Exhibit 10.2

	FOH Services Agreement

MILLS OAKLEY

Level 7, 151 Clarence Street

SYDNEY NSW 2000

Telephone: +61 2 8289 5800

Facsimile: +61 2 9247 1315

www.millsoakley.com.au

Ref: DDYS/JYKS 3496392

FOH Services Agreement

 

Table of contents

FOH Services Agreement

 

FOH Services Agreement

 

Parties

Background

Agreed terms

In this Agreement unless the context otherwise requires:

Administration Fee means the administration fee payable by FOH Online to Bendon in respect of the Services as calculated in accordance with Schedule 2.

Agreed Costs means the costs payable by FOH Online to Bendon in respect of the Services as calculated in accordance with Schedule 2.

Agreement means this agreement and all schedules, annexures and attachments to it, as amended by the parties in writing in accordance with its terms.

Annual Budget has the meaning given in clause 7.1.

Business Day means a day on which banks are open for general banking business in Auckland, New Zealand excluding Saturdays, Sundays or public holidays in Auckland, New Zealand.

Buyers means:

FOH Services Agreement

 

or their respective nominee(s).

Claim means any claim, demand, suit, proceeding or cause of action (whether based in contract, equity, tort, statute or otherwise) in respect of this Agreement (or any part of it).

Commencement Date means the Completion Date.

Companies Act means the Companies Act 1993 (NZ).

Completion has the meaning given to that term in the Share Sale Agreement.

Completion Date has the meaning given to that term in the Share Sale Agreement.

Corporations Act means the Corporations Act 2001 (Cth).

Dispute has the meaning given in clause 15.1.

Dispute Notice has the meaning given to it in clause 15.2.

Excluded Services means the services described in Schedule 2.

Financial Year means the financial year ending 31 January.

Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure (in connection with that party’s failure to comply with its obligations), including, to the extent so beyond such reasonable control:

the effect of which could not have reasonably been prevented or overcome by the party claiming force majeure.

GST means the tax imposed or assessed by the GST Law and its related legislation and includes any similar or substitute impost introduced in the future.

GST Law means (as applicable):

Insolvency Event means the occurrence of any one or more of the following events in relation to any person:

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Intellectual Property Rights means any and all intellectual property rights of any kind or nature including statutory, common law or other proprietary ownership or control rights which exist or may exist in the future and includes rights in respect of or in connection with copyright, inventions (including patents), discoveries, source code, object code, formulae, specifications, databases, business processes and methods, trademarks, service marks, business names, trade or business names, domain names, logos, styles, designs, Confidential Information (as defined in clause 13.1), moral rights, trade secrets and know-how and all other rights with respect to intellectual property whether registered or unregistered and whether capable of registration or otherwise.

Loss means a damage, loss, cost, expense or liability, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.

Personnel means the employees, contractors of, and/or consultants to, Bendon (as the case may be) as may be notified by Bendon to FOH Online in writing from time to time.

Service Fees means the Administration Fee and Agreed Costs.

Services means the services described in Schedule 1.

Share Sale Agreement means the share sale agreement dated on or about the date of this Agreement between the Buyers, Naked, Bendon and others in respect of the Buyers’ proposed acquisition of 100% of the issued share capital in Bendon from the Naked.

Term has the meaning given in clause 2.

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In this Agreement, unless the context otherwise requires:

This Agreement will commence on the Commencement Date and will continue in full force and effect for a period of 5 years, unless it is terminated earlier in accordance with clause 18 (Term).

This Agreement does not become binding on the parties and has no force or effect unless and until Completion has occurred under the Share Sale Agreement.

FOH Services Agreement

 

For the avoidance of doubt, the Excluded Services are excluded from this Agreement and are the sole responsibility of FOH Online.

Bendon must provide each Service described in this Agreement for the Term, provided that at any point during the Term, Bendon and FOH Online may agree that, from a particular date, one or more Services are or will no longer be required, in which case, with effect from the date agreed between Bendon and FOH Online, the relevant Services(s) will be removed from the description of the Services and Bendon will cease to be required to provide the relevant Service(s) to FOH Online under this Agreement.

FOH Services Agreement

 

During the Term:

In order to provide the Services, Bendon will make available the services of the suitably qualified, trained, experienced and competent Personnel and procure the Personnel provide the Services in accordance with this Agreement and for so long as (and provided that) they remain employees, contractors of, and/or consultants to (as the case may be) to Bendon.

Bendon will ensure that each Personnel complies with:

The Personnel must at all times be employees, contractors of and/or consultants to (as the case may be), and be maintained on the payroll of, Bendon and Bendon must comply with all its responsibilities as employer, contractor or consultancy partner of the Personnel (as the case may be).

