1.1 Extend Marketing Ltd is the exclusive New Zealand distributor of Su-do Professional, Mist Air Beauty and Art of Beauty products These products are available for distribution and resale through selected outlets situated in New Zealand.
1.2 “Agreement” means the agreement for the supply of Products between Extend Marketing and the Customer, of which these Terms of Sale form part.
1.3 “Charges” includes all monies payable by the Customer to Extend Marketing in relation to the supply of Products.
1.4 “Products” means Su-Do Professional, Mist Air Beauty and Art of Beauty consumables and related equipment for the application thereof, supplied by Extend Marketing Ltd.
1.5 “Extend”, “Extend Marketing” and “EML,” mean Extend Marketing Ltd and its servants, agents, solicitors and assigns.
1.6 “Customer” means the person or organisation purchasing the Products from EML.
2.1 These terms apply to all agreements for the supply of Products by EML and are varied only where such variation is in writing and signed by a duly authorised officer of EML. Extend Marketing reserves the right at any time and from time to time to vary or add to these terms with effect from the date of notification to the Customer.
2.2 Where the Customer has agreed to purchase Products upon the basis of these terms, they shall be incorporated into every subsequent agreement to purchase Products from EML or any related company, unless specifically varied or excluded in the manner set out in clause 2.1
3) ENTRY INTO AGREEMENT
3.1 The publication by Extend Marketing of price lists and other material made available in any form to the Customer shall only constitute an invitation to do business and EML shall not be bound by any order for Products based upon, or which refers to any such material.
3.2 The Customer Application Form attached as a First Schedule to the Agreement must be completed by the Customer and EML must be satisfied in all respects with the accuracy of the information supplied, and the credit worthiness and trading history of the Customer and
3.3 These Terms & Conditions will come into force upon the Customer having placed an order (and where necessary completed the Customer Application Form), and EML having agreed to supply Products to the Customer against that order. Failure to complete the Customer Application Form will have no bearing on these Terms & Conditions coming into force.
4) SUPPLY AND GRANT OF RIGHTS
4.1 On the basis that the above conditions have been fulfilled to Extend Marketing’s satisfaction, EML agrees to supply the Products and to grant to the Customer a non-exclusive right to use the Trade Marks and the Customer agrees to purchase the Products and accept the right to use the Trade Marks on the terms and conditions contained in these Terms & Conditions. Such use of the Trade Marks, Brand names and Brand images also requires approval by EML prior to publication of printed or electronic material.
4.2 The parties acknowledge that their common objective is to market, promote and sell the Products as high profile and desirable beauty items and in a manner, which is of maximum benefit to each of Extend Marketing, the Brands and the Customer.
5.1 The prices for the Products will be the price or unit prices in effect at the time the products are despatched to the Customer. Unless otherwise indicated, all prices quoted are exclusive of Goods and Services Tax and any other government impost, which will be added to the price of the Products and will be payable by the Customer.
5.2 EML retains the right to make changes to pricing at any time as necessary.
6.1 Payment of EML’s charges is due before the date of despatch, unless the Customer is granted credit terms by Extend Marketing.
6.2 Where credit is extended to the Customer, payment in full is due on or before the 20th day of the month following delivery of products.
6.3 Where credit is extended, the Customer shall not be entitled to withhold payment or to make any deduction from the price without prior written consent of EML.
6.4 Where payment is not made in full by the Customer on or before the due date, then the Customer will upon demand pay:
6.4.1 Penalty interest on all overdue amounts at a rate of 2% higher than the bank overdraft interest rate for the time being applicable under EML’s arrangements with it’s bank, calculated on a daily basis from the due date to the date of actual payment. The charging of penalty interest will not be construed as a waiver of the Customer’s obligation to pay by the due date or an agreement by EML to extend the date due for payment; and
6.4.2 All costs incurred by Extend Marketing in recovering payment from the Customer including and without limitation, all debt collector’s fees and commissions, solicitors fees and disbursements and Extend Marketing’s clerical costs.
