YASMIN PRODUCTS PTY LTD Trading as VITA 5 HAIR CARE
12/33 Maddox Street, Alexandria NSW 2015 Australia
P: +612 9516 5144
Application for Commercial Trading Account
SECTION 1: TRADING ENTITY AND OWNER’S DETAILS
I/We the Applicant (the “Buyer”) hereby apply for a Trading Account with Yasmin Products Pty Ltd (ACN 000852371), trading as VITA Five Hair Care, (the “Supplier”) in accordance with the Terms and Conditions endorsed hereon in all trading with the Supplier.
- To be considered for a Trading Account every detail on this form must be completed, without exception.
- Trade references must be in the Hairdressing Industry with at least 6 months’ credit trading, not pre-pay or pay on delivery/pickup with wholesalers.
- If your business is a Limited Company, you need to include all Directors’ details. If it is a Trustee, provide a copy of the Trust Deed and Trustee personal details You may be asked further information by our Customer Service team.
- The usual course of events is this: 1) 1st order is Pre-Pay. If the business does not have at least a 6-month credit trading history in the industry, the account remains on Pre-Pay for a period of time. 2) Then, upon request, and a regular series of orders with values of $500+ per month the account may proceed to an Order-to-Order account, which means that the order received must be paid for before another order is sent, and within 30 days from date of Invoice. 3) Then, upon request and a satisfactory trading history, a 30 day, from date of Invoice, account may be granted.
Please note that processing of your application may take between 2 to 3 days. Our Customer Service team will then contact you to discuss your application. Thank you!
SECTION 2: AGREEMENT FOR COMMERCIAL CREDIT ACCOUNT
The Buyer agrees as follows:
- Warrants that the Buyer is solvent and will not become insolvent by incurring debts in respect of goods to be supplied by Yasmin and notify Yasmin should circumstances change.
- It will be taken that Yasmin has approved a Credit Facility for the Buyer if goods have been provided on credit. The Buyer acknowledges that Yasmin at their discretion may cancel or amend any credit limit at any time without notice, without being responsible to for any loss or interruption of any kind to the Buyer’s business.
- If the Buyer is a Limited Company, they must provide Directors Guarantees as a condition of goods provided on credit.
- The Buyer consents to receive electronic messages from Yasmin.
- The Buyer irrevocably authorises Yasmin to make any inquiries deemed necessary to investigate creditworthiness from time to time. Without limitation it includes any trade reference, credit provider or credit reporting agency, whether trade or personal. This authorisation permits Yasmin to give, receive or exchange any such authorised credit information. It applies to any interested person defined in the Personal Property Securities Act 2009 (Cth).
- To the extent permitted by law, and subject to Yasmin’s Terms and Conditions, the Buyer agrees that Yasmin gives no warranties other than any applicable manufacturer’s warranties.
- The Buyer agrees that Yasmin may amend the Terms and Conditions at any time. Yasmin’s Terms and Conditions are located on the Yasmin website and are current at the time of delivery and will apply to each and every supply of goods by Yasmin to the Buyer. The price of any goods will be at the price at the time of invoice. The Terms and Conditions may vary from time to time. Yasmin will use reasonable endeavours to notify the Buyer of any significant amendments made to these Terms and Conditions.
- Should the Buyer purchase goods on credit after a revised Trading Agreement has been issued, it will signify to Yasmin that the Buyer accepts the revised agreements, terms and conditions.
- The person who signs this application warrants that he or she is duly authorised to sign and complete it on the Buyer’s behalf and that the information contained in it is true, not misleading by omission or otherwise in any material respect.
- That all goods and/or services supplied by Yasmin will be used predominantly for commercial and/or professional purposes.
SECTION 3: PRIVACY STATEMENT
- Yasmin is committed to protecting the Buyer’s privacy pursuant to the Privacy Act 1988 (Cth). This legislation sets out principles governing the protection of the Buyer’s personal information and it is required that Yasmin must inform the Buyer of the following matters.
- If the Buyer may choose not to provide personal information, it may not be possible for Yasmin to provide credit facilities.
- The Buyer’s information is gathered in many ways including directly from the Buyer when completing a credit account application form for a commercial credit related purpose, from public domain and from third parties such as related entities and from reporting agencies.
- Yasmin may use this information to establish, administer and manage a commercial credit trading account including billing and collecting payments. Yasmin may also carry out appropriate checks for credit-worthiness.
- For the above purposes, Yasmin may disclose the Buyer’s personal information to organisations outside Yasmin and its related entities, including: credit reporting and fraud auditing agents, other credit providers for credit related purposes such as creditworthiness, credit rating; the Buyer’s own professional advisers such as lawyers, accountants, auditors, debt collection services and government and other authorities as required or authorised by law.
