1.0 Definitions
1.1 In terms of this agreement “Charges” means all moneys payable by the Buyer to de Spa in relation to the purchase of the Goods, including without limitation the purchase price of the goods, delivery charges, interests and costs.
1.2 “Buyer” means the Buyer named in this application.
1.3 “Goods” means the Goods described in the Schedule, and where the context permits, any other personal property that is subject to the security interest created by this agreement.
1.4 “de Spa” means de Spa Cosmetics Limited and its servants, agents, solicitors and assigns.
2.0 Mode of Payment
2.1 de Spa may accept payment by way of visa, mastercard, direct credit or direct debit authority previously put in place by the Buyer and de Spa.
2.2 Payment is deemed to be made upon the receipt of funds by de Spa and where payments by way of one of the modes above in 2.1, upon clearance of funds from de Spa account.
3.0 Price
3.1 The purchase price of the goods will be the price as quoted by de Spa to the Buyer. de Spa reserves the right to vary the price without prior notice to the buyer.
3.2 Prices are based on the current prices of our brands and or other products at the time of delivery.
3.3 In addition to the quoted price a separate charge may be charged to the Buyer for the costs of travel and expenses.
3.4 Unless otherwise stated, all quoted prices are exclusive of GST.
4.0 Delivery
4.1 de Spa or its employee or a carrier shall deliver the goods to the place nominated by the Buyer in writing as the place of delivery (‘place of delivery”).
4.2 de Spa will arrange for all orders to be delivered by de Spa’s usual carriers and the customer shall be charged for all freight costs except when orders are over the value of $1000.00 excluding GST, these orders will be delivered freight free.
4.3 Unless otherwise stated, delivery shall be deemed to be completed when the Buyer, its agent or nominee at the place of delivery, receives the goods.
5.0 Returns
5.1 The Buyer shall immediately inspect the goods on delivery and shall within two days of delivery (not including the date of delivery) notify de Spa of any alleged defect, shortage in quantity, damage or failure to comply with the description or sample. The Buyer shall afford de Spa the opportunity to inspect the goods within a reasonable time following notice and before any use is made of them. If the Buyer shall fail to comply with these provisions the goods shall be conclusively presumed to be in accordance with the agreement and free from any defect or damage which would be apparent on a reasonable examination of the goods and the Buyer shall be deemed to have accepted the goods and liable for payment.
5.2 Notwithstanding clause 4.1, de Spa may in its discretion but without imposing any obligation, accept the return for credit of any goods which do not comply or are rejected without proper cause such return to be accompanied by a written authorization declaration. In the event that de Spa does accept such goods, which are returned for credit, it may deduct a restocking penalty fee of 10% of the price of the goods. Freight charges for goods returned shall be at the buyer’s responsibility.
5.3 Returned goods must be in saleable condition and lot numbers clearly legible upon return. The Buyer will pay for products that are not in original and saleable condition in full. de Spa reserves the right to reject goods on return if, upon inspection, they are found to not be in resalable condition.
6.0 Passing of Risk
6.1 Except where otherwise provided the goods remain at de Spa’s risk until delivery has been completed, provided however that when title has passed to the Buyer the goods are at the Buyer’s risk whether delivery has been made or not.
6.2 Where delivery has been delayed through the fault of either de Spa or the Buyer the goods are at the risk of the party in fault as regards to any loss, which may not have occurred, but for such fault.
7.0 Personal Property Securities Act 1999
7.1 The Buyer grants to de Spa, a security interest over all present and alter acquired products supplied by de Spa and their proceeds as security for payment of the purchase price of the product. The security interest created by this agreement secures all advances (as defined by the PPSA) including any future advances made by de Spa to the Buyer.
7.2 The Buyer will provide such information and do such acts and execute such documents as in the opinion of de Spa may be necessary or desirable to enable the company to perfect under the PPSA the security interest created by this agreement as a first priority interest or with such other priority as de Spa may agree in writing.
7.3 de Spa may do all things, which it thinks desirable to remedy any default by the Buyer or otherwise protect the products or the security interest created by this agreement.
7.4 The Buyer irrevocably appoints de Spa to be the Buyers attorney to do anything, which the customer agrees to do under this agreement and anything, which the attorney thinks desirable to protect de Spa’s interest under this agreement, and the buyer ratifies anything done by any attorney under this clause.
7.5 The Buyer agrees sections;
(a) 114(1), 133 & 134 of the PPSA shall not apply to this agreement or the security under this agreement.
