v.03/2019

General Terms & Conditions & Security Agreement

​IN CONSIDERATION OF Jemella Australia Pty Ltd A.B.N 50 104 455 138, trading as ghd hair (hereinafter referred to as “the Company”) providing commercial credit facilities to the party completing the application (hereinafter referred to as “the Customer”) annexed to these conditions:-

1. The Customer acknowledges and agrees that the following applies to and forms part of any contract for the supply of goods by the Company and that these General Terms and Conditions take precedence over any terms and conditions which may be contained in any document provided by the Customer. Any request from the Customer to the Company for the supply of goods shall constitute acceptance of these general terms and conditions.
2. The Customer hereby charges in favour of the Company all its estate and interest in any land and in any other assets, whether tangible or intangible, freehold or leasehold, in which it now has any legal or beneficial interest or in which it later acquires any such interest with payment of all monies owed by the Customer and consents to the lodging by the Company of a caveat or caveats which note its interest in or over any such land or other caveatable property;
3. The Customer acknowledges that where the Customer consists of more than one party or entity, liability shall be joint and several.

TERMS
These terms and conditions, including any Credit Limits set by the Company, are effective from the date of acceptance by the Customer and may be amended or superseded from time to time by notice given by the Company by any means.

1. Jurisdiction

1. This Agreement shall be construed in accordance with laws of the State of Queensland and, where applicable, The Commonwealth of Australia and the Customer submits to the nonexclusive jurisdiction of the courts of Queensland.
2. The Company shall have exclusive right to nominate the Court in which any legal action is to be commenced and conducted.

2. PPSA

1. In this clause PPSA means the Personal Property Securities Act 2009; PMSI means a purchase money security interest as defined in the PPSA; PPSR means the Personal Property Securities Register; “security interest”, “security agreement”, “financing statement”, “financing change statement”, “verification statement”, “attached”, “attachment”, “perfected” and all related terms have the meanings given them by the PPSA.
2. If the Company determines that this Agreement (or a transaction in connection with it) is or contains a security interest or transitional security interest for the purposes of the PPSA, then the conditions in this clause will apply to this Agreement.
3. The Customer acknowledges that this Agreement constitutes a security agreement which creates a security interest in favour of the Company in the goods (including all goods previously supplied by the Company to the Customer (if any) and all after acquired goods supplied by the Company to the Customer, or for the Customer’s account).
4. The Customer agrees to grant a PMSI in the goods and all future goods supplied to the Customer by the Company.
5. The Customer agrees that the PMSI has attached to all goods now or in the future supplied to the Customer by the Company.
6. The Customer agrees, until title in the goods pass to it, to keep all goods free of any charge, lien or security interest except as created under this Agreement and not otherwise deal with the goods in a way that will or may prejudice the rights of the Company under this Agreement or the PPSA.
7. The Customer undertakes to sign any further documents and/or provide any further information (which information the Customer warrants to be complete, accurate and current) which the Company may reasonably require to enable registration of a financing statement or financing change statement on the PPSR or to ensure that the security interest is otherwise enforceable, perfected and effective.
8. The Customer undertakes to indemnify, and upon demand, reimburse the Company for all expenses incurred in registering a financing statement or financing change statement on the PPSR.
9. The Customer undertakes to give to the Company not less than 14 days prior written notice of any proposed change in the Customers details, including, but not limited to, changes of address, entity or business name and/or contact details.
10. Unless otherwise agreed to by the Company in writing, the Company and the Customer shall not disclose to any third party any information of the kind referred to in Section 275(1) of the PPSA.
11. The Company is not obliged to give the Customer any notice or provide copies of any documents under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded and the Customer consents to the waiver of the requirement for notice or copies of any documents under this clause.
12. The Company and the Customer agree that the following provisions of the PPSA do not apply to or in relation to the security interest to the extent that the PPSA permits the parties to contract out of or waive such provisions: section 95 (notice of removal of accession) to the extent that it requires the Company as secured party to give a notice to the Customer as grantor;; section 117 (obligations secured by land and personal property); section 118 (enforcing securities in accordance with land law);; section 121(4) (enforcement of liquid assets – notice to grantor);section 125 (obligation to dispose of or retain collateral);;;; section 130 (notice of disposal), to the extent that it requires the Company as secured party to give a notice to the Customer as grantor; section 132(3)(d) (secured party to give statement of account); section 132(4) (statement of account if no disposal);; section 135 (notice of retention of collateral); section 142 (redemption of collateral); and section 143 (reinstatement of security agreement).