- The Buyer has a right to access their personal information, subject to some exceptions allowed by law. For security reasons all such requests must be made in writing to Yasmin Products Pty Ltd (P.O. Box 447, Alexandria NSW 2015). Yasmin will take all reasonable steps to safeguard personal information that it collects, uses and discloses is accurate, complete and up-to-date; its accuracy largely depends upon the information that the Buyer has provided. If the Buyer finds that there are any errors in the personal information provided then the Buyer needs to inform Yasmin of any changes in writing.
- Yasmin warrants to the best of its ability that the storage and use of personal information will be undertaken in a secure manner, which protects the Buyer’s personal privacy.
SECTION 4: GUARANTEE AND INDEMNITY
YASMIN PRODUCTS PTY LTD – TRADING AS VITA FIVE
ABN: 30 000 852 371
- The Buyer unconditionally and irrevocably guarantees prompt payment of the guaranteed money and the performance by the Buyer under the supply agreement.
- Neither this document nor the Buyer’s obligations under it will be affected by anything which but for this provision might operate to release, prejudicially affect or discharge the Buyer or in any way relieve the Buyer from any obligation whether with or without the Buyer’s consent or knowledge. This provision is a principal and independent obligation.
- This document: a) is a continuing guarantee and indemnity;
b) will not be taken to be wholly or partially discharged by the partial payment of any money owed; and
c) remains in full force until the guaranteed money and the related obligations have been fully performed by the Buyer
- The liability of the Buyer will not be released, prejudiced or abrogated by the granting of time or other indulgence or concession to the Buyer or by any variation of the provisions of these Terms and Conditions or by any release, abandonment, waiver or modification of any rights or obligations as between the Buyer and Yasmin or by any omission by Yasmin whereby but for this provision, the Buyer would or may, have been so released, Is unconditional in all circumstances.
- In this document, guaranteed money means all money which the Buyer (whether alone or not) is or at any time may become actually or contingently liable to pay to or for Yasmin’s account (whether alone or not) for any reason whatever under or in connection with the supply agreement. It includes money by way of principal, interest, fees, costs, indemnity, charges, duties or expenses or payment of liquidated or liquidated damages under or in connection with the supply agreement, or as a result of a breach of or default under or in connection with the supply agreement and includes money that the Buyer would have been liable to pay but for its liquidation, or some other reason.
- The Buyer must make all payments without set-off, counter claim or other deduction (except any compulsory deduction for taxation).
- Any certificate signed by Yasmin, any director or any person authorised by Yasmin as to the amount due and payable by the Buyer is sufficient evidence of the Buyer’s liability to Yasmin under these documents as at the date of any such certificate unless proven wrong.
- The Buyer’s obligations under this document bind the Buyer’s successors and permitted substitutes or assigns. If there is more than one Buyer these obligations bind the Buyers jointly and severally. The document applies even if one or more of the Buyers who is intended to sign does not sign. The provisions of this document survive termination of the supply agreement.
- Supply agreement means Yasmin’s terms of trade (as amended or replaced from time to time) under which Yasmin supplies the Buyer with goods and/or services from time to time.
- The Buyer agrees to reimburse Yasmin for its expenses in relation to the actual or contemplated enforcement of the supply agreement and this document including legal costs and expenses on a full indemnity basis.
- This document is governed by the laws of New South Wales, Australia. The Buyer submit to the non-exclusive jurisdiction of any New South Wales court and waive any rights to claim that any courts there is an inconvenient forum.
TERMS AND CONDITIONS OF SALE
1. GENERAL & INTERPRETATION – in these conditions
- “Yasmin” means Yasmin Products Pty Ltd ABN 30000852371 trading as VITA FIVE of 12/33 Maddox Street, Alexandria, NSW 2015
- “Buyer” means the purchaser of any goods or services from Yasmin
- “Goods” means any goods or services supplied to the Buyer that are described in any invoice, quotation or any other documents Yasmin provided to the Buyer or any order the Buyer gives to Yasmin
- “Event of Default” means:
1) The Buyer fails to pay when due any moneys owing to Yasmin under these Terms and Conditions
2) The Buyer gives any third party a security interest in accounts as original collateral in respect of the proceeds of any collateral covered by a security interest under these Terms and Conditions.
3) An Insolvency Event occurs or is continuing.
4) The Buyer breaches any other provision of these Terms and conditions and fails to address within 14 days from Yasmin’s advice.
