1. Definitions
1.1 “Able Beauty” means Able Beauty Limited, (registered office being, 9/2 Bishop Browne Place, A Flat Bush, Auckland 2013), and its successors and assigns.
1.2 “Customer” means the person/s buying the Goods as specified in the Client Account Form or any Able Beauty invoice, document or order. If there is more than one, Customer is a reference to each Customer jointly and severally.
1.3 “Goods” means all Goods and/or Services supplied by Able Beauty to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ and/or ‘Services’ shall be interchangeable for the other).
1.4 “Guarantor” means the person/s guaranteeing the due and punctual payment by the Customer as specified in the Client Account Form. If there is more than one, Guarantor is a reference to each Guarantor jointly and severally.
1.5 “Price” means the Price payable for the Goods as agreed between Able Beauty and the Customer in accordance with clause 5 below.
1.6 “Client Account Form” is the standard Able Beauty client account form (which may be varied by Able Beauty from time to time) provided by Able Beauty to the Customer.
2. Acceptance
2.1 The Customer accepts and is immediately bound, jointly and severally, by these terms and conditions of trade when the Customer signs, or accepts the Client Account Form or places an order for, accepts delivery of the Goods or receives and invoice from Able Beauty.
2.2 These terms may only be amended with both parties consent in writing.
2.3 The Customer acknowledges and accepts that Able Beauty at it’s discretion, reserves the right not to supply Goods if, for any reason (including but not limited to, where the Goods are not or cease to be available, account disputes or conditions placed on Able Beauty by their suppliers). Able Beauty shall not be liable to the Customer for any loss or damage the Customer suffers due to Able Beauty exercising its rights under this clause.
2.4 Able Beauty reserves the right to decline credit to any Customer who is under eighteen (18) years of age and/or who does not hold valid identification documents.
3. Electronic Transactions
3.1 Electronic signatures shall be deemed to be accepted by the parties providing that they comply with Part 4 of the Contract and Commercial Law Act 2017.
4. Change in Control
4.1 The Customer shall give Able Beauty not less than five (5) working days prior written notice of any proposed change of ownership or control of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone number/s, bank account and/or payment details). The Customer shall be liable for any loss incurred by Able Beauty as a result of the Customer’s failure to comply with this clause.
5. Price and Payment
5.1 At Able Beauty’s sole discretion the Price shall be either:
(a) as indicated on the Client Account Form, or any invoice, document or order provided by Able Beauty to the Customer; or if no such documents exists then
(b) the Price as at the date of delivery of the Goods according to Able Beauty’s current price list.
Able Beauty’s quoted price which will be valid for the period stated in any relevant quotation or otherwise for a period of thirty (30) days.
5.2 At Able Beauty’s sole discretion a deposit may be required.
5.3 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by Able Beauty, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) by way of instalments/progress payments agreed between the Customer and Able Beauty in writing;
(d) for certain approved Customers (pre-approved in writing by Able Beauty), due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices.
(e) failing any notice to the contrary, the date which is seven (7) days following the date of the Client Account Form, relevant document, order or invoice.
5.4 Payment may be made by cash, bank cheque, electronic/on-line banking, automatic payment, credit card or by any other method as agreed to between the Customer and Able Beauty.
5.5 If payment by is made by credit card , Able Beauty reserves the right to charge an additional administration fee of 2.5% of the Price for Goods.
5.6 Unless otherwise stated the Price excludes GST. If the Price states that it does not include GST or is exclusive of GST then in addition to the Price the Customer must pay to Able Beauty an amount equal to any GST Able Beauty must pay for any supply by Able Beauty under these terms or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5.7 Able Beauty operates in New Zealand. All prices shown and all transactions are billed in NZ dollars.
6. Additional Charges
6.1 If the Customer owes Able Beauty any money the Customer shall indemnify Able Beauty from and against all costs and disbursements incurred by Able Beauty in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Able Beauty’s collection agency costs, and bank dishonour fees (as per clause 7.2)).
7. Automatic Payments/Direct Debits
7.1 Where the Customer and Able Beauty agree that payment for the Goods be made by Automatic Payment/Direct Debit, such payments shall be made according to prior written agreement between the parties. In the event that a payment falls due on a non-working day, the payment shall be made on such earlier date as may be reasonably requested by Able Beauty.
7.2 In addition to the provisions of clause 16.2, a payment dishonour fee of twenty five dollars ($25) shall be payable by the Customer each time the Customer’s due payment dishonours.
7.3 Once all outstanding monies for Goods purchased have been paid by the Customer, any subsequent payments or overpayment made by the Customer shall, at the Customer’s request, be refunded by Able Beauty to the Customer within ten (10) business days by direct credit to the Customer’s original bank account details.
8. Delivery of Goods
8.1 Delivery (“delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at Able Beauty’s address; or
(b) Able Beauty (or Able Beauty’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
8.2 The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then Able Beauty shall be entitled to charge a reasonable fee for redelivery and/or storage.
8.3 Any time or date given by Able Beauty to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and Able Beauty will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
9. Risk
9.1 Risk of damage to or loss of the Goods passes to the Customer on delivery and the Customer must insure the Goods on or before delivery.
9.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Able Beauty is entitled to receive all insurance proceeds payable for the Goods. The production of these terms by Able Beauty is sufficient evidence of Able Beauty’s rights to receive the insurance proceeds without the need for any person dealing with Able Beauty to make further enquiries.
