1.1 This document sets out the terms and conditions (“Terms”) on which Wella Australia Pty Limited t/a Wella Australia (“Supplier”) will supply products and goods (“Products”) to each customer in Australia (“Customer”). The Supplier and the Customer are each referred to as a “Party” and collectively as the “Parties”.
1.2 If the Customer orders Products from a website of the Supplier or through any offline channels operated by the Supplier, before using the website or contact Supplier to place an order, the Customer must read these Terms carefully and make sure they understand them. Every time the Customer wishes to order Products, the Customer shall check these Terms to ensure the Customer understands the Terms which will apply at that time.
1.3 These Terms override, supersede and replace any and all existing terms and conditions of sale, and any previous dealings, either oral or written, between the Parties.
1.4 The Supplier may, at any time, and from time to time, vary, amend or replace these Terms unilaterally after giving reasonable notice to the Customer.
1.5 The Customer acknowledges and agrees that:
a) any Products supplied, or to be supplied, to the Customer by the Supplier are supplied on, and subject to, these Terms; and
b) the Customer will be deemed to have acknowledged and accepted these Terms each time it places an order for Products (“Order”) with the Supplier.
2 Orders
2.1 The Supplier may, in its absolute discretion, accept (in whole or in part) or reject any Order despite the full price of the Order is paid by the Customer, such as in the event that there are insufficient Products available to fulfill the order. In case the Supplier reject an Order before shipment, the Supplier will refund the Customer the payment received by the Supplier (if any) without any interest.
2.2 An Order becomes binding from the moment of acceptance by the Supplier. The Supplier may accept an Order by:
a) written notice to the Customer; or
b) part performance by the Supplier, even if no notice has been given to the Customer (e.g. by the Supplier allocating stock to the Order).
2.3 The Customer understands and accepts certain handling cost will apply on Order, the handling cost is based on the order value. The handling cost is advised to Customer by Supplier’s customer service via email. Any changes to the handing cost to be communicated to Customer via email and become effective after thirty (30) days from the serving of email notice .
2.4 In the event that the Supplier experiences any genuine human or system error and confirms an Order accidentally, the Supplier shall not be liable for fulfilling the Order and remains the right to cancel or adjust the Order.
3 Delivery and Risk
3.1 Subject to Australian Consumer Law (“ACL”), the Supplier will use its reasonable endeavours to deliver the Products at the dates and times notified to the Customer. However, the Customer acknowledges and understands that the actual delivery time is subject to Product availability, the capacity of carriers, the volume of demand, etc., any delays will not confer on the Customer any rights to cancel the delivery, reject the Products or claim any damages, costs or other compensation from, or take any other action against, the Supplier.
3.2 The Customer agrees that all risk in the Products passes to the Customer on and from delivery, being:
a) the time when the Products are received by the Customer from the Supplier's carriers;
b) where the Customer authorises the Supplier to leave the Products outside the Customer’s delivery address if the Customer is not present, the time when the Products are left outside the Customer’s delivery address; or
c) if the Products are to be received pursuant to a customer pick-up arrangement between the Supplier and the Customer, the time of pick-up from the Supplier's premises.
3.3 The Customer must examine the Products immediately after delivery and note any discrepancy, visible defect or damage to the Products on the delivery documents. The Customer must notify the Supplier of any such discrepancy, visible defect or damage (“Claim”) within 5 business days after delivery. If the Supplier does not receive notice of any Claims within that time, then, subject to applicable law, the Customer will be deemed to have accepted the Products and the Supplier will not be obliged to consider any Claims.
3.4 Subject to any rights that the Customer may have under the ACL where the Claims procedure contemplated by clause 3.3 has been followed, and the Supplier has acknowledged and accepted the Claim, then the Supplier may, after consulting the Customer, rectify the discrepancy, replace the defective or damaged Products and/or issue a credit note to the Customer for any missing, defective or damaged Products.
3.5 Subject to any rights that the Customer may have under the ACL, Products may be returned to the Supplier only with the prior consent of the Supplier and at the expense of the Customer except that the return is initiated by the Supplier in which case the Supplier will bear the handling charges. Where Products are returned, the Supplier will be entitled to be paid by the Customer a handling charge of twenty percent (20%) of the price of the returned Products.
3.6 The Supplier does not accept any test results issued by a testing institution or laboratory that is not recognised by the Supplier to support any Claim. The Supplier remains the discretion to determine whether a Product is defective and whether the disfunction of a Product occurs due to the Customer’s improper operations or failure to follow the Supplier’s guidance.
4 Prices
4.1 The prices payable for the Products are the prices indicated on the Supplier's current price lists.
4.2 The Supplier may, in its absolute discretion, change the prices on its price lists without prior notice to the Customer. For the avoidance of doubt, any Order accepted by the Supplier prior to the price change will remain subject to the price at the time of the Supplier’s acceptance of the Order.