- “Default” has a corresponding meaning.
- “GST” means any goods and services or similar tax. Tax invoice, taxable supply and value have the meaning given to them by the GST law.
- “GST Law” means a New Tax System (Goods and Services Tax) Act 1999 (Cth)
- “Guarantor” means that person, or entity, who agrees to be liable for debts whether on a principal debtor basis or who is otherwise a surety of the Buyer.
- “Insolvency Event” means:
An administrator is appointed to the Buyer or any guarantor, except for the purpose of a solvent reconstruction or amalgamation, previously approved by Yasmin.
An application or an order is made to a court for the Buyer’s winding up, dissolution or administration
A security interest becomes enforceable or is enforced.
- “PPSA” means the Personal Properties Securities Act 2009 (Cth)
- “Terms and conditions” mean these terms and conditions, as amended, modified, consolidated or replaced from time to time and located on Yasmin’s (VITA FIVE) website current at the time of invoicing.
1) They apply to any goods or services supplied or to be supplied to the Buyer or any third party at the Buyer’s request.
2) In the event of any significant amendment, Yasmin will use reasonable endeavours to notify the Buyer of that amendment. Each time the Buyer places a written or verbal purchase order for goods with Yasmin, or the Buyer accepts goods from Yasmin the Buyer agrees to be bound by these terms and conditions.
3) These terms and conditions supersede any other written or verbal agreement between the parties and any other terms or conditions referred to in any purchase order placed or other document produced by the Buyer.
4) The Buyer will advise Yasmin if there are changes to the entity name, officers or management, the registered office, become a trustee of any trust or, cease to be so, or the constitution of any partnership of which the Buyer is a member.
5) If any provision of these Terms and conditions is unenforceable for any reason, it will not invalidate any other provisions that will remain in full force and effect despite that invalidity.
6) These Terms and conditions contain the entire agreement in respect of the supply of goods to the Buyer.
- “Interpretation”: The singular includes the plural and the converse; a gender includes all genders.
2. Quotations and Prices
- The price quoted is subject to alteration by Yasmin due to any increase in Yasmin’s costs between the date of quotation and the customer’s confirmation.
- Unless otherwise expressly agreed to by Yasmin in writing all goods will be charged for at the prices ruling at the date or dates of invoicing. All prices quoted are exclusive of GST which if applicable will be for the Buyer’s account. All prices are expressed in Australian dollars, unless otherwise specified in writing by Yasmin.
- A quotation is not an offer by Yasmin to sell and may be withdrawn without notice. Any order given in respect of a quotation is not binding on Yasmin until accepted by Yasmin in writing.
- The Buyer must pay for any goods by the date stated in the relevant invoice by electronic means, by direct debit , in cash, cheque, bank cheque or credit card accepted by Yasmin. The payment must be free of any contra, counterclaim or any other deduction.
3. Terms of Payment
If accepted for an Order-to-Order account term, payment must be made prior to the next delivery or at the latest 30 days from date of invoice. A 30-Day Credit facility means net payment is due 30 days from date of Invoice. Yasmin reserves the right to vary the terms of payment and to require payment in full prior to delivery should the creditworthiness of the Buyer at any time become, in Yasmin’s opinion, unsatisfactory.
- Where an account is not paid by the Buyer as provided in the Agreement Yasmin may without prejudice to any other remedies available to it be entitled to charge interest on the amount outstanding calculated from the date payment is due until the date payment is made.
- The Buyer may be charged, interest compounded monthly, on any overdue account shown in any invoice at the rate prescribed by the Courts of NSW.
- Once delivered, goods may not be returned unless defective or damaged in transit. Claims for defective or damaged goods must be given to Yasmin in writing within 7 days of delivery date. Yasmin will not be liable for any claim advised after that time. Claims are subject to inspection by Yasmin or its agents.
- The Buyer must, subject to obtaining prior written authority from Yasmin, return a sample of the subject of a claim to Yasmin within 21 days after delivery of the goods.
- Yasmin makes no representation about, and accepts no responsibility for the goods complying with any law, regulation or standard that applies in any jurisdiction outside Australia.
6. Implied Terms and Liability
- Yasmin acknowledges that under applicable State, Territory and Commonwealth laws, certain conditions and warranties may be implied in the contract between Yasmin and the Buyer and rights and remedies conferred upon the Buyer and other parties in relation to goods which cannot be excluded, restricted or modified by agreement (“Non-excludable Rights”) .
- Should Yasmin accept liability, Yasmin’s liability is expressly limited to pay to the purchaser an amount equal to: (1) the cost of replacing the goods; or (2) the cost of having the goods repaired, where repair is an option, whichever is the lowest.