9.3 If the Customer requests Able Beauty to leave Goods outside Able Beauty’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
10. Title
10.1 Able Beauty and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Able Beauty all amounts owing to Able Beauty; and
(b) the Customer has met all of its other obligations to Able Beauty.
10.2 Receipt by Able Beauty of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or otherwise recognised by Able Beauty in writing.
10.3 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in accordance with clause 10.1 that the Customer is only a bailee of the Goods and must return the Goods to Able Beauty on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for Able Beauty and must pay to Able Beauty the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for Able Beauty and must pay or deliver the proceeds to Able Beauty on demand.
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Able Beauty and must sell, dispose of or return the resulting product to Able Beauty as it so directs.
(e) the Customer irrevocably authorises Able Beauty to enter any premises where Able Beauty believes the Goods are kept and recover possession of the Goods.
(f) Able Beauty may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Able Beauty.
(h) Able Beauty may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
(i) If Goods are recovered or repossessed and sold (whether secured or not) and a shortfall remains owing by the Customer to Able Beauty, then Able Beauty may seek to recover that shortfall from the Customer.
11. Personal Property Securities Act 1999 (“PPSA”)
11.1 The Customer acknowledges and agrees that:
(a) These terms constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods and/or collateral (account) – being a monetary obligation of the Customer to Able Beauty for Goods and Services – that have previously been supplied and that will be supplied in the future by Able Beauty to the Customer.
11.2 The Customer undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Able Beauty may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Able Beauty for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of Able Beauty; and
(d) immediately advise Able Beauty of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
11.3 Able Beauty and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms.
11.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
11.5 Unless otherwise agreed to in writing by Able Beauty, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
11.6 The Customer shall unconditionally ratify any actions taken by Able Beauty under clauses 11.1 to 11.5.
11.7 If the Customer grants a security interest over the Goods to any other person other than Able Beauty, then the Creditor shall be in breach of these terms and such Goods will be subject to repossession by Able Beauty.
12. Customer’s Disclaimer
12.1 The Customer hereby disclaims any right to rescind, or cancel any contract with Able Beauty or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by Able Beauty and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.
13. Termination
13.1 If the customer does not place any order within 6 months, their account will be deactivated.
14. Warranty
14.1 For Goods not manufactured by Able Beauty, the warranty shall be the current warranty provided by the manufacturer of the Goods. Able Beauty shall not be bound by nor be responsible for any term, condition, representation or warranty and the Customer shall rely only upon the warranty given by the manufacturer of the Goods.
15. Consumer Guarantees Act 1993
15.1 If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by Able Beauty to the Customer.
16. Default and Consequences of Default
16.1 Interest on overdue monies shall accrue from the date when payment becomes due, until the date of payment, at a rate of fifteen percent (15%) per annum to be compounded and debited monthly on the balance due.
16.2 If the Customer owes Able Beauty any money the Customer shall indemnify Able Beauty from and against all costs and disbursements incurred by Able Beauty in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Able Beauty’s collection agency costs, and bank dishonour fees).
16.3 Further to any other rights or remedies Able Beauty may have under these terms, if a Customer has made payment to Able Beauty and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Able Beauty under this clause where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under these terms.
16.4 Without prejudice to any other remedies Able Beauty may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms Able Beauty may suspend or terminate the supply of Goods to the Customer. Able Beauty will not be liable to the Customer for any loss or damage the Customer suffers because Able Beauty has exercised its rights under this clause.
16.5 Without prejudice to Able Beauty’s other remedies at law Able Beauty shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Able Beauty shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Able Beauty becomes overdue, or in Able Beauty’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
17. Guarantee
17.1 As between the Guarantor and Able Beauty (but without affecting the obligations of the Customer as Principal Obligor) the Guarantor is liable under the Guarantee as a sole and principal debtor and not merely as a surety.
17.2 The Guarantor shall be entitled to terminate this guarantee by written notice to Able Beauty and shall not be liable for payment of any goods delivered to the Customer by Able Beauty after the date of such notice.
18. Privacy Act 1993
18.1 The Customer authorises Able Beauty to:
(a) access, collect, retain and use any information about the Customer;
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose information about the Customer, whether collected by Able Beauty from the Customer directly or obtained by Able Beauty from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
18.2 Where the Customer is an individual the authorities under clause 17.1 are authorities or consents for the purposes of the Privacy Act 1993.
18.3 The Customer shall have the right to request Able Beauty for a copy of the information about the Customer retained by Able Beauty and the right to request Able Beauty to correct any incorrect information about the Customer held by Able Beauty.
19. Service of Notices
19.1 Any written notice given pursuant to these terms shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in herein or otherwise in writing;
(c) by sending it by registered post to the address of the other party as stated herein or otherwise in writing;
(d) if sent by email to the other party’s last known email address.
19.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
20. General
20.1 The failure by either party to enforce any provision of these terms shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2 These terms shall be governed by the laws of New Zealand.
20.3 Able Beauty shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Able Beauty of these terms (alternatively Able Beauty’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
20.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Able Beauty nor to withhold payment of any monies owed because of dispute.
20.5 Neither party shall assign or sub-contract all or any part of their rights and obligations under these terms without the written consent of the other party.
20.6 The Customer agrees that Able Beauty may amend these terms by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for Able Beauty to provide Goods to the Customer.
20.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
20.8 Both parties warrant that they have the power to enter into these terms and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that these terms create binding and valid legal obligations on them.