7) ORDERS AND DELIVERY
7.1 The Customer will place purchase orders with EML (or it’s representatives) for the Products from time to time. The said purchase orders will specify the names of the Products and quantities required and when such Products are required to be delivered to the Customer’s premises.
7.2 Any purchase order placed by the Customer will be deemed to be an order incorporating these terms and conditions notwithstanding any inconsistencies which may be introduced by the Customer’s form of purchase order or any other documentation. Acceptance of a Customer’s purchase order will be deemed to have been made when the said purchase order is received, unless EML otherwise notifies the Customer that part or whole of the order is unavailable or the order cannot be accepted for any other reason.
7.3 Extend Marketing will use all reasonable endeavours to make delivery in accordance with dates specified in any purchase order. If for any reason the delivery of the Products is delayed, EML will not be responsible for any loss sustained by the Customer and the Customer will remain bound to accept delivery and liability for payment of any goods delivered following any delay.
7.4 Products may be delivered in instalments in any quantities and each delivery shall be regarded as a separate contract, independent from the other deliveries and the Products delivered shall be paid for accordingly. Failure to make delivery of any instalment shall not violate the contract as to delivery of other instalments.
7.5 Unless otherwise agreed in writing, delivery of the Products will be complete when the Products are made available to the Customer at his/her premises or otherwise in accordance with the Customer’s instructions.
8) RISK, PROPERTY AND OWNERSHIP
8.1 The Customer will assume risk in all the Products ordered from EML from the time they are delivered to the premises (being the Customer’s nominated trading address) or otherwise made available to the Customer, notwithstanding that ownership of the Products may not have passed to the Customer.
8.2 While the Products are at the Customer’s risk, the Customer will maintain full insurance cover in respect of the full replacement value of the Products and will hold any proceeds of any insurance in respect of the Products not owned by the Customer on trust, and will account for such proceeds to EML on demand.
8.3 Ownership of the Products will not pass to the Customer, until the Customer has paid in full, in cleared funds, all amounts owing to EML.
8.4 The Customer acknowledges that it will be in possession of the Products solely as bailee for EML until such time as the full price of the products is paid to Extend Marketing and the Customer will store the Products in such a way that it is clear that they are the property of Extend.
8.5 If the Customer shall fail to pay the full price of the Products to EML, the Customer acknowledges that the Customer’s right to undisturbed possession of the Products is subject to the right of EML to retain sole and absolute property of and in the Products until such time as the full price of the Products is paid to EML.
8.6 If any of the Products owned by EML are attached to, mixed with or incorporated into any other goods not owned by EML so that the Products in question are not separate from the resulting composite or mixed Products, then immediately upon manufacture all such composite or mixed Products shall belong to EML, absolutely and not by way of charge, until the goods have been paid for in full or until EML recovers possession of and resells sufficient of the composite or mixed Products to discharge the purchase price in full and EML’s recovery costs, with any excess to be accounted for to the Customer.
8.7 If the Customer fails to make any payment to Extend Marketing when due, compounds with it’s creditors, executes an assignment for the benefit of it’s creditors, has a bankruptcy order against it or, being a company enters into voluntary or compulsory liquidation or has an administrator or administrative receiver appointed over all or part of it’s assets or takes or suffers any similar action in consequence of debt or becomes insolvent, or if EML has reasonable cause to believe that any of these events is likely to occur, EML shall have the right without prejudice to any other remedies at any time and without prior notice to the Customer:
a) Enter upon any premises occupied by the Customer or any other premises where the Product supplied might be situated and to take repossession of the Products or any other property owned by EML. The Customer indemnifies EML against any liability EML may incur in exercising this right, including any damage caused by EML in obtaining entry to any such premises.
b) Require the Customer not to resell or part with possession of any Products and goods owned by EML until the Customer has paid in full all sums owed to EML under this or any other Agreement.
c) Withhold delivery of any undelivered Products and stop any Products in transit and forthwith suspend or cancel this Agreement.
