Davka Beauty Pty Ltd – Terms and Conditions of Sale

1. The definitions and rules of interpretation in this condition apply in these conditions.
   Account: the credit account (if any) provided to the Buyer by the Company.
   Buyer: the person, firm or company who purchases or orders Goods from the Company.
   Company: Davka Beauty Pty Ltd (ABN: 38625545575) Trading address: Unit 10, 1 Stonny Batter Road, Minto, NSW 2566
   Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods, in accordance with and subject to these conditions. Delivery Point: the place where delivery of the Goods is to take place under condition 4.1.
   Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
2. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
3. Words in the singular include the plural and in the plural include the singular. A reference to one gender includes a reference to the other gender. Condition headings do not affect the interpretation of these conditions.

1. Subject to any variation under condition 2.3 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2. Terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document shall have no effect and shall not form part of the Contract.
3. These conditions apply to all the Company’s sales and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing by the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company’s liability for fraud or fraudulent misrepresentation.
4. Each order or acceptance of a quotation for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions. The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
5. No order placed by the Buyer shall be deemed to be accepted by the Company until written acknowledgement of order is provided by the Company or (if earlier) the Company delivers the Goods to the Buyer.
6. Any quotation is given on the basis that no Contract shall come into existence until the Company provides a written acknowledgement of order to the Buyer or (if earlier) the Company delivers the Goods to the Buyer. Any quotation is valid for a period of 14 days only from its date, provided that the Company has not previously withdrawn it.

1. The quantity and description of the Goods shall be as confirmed by the Company (usually in its quotation or acknowledgement of order).
2. All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.

1. Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Company’s place of business [Ex Works].
2. The Buyer shall take delivery of the Goods within 5 working days of the Company giving it notice that the Goods are ready for delivery.
3. Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be, nor shall it be made by notice, of the essence. If no dates are so specified, delivery shall be within a reasonable time.
4. Subject to the other provisions of these conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 90 days.
5. If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
   (a) risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company’s negligence);
   (b) the Goods shall be deemed to have been delivered; and
   (c) the Company may store the Goods until actual delivery and the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). The Company reserve the right to issue a notice of intended termination of contract and pursue its costs, loss of overheads and profit where Goods ready for delivery are not collected or delivery arranged by the Buyer within 30 days of the date of the notice provided to the Buyer in accordance with condition 4.2 that the Goods available for delivery. Where the Buyer fails to collect the Goods or arrange for actual delivery of the Goods within 30 days and payment in advance has been made in whole or in part, the Company reserves the right to sell the Goods at the best price readily obtainable and deduct costs, loss of overheads and profit.
6. The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading the Goods. The Buyer must inspect and check the Goods on actual delivery to ensure that they conform to the order and the Buyer’s requirements. At the time of actual delivery an authorised representative of the Buyer must sign a delivery note (or the equivalent documentation of a carrier) to confirm that the Goods are as ordered and undamaged.
7. If the Company delivers to the Buyer a quantity of Goods of up to 25% more or less than the order quantity accepted by the Company, the Buyer shall not be entitled to object to or reject the Goods or be entitled to require or accept a credit note or any of them by reason of the surplus or shortfall and shall pay for such Goods at the pro rata Contract rate.
8. The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
9. Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.

1. The quantity and description of any consignment of Goods as recorded by the Company on the despatch note from the Company’s place of business shall be conclusive evidence of the quantity and description received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.

2. The Company shall not be liable for delivering incorrect Goods or for any non-delivery of or damage to or shortfall in the Goods (even if caused by the Company’s negligence) unless the Buyer gives written notice to the Company of such within 3 days of actual delivery.

3. Any liability of the Company for claims under condition 5.2, as a result of the Buyer complying with the notice requirements, shall be limited to (at the Company’s option) replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.