(b) The customer agrees that none of their rights as a Debtor under sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 & 132 shall apply to this agreement.
(c) The Buyer agrees, where de Spa has the rights in addition to those in part 9 of the PPSA, those rights will continue to apply.
7.6 The Buyer waives their right to receive a copy of the verification statement confirming registration of a financing statement or a financing changed statement relating to the security interest created by this agreement.
7.7 (a) The Buyer must not change their name or address without first notifying de Spa of the new name or address not less than seven days before the change takes effect.
(b) The Buyer must not allow or permit the creation of a lien over any of the products.
7.8 The Buyer shall permit de Spa to inspect the product and any record, inventories and accounts of the sale of those produces and their proceeds at any time from time to time.
7.9 Where the Buyer is in default or the products are at risk, (as defined by section 109 of the PPSA) de Spa may recover possession of the relevant products from the buyer or any other person who has possession of them and sell the products or any of them and may enter upon the premises of the Buyer with such other person by its agents or servants for that purpose and the buyer indemnifies de Spa against all costs and expenses whatsoever which may be incurred by de Spa and all claims made against de Spa by any third party as a result of de Spa’s taking or attempting to take possession of the product.
7.10 The Buyer will, upon demand, pay all de Spa’s expenses and legal costs (on a solicitor/agent/client basis) in or in connection with the registration of a financing statement or financing change statement relating to the security interest created by this agreement or obtaining an audit under section 167 of the PPSA or the repossession of the products or the exercise, enforcement or preservation right or interest under this agreement or any other contract with the buyer.
7.11 Any notice or other document to be served by the Buyer on de Spa shall not be served or given by facsimile or electronic mail.
8.0 Additional Remedies as Seller
8.1 If the Buyer fails to make payment on the due date for payment then without prejudice to any of de Spa’s other rights, de Spa may:
(a) Suspend or cancel deliveries or any other goods due to the buyer; and/or
(b) Appropriate any payment by the buyer to such of the goods (or goods supplied under any other agreement with the Buyer) as de Spa may in de Spa’s sole discretion think fit.
9.0 Payment
9.1 Goods must be paid for in full on the 20th of the month following the date of invoice (if a credit account has been granted), otherwise goods must be paid for in full before they are despatched from the de Spa warehouse.
9.2 Unless otherwise advised by the buyer and agreed to by de Spa, payments received will be credited against the oldest outstanding invoice.
9.3 de Spa may withhold supplying further products (not withstanding a binding contract to supply) if any payment due by the Buyer has not been made in full by the due date for payment.
9.4 If the Buyer has not paid in full by the due date for payment, interest at the rate of 2% is payable on the amount outstanding, until de Spa receives full payment. Notwithstanding the charging of interest, de Spa retains all its other rights against the Buyer for failing to pay by the due date payment.
9.5 The Buyer agrees to indemnify de Spa against all costs it incurs in recovering any moneys, goods or services, which are outstanding pursuant to these conditions. This includes commissions, legal fees, any other recovery costs, whether they are incurred by de Spa itself or by its agent.
9.6 Payment before delivery is required by de Spa from the Buyer for the initial opening order and all subsequent orders for the first four months, starting from the first date of payment received by de Spa from the Buyer. Following this four-month period, all goods will be subject to payment terms at the sole discretion of de Spa.
10.0 Further Security
10.1 de Spa may at any time require the Buyer to provide security for payment of goods supplied or to be supplied. As well, de Spa may require any of the Buyers, Directors or Shareholders to guarantee compliance with these conditions and require security to be given for those guarantees.
11.0 Warranties and Limitation of Liability on Sales to Business Customers
11.1 Goods are sold to business customers subject to manufacturers only; de Spa accepts no liability under those warranties.
11.2 All other conditions and warranties about the goods, whether expressed or implied (both statute or otherwise) are excluded except where such exclusion is prohibited by law, in relation to sales to business customers. In particular (but without limiting the generality of the above) de Spa does not make any warranty as to the merchantability or condition of the goods, nor does it warrant that goods are fit for any particular purpose.
11.3 If the Buyer is proven at law to a valid claim for damages against de Spa (it being the intention that no such damages may be recovered):
(a) Those damages will be limited to the cost of repair, replacement or resupply of the goods, whichever is the less; and
(b) de Spa will not be liable in any event for any consequential or special damages or other indirect loss (however arising and whether or not de Spa has knowledge that such damage might be incurred) including but not limited to loss of income, profits, interest, utility or loss of market.