9) RESALE AND USE OF THE PRODUCTS
9.1 The Products will only be used by the Customer for resale in the premises, being the Customer’s nominated trading address (or such other EML approved premises) to retail consumers.
9.2 The Customer will provide the Products or application of the Products as per the guidelines set out in the appropriate official training material provided with systems or as part of EML training and will not make any changes from these practices except as may be previously agreed in writing with EML.
9.3 The Customer will be responsible for ensuring that the Products are represented and on-sold to the Customer’s retail consumers in accordance with EML’s instructions or directions.
9.4 The Customer will actively seek consumers and devote its best endeavours to the sale of the Products.
9.5 The Customer will be responsible for ensuring that all relevant laws and regulations are complied with in relation to the resale and advertising of the Products.
9.6 The Customer shall at all reasonable times allow any authorised representative of EML access to the approved premises, and such representative shall be entitled to make enquiries of the Customer’s staff and advise such staff of promotional activities or new products.
10.1 The Customer acknowledges that it is essential to the successful promotion and sale of the Products that those of its staff representing the Products to the consumer are confident and capable in the discharge of their duties.
10.2 The Customer will make available such employee(s) for the purpose of undertaking training in the use, promotion and sale of the Products. The costs associated with the Customer’s employee(s) attending such training will be met by the Customer.
11.1 All proposals to advertiseor promote the Products must be discussed with, and approved by EML prior to such advertisements being placed. The Customer will be solely responsible for all costs of such advertising, including any changes as requested by EML to ensure Brand positioning and values are upheld. This requirement also extends to promotion of the Products and use of product and Brand images and logo's including those utilised on customer websites and Facebook pages.
11.2 If co-operative advertising is undertaken by the parties, EML and the Customer will need to agree on the terms and costs applying to such advertising.
12) WARRANTY AND LIABILITY
12.1 Where conditions or warranties are implied or other rights are given in respect of the Agreement under the Sale of Goods Act 1908, the Fair Trading Act 1986, the Commerce Act 1986, the Consumer Guarantees Act 1993, or any other laws, they are, to the extent permitted by such laws, excluded from the Agreement. Where such implied conditions or warranties or other rights are not able to be excluded, Extend Marketing’s liability for any breach of them shall, if and to the extent permitted by such laws, and subject to any qualifications appearing in such laws, be limited to:
a) In the case of goods supplied, to any one or more of the following as EML may determine:
(i) The replacement of the goods of the supply of equivalent goods
(ii) The repair of the goods
(iii) The payment of the costs of replacing the goods or of acquiring equivalent goods; or
(iv) The payment of the costs of having the goods repaired, and
b) In the case of services supplied, to one of the following that EML may determine:
(i) The supplying of the services again; or
(ii) The payment of the costs of having the services supplied again.
12.2 Where the Consumer Guarantees Act 1993 applies, the Customer shall have all the rights and remedies provided under the Act and not excluded pursuant to Clause 12.1, but no others. Where the Customer acquires, or holds themselves out for acquiring, the Products for business purposes, the Act shall not apply.
12.3 Save as provided in Clauses 12.1 and 12.2 EML shall not be liable to the Customer or any person claiming under it in contract or in tort for, or in respect of, any direct, indirect or consequential loss, damage, expense or injury suffered by the Customer or any other person whatsoever, arising out of or relating to the Agreement, its performance or non-performance (including by way of illustration and not in limitation, liability due to the negligence or wilful default of EML), the Products or any error (whether negligent or not) in information supplied by the Customer before or after the Agreement in connection with its subject matter.
12.4 Any warranties in relation to the Products set out on any packaging or materials provided with the Products are warranties provided by the manufacturers of the Products and not by EML. To the extent permitted by law, EML’s only obligation in respect of any such warranties is to refer any communication in respect of queries received from the Customer to the manufacturer(s).