FOH Services Agreement

 

In preparing all budgets and forecasts to be submitted to FOH Online, Bendon will base its estimates upon the most recent and reliable information then available. At the request of FOH Online, Bendon will make available to it the basis and information, in reasonable detail, utilised in preparing such budgets and forecasts.

FOH Services Agreement

 

Any person who is required or compelled by law to make any deduction or withholding from any amount payable under this Agreement must, to the extent permitted by law, pay to the payee an additional amount sufficient to ensure that the amount received by the payee equals the full amount that would have been received by the payee, if that deduction or withholding had not been required or compelled.

Each party to this Agreement represents and warrants to the other party that:

Subject to clauses 10.2 and 11, Bendon will indemnify FOH Online against, and pay on demand, any Claim brought against or Loss suffered or incurred by FOH Online as a result of a breach of this Agreement by Bendon.

Bendon’s liability under clause 10.1 will be proportionally reduced to the extent that any act or omission of FOH Online caused or contributed to the Claim or Loss.

FOH Services Agreement

 

Bendon’s aggregate liability for Loss caused or contributed to by Bendon shall in no circumstances whatsoever, to the extent permitted by law, exceed an amount equal to the Administration Fees payable under this Agreement whether such liability arises in contract, tort, negligence, misrepresentation, breach of statutory duty or otherwise.

Save as otherwise provided in this Agreement, each party shall not, to the extent permitted by law, be liable to the other party for any loss or damage under or in connection with this Agreement:

Nothing in this Agreement shall exclude or restrict a party’s liability for fraud, criminal acts, wilful default or wilful misconduct of that party, its officers, employees or agents, or for death or personal injury to the extent resulting from its negligence.

The parties must keep complete records and books of accounts relating to the performance of each party’s obligations under this Agreement for the Term and for 7 years after termination or expiry of this Agreement. Each party shall permit the other party, or the other party’s appointed representative, to inspect and audit its books relating to the provision of the Services at all reasonable times during usual business hours, provided that the other party gives reasonable advance notice.

The following definitions apply in this clause 13:

Confidential Information means any written or oral information of a technical, business or financial nature or which is taken by any provision of this Agreement to be confidential information, or which the Discloser makes the Recipient aware is considered by the Discloser to be confidential and proprietary, and includes all information that is personal information for the purposes of the Privacy Act 1988 (Cth) or the Privacy Act 2020 (NZ), but does not include information which the Recipient can establish:

FOH Services Agreement

 

Discloser means the party giving information.

Recipient means the party to whom information is given.

Each party must:

No announcement, press release or other communication of any kind relating to the negotiations of the parties or the subject matter or terms of this Agreement may be made or authorised by or on behalf of a party without the prior written approval of each other party unless that announcement, press release or communication is required to be made by law or any order of any court, tribunal, authority, the rules of a recognised stock exchange or regulatory body.

The obligations of confidentiality under this Agreement do not extend to information (whether before or after this Agreement is executed):

Each party acknowledges all rights, titles and interests in and to all Intellectual Property Rights owned by that party prior to entry into this Agreement, or developed independently of this Agreement by either party, will continue to be owned by that party.

FOH Services Agreement

 

Any dispute, controversy or claim (each a Dispute) arising under or in connection with this Agreement, including in relation to the Service Fees and Services, must be resolved in accordance with the dispute resolution procedure set out in this clause 15.

If a Dispute arises under or in connection with this Agreement, a party to the Dispute may give to the other party or parties to the Dispute notice setting out details of the Dispute within 5 Business Days of the Dispute arising (Dispute Notice).

If a party issues a Dispute Notice, the parties must meet (in person or via telephone or video conference) and use their best efforts to resolve the Dispute within 30 Business Days after the Dispute Notice is given under clause 15.2 (or any longer period agreed by the parties in writing) (Initial Period).

If the parties cannot resolve the Dispute within the Initial Period, the Dispute must be referred to a member of their respective senior management teams with decision making authority who must use their best efforts to resolve the Dispute or agree on a process to resolve the Dispute within 30 Business Days after the Dispute is referred to them (Second Period).

If the parties have not resolved the Dispute or agreed on a process to resolve the Dispute prior to expiry of the Second Period, after the Second Period has expired, providing the parties have complied with their obligations under this clause 15, either party may terminate the dispute resolution process by giving written notice to each other party, and the parties may thereafter take such action as they consider appropriate.

FOH Services Agreement

 

Subject to clause 11, Bendon is fully responsible for the Services despite subcontracting any part of the Services and will be vicariously liable to FOH Online for all acts, omissions and defaults of its subcontractors (and their employees and agents) relating to the subcontracted Services.

This Agreement will terminate at the end of the Term, unless terminated earlier in accordance with this Agreement.

