Clear Start Authorised Stockist Agreement

1. TWO HUNDRED DOORS LIMITED (“Two Hundred Doors”)

2. (“Authorised Stockist”)

 

SCHEDULE TWO - GENERAL TERMS

This agreement is made between Two Hundred Doors Ltd and the Authorised Stockist being the person whose name and address appears in the Account Application Form (“the Authorised Stockist”).

Set out below are the terms and conditions upon which Two Hundred Doors Ltd agrees to appoint the Authorised Stockist to supply Clear Start Products and the Authorised Stockist will acquire Clear Start Products.

TERMS AND CONDITIONS OF SUPPLY:

1. Term

This Agreement takes effect upon acceptance of this Agreement by Two Hundred Doors Ltd and continues in effect unless terminated in accordance with the provisions of clause 19 (Termination).

2. Designated Location

For the purpose of this clause “Designated Location” means the location of the Authorised Stockist’s premises as set out in the Account Application Form and as approved by Two Hundred Doors Ltd.

With the consent in writing of Two Hundred Doors Ltd, the Authorised Stockist may move to another location or open additional locations.  Two Hundred Doors Ltd may however withhold such consent at its sole discretion.  Each additional location will be subject to a separate Authorised Account Agreement.

3. Standards

The manner in which Clear Start Products are used and presented is an important component of the End-User experience.  Therefore, the Authorised Stockist must: ensure that the premises at the Designated Location at all times meet the highest standards of hygiene, are well maintained and are of an appearance that is consistent with the premium image and quality of Clear Start Products as illustrated in Clear Start Product publications.

4. Non-exclusive appointment

The Authorised Stockist is appointed as an authorised Clear Start stockist on a non-exclusive basis. Two Hundred Doors Ltd reserves the right, at its sole discretion, to supply products in its own right and to appoint other authorised Clear Start stockists.

5. Placing orders

Orders may be placed over the phone, email or via EDI. Such orders are subject to acceptance by Two Hundred Doors Ltd. No additions or changes may be made to an order once Two Hundred Doors Ltd has accepted the order.

The prices payable by Authorised Stockists for Clear Start Products are set out in price lists issued by Two Hundred Doors Ltd from time to time. Two Hundred Doors Ltd reserves the right to vary those price lists at any time. Two Hundred Doors Ltd shall notify the Authorised Stockist of any changes in the prices in effect at the time the Authorised Stockist’s order is received and prior to acceptance by Two Hundred Doors Ltd.

The Authorised Stockist must pay Goods and Services Tax (“GST”) on the amounts charged to the Authorised Stockist at the then current rate. The GST is payable at the same time as the invoice.

At the time this Agreement is accepted by Two Hundred Doors Ltd the Authorised Stockist must place an opening order excluding GST of a range of Clear Start Products as selected by Two Hundred Doors Ltd. After purchasing the opening order, further orders should be placed every month thereafter.

Orders under $500 excluding GST will attract a freight and handling charge of $11.00 excluding GST.

During the second six months of trading and thereafter, the Authorised Stockist is required to order a minimum of $1,000 (plus GST) of Clear Start products over any 6-month period. Failure to order the minimum quantity may result in termination of this agreement.

Testers and samples to be provided free of charge with opening order, all further testers and samples will be allocated with your Two Hundred Doors Ltd sales support person.

6. Delivery

Orders will be delivered to the Designated Location.  Any delivery dates suggested are estimates only and Two Hundred Doors Ltd is not liable for late delivery or non-delivery.  Orders may also be collected from Two Hundred Doors Ltd’s warehouse by arrangement.

7. Payment terms

Subject to this credit application, payment including GST, is due no later than the 30th day after date of invoice.

Two Hundred Doors Ltd may in its discretion require payment before any goods are dispatched for reasons which may include, without limitation, the previous failure of Authorised Stockist to pay for goods by the due date.  If any payment due by the Authorised Stockist pursuant to these terms and conditions is not made by the due date, then without prejudice to any right or remedy, the Authorised Stockist must pay interest from the due date on the unpaid amounts at the rate of 2.5% per month as if the unpaid amount was a judgement debt.