1. The Goods are at the risk of the Buyer from the time of delivery. Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of the Goods and all other sums which are due to the Company from the Buyer on any Account.
2. Until ownership of the Goods has passed to the Buyer, the Buyer shall:
   (a) hold the Goods on a fiduciary basis as the Company’s bailee;
   (b) store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
   (c) not remove, destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
   (d) maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company; and
   (e) deliver up the Goods to the Company on demand.
3. The Buyer may resell the Goods before ownership has passed to it solely on the basis that any sale shall be affected in the ordinary course of the Buyer’s business at full market value and be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
4. The Buyer shall keep the entire proceeds of sale of the Goods separate from any monies of the Buyer and any third party. The monies held shall be held on trust for the Company in a separate bank account for that purpose which shall remain in credit. Monies so held shall be payable to the Company upon demand in such sum as may be outstanding and due to the Company from time to time. The Buyer shall maintain and promptly disclose to the Company upon demand copy bank statements and details of the balance held on the account and records of sale of Goods including details of purchasers and payments received.
5. The Buyer’s right to possession of the Goods shall terminate immediately if the Buyer:
   (a) has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying charge holder, or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
   (b) suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against it; or
   (c) fails to observe or perform any of its obligations under the Contract or any other agreement between the Company and the Buyer; or
   (d) is unable to pay its debts; or
   (e) encumbers or in any way charges any of the Goods; or
   (f) ceases or threatens to cease trade or business.
6. The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
7. The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them. Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
8. Should the Company repossess any Goods or the Buyer deliver up any Goods in accordance with this condition 6, the Contract in respect of those particular Goods shall be rescinded.

1. Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the Company’s acknowledgement of order, or failing acknowledgement of order as set out in the Company’s quotation or if no quotation is provided the Company’s standard price list published on the date of delivery or deemed delivery.

2. The price for the Goods shall be exclusive of any GST and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods. The Company may arrange delivery to an address designated by the Buyer upon request.

3. The price for the Goods is based on the cost of materials, labour, transport, taxes and duties and all other relevant costs at the date of the quotation and/or order acknowledgement. The Company reserves the right to vary the price for the Goods to take account of any variation (howsoever arising) in these costs or the imposition of any new taxes or duties between the date of the quotation and/or order acknowledgement and the delivery date.

1. Unless otherwise agreed in writing by a director of the Company subject to condition 8.3, payment of the price for the Goods is due in Australian dollars upon order.

2. The Company may provide the Buyer with an Account, which will be subject to the written Account terms offered by the Company (which may include varied payment terms and a credit limit) from time to time.

3. Time for payment shall be of the essence and the Buyer shall pay each invoice submitted by the Company as follows:-

   (a) for Buyers which have an Account which has not reached its credit limit by the invoice due date in accordance with the terms of the Account; or
   (b) for Buyers without an Account, or with an Account which has reached or exceeded its credit limit, at the time of order.

4. The Company reserves the right to exercise its absolute discretion and cancel the Account, by immediate written notice.

5. The Company reserves the right to suspend the Account if it decides, for whatever reason, that it requires further security from the Buyer other than that already provided (if any) for the performance and discharge of the Buyer’s obligations under any Contract or for any other reason it considers reasonable. The Buyer agrees to use its best endeavours to ensure that any additional security required by the Company (including, but not limited to, a third party providing additional guarantee) is provided. The Company may decide to reinstate the Account if the Buyer provides the additional security required or meets any other conditions required to be satisfied by the Company.

6. If the Company exercises its right to cancel or suspend the Account, in accordance with conditions 8.4 and 8.5 respectively, all sums owed to the Company by the Buyer at the date of cancellation or suspension shall be payable on demand and the Company may decide to continue trading with the Buyer on the basis set out in condition 8.1.

7. No payment shall be deemed to have been received until the Company has received cleared funds. All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.

