Terms of Sale

L’Oréal New Zealand Ltd │General Terms and Conditions of Sale

1 INTRODUCTION

1.1 These terms and conditions apply to all or any professional and retail products (“Products”) which are supplied to the purchaser (“Customer”) by L’Oréal New Zealand Ltd (“L’Oréal”).

1.2 L’Oréal’s terms and conditions of sale override, supersede and replace any other terms and conditions (including different or inconsistent terms of the Customer) and any previous dealings between the Customer and L’Oréal and cannot be varied, amended or replaced except in writing signed by both parties.

1.3 The Customer acknowledges and agrees that any Products supplied or to be supplied by L’Oréal are supplied only on these terms and conditions and that the Customer will be deemed to have acknowledged and accepted these terms and conditions each time it places an order for Products (“Order”) with L’Oréal (“Contract”).


2 ORDER, DELIVERY AND CLAIMS
2.1 Orders

  1. L’Oréal may accept (in whole or in part) any Order, subject to availability of Products, or decline any Order. L’Oréal reserves the right to (i) withdraw any Products from its catalogue; and/or (ii) refuse to deliver in whole or in part what it deems as an unusually high Product Order.
  2. Orders must be placed on the basis of the packaging standard indicated by L’Oréal. If the quantities ordered are non- standard, L’Oréal reserves the right to adjust the Order to the nearest packaging standard. Orders below the minimum order value (excluding GST) contained in the relevant L’Oreal price list will not be accepted or processed. L’Oréal reserves the right to amend the minimum order value at any time upon notice to the Customer.
  3. L’Oréal shall not be liable for any loss of profits or contracts or any other indirect or consequential loss, damage or injury caused by or arising out of any refusal, suspension or cancellation of any Order, regardless of whether it was accepted or delivered in whole or in part or not at all, except with respect to any liability that arises as a result of any negligence or deliberate breach by L’Oréal.
  4. The Customer agrees to purchase the Products exclusively from L’Oréal or a wholesale merchant authorised by L’Oréal to stock and sell the Products. The Customer shall immediately report to L’Oréal any circumstance coming to its notice whereby L’Oréal products are being offered for sale in New Zealand to the Customer or like businesses other than by L’Oréal or any party authorised by L’Oréal. The Customer will not sell the Products online unless prior agreed with L’Oréal in writing.
  5. L’Oréal reserves the right to make part deliveries of the Order and each part delivery shall constitute a  separate contract. Failure to make delivery of the total order shall not invalidate any Contract. Subject to clause 2.1(a), the Customer shall be taken to have accepted the quantity delivered in substitution for the quantity ordered, unless the Customer notifies L’Oréal within 5 business days of the receipt of the Products by the Customer.


2.2 Delivery

Arrival dates and times quoted to the Customer are guidelines only, and delays shall not entitle the Customer to cancel the sale, reject the Products or claim damages, costs or any other compensation or take any other action against L’Oréal, provided L’Oréal has taken all reasonable steps to avoid or mitigate such delay or failure to fulfil an order   L’Oréal will notify the Customer of any changes to delivery dates wherever possible.

2.3 Inspection and Claims

  1. Upon receipt of the Products, the Customer shall inspect the Products and note any discrepancy, visible defect and/or damage in the deliveries on the delivery notice or the carrier's form. The Customer shall notify the Customer Service Department of L’Oréal of such discrepancy, visible defect and/or damage in the deliveries within 5 business days upon receipt of the Products (“Claim”). After 5 business days, the Customer will be deemed to have accepted the Products and L’Oréal will not consider any Claim, subject to applicable law. L’Oréal may also refuse to consider any Claim where this Claim procedure has not been allowed.
  2. If a signed proof of delivery has been obtained by the carrier/courier sent on behalf of L’Oréal, no claim will be accepted by L’Oréal for missing parcels/cartons of Goods within a shipment.
  3. Any returns (arising under any circumstance whatsoever) must be authorised prior by an authorised L’Oréal representative in writing and may incur a 10% holding charge. Subject to applicable law, any Product which:
    1. bears or has borne price stickers or has been damaged or defaced by the Customer in any way; or
    2. has been stored in conditions that are abnormal or incompatible with its nature; or will not be accepted for return by L’Oréal.
  4. Where the discrepancy, defect or damage the subject of the Claim is properly notified and evidenced by the Customer and acknowledged by L’Oréal, L’Oréal shall at its sole discretion either replace at its expense the miscounted, defective and/or damaged Products or issue a credit note in favour of the Customer for the amount of the missing, defective and/or damaged Products. Products delivered in excess shall be returned to L’Oréal or invoiced to the Customer if the Customer accepts the Products in excess.