In addition, any expenses, disbursements incurred by Two Hundred Doors Ltd in the enforcement of any rights contained in this contract shall be paid by the Authorised Stockist, including any actual solicitor’s fees/costs or debt collection agency fees.

8. Conditions of supply

Supply of Clear Start Products to the Authorised Stockist is made subject to each of the following conditions:

(a) The Authorised Stockist will only sell Clear Start Products to End Users and will not in any circumstance transfer or sell any Clear Start Product to any re-distributor, reseller, retailer or website operator (including but not limited to on-line auction or consignment sites) nor will Authorised Stockist directly or indirectly offer Clear Start products on any on-line auction or consignment site. Authorised Stockist will not sell any Clear Start products through e-commerce, the World Wide Web, or any other Internet facility, except when explicitly authorised by Two Hundred Doors Ltd, in writing and in advance, to do so. Two Hundred Doors Ltd reserves the absolute right to regulate, restrict or prohibit the sale of Clear Start products by Authorised Stockist via the internet. Authorised Stockist will ensure that its employees, agents and contractors abide by the obligations of this section.

(b) sales of Clear Start Products will only be made from the Designated Location; and,

(c)  sales of Clear Start Products will only be made to End Users within New Zealand.

“End User” means a person in New Zealand who is acquiring Clear Start Products solely for that person’s individual use and not for resale or transfer.

9. Resale prices

(a)  Two Hundred Doors Ltd may provide to the Authorised Stockist by way of recommendation only, a list of prices for which the Clear Start Retail Products may be resold.

(b) The parties agree that:
(i) the prices set out in that list are only recommended prices and there is no obligation on the part of the distributor to comply with those recommendations; and

(ii) this clause 2 is taken to be incorporated by reference to every pricelist issued by Two Hundred Doors Ltd to the Authorised Stockist under the Agreement.

10. Title and Security (Personal Property Securities Act 1999)

Title in any Goods supplied by Two Hundred Doors Ltd   passes to the Authorised Stockist only when the Authorised Stockist has made payment in full for all Goods provided by Two Hundred Doors Ltd and of all other sums due to Two Hundred Doors Ltd   by the Authorised Stockist on any account whatsoever.  Until all sums due to Two Hundred Doors Ltd by the Authorised Stockist have been paid in full, Two Hundred Doors Ltd has a security interest in all Goods.                                   

If the Goods are attached, fixed, or incorporated into any property of the Authorised Stockist, by way of any manufacturing or assembly process by the Authorised Stockist or any third party, title in the Goods shall remain with Two Hundred Doors Ltd   until the Authorised Stockist has made payment for all Goods, and where those Goods are mixed with other property so as to be part of or a constituent of any new Goods, title to these new Goods shall deemed to be assigned to Two Hundred Doors Ltd   as security for the full satisfaction by the Authorised Stockist of the full amount owing between Two Hundred Doors Ltd and Authorised Stockist.

The Authorised Stockist gives irrevocable authority to Two Hundred Doors Ltd  to enter any premises occupied by the Authorised Stockist or on which Goods are situated at any reasonable time after default by the Authorised Stockist or before default if Two Hundred Doors Ltd   believes a default is likely and to remove and repossess any Goods and any other property to which Goods are attached or in which Goods are incorporated.  Two Hundred Doors Ltd  shall not be liable for any costs, damages, expenses or losses incurred by the Authorised Stockist or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded. 

Two Hundred Doors Ltd may either resell any repossessed Goods and credit the Authorised Stockist’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed Goods and credit the Authorised Stockist’s account with the invoice value thereof less such sum as Two Hundred Doors Ltd reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.

Where Goods are retained by Two Hundred Doors Ltd , the Authorised Stockist waives the right to receive notice under s.120 of the Personal Property Securities Act 1999 (“PPSA”) and to object under s.121 of the PPSA.