8. The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.

9. Without prejudice to any of its other remedies, if any amount due from the Buyer is not paid in accordance with these conditions, the Company may do all or any of the following:-

   (a) treat any or all Contracts as repudiated by the Buyer
   (b) without notice suspend or cancel delivery of the Goods under the Contract and any other Contract, until the Buyer pays the outstanding amount(s) in full;
   (c) appropriate any payment made by the Buyer under any other contract with the Company to pay for any outstanding amounts as the Company may, in it sole discretion, think fit;
   (d) claim interest and administrative charges.

1. Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company. The Company sources Goods for resale from a variety of sources (whether with or without the express or implied permission of any trademark or copyright owner or licensor). The Buyer acknowledges that the Company have no knowledge of the Buyer’s intended market or use of Goods purchased.

2. The Company warrants that Goods supplied which are manufactured by the Company shall be of satisfactory quality.

3. Where Goods supplied are manufactured by a third party, the Company will use all reasonable endeavours to pass on such warranty as to quality and rectification or replacement as the manufacturer provides to the Company in respect of such Goods.

4. The Company shall not be liable for a breach of the warranty in condition 9.2 unless:

   (a) the Buyer gives written notice of the defect to the Company, within 5 days of the time when the Buyer discovers or ought to have discovered the defect; and
   (b) the Buyer complies with the Company’s reasonable returns policy in force from time to time and available upon request; and
   (c) the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business for the examination to take place there.

5. The Company reserves the right to charge the Buyer a re-stocking charge in addition to the initial price of the Goods supplied if Goods are found not to be defective or defective for reasons outside of the Company’s warranty in condition 9.2.

6. The Company shall not be liable for a breach of the warranty in condition 9.2 if in the Company’s reasonably held opinion:

   (a) the Buyer makes any further use of such Goods after giving such notice; or
   (b) the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, use or maintenance of the Goods or (if there are none) good trade practice; or
   (c) the Buyer alters or repairs such Goods without the written consent of the Company.

7. Subject to condition 9.4 and condition 9.5, if any of the Goods do not conform with the warranty in condition 9.2 the Company shall at its option replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Company’s expense, return the Goods or the part of such Goods which is defective to the Company. If the Company complies with this condition 9.7 it shall have no further liability for a breach of the warranty in condition 9.2 in respect of such Goods.

8. Any Goods replaced shall belong to the Company and any repaired or replacement Goods shall be provided with the benefit of the warranty in condition 9.2.

1. Subject to conditions 2.3, 4, 5 and 9, the following provisions of this condition 10 set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:

   (a) any breach of these conditions;
   (b) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
   (c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

2. All warranties, conditions and other terms (save as specifically stated in these conditions) implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

3. Nothing in these conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence. 10.4 Subject to condition 10.2 and condition 10.3:

   (a) the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising out of or in connection with the performance or contemplated performance of the Contract shall be limited to the sum of £100,000 or the Contract price whichever is the lesser; and
   (b) the Company shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, or depletion of goodwill, or loss of business opportunity in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

1. The Company may assign the Contract or any part of it to any person, firm or company.

2. The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.

The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 120 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.

1. On termination of the Contract, howsoever caused, the Company’s rights in conditions 6 and 8 shall remain in full force and effect.
2. Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
3. If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
4. In the event that such court, tribunal or administrative body of competent jurisdiction decides that such provision is not severable, the parties agree to substitute the relevant provision with a legal, valid, enforceable and reasonable provision which achieves, to the greatest extent possible, the same effect as the original provision.
5. Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
6. Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
7. The parties to the Contract do not intend that any term of the Contract shall be enforceable by any person that is not a party to it.
8. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of New South Wales 13.9 The parties agree that condition 13.8 shall be applied without regard to the principles of conflict of laws and without regard to the CISG UN Convention.
9. The parties irrevocably agree that the courts of New South Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).

1. All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax:

   (a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or
   (b) (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer.

2. Communications shall be deemed to have been received if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and public holidays) after posting (exclusive of the day of posting); or if delivered by hand, on the day of delivery; or if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.

   For and on behalf of ________________________________

   Signed __________________________________________ Dated ______________________

   Print _______________________________________