FOH Online may terminate this Agreement by giving at least 3 months’ prior notice in writing to Bendon.

Either party may terminate this Agreement by giving at least 3 months’ prior notice in writing to the other party (Defaulting Party), if the Defaulting Party materially breaches this Agreement and the breach:

This Agreement will terminate with immediate effect where an Insolvency Event arises in regard to a party.

Termination of this Agreement shall be without prejudice to any other rights which either party may have under this Agreement and without prejudice to any rights which either party may have that accrued prior to the date on which the termination takes effect.

FOH Services Agreement

 

Following termination of this Agreement for whatever reason:

For the avoidance of doubt, notwithstanding the termination of this Agreement or the expiration of the Term, FOH Online will remain liable in respect of all contracts with third party providers to which it is party (whether entered into before or after this Agreement).

The provisions of this clause 18 and clauses 1, 10, 11, 12, 13, 14, 15, 20, 21, 22 shall survive termination or expiry of this Agreement.

On request, a party must provide to the requesting party a current and valid certificate of insurance or evidence reasonably satisfactory to the requesting party that the party has effected and/or renewed the required insurance policies under clause 19.1(a) or that the party continues to be a beneficiary under such policies.

A party must immediately inform the other party if at any time during the Term it ceases to have the benefit of an insurance policy as required in clause 19.1 whether through cancellation, lapse or otherwise.

FOH Services Agreement

 

In this clause 20, a word or expression defined in the GST Law has the meaning given to it in that GST Law.

Unless expressly stated otherwise, all amounts payable under this Agreement are expressed to be exclusive of GST. If a party makes a supply under or in connection with this Agreement in respect of which GST is payable, the consideration for the supply but for the application of this clause 20.2 (GST Exclusive Consideration) is increased by an amount equal to the GST Exclusive Consideration multiplied by the rate of GST prevailing at the time the supply is made.

If a party must reimburse or indemnify another party for a Loss, cost or expense, the amount to be reimbursed or indemnified is first reduced by any input tax credit the other party is entitled to for the Loss, cost or expense, and then increased in accordance with clause 20.2.

A party need not make a payment for a taxable supply made under or in connection with this Agreement until it receives a tax invoice for the supply to which the payment relates.

Each party agrees to do all things, including providing documentation, that may be necessary or desirable to enable or assist the other party to claim any input tax credit, set-off, rebate or refund in relation to any amount of GST paid or payable pursuant to any supply under this Agreement.

A notice, demand, certification, process or other communication relating to this Agreement must be in writing in English and may be given by an agent of the sender.

In addition to any other lawful means, a communication may be given by being:

The particulars for delivery of notices for each party is initially that party’s registered office, residential address or email address shown in the ‘Parties’ section of this Agreement. Each party may change its particulars for delivery of notices by notice to the other party.

FOH Services Agreement

 

Subject to clause 21.5, a communication is given:

whichever happens first.

Subject to clause 21.4, if a communication is given after 5.00pm on a Business Day, the communication is taken to be received at 9.00am on the next Business Day.

Any process or other document relating to a Claim made under this Agreement may be served by any method contemplated by this clause 21 or in accordance with any applicable law.

Except as expressly provided to the contrary in this Agreement, nothing in this Agreement will constitute the parties as principal and agent, employer and employee, partners or otherwise render a party liable for the acts or omissions of any other party.

Each party acknowledges assuming obligations and granting rights under this Agreement for valuable consideration.

Subject to the Share Sale Agreement, each party must pay its own legal and other costs of negotiating and executing this Agreement.

No right or obligation of a party under this Agreement merges if a transaction under this Agreement is completed or an obligation of a party under this Agreement ceases or is fully performed.

FOH Services Agreement

 

A party must promptly do whatever another party reasonably requires of them (such as obtaining consents, signing and producing documents and getting documents completed and signed) to bind each party and any other person intended to be bound under this Agreement and to give effect to this Agreement and to perform their obligations under it.

Any present or future legislation or law which operates to vary the obligations of a party in connection with this Agreement with the result that the party’s rights, powers or remedies are adversely affected (including by way of delay or postponement) is excluded except to the extent that its exclusion is prohibited or rendered ineffective by law.

This Agreement may be executed in any number of counterparts. All counterparts, taken together, constitute one document. A party may execute this Agreement by signing any counterpart. Any copy of this Agreement executed and delivered by a party is binding on that party whether or not that or any other copy is executed and delivered by or binding upon any other party.

FOH Services Agreement

 

Schedule 1 Services

[Omitted]

FOH Services Agreement

 

Schedule 2 Details of Service Fees

[Omitted]

FOH Services Agreement

 

Execution page

EXECUTED as an agreement on           2021

FOH Services Agreement

 

Annexure A First Annual Budget

[Omitted]