11.4 Any claim brought by the Buyer must be notified in writing to de Spa within seven days of the date of delivery of the goods. No claim may be made against de Spa outside of that time limit.
11.5 Nothing in these conditions shall exclude or restrict any right or remedies the Buyer may have under the Fair Trading Act 1986 or any other enactment or rule of the law whether such exclusion or restriction is prohibited by law.
12.0 Promotional Material and Branded Merchandise
12.1 From time to time de Spa shall provide complimentary promotional material and Branded Merchandise to stockists. Such material remains under the complete ownership of de Spa.
12.2 Promotional material is everything itemized in the buyer’s sales invoice as described as ‘Promotional’. These items include, product leaflets & brochures, product display stands, branded posters/show cards/banners, samples, product bags and all other branded merchandise material. Promotional material maybe either partially or fully be invoiced to the stockist depending on the annual purchase level of the account, this will be at the complete discretion of de Spa.
12.3 A Buyers complimentary promotional allocation will be at the discretion of de Spa at all times. This allocation is relative to the buyers average monthly spend and the Buyers commitment to the brand, of which is at the sole discretion of de Spa. All Promotional material will be delivered with a buyers order at the time of request; otherwise the buyer will incur a separate freight charge.
12.4 The Branded Merchandise material with specific reference to the Product displays and notwithstanding other Branded Merchandise is for the exclusive use of the relevant brand with which it is intended to promote. This Branded Merchandise is not to be used under any circumstance to promote the sale of any other competing brands the buyer may stock. Branded product displays are promotional items and as such remain under the complete ownership of de Spa and it reserves the right to repossess at any time.
12.5 If the buyer is in default of clause 12.4, de Spa reserves the right to remove any Branded Merchandise from the buyers agreed premises at any time, which it believes is being misused.
13.0 Stock
13.1 Stock is defined as the Goods for Sale purchased by the Buyer from de Spa
13.2 Stock for ‘Sale and Return’ is not permitted by de Spa unless under a separate agreement.
13.3 Promotional and Professional material including; product samples and cabine size products are not to be sold at retail under any circumstances.
14.0 Intellectual Property
14.1 The use of any Intellectual Property belonging to the brands de Spa represents is at the sole discretion of de Spa and express permission must be sought by the Buyer and granted by de Spa before use.
14.2 All Intellectual Property including; Brand logos, Copyright images and all Registered copy material is to be used for the promotion and exclusive use of the Brand with which it represents. It shall not be used for any other purpose. Failure to comply with this will result in legal prosecution from de Spa and or the international brand.
15.0 Resale Conditions
15.1 The sale of Goods online for any of the brands de Spa represents requires prior permission from de Spa
15.2 Your agreement with de Spa means that you may retail products within your salon/store. In order to resell online requires the consent of de Spa.
15.3 You must not sell through third parties, including price comparison sites, Amazon, EBay, TradeMe etc.
15.4 You cannot sell any products outside of New Zealand.
16.0 Advertising
16.1 The decision as to whether a Buyer is to be listed as a “stockist” of any of the brands de Spa represents for its public advertising, including its brand websites, is at the sole discretion of de Spa. The criteria for such shall be determined with reference but not limited to the following; the commitment of the Buyer to the brand being advertised, the amount of goods for that brand purchased by the Buyer on a monthly basis and the currency of the Buyers account with de Spa.
17.0 Training – Sothys Paris
17.1 All Buyers must be trained by de Spa in the use of the goods it has purchased to sell before goods and services are sold to the public. The Buyer shall accept additional training when required by de Spa and shall inform de Spa of all new staff that have not received formal de Spa training.
17.2 de Spa will not be liable in any way for products and treatments sold by the Buyer and its agents that have caused “adverse reaction” to the Buyers client, if the Buyers agent responsible for selling /conducting the product and or treatment had not received the required training from de Spa.
17.3 The Buyer must be able to produce the formal qualification documentation at any time upon de Spa’s request to prove that any of the Buyers staff conducting and or selling products/treatments supplied by de Spa does indeed hold a New Zealand or International Accredited Beauty Therapy Qualification. Failure to do so may result in the termination of the account.
18.0 Force Majeure
18.1 de Spa is not liable for any failure to comply with the terms of this contract, if its failure is due to circumstances beyond its reasonable control.
19.0 Governing Law
19.1 These conditions are governed by the Law of New Zealand and any disputes will be resolved in New Zealand.
20.0 Severance
20.1 If any provision in these conditions is illegal, invalid or unenforceable, the validity and enforceability of the remaining provisions are not affected.