

14.2. Any notice or other communication given by one of us to the other under or in connection with the Agreement must be in writing and be delivered by hand, sent by pre-paid first class post or other next working day delivery service, or email.

14.3. A notice or other communication is deemed to have been received:

• if delivered by hand, at the time the notice is left at the registered address;
• if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting; or
• if sent by email, at 9.00 am the next working day after transmission.

14.4. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email that such email was sent to the specified email address of the addressee.

14.5. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

General

15.1. We may assign or transfer our rights and obligations under the Agreement to another entity. You may only assign or transfer your rights or your obligations under the Agreement if we agree in writing.

15.2. Any variation of the Agreement only has effect if it is in writing and signed by you and us (or our respective authorised representatives).

15.3. If we do not insist that you perform any of your obligations under the Agreement, or if we do not exercise our rights or remedies against you, or if we delay in doing so, that will not mean that we have waived our rights or remedies against you or that you do not have to comply with those obligations. If we do waive any rights or remedies, we will only do so in writing, and that will not mean that we will automatically waive any right or remedy related to any later default by you.

15.4. Each paragraph of these Terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.

15.5. The Agreement is between you and us. No other third party has any rights to enforce any of its terms.

15.6. You undertake that you shall not at any time during the Agreement and for a period of two years after termination of the Agreement disclose to any person any confidential information concerning our business, assets, affairs, customers, clients or suppliers, except as permitted by this clause. You may disclose our confidential information: (a) to your employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising your rights or carrying out your obligations under the Agreement. You shall ensure that your employees, officers, representatives, contractors, subcontractors or advisers to whom you disclose our confidential information comply with this clause and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. You shall not use our confidential information for any purpose other than to exercise your rights and perform its obligations under or in connection with the Agreement.

15.7. This Agreement is governed by English law and each party irrevocably agrees to submit all disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the English courts.