3. Definitions

1. "Confidential Information" means any information which a party gives to another party under or in connection with the Agreement that is non-public, confidential or proprietary in nature, including any information which the Company provides to the Customer and any Intellectual Property Rights of the Company
2. “Goods” shall mean all goods and/or services supplied by the Company to the Customer, or ordered by the Customer but not yet supplied and includes goods described on any quotation, invoice, purchase order or any other document including any recommendations and advice.
3. "Government Agency" means any governmental, semi-governmental, administrative, fiscal, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity.
4. "Intellectual Property Rights" means all intellectual property rights, including without limitation (1) patents, copyright, rights in circuit layouts, registered designs, trademarks, trade secrets and the right to have Confidential Information kept confidential and (2) any application or right to apply for registration of any of those rights
5. "Payment Terms" means the payment terms listed on invoices.
6. "Policies" means the policies or criteria issued by the Company including in relation to the operation and conduct of the marketing, promotion and sale of the Goods or use of the ghd brand and as amended from time to time by the Company.
7. “Price” shall mean either (1) the cost of the Goods as specifically agreed between the Company and the Customer, or (2) in the absence of any prior agreement, as referred to in the Company’s price lists and / or arrangements and shall be subject to change from time to time without notice.

4. Price

1. The Customer shall pay the Price for the Goods.
2. Unless otherwise indicated, the Price is exclusive of all applicable taxes and charges. The Customer shall be liable for all excise, sales, GST or other tax, charge or government impost (domestic or foreign) upon the Goods or any part of the Goods. Where the Goods are subject to GST, the Customer must pay GST at the same time as payment for the Goods is made.

5. Payment Terms

1. Credit Account Customers are required to pay all amounts for purchases in full in accordance with the Payment Terms.
2. In the event of a dispute, the complete undisputed portion of the account must be paid in accordance with the Payment Terms.
3. Should it be considered necessary by the Company to incur legal and/or any other expenses, including any such expenses to any debt collection agency, in obtaining, or attempting to obtain, payment for any amount due by the Customer, the Customer shall be liable for all such expenses. The Customer acknowledges that those expenses may be calculated on a commission basis at a percentage rate of up to 25% of the amount due and expressly agrees to pay those expenses irrespective of the amount of work actually performed by the agency.
4. Amounts received by the Company may be applied first against interest, charges and expenses.
5. Interest on overdue amounts may be charged at a rate of 3% per calendar month or part thereof and the Customer shall be liable for, and expressly undertakes to pay, all such interest. 
6. Any payment made by or on behalf of a Customer which is later avoided by the application of any Statutory Provision shall be deemed not to discharge the Customer’s indebtedness and, in such an event, the parties are to be restored to rights which each respectively would have had if the payment had not been made.
7. The Customer shall be liable for, and expressly undertakes to pay, all fees (including an Administration Fee in an amount to be set from time to time by the Company) for all costs incurred as a result of any cheque or any electronic banking transaction being dishonoured for whatever reason.

6. Delivery

1. The Customer shall be responsible for providing correct delivery details and for making all necessary delivery arrangements.
2. The Company shall not be liable for any loss or damage, including but not limited to indirect or consequential loss or damage, loss of profits, loss of revenue, loss of goodwill, special or exemplary damages, arising from delay in delivery or failure to deliver Goods, either whole or in part, due to circumstances beyond its control, even if advised of the possibility of such damages or if such loss ought reasonably to have been in the contemplation of both parties at the date of this Agreement.
3. The Company’s obligation to deliver shall be discharged on arrival of the Goods at the Customer’s nominated delivery destination or nominated agent or carrier. If the Customer is unable or unwilling to accept physical delivery of the Goods when the Goods are ready for delivery, or delivered, the Company shall be entitled to charge a fee for any delay suffered, or to arrange for storage of the Goods at the risk and cost of the Customer including all transportation, storage and other consequential costs.

7. Defects

1. The Customer shall inspect the Goods upon delivery and will, within 48 hours, notify the Company of any defects, short deliveries or any failure to fulfil any order.
2. The Customer will, within a reasonable time following delivery, grant the Company access to the Goods in order to inspect for any alleged defects.
3. Should the Customer fail to notify the Company within the specified period then the Goods shall be deemed to be in compliance with the order and free from any defect whatsoever.