12.5 As EML is not the manufacturer of the Products, the Customer acknowledges that EML is dependent upon the manufacturer for supply, delivery dates, specifications and all manner of things relevant to the Products.
12.6 Any website, price list, or other documents published by EML does not constitute a representation by EML that the Products detailed in such publication are available to the Customer. The manufacturer(s) may at any time and without notice to EML vary the composition of or packaging for the Products and EML does not undertake that any Products supplied to the Customer will be identical to those previously purchased or advertised.
12.7 The Customer agrees to indemnify EML on a full indemnity basis from and against any liability, loss, damage or expenses that EML may suffer or incur as a result of any statements, representations or promises made by the Customer about or concerning the Products otherwise than in conformity or accordance with the express warranties or guarantees provided by EML or the manufacturer.
12.8 Nothing in the Agreement will create or be deemed to create any relationship of agency, partnership or joint venture and the Customer will assume all responsibility and liability for and will indemnify EML from any loss or damage resulting from, or claimed to result from, acts or omission on the part of the Customer, its officers, employees, agents or consumers.
12.9 Any warranties in relation to any of the Products will be rendered null and void if the Products are utilised or used in conjunction with products not supplied by EML.
13.1 Unless otherwise previously agreed in writing by EML, the Customer undertakes to on-sell the Products and related services from its premises only under the relevant and appropriate Trade Marks.
13.2 The Customer acknowledges that EML or its affiliates are the owners of the Trade Marks and of the goodwill attaching to the Trade Marks and that its only right in respect of the Trade Marks is to use it to sell the Products/services from its premises. The Customer will have no right to assign, sub-licence or in any way transfer any rights in the Trade Marks to any third party.
13.3 In the use of the Trade Marks by the Customer, the Customer will comply with any instructions EML gives regarding their use.
13.4 In using the Trade Marks the Customer will not represent that it has title or right to the ownership of the Trade Marks except as expressly provided in the Agreement, but may state its position as a “Su-Do Professional/Mist Air or Nanokeratin Beauty Salon” in respect of a sale of the Products/service in the premises. The Customer will not use the Trade Marks or any confusingly similar Marks in any company or business name.
13.5 The Customer will immediately bring to the attention of EML any attempted or suspected infringement or improper or wrongful use of the Trade Marks and of the passing-off of any goods as the Products which comes to its notice and will use every effort to safeguard the property rights and interest of the Products and will on request take all steps (including lending its name to any legal action that EML may bring) to defend the rights of EML and its subsequent suppliers.
13.6 All Products promoted, sold and distributed by the Customer under the terms and conditions, and all packaging and advertising will always bear the Trade Marks applicable to such Products in a prominent position, approved by EML and in accordance with the laws of New Zealand. The Customer will not use any label, packaging, advertising or other material unless the same has been approved by EML in writing.
13.7 Any rights, which the Customer may acquire in the Trade Marks by virtue of this Agreement, will be held on trust and on request be assigned to EML absolutely and without charge. The Customer will not do or omit to do anything by which the goodwill and reputation associated by the Trade Marks might be diminished or jeopardised.
13.8 The Customer will not register or procure the registration of the Trade Marks or any other confusingly similar Marks as Trade Marks for any class of goods in New Zealand.
15.1 The Customer will not assign, transfer or in any way dispose of its rights or obligations under this Agreement to any third party without first receiving the written consent of EML.
15) BINDING AGREEMENT
16.1 This Agreement embodies all the terms binding on the parties and replaces all previous agreements, representations or arrangements between the parties concerning the Products.
16.2 16.3 References to the Customer will include the executors, permitted assigns and successors of the Customer as the case may be.
17.1 Failure by EML to insist upon strict performance of any terms and conditions herein
or to exercise in whole or in part any right EML may have, whether in general law or
hereunder, shall not be deemed to be a waiver thereof of any rights EML may have,
and shall not be or be deemed to be a waiver of any subsequent breach of any term
or condition or right.