These are the Terms and Conditions of Sale of all products and merchandise (“the Products”) supplied by International Hair Cosmetics Pty Ltd (ABN 24476040977) and its associated and subsidiary Companies (all of which are referred to as “the Supplier”) to any person, firm or company placing an order with the Supplier for the purchase of any Products(“the Customer”). Except as otherwise expressly agreed upon in writing between a duly authorised officer of the Supplier and the Customer, these Terms and Conditions shall apply notwithstanding any provisions to the contrary which may appear on any order form or other document issued by any Customer.
1. All orders placed with the Supplier shall only be accepted subject to these Terms and Conditions. The Supplier may at any time, and from time to time alter these Terms and Conditions of Sale and such altered Terms and Conditions of Sale shall apply after notification by the Supplier to the Customer. If a Customer cancels or alters any order, then the Supplier reserves the right to charge the Customer any associated costs.
2. Prices include any applicable Sales Tax, GST, or other applicable tax or duty payable and all such taxes or duties shall be paid by the Customer as an inclusive charge. All prices shall be those referred to in the Supplier’s price lists and/or arrangements current at the date of invoice and prices shall be subject to change without notice.
TERMS OF PAYMENT
3. The granting of credit to a Customer shall be at the absolute discretion of the Supplier and unless otherwise demanded by the Supplier the Customer shall make payment of all amounts payable within as stipulated in Schedule 1 of the Customer’s Distributor Agreement or if unclear, thirty (30) days from invoice date or,. a) Customers shall not be entitled to withhold payment of any account by reason of any account query, dispute or set off. b) No receipt for payment to any representative of the Supplier shall be effective to acknowledge payments to the Supplier unless given on the Supplier’s official printed form. If the Customer fails to make payment in accordance with Clause 3, the Supplier shall be entitled to: a) Require the payment at time of any further Products ordered; b) Charge an account keeping fee at the rate of two percent (2%) per month or a cumulative basis on all overdue amounts (including late payment charges and amount other than the price) calculated on a day to day basis on any monies due to unpaid, such account keeping fee to be computed from the due date for payment AND the parties agree that such account keeping fee is not a penalty but is a true measure of damages incurred by the Supplier. Payments received from the Customer will be credited first against any account keeping fees and all such fees shall be payable on demand; c) Claim from the Customer all costs, expenses and charges incurred including but not limited to any mercantile agents costs and legal costs and disbursements on a solicitor - client basis, d) Cease any further deliveries to the Customer and to terminate any agreement in relation to Products that have not been delivered; and e) Customers having overdue accounts will be precluded from participating in special deals, discounts, bonus payments, redemptions, rebates and all other incentive programs until their accounts are no longer overdue.
DELIVERY & RISK
4. The Supplier shall endeavour to effect delivery at the time or times required by the Customer but failure to do so shall not confer any right of cancellation or refusal of delivery on the Customer or render the Supplier liable for any loss or damages directly or indirectly sustained by the Customer as a result thereof. The Supplier’s obligation to delivery shall be discharged on arrival of the Products at the Customer’s nominated delivery destination, nominated transport company, nominated agent or the address appearing on the invoice. The Customer shall unload the Products upon delivery, provided that if the Customer is unable or unwilling to accept physical delivery of the products, the Supplier shall be entitled to charge a fee for any delay experienced or for the storage of the Products at risk and cost of the Customer. The Supplier may, at its discretion, make and invoice partial deliveries and each partial delivery shall be a separate sale pursuant to these Terms and Conditions of Sale. The risk in the Products shall pass to the Customer upon delivery to the Customer or his agent or to a transport company nominated by the Customer. The Customer shall examine the Products immediately after delivery and the Supplier shall not be liable for any misdelivery, shortage, defect or damage unless the Supplier receives details in writing within four (4) days of the date of delivery of the products.
5. Property in any given Products shall remain with the Supplier until the Customer has paid (cleared funds) all other indebtedness to the Supplier on any account whatsoever. The Customer is in possession of the Products solely as a bailee for
the Supplier until payment as defined in clause 3 has been made in full and until such payment: a) The Customer shall be fully responsible for any loss or damage to the goods whatsoever and howsoever caused following delivery; b) The Customer shall store the Products separately from its own goods and those of any other party and in a manner which clearly identifies the products, whether as separate chattels or as components, as the property of the Supplier and; c) The Customer shall maintain records of Products owned by the Supplier identifying them as the Supplier’s property. The Customer shall allow the Supplier to inspect these records and the Products on request. The Supplier licenses the Customer to install the products. If the Products are affixed to other materials, the totality thereof shall be the sole and exclusive property of the Supplier until payment as defined in clause 3 has been made in full to the Supplier unless the other materials or part thereof are or is the property of a party or parties other than the Customer in which case the totality thereof shall be deemed to be owned as tenants in common with such other party or parties in shares corresponding to the respective amounts paid or payable be the Customer in respect of such other party. The Customer shall be at liberty to sell the Products subject to the condition that until payment has been made in accordance with clause 3, the Customer shall sell as an agent and bailee for the Supplier. The right to on-sell the goods in the normal course of trade may be revoked at any time by the Supplier and shall automatically cease if events occur as set out in clause 10.