4.3 All prices indicated on the Supplier's price lists are stated exclusive of GST. The Supplier will charge GST to the Customer at the rate prescribed at the time of invoicing.
5 Invoicing and Payments
5.1 Unless otherwise agreed by both Parties, the Customer must pay all amounts owing to the Supplier in full, without set-off, deduction or counterclaim, within thirty (30) days from the last day of the month in which the Supplier invoices the Products, unless otherwise agreed with the Supplier.
5.2 Payments may be made by:
a) electronic funds transfer to the Supplier's nominated bank account (as notified to the Customer;
b) direct debit from the Customer's nominated bank account (after having obtained the Customer's authority; or;
c) credit card
5.3 Payments via Visa, MasterCard and AMEX (“Banks”) may incur a payment processing. The Customer acknowledges and accepts that surcharges imposed on the Customer’s payment will be borne by the Customer only. The Supplier, upon receiving change notice from the Banks, will notify the Customer of any change to the surcharge rates or policies on the payment page. Currently, any payment via Visa or MasterCard will incur a 0.95% surcharge while AMEX will incur a 1.95% surcharge. In order to avoid surcharges, Customers may provide an authority to pay invoices within seven (7) days via credit card or provide a direct debit authority by contacting our Customer Service Team via wellaaustralia@service.wella.com or toll free Number 1300 885 002. Prompt payment discounts are not available on credit card payments. Any fee or surcharge incurred in paying an invoice will also be a taxable supply where the products or services on the invoice are subject to GST.
5.4 Except for the surcharges advised in clause 5.3, the Supplier reserves the right, upon written notice which will act as a binding variation to these Terms, to charge the Customer any applicable bank charges, credit card merchant fees or other applicable fees and charges relating to the payment of invoices.
5.5 The Customer must pay the invoice by the due date specified on the invoice which is advised according to clause 5.1 herein. If any invoice is not paid in full by the due date, then, without limiting any other rights or remedies available to the Supplier:
a) the Supplier may charge the Customer default interest on the outstanding amount at five percent (5%) per annum and/or late payment fees (and the Customer's default will not be remedied until all outstanding amounts, together with any default interest and/or late payment fees, have been paid in full);
b) the Customer will be liable for any and all costs, expenses and disbursements incurred by the Supplier in recovering, or attempting to recover, any outstanding amounts from the Customer, including debt collection fees and/or legal fees; and
c) the Supplier may cancel or suspend any further deliveries to the Customer or require cash payments in advance from the Customer before making any further deliveries.
6 Title and Security
6.1 Property and ownership of the Products does not pass to the Customer until the Customer has paid for the Products, and paid all other amounts owing to the Supplier on any account whatsoever, in full.
6.2 The Supplier or its agents may enter the Customer's premises to take possession of any of its Products in the event that any payment (in respect of those or any other Products) becomes overdue. The Customer acknowledges that the Supplier will not be liable for any damage caused to its premises in connection with the Supplier exercising its rights under this clause 6.2. Until title in the Products passes to the Customer under clause 6.1, the Customer agrees to store the Products separately from all other goods and in such a way as to allow the Products to be identified as the Supplier's and to keep them fully insured against all customary risks of damage or loss (at the Customer's expense).
6.3 The Customer acknowledges that these Terms are a continuing security agreement for the purposes of section 20 of the Personal Properties Securities Act 2009 (Cth) (“PPSA”) and will operate irrespective of any intervening payment or settlement of account until a release has been signed by the Supplier.
6.4 A security interest is taken in all Products previously supplied to the Customer, and in all Products that will be supplied to the Customer, during the continuance of the Supplier's relationship with the Customer.
6.5 The Customer agrees to sign any and all further documents, and do any and all further acts or things which the Supplier may reasonably require, to enable the Supplier to perfect its security interest under clause 6.4.
7 "Professional Use" Products
7.1 Professional Use Goods means all Products supplied by the Supplier exclusively for use in hairdressing salons.
7.2 Where the Customer is the owner or operator of a hairdressing salon, the Customer warrants that all Professional Use Goods ordered from or supplied by the Supplier to the Customer are for the sole purpose of use in the Customer’s hairdressing Salon by well-trained hairdressers. Hairdressing salons means the licenced bodies that conduct a hairdressing business and those salons as the Supplier deems fit and qualified.
8 "Retail" Products
8.1 Retail Goods means all Products supplied by the Supplier for retail sale by the Customer.
8.2 Where the Customer is the owner or operator of a hairdressing salon, the Customer:
a) acknowledges that all Retail Goods ordered from or supplied by the Supplier to the Customer can also be used for the purpose of serving their clients in the salon, and
b) must not supply Retail Goods to any person it reasonably believes does not intend to use the Products for personal use.