8. Liability

1. Except as expressly provided in this Agreement and except for any condition or warranty the exclusion of which could be void or otherwise contravene the Competition and Consumer Act 2010 (Cth) or any other equivalent competition or consumer law in the Australia (Non Excludable Condition), the Company disclaims all conditions, warranties and representations, either express or implied with respect to the Goods.
2. Subject to any warranty provided by the Company in respect of the Goods and notwithstanding where legislation implies into this Agreement a Non-Excludable Condition, to the fullest extent permitted by the Competition and Consumer Act 2010 (Cth) or any other equivalent competition or consumer law in Australia:
   1. the liability of the Company to the Customer for any reason related to the performance of goods under this Agreement shall be limited (at the election of the Company) to the replacement or repair of the goods or the amount paid or payable by the Customer in respect of the particular goods; and
   2. other than in respect of clause 8(b)(1) in no event will the Company be liable to the Customer for any:
      1. claim or damage arising out of or in connect with the Goods or this Agreement; or
      2. indirect loss or consequential loss, loss of profits, loss of revenue, loss of goodwill, exemplary damages, punitive damages in connection with or arising out of this Agreement and the supply of the Goods even if advised of the possibility of such damages or if such loss ought reasonably to have been in the contemplation of both parties at the date of this Agreement.
3. Any costs or expenses associated with the return of Goods for the purpose of a warranty claim shall be the responsibility of the Customer.
4. Nothing in this Agreement purports to modify or exclude the conditions, warranties, guarantees and undertakings, and other legal rights, under the Competition and Consumer Act 2010 (Cth) and other laws which cannot be modified or excluded.

9. Retention of Title

1. Property in all the Goods supplied shall remain vested in the Company and shall not pass to the Customer until all monies owing to the Company by the Customer together with all collection, repossession and / or legal costs incurred, have been paid in full and until such time the Customer will hold the Goods as a bailee of the Company and a fiduciary relationship will exist between the Company and the Customer.
2. The Goods must be stored by the Customer separately and in a manner enabling them to be identified and cross-referred to particular invoices as the property of the Company, until title has passed to the Customer and further, upon re-sale of the Goods by the Customer, the Company shall have the right to trace any proceeds of sale to the extent that they relate to its Goods which are incorporated into other products or items of the Customer.
3. If the Customer sells the Goods before payment in full (without counterclaim, set off or deduction) to Company or if the Customer uses the Goods, it must hold all of the proceeds of any sale or dealing in the Goods on trust for Company, must keep such proceeds in a separate account as the beneficial property of the Company and pay such amount to the Company on demand.
4. If payment for the Goods has not been received by the Customer, the Customer will, on demand, transfer to the Company all of its rights in respect of the sale price.
5. The Company may demand at any time until title has passed to the Customer that the Customer returns the Goods or any part of them.
6. In the event that the Customer defaults in the payment of any monies owing, the Company and its employees or agents, at its discretion, shall have the right to enter without notice upon the Customer’s premises or any other premises where the Goods are known to be stored to repossess the Goods and for this purpose the Customer shall grant reasonable access rights and the Company, its employees or agents shall be entitled to do all things required to secure repossession.

10. Risk and Audit

1. Notwithstanding Retention of Title provisions as per clause 9 hereof, the risk in Goods purchased shall pass to the Customer upon delivery to the Customer or its agent or a carrier nominated by the Customer.
2. If any of the Goods are damaged or destroyed prior to the title in them passing to the Customer, the Company is entitled, without affecting any other rights and remedies under any agreement, to any insurance proceeds payable for the Goods.
3. For the purpose of determining compliance with this Agreement and the Policies, the Customer irrevocably authorises the Company (or its agent) upon giving reasonable notice time to enter onto any premises upon which the Customer's records pertaining to the Goods are held to inspect and copy such records.
4. The Customer must provide the Company with information it reasonably requests in relation to the Customer's sale of the Goods.