3 PRICES

3.1 L’Oréal’s prices are subject to change on reasonable notice. The price payable will be the price notified on the price list plus any applicable taxes including Goods and Services Tax (“GST”). If a price is stated as a Recommended Retail Price in our price list or other L’Oréal publication, it is a recommended price only and there is no obligation to comply with the recommendation made by L’Oréal.

3.2 Any handling or freight charges or other expenses may be notified on the L’Oréal price list and may be payable in addition by the Customer, including any Customer request for special L’Oréal reserves the right to amend the charges at any time.

 

4 INVOICING & PAYMENTS

4.1 Payment is to be made in full to L’Oréal, without set off, deduction or counterclaim of any kind, on 20th of the month following the date of the invoice, unless otherwise agreed prior in writing by an authorised L’Oréal representative. Payment is required by electronic bank transfer to L’Oréal’s nominated bank account, cheque or by credit card and L’Oreal reserves the right to charge the Customer any applicable bank charges, card merchant fees or costs relating to such payment of invoices. For any electronic bank transfer, the Customer must ensure that the L’Oréal account number is included so that the payment is correctly referenced. For any cheques payment will deemed to be accepted upon receipt of cleared funds. At the time of payment, the Customer must also confirm by email to L’Oréal the details of the payment, including the date, amount and invoice number.

4.2 If any invoice is not paid in full on or by the due date (without limiting any other rights L’Oréal may have), L’Oréal may charge the Customer with a late payment fee.

4.3 Co-operative, promotional deals and temporary price reduction claims must be received by L’Oréal within 3 months of the date that the specific activity ceases. L’Oréal will have no financial commitment or liability after 3 months. The Customer must provide supporting sales or other data to L’Oréal’s reasonable satisfaction for all scan based promotional deals. L’Oréal reserves the right to withdraw the promotion by notice in writing at any time prior to the promotion start date for reasons beyond its reasonable control.

4.4 Default in payment will not be remedied until the outstanding amount together with any late payment fee (if charged) payable  under this clause is paid in full. Any expenses, costs or disbursements incurred by L’Oréal in recovering any outstanding amounts, including debt collection agency fees or legal fees, shall be recoverable from the Customer. L’Oréal reserves the right to cancel or suspend further deliveries or, if necessary, require a cash payment before any delivery of Products.

 

5 RISK AND TITLE

5.1 Risk of any loss, damage or deterioration to Products shall be borne by the Customer from the time of Delivery shall occur at the time at which the Products arrives at the Customer's designated location.

5.2 Legal and equitable ownership and title in the Products shall remain with L’Oréal until all monies payable for those Products have been received by L’Oréal. L’Oréal and its agents shall be authorised and may enter the Customer’s premises to take possession of any of L’Oréal’s Products in the event that payment becomes overdue or if any other creditor of the Customer takes any steps to recover monies due by the Customer or has grounds for taking such steps.

5.3 Any change to the Customer’s trading legal entity must be advised as soon as possible to L’Oréal in writing. Until notice has been received, and acknowledged any outstanding debt will remain the sole responsibility of the account holder.

 

6 PERSONAL PROPERTIES AND SECURITIES ACT 1999 ("PPSA")

6.1 The Customer acknowledges that these terms are a continuing security agreement and will operate irrespective of any intervening payment or settlement of account until a release has been signed by L’Oréal.

6.2 A security interest is taken in all Products previously supplied to the Customer and in all Products that will be supplied in the future by L’Oréal to the Customer during the continuance of L’Oréal’s relationship with the Customer.

6.3 The Customer will sign all further documents and such further acts which L’Oréal may reasonably require to register financing statements or financing change of statements on the PPSA register.

 

7 P.O.S MATERIAL

All advertising and display material, counters, display units and equipment (“P.O.S Material”) supplied without charge by L’Oréal to the Customer shall be and remain the exclusive and identified property of L’Oréal and shall be returned to L’Oréal immediately.