The following shall constitute defaults by the Authorised Stockist:

- Non payment of any sum by the due date.

- The Authorised Stockist intimates that it will not pay any sum by the due date.

- Any Goods are seized by any other creditor of the Authorised Stockist or any other creditor intimates that it intends to seize Goods.

- Any Goods in the possession of the Authorised Stockist are materially damaged while any sum due from the Authorised Stockist to Two Hundred Doors Ltd  remains unpaid.

- The Authorised Stockist is bankrupted or put into liquidation or a receiver is appointed to any of the Authorised Stockist’s assets or a landlord distrains against any of the Authorised Stockist’s assets.

- A Court judgment is entered against the Authorised Stockist and remains unsatisfied for seven (7) days.

- Any material adverse change in the financial position of the Authorised Stockist.

11. Risk of loss

Risk of loss in the products passes to the Authorised Stockist upon delivery to the Designated Location.

12. Return of goods by End-users

In the event that an End-User wishes to return any Clear Start Product for any reason the Authorised Stockist is required to offer to End-Users an unconditional 100% money back guarantee.

In the event of such an End-User return, the Authorised Stockist should refund the retail price to the End User, and send the products(s) back to Two Hundred Doors Ltd with a completed returns form. Two Hundred Doors Ltd  will then credit the account for the Authorised Stockist’s cost of the product(s) on their receipt by Two Hundred Doors Ltd.

13. Return of Goods by Authorised Stockist

In the event of overstocking or closure of account by the Authorised Stockist, Two Hundred Doors Ltd  will accept undamaged goods, purchased from Two Hundred Doors Ltd  in New Zealand, that are in condition to be resold and subject to  this clause will credit the account for the cost of the products(s).

Two Hundred Doors Ltd may, at its discretion charge a 10% handling fee on goods returned due to overstocking. The Authorised Stockist must deliver such goods to Two Hundred Doors Ltd ’s warehouse or any other address nominated by Two Hundred Doors Ltd, within 30 days from the date of purchase.

Returned goods will not be accepted after 30 days from date of purchase without prior arrangement.

14. Representations

The Authorised Stockist must not make any representation in any manner about Clear Start Products or the benefits to be derived from the use of such products and treatments except as authorised by Two Hundred Doors Ltd, in Clear Start brochures and manuals or on the Dermalogica/ Clear Start website.

15. Quality of Products

An Authorised Stockist may not, in any form or manner, change, dilute or alter Clear Start products or their contents, packaging, designs or labelling.

16. Copyright, Trade Marks, Confidentiality

All advertising and display material, counters, display units and equipment supplied without charge by Two Hundred Doors Ltd to the Stockist shall remain the property of Two Hundred Doors Ltd and shall be returned to Two Hundred Doors Ltd upon request.  Apart from normal wear and tear, the Stockist must maintain the POS Material in good condition. The POS Material is not transferable and cannot be altered or destroyed by the Stockist without the consent of Two Hundred Doors Ltd.

Clear Start’s Training Manual videos, DVDs and other visual materials supplied by Two Hundred Doors Ltd   are copyrighted and must be used for education and reference purposes only.  Such materials may not be sold, copied, loaned or distributed in any manner without the express prior written permission of Two Hundred Doors Ltd.

An Authorised Stockist may not, in any form or manner, modify, change or alter Clear Start related names, trademarks, logos or advertising or promotional materials.

Wholesale prices are confidential, and those prices and other information marked confidential are not to be disclosed.

17. Exclusion of Warranties

Except as provided in this Agreement and to the extent permitted by law, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the products for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded.

To the extent permitted by law, Two Hundred Doors Ltd ’s liability for breach of any condition or warranty not excluded by clause 17 above or any breach of these terms and conditions is limited to: (a) in the case of goods, any one or more of the following: (i) replaces or repair the goods or supply equivalent goods; (ii) pay the cost of replacing the goods or of acquiring equivalent goods; (iii) pay the cost of having the goods repaired; or (b) in the case of services: (i) supply the services again; or (ii) pay the cost of having the services supplied again, in respect of which the breach occurred.