11. Cancellation

1. The Company may cancel the delivery of Goods at any time before delivery by giving notice to the Customer by any means.
2. The Company shall not be liable for any loss or damage, including but not limited to indirect or consequential loss or damage, loss of profits, loss of revenue, loss of goodwill, special or exemplary damages, arising from such cancellation, even if advised of the possibility of such damages or if such loss ought reasonably to have been in the contemplation of both parties at the date of this Agreement.
3. The Customer may cancel the delivery of Goods at any time before delivery by giving notice to the Company by any means.
4. In the event that the Customer cancels delivery of Goods, the Customer shall be liable for any costs or expenses incurred by the Company up to the time of the cancellation including, but not limited to, any re-stocking fees incurred by the Company.

12. Indemnity
The Customer indemnifies the Company and will keep the Company indemnified on demand from and against all actions, claims, demands, losses, damages and expenses of whatever form or nature, including legal fees or other costs and disbursements that the Company sustains or incurs as a result of:

1. any negligent act or omission of the Customer in the Customer's direct sale of the Goods to consumers;
2. any breach of this Agreement by the Customer;
3. any misleading or deceptive conduct of the Customer in respect of the Goods (which has not been authorised by the Company);
4. any contravention of the Competition and Consumer Act 2010 (Cth) or any other equivalent competition or consumer law in Australia by the Customer; or
5. any claim by a consumer or other third party that the Company is liable under the Competition and Consumer Act 2010 (Cth) or any other equivalent competition or consumer law in Australia by the Customer, as a result of an act or omission of the Customer.

13. On-Sale of Goods by the Customer

1. Unless otherwise agreed in writing by the Company, Goods are supplied to the Customer for direct sale to consumers for personal use.
2. Unless otherwise agreed in writing by the Company, the Customer acknowledges and agrees that it shall not; (i) appoint any person to resell the Goods, or (ii) sell the Goods to any person who intends to, or who the Customer reasonably believes intends to, resell the Goods, or (iii) sell the Goods on or through the internet, or (iv) sell (or advertise for sale) the Goods by auction including any on-line auction on the internet.
3. The Company may issue Policies from time to time and the Customers must comply with those Policies (where applicable).
4. The Company may review the Customer's compliance with the Policies from time to time. The Customer agrees and acknowledges that the Company may also audit and review the Customer's participation in programs and promotions from time to time in its absolute discretion.
5. The Customer must not promote, advertise or offer for sale Goods in such a way which may (in the reasonable opinion of the Company) cause or be likely to cause damage to the reputation and goodwill of the Company or the Goods.

14. Intellectual Property

1. All Intellectual Property Rights in the Goods and any marketing, promotional or other material used in connection with the sale of the Goods by the Company or the Customer remains the property of the Company.
2. The Customer is granted a non-exclusive license to use such Intellectual Property Rights to the extent necessary to sell the Goods to consumers in accordance with the Company’s Policies and for no other purpose.

15. Point of Sale Material

1. The Customer acknowledges and agrees that: (i) the Company is the authorized user of the intellectual property in all marketing, promotional or other material in relation to Goods referred to as “point of sale material”; and (ii) all point of sale material, including but not limited to any intellectual property contained therein, created for or by the Company remains the sole property of the Company; and (iii) the Customer is granted license only to use and display point of sale material in accordance with the directions of the Company; and (iv) any breach of the license conditions shall entitle the Company to immediately suspend all and any arrangements or contracts with the Customer; and (v) the Customer shall not, in relation to the advertising for sale and sale of Goods and through any media, use any branded or promotional material other than the Company’s, or such material as specifically approved in writing by the Company.
2. In the event that point of sale material is no longer required, the Customer shall, at the direction of the Company, destroy, or make available for collection by the Company.

16. Customer Disclaimer

1. The Customer hereby disclaims and waives any right to seek compensation for loss or damages arising from any misrepresentation made by the Company or any related entity of the Company and their respective officers, employees, agents or contractors.
2. The Customer acknowledges that the purchase of Goods is made relying solely upon the Customer’s own skill and judgment.

17. Returns
If the Customer wishes to cancel their order, they may do so at any time up to and including seven (7) working days from receipt of the Goods. Any cancellation must be communicated to
the Company in writing. Upon cancellation of the order, all Goods must be returned to the Company immediately and in any event within fourteen (14) days. Please note that where the Customer intends to or have cancelled the order, the Customer is under a duty to maintain the Goods in the same condition as received by them. For the avoidance of doubt, any Goods which have been used and/or tampered with will not be deemed to be in the same condition for the purposes of this clause.