 

 8 INTELLECTUAL PROPERTY

8.1 All L’Oréal’s intellectual property in the form of patents, trade marks, brands, copyright and other technical information shall remain the property of L’Oréal and the Customer agrees that it shall not use L’Oréal’s intellectual property in any manner whatsoever without the prior written consent of an authorised L’Oréal representative.

8.2 L'Oréal firmly prohibits any form of diversion, counterfeiting or tampering with L'Oréal’s trademarks and product packaging and presentation. Any attempt to divert, counterfeit or tamper with L'Oréal products in any way will be the subject of formal action to the fullest extent of the law. The Customer shall immediately advise L'Oréal of any infringements or threatened infringements of the said trade marks that may come to its knowledge.

 

9 FORCE MAJEURE

If either party is prevented from performing any of its obligations in respect of any order by any circumstances outside its control (including but not limited to strikes, labour disputes, supplying problems, supplier or carrier's defaults, fire accidents, industrial or political activities, any natural disaster), further performance of the relevant order shall either be suspended as long as the relevant party is so prevented or, at its option, cancelled. Neither party shall be liable for any loss of profits or contracts or  any other indirect or consequential loss, damage or injury caused by or arising out of the suspension or cancellation, whether in contract or tort or otherwise.

 

10 "PROFESSIONAL USE" PRODUCTS

10.1 L’Oréal reserves the use and sale of any of its Professional hair product ranges exclusively to suitably qualified hairdressing salons. The supply of such Products is at L’Oréal’s sole discretion.

10.2 L’Oréal regards a suitably qualified hairdressing salon as one which is:

  1. Conducting the business of hairdressing in compliance with all local authority regulations with a minimum of two operating backwash basins and one fulltime qualified stylist;
  2. 50% of the hairdressing salon’s sales turnover must be from hairdressing services e.: haircuts, hair colouring and hair treatments;
  3. Appropriate procedures are in place to ensure L’Oréal’s Professional products are used correctly and proper advice is given to purchasers in an environment consistent with the quality of the L’Oréal brand.

L’Oréal using its absolute discretion may supply qualifying retail or similar premises with Professional Use products where appropriate image and staffing standards are maintained and there is a strong connection with a salon in the same location servicing the same clientele.

10.3 Consistent with L’Oréal’s policy for Professional Products, the Customer:

  1. Must use the Products distributed, sold and designated as “Professional Use” products (as defined in the relevant Price lists) as part of the supply by the Customer to its clients of its hairdressing services;
  2. Must not sell or otherwise supply those Products designated as “Professional Use” products to any person, other than to consumers for their personal use or consumption within the retail premises of the hairdressing salon of the Customer.

 

11 SELECTIVE DISTRIBUTION

L’Oréal reserves the right, using its absolute discretion, to appoint a Customer as a selective distributor of Products by reference to quality standards determined solely by L’Oréal. Such distribution (if applicable) will be documented in a separate agreement, in addition to this document.

 

12 SANCTIONS

For the purposes of this clause:

"Economic Sanctions" means any economic sanctions, restrictive measures or trade embargoes adopted by the UN Security Council, the European Union, the United States of America or any other sovereign government.

"Economic Sanctions Law" means any law, regulation or decision enacting Economic Sanctions.

12.1 The Customer warrants that in relation to any economic and trade sanctions imposed by the United Nations, the European Union, the United States of America or any other country, that:

  1. it is not a sanctioned person, and to the best of its knowledge, it is not controlled or beneficially owned by any person subject to Economic Sanctions;
  2. it shall comply with all Economic Sanctions Laws. Without limiting the generality of the foregoing, the Customer shall not
    1. directly or indirectly export, re-export, transship or otherwise deliver the Supplies or any portion of the Supplies in violation of any Economic Sanctions Law, or
    2. broker, finance or otherwise facilitate any transaction in violation of any Economic Sanctions Law; and
  3. it is not engaged in proceedings, or under scrutiny, for any alleged violation of any economic sanctions

12.2 L’Oréal may suspend this Agreement or terminate this Contract in accordance with clause 13(a), if the Customer breaches any of the warranties in clause 12.1. If L’Oréal terminates this agreement for breach of this clause 12.1, the Customer shall not be entitled to claim compensation or any further remuneration, regardless of any activities or agreements with additional third parties entered into before

 

13 TERMINATION

L’Oréal may cease to supply and terminate these terms and conditions:

  1. immediately if the Customer breaches these terms and conditions, defaults in payment, or becomes insolvent; or
  2. without cause by giving the Customer one (1) months’ notice,

and from the date of such termination L’Oréal is not obliged to supply Products to the Customer, provided where the termination is pursuant to clause 13(a), L’Oréal may also cancel any Order/s accepted prior to the date of termination.