PERSONAL PROPERTIES AND SECURITIES ACT 2009 (“PPSA”)
6. The Customer acknowledges that these terms are a continuing security agreement for the purposes of section 20 of the PPSA and will operate irrespective of any interven¬ing payment or settlement of account until a release has been signed by International Hair Cosmetics Pty Ltd. A security interest is taken in all Products previously supplied to the Cus¬tomer and in all Products that will be supplied in the future by International Hair Cosmetics Pty Ltd to the customer during the continuance of International Hair Cosmetics Pty Ltd’s rela¬tionship with the Customer. The Customer will sign all further documents and so such further acts which International Hair Cosmetics Pty Ltd may reasonably require to register financing statements or financing change of statements on the PPSA register.
LIMITATION OF LIABILITY
7. These Terms and Conditions of Sale do not exclude, restrict or modify the application of any provisions of any Commonwealth, State of Territorial Law which by law cannot be excluded, restricted or modified. To the extent permitted by law all terms, conditions, warranties and representations, expressed or implied, by the statute or otherwise, are hereby expressly excluded. To the extent permitted by law, the Supplier shall not be liable to the Customer for injury, harm, loss, damage, costs, expense or other claim including economic loss or loss of profits however arising from the supply of the Products or arising from any breach, default or negligence of the Supplier in connection with the supply of products. If the Customer is entitled to the benefit of any implied terms which cannot be excluded, the Supplier’s liability shall be limited at its option in the case of a supply of goods to: a) The replacement of the goods or the supply of equivalent goods; or b) the payment of the costs of replacing the goods or acquiring the relevant goods; or c) the payment of the costs of having the goods repaired; or d) the repair of the goods; and in the case of services e) the supply of the services again; or f) the payment of the cost of having the services performed again.
8. The Supplier shall not be liable for any failure or delay in supply or delivery of the Products and the Customer shall not be relieved of any obligation to accept or pay for the Products where such failure or delay is wholly or partly due to any cause or circumstance whatsoever outside the reasonable control of the Supplier.
9. If the Customer fails to comply with any of these Terms and Conditions or being a natural person commits any act of bankruptcy, or being corporation is wound up (other than for the purposes of reorganisation or reconstruction) or has an administrator or receiver and/or manager appointed, the Supplier may terminate the Credit Account forthwith.
SALON & REGISTERED FREELANCE USE ONLY
10. The “Professional Goods” means all Products supplied by the Supplier exclusively for use in hairdressing Salons. The “Professional Retail Goods” means all Products supplied by the Supplier for retail sale by Hairdressing Salons. A “Hairdressing Salon” is a business which is recognised by the Supplier as a hairdressing salon, A “Hairdressing Wholesaler’ is a business which is recognised by the Supplier as a hairdressing wholesaler. a) Where the Customer is the owner or operator of a hairdressing salon, the Customer warrants that all Professional Goods ordered from or supplied by the Supplier are for the sole purpose of use in the Customer’s hairdressing Salon and not for resale. The Customer acknowledges that all “Professional Retail Goods” ordered from or supplied by the Supplier are for retail sale from the Customer’s hairdressing Salon only. The Customer must not supply Professional Retail Goods to any person it reasonably believes does not intend to use the goods for personal use. b) Where the Customer is a Hairdressing Wholesaler and purchases “Professional Goods” or “Professional Retail Goods”, it is acknowledged by the Customer that such Goods are supplied by the Supplier for the sole purpose of use in or retail sale from Hairdressing Salons, or by a qualified hairdresser operating a registered hairdressing business. The Customer must not sell Professional Goods or Professional Retail Goods unless such Goods will be used for purpose intended by the Supplier and such Customer will ensure that any purchaser from it will agree to be bound by this restriction.
11. The Supplier shall not be liable to accept any returned Products but may at its discretion accept the return of products, provided that such Products shall only be accepted for return with the prior approval of a duly authorised representative of the Supplier. Products returned for the credit pursuant to this clause will be subject to a handling charge of 20% of the invoiced value of the returned products. Return freight and other expenses will be paid for by the Customer and no returns of special Products will be accepted. Any returned Products must be accompanied with the relevant invoice and/or Goods Return Authority.
12. These Terms and Conditions of Sale shall be construed according to the laws of Queensland. Any proceedings willbe instituted and heard by an appropriate Court sitting in Queensland applying the laws of Queensland.
SERVICE OF DOCUMENTS
13. Service of any notices may be effected by forwarding same by email, facsimile or post to the last known address of the Customer.
14. The Customer, by its employees, agents, advisors and subcontractors, shall keep confidential all information of International Hair Cosmetics Pty Ltd, including information about any Products, promotions and trade terms.
STATEMENT OF DEBT
15. A certificate signed by a Director, Secretary, Finance Controller or Credit Manager of the Supplier shall be prima facie evidence of the amount of indebtedness of the Customer to the Supplier at the time.