18. General

1. The Company operates a selective distribution model.
2. The Company accepts no responsibility or liability for changes in any law which may affect the supply of Goods.
3. Neither the Company nor the Customer shall be liable for any breach of any provision of any contract between them arising from an act of God, natural disaster (including but not limited to flood or inundation of water), terrorism, war or any other, specified or un-specified, occurrence beyond the control of either party.
4. The invalidity or unenforceability of any provision or part of any provision of this Agreement shall not affect the validity or enforceability of the remaining provisions.
5. Clerical errors are subject to correction and do not bind the Company.
6. Headings are for ease of reference only and do not form part, or affect the interpretation, of this Agreement.
7. A party waives a right under this Agreement only if it does so in writing. A party does not waive a right simply because it fails to exercise that right, delays exercising the right or only exercises part of the right. A waiver of one breach of a term of this Agreement does not operate as a waiver of another breach of the same term or any other term.
8. The Company may amend or vary this Agreement in its absolute discretion.
9. The Company is an independent contractor of the Customer. Nothing in this Agreement constitutes any other type of relationship between the parties.
10. Without limiting the Customer's obligations under this Agreement, the Customer must observe and comply with all statutes, regulations, by-laws and requirements of any Government Agency in relation to the sale of the Goods and performing its obligations under this Agreement.
11. To the extent there is any inconsistency between this Agreement and the Policies, the Policies will prevail to the extent of the inconsistency.
12. The Customer must not enter into any agreement or incur any liability on behalf of the Company. The Customer must not represent to any person that it has authority to do so.
13. If this Agreement, the Policies and Payment Terms are not observed by the Customer, the Company may in its absolute discretion, refuse to supply to the Customer and the Company shall not be liable to the Customer for any actions, claims, demands, losses, damages and expenses the Company may sustain as a result of such refusal.
14. This Agreement, the Policies (including updates or changes to the Policies) and the payment terms listed on invoices contain everything the parties have agreed on in relation to this transaction. No party can rely on an earlier document, or on anything said or done by another party (or by a director, officer, agent or employee of that party).

19. Privacy
Protecting your privacy and the confidentiality of your Personal Information is fundamental to the way the Company operates its business. Our Privacy Policy sets out the way in which the Company collects, uses, discloses, stores and otherwise manages your Personal Information and complies with its obligations under the Privacy Act 1988 (Cth). Before providing the Company with Personal Information, including by submitting this Application for Personal Credit, you must review our Privacy Policy which is available on our website www.ghdhair.com/au
If you provide the Company with Personal Information, you consent to us collecting, using, storing, disclosing and otherwise managing that information (within and outside Australia) in accordance with the Company's Privacy Policy.  If you have any questions or concerns about the Privacy Policy, please contact our Credit Manager on 1300 443 424 or creditcontrol@ghdhair.com.au.

Acknowledgement and Consent
I/We acknowledge and give consent that the Company may make enquiries as to the credit and financial situation of me or any of us and further consent to the use of any information obtained as a result of those enquiries, including information disclosed in the Application for Commercial Credit Account, as the Company reasonably sees fit from time to time, for purposes including but not limited to:

• passing the information on to a credit reporting body,
• passing the information on to a debt collector,
• subject to compliance with the Company's obligations under the Privacy Act 1988 (Cth) and the Australian Privacy Principles, obtaining further Personal Information, including consumer and/or commercial credit information, relating to me or any of us from another body (including, without limitation, a credit reporting body) for any use reasonably connected with provision of any credit or the collection of any debts or other monies owed.

I/We acknowledge that I/we have reviewed the Company's Privacy Policy and consent to the Company collecting, using, storing, disclosing and otherwise managing Personal Information in accordance with the Company's Privacy Policy.
I/We have read and understood this document and have been advised, and given opportunity, to seek independent legal advice.
I/We warrant that the information given in support of this application is true and correct.
In the event that the customer is an incorporated entity, the person/s signing this Agreement warrants that they are authorised to sign on behalf of the Customer and to bind the Customer in contract.
In the event that the Customer is a partnership, the person/s signing this Agreement warrants that they are authorised to sign and act on behalf of the other partners within the Partnership and to bind them to the contract.
I/We acknowledge that by selecting the agreement button and submitting the application electronically, this constitutes a legal signature confirming that I/we acknowledge and agree to the Terms and Conditions of Acceptance.