 

14 LIMITATION OF LIABILITY

14.1 Subject to any terms implied by the Consumer Guarantees Act 1993 (“the Act”) or other statutory obligations which apply to the Customer and which L’Oréal cannot exclude, restrict or modify to the extent permitted by law, all other warranties, descriptions and conditions (whether express or implied) are expressly excluded.

14.2 Subject to the Act, L’Oréal shall not be liable to the Customer for any loss, damage, cost, expense or other claim, however caused which arises in connection with the Products, including, without limitation, for any loss, damage, cost, expense or other claim arising from the Products being stored in conditions that are abnormal or incompatible with their nature.

14.3 To the extent permitted by law, the Customer shall not:

  1. directly or indirectly re-supply the goods by way of export out of New Zealand or re-supply to any person in New Zealand whom the Customer knows or reasonably suspects will re-supply the goods by way of export out of New Zealand or who holds itself out as an exporter of goods; and
  2. sell, offer to sell, advertise for sale or otherwise supply (directly or indirectly) any Products to any person at or from any other location (other than New Zealand) or through the Internet, without prior written authorisation from L’Oréal.


15 CONFIDENTIALITY
The Customer, by its employees, agents, advisors and subcontractors, shall keep confidential all information of L’Oréal, including information about any Products, promotions and trade terms. This obligation survives the termination or expiration of this Contract.

 

16 NOTICES
Upon request, the Customer shall have possession of the P.O.S Material as bailee only and shall use the P.O.S Material in accordance with the guidelines communicated by L’Oréal. No competitor products or P.O.S Material shall be present. Apart from normal wear and tear, the Customer must maintain the P.O.S Material in good condition. The Customer must withdraw any P.O.S Material from display immediately upon request. The P.O.S Material is not transferable and cannot be altered, defaced, on-sold or destroyed by the Customer without the express consent of L’Oréal. The P.O.S Material must not be removed from its existing location without the express written consent of an authorised L’Oréal representative, and in the event that the P.O.S Material is removed from its existing location before the expiration of its normal life, and the P.O.S. Material cannot be placed in a new location that is approved in writing by an authorised L’Oréal representative, acting reasonably, the Customer shall compensate L’Oréal in an amount equal to the book value of that P.O.S Material.

16.1 Any legal notice given by the Customer to L’Oréal under these terms and conditions must be in writing and may be given by hand or post to: Attn: General Counsel L’Oréal Australia & New Zealand c/- Level 2, 600 Great South Road Ellerslie 1051, Auckland.
16.2 A notice, direction or other communication is taken to have been received:

  1. if delivered by hand to the receiver, at the time of delivery;
  2. if posted by mail to the receiver, 3 business days after the date of posting;
  3. if given by facsimile, on receipt by the sender of a confirmation message from the receiver or confirmation answerback code of the receiver, except where the receiver notifies the sender of an incomplete transmission.
  4. If given by email, on the 4th business day after the day on which the email was sent.

16.3 For any other correspondence or communication: please telephone (09) 583 4000 / fax (09)583 4191 or email on [email protected]


17 GENERAL
17.1 This Agreement shall be controlled and construed under New Zealand law
17.2 In the event that any of the provisions of an agreement arising out of these terms is held by a Court of competent jurisdiction to be unenforceable, the remaining provisions of that agreement shall remain in full force and effect.
17.3 L’Oréal’s failure to enforce, at any time or any period of time, any term of any agreement incorporating these terms and conditions shall not constitute a waiver of such term and shall in no way affect its right to enforce it.
17.4 L’Oréal and Customer are independent contractors and no agency, partnership, joint venture or employment relationship is intended or created by this document.

 

March 2016