18. Variation of Terms and Conditions

Two Hundred Doors Ltd may vary the prices to Authorised Stockists at any time in accordance with Clause 5.All other terms and conditions may be varied by Two Hundred Doors Ltd upon 30 days written notice to the Authorised Stockist.

19. Termination

(a)  By Two Hundred Doors Ltd

Two Hundred Doors Ltd may terminate this Agreement and upon doing so Two Hundred Doors Ltd will have no further liability to the Authorised Stockist under this agreement on any basis whatsoever. 

Grounds for termination include, but are not limited to:

(i)      breach, deviation from, or non-compliance with these terms and conditions or any other agreement between the Authorised Stockist and Two Hundred Doors Ltd , and any revisions or amendments to these documents then in effect;

(ii)  failure to make prompt payment or tendering inadequate or insufficient payment;

(iii) actual or attempted infringement of Two Hundred Doors Ltd ’s intellectual property rights;

(iv) voluntary or involuntary bankruptcy, insolvency or suspension of an account’s business;

(v)  any illegal or unethical conduct;

(vi) any conduct that damages or has the potential to damage the brand name or reputation of Clear Start or its products.  Suspension or termination does not relieve an account of responsibility to pay for products it has ordered or other obligations to Two Hundred Doors Ltd ;

(vii) if the Authorised Stockist is also operating a registered website, any breach of the terms of the Registration Terms;

(viii) operation of a we site supplying Clear Start Products where that web site has not been registered with Two Hundred Doors Ltd and

(ix) the provision by Two Hundred Doors Ltd of 60 days prior notice of termination in writing.

Any costs incurred by Two Hundred Doors Ltd in recovery or attempted recovery of goods or monies due by an account will be payable by the Authorised Stockist.

If any of the above clauses (in clause 19) are breached Two Hundred Doors Ltd reserve the right to terminate this agreement immediately and without any prior written notice.

(b) By the Authorised Stockist

The Authorised Stockist may terminate this agreement at any time upon giving Two Hundred Doors Ltd 30 days prior written notice.

20. Upon Termination

Upon termination the Authorised Stockist will immediately:

(a)  cease all sale, promotion or advertising of Clear Start Products;

(b) at the expense of the Authorised Stockist, immediately return to Two Hundred Doors Ltd all documentation, manuals, educational materials, advertising and promotional materials;

(c) cease use of the name Clear Start and all other Clear Start trade marks;

(d) close any Approved Web Site; and,

(e)  within 10 days of termination the Authorised Stockist must return stock to Two Hundred Doors Ltd  premises located at: Two Hundred Doors Ltd , 66A Paul Matthews Road, Albany 0751, at the expense of the Authorised Stockist, all undamaged goods that are in good condition to be resold. Two Hundred Doors Ltd will credit the account of the Authorised Stockist for the cost of such returned products.

21. Assignment

The Authorised Stockist may not assign this agreement without the prior written consent of Two Hundred Doors Ltd. Two Hundred Doors Ltd may at its sole discretion withhold consent or require the proposed new stockist to apply for approval to operate as an Authorised Stockist.

Two Hundred Doors Ltd may assign this Agreement at any time.

22. Notices

Any notice to be served under this agreement shall be sent:

To Two Hundred Doors Ltd at the address on this agreement or such other address as may be advised in writing from time to time; and,

To the Authorised Stockist at the address in the account application form or such other address as may be advised in writing from time to time.

23. Governing Law

Any and all disputes arising between the Authorised Stockist and Clear Start will be subject to the jurisdiction of the Courts of New Zealand and will be determined in those courts.

The Authorised Stockist hereby acknowledges that it has read and agrees with the above terms and conditions of supply.