9 Force Majeure
9.1 The Supplier will not be liable for any failure to perform, or any delay in the performance of, its obligations under these Terms where that failure or delay is due to any event beyond the Supplier’s reasonable control, including natural disasters, adverse weather, strikes, labour disputes, material shortages, problems with its suppliers, defaults by its carriers, fire accidents, power failure, industrial or political activities, breakdowns of plant or machinery or import or export regulations or embargoes (“Force Majeure”).
9.2 The Supplier may terminate, without any liability or compensation to the Customer, the performance of its obligations in respect of an Order to which a Force Majeure relates immediately by giving notice to the Customer, if the delay arising from the Force Majeure which precludes the Supplier from performing its obligations under these Terms continues for more than five (5) consecutive business days.
10 Limitation of Liability
10.1 Subject to the ACL, to the maximum extent permitted by law, the Customer acknowledges and agrees that all other representations, warranties, guarantees, terms and conditions (whether express or implied) in relation to the Products are expressly excluded.
10.2 Subject to the ACL, the Supplier's liability in respect of those Products will be limited (at the Supplier's option) to:
a) replacing the Products or supplying equivalent Products; or
b) paying the cost of replacing the Products or of acquiring equivalent Products.
10.3 Subject to clauses 9.1 and 9.2 and the ACL, to the maximum extent permitted by law, the Customer acknowledges and agrees that the Supplier will not be liable to the Customer for any loss, damage, cost, expense or other claim which arises in connection with the Products, including any loss, damage, cost, expense or other claim arising from the Products being used or stored in conditions that are unusual or incompatible with their nature.
11 Intellectual Property
11.1 All of the Supplier’s intellectual property, including any forms of patents, trademarks, brands, copyright and other information, remain the sole property of the Supplier and the Customer agrees that it shall not use any of the Supplier’s intellectual property without the Supplier’s prior written consent.
11.2 The Customer shall not engage in or conduct any form of diversion, counterfeiting or tampering with the Supplier’s intellectual property and the Supplier reserves the full right to lodge a formal action against such attempts.
11.3 the Customer shall immediately inform the Supplier of any infringement or threatened infringements of the Supplier’s intellectual property to the best knowledge of the Customer.
12 Termination
12.1 Each Party may terminate the Terms if:
a) Both Parties agree to terminate the Terms in writing;
b) A Party becomes insolvent; or
c) A Party fails to remedy any breach of the Terms within fourteen (14) days of receiving the written notice of breach from the other Party.
13 Confidentiality
13.1 The Customer acknowledges that these Terms are confidential and agrees not to disclose these Terms, as well as any other proprietary information, documents or materials relating to the Supplier, its property, products, services or activities, to any third party.
14 Notices
14.1 Any notice or other communication under these Terms (“Notice”) made by Customer to Supplier must be in writing and given by post at the address below or email at wellaaustralia@service.wella.com.
Wella address:
Level 9, 1 Market St, Sydney 2000
14.2 Any Notice made by Supplier to Customer must be in writing and given by email or by post to the address Customer provides to Supplier.
14.3 A Notice is taken to have been received:
a) (in the case of prepaid post) on the third day after the date of posting; or
b) (in the case of email) unless the party sending the email knows or ought reasonably to suspect that the email was not delivered to the addressee's email address, 24 hours after the email was sent.
15 Assignment
15.1 The Customer must not assign, or purport to assign, any of its rights under these Terms without the prior written consent of the Supplier.
15.2 The Supplier may assign any of its rights under these Terms without the prior written consent of the Customer to any third party.
16 Credit Term Application
16.1 By applying for credit term, Customers are required to provide their personal information to Supplier for the purpose of assessing their credit application.
16.2 Personal information supplied may be disclosed in the course of assessing your application to a credit reporting agency.
16.3 Customers are entitled upon request to have access to the personal information held by the Supplier.
16.4 If the personal information is not provided by you, then your application for credit may not be considered.
16.5 By providing the personal information requested, you hereby consent to the collection, use, disclosure and transfer of such personal information by Supplier in accordance with this clause 16 hereof, the Wella Privacy Policy (Privacy Notice | Wella Company) and pursuant to the Privacy Act 1988.
17 General
17.1 These Terms, and all dealings between the Supplier and the Customer, will be governed by, and construed in accordance with, the laws of New South Wales, and the Customer agrees to submit to the non-exclusive jurisdiction of the courts of New South Wales.
17.2 In the event that any provision of these Terms is held by a court of competent jurisdiction to be unenforceable, the remaining provisions of these Terms will remain in full force and effect.
17.3 The Supplier's failure to enforce, at any time, any provision of these Terms will not constitute a waiver of that provision and will not affect its right to enforce it subsequently.
17.4 The Supplier and the Customer are independent contractors, and no agency, partnership, joint venture or employment relationship is intended or created by these Terms.