7. Indirect Loss
In no event shall Yasmin be liable for any loss or damage to the Buyer howsoever arising including any loss or damage arising from or caused or contributed to by negligence of Yasmin, its servants or agents, nor shall Yasmin be liable for special, incidental, indirect or consequential, or economic loss or damage suffered by the Buyer as a result of a breach by Yasmin of its obligations or otherwise including but not limited to economic or moral loss, loss of profits or revenue or costs arising from such breach.
- The Buyer shall indemnify and keep indemnified and hold Yasmin harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by Yasmin, and from and against all actions, proceedings, claims or demands made against Yasmin, arising from one or more of the following: (a) as a result of the Buyer’s failure to comply with any laws, rules, standards or regulation applicable in relation to the goods or the use of the goods; (b) as a result of any other negligence, breach of contract or other breach of duty by the Buyer; or (c) as a result of Yasmin adhering to instructions that the Buyer has given Yasmin about the goods.
- Each indemnity and payment obligation of the Buyer under these Terms and Conditions is a continuing obligation, separate and independent from all other obligations, and survives termination of these Terms and Conditions.
- It is not necessary for Yasmin to incur expense or make a payment before enforcing a right of indemnity.
9. Delivery and Force Majeure
- The Buyer agrees that Yasmin’s Terms and Conditions current at the time of delivery apply to any order the Buyer places from time to time.
- Delivery to the Buyer will be at the Buyer’s premises or as requested by the Buyer, including any agent of the Buyer. Yasmin will not be liable for any delays
- The Buyer irrevocably authorise Yasmin and any of Yasmin’s lawful agents, at any reasonable time, to enter the Buyer’s premises or any premises occupied by the Buyer or the Buyer’s agents and re-take any goods and then to re-sell those goods and retain the proceeds of the sale without prejudice to Yasmin’s rights to claim the balance of all moneys due. The Buyer indemnifies Yasmin in respect of any such entry. The provisions of this clause survive the termination of any security agreement that arises in respect of these Terms and Conditions.
- Unless otherwise expressly agreed by Yasmin in writing, the goods will be delivered ex Yasmin’s warehouse. Any time quoted for delivery is an estimate only. Yasmin shall not be liable for any loss or damage which is a consequence or result of any failure to deliver or delay in delivering the goods or shipping documents or service whatever the cause of such failure to deliver or late delivery may be.
- Yasmin shall not be liable for any loss or damage to the Buyer or any other party in connection that is the direct or indirect result of a Force Majeure Event.
- All payments due from the Buyer are to be made by the due date as a condition precedent to future deliveries.
10. Rights in relation to the goods – pending payment in full for the goods, the Buyer:
- Must not supply any of the goods to any person outside of its ordinary or usual course of business;
- Must not allow any person to have or acquire any security interest in the goods;
- Must not remove, deface or obliterate any identifying plate, mark or number on any of the goods.
- If the Buyer fails to pay for the goods within the period of credit (if any) extended by Yasmin to the Buyer, Yasmin may recover possession of all the goods at any site owned, possessed or controlled by the Buyer and the Buyer agrees that Yasmin has an irrevocable license to do so.
11. Performance and representations – The Buyer acknowledges that neither Yasmin nor any person purporting to act on its behalf has made any representation or given any promise or undertaking which is not expressly set out in writing whether as to the fitness of the goods for any particular purpose or any other matter.
12. Default in Payment
- Yasmin will treat any default by the Buyer in payment of any monies due to Yasmin as a breach of these Terms and Conditions.
- Yasmin reserves the right to hold all the Buyer’s orders until the due payment or payments are made. Recurring payment defaults may, at Yasmin’s discretion, lead to the Buyer’s account with Yasmin being closed and any further orders placed by the Buyer and accepted by Yasmin will only be processed when prepaid.
- The Buyer shall pay all of Yasmin’s costs and expenses (including legal costs determined as between Solicitor/own client and mercantile agents) which may be incurred in the recovery or attempted recovery of overdue amounts from the buyers.
13. Intellectual Property Rights
- It is especially agreed that the sale to and purchase by the Buyer does not confer on the Buyer any license or rights under any intellectual property rights which is the property of Yasmin.
- It is agreed by the Buyer that the Buyer shall not reproduce any intellectual property of Yasmin without the express, specific written permission to do so, and in what fashion and to what purpose and for what period of time.
- The Buyer is not entitled to assign any intellectual property permissions, granted by Yasmin, to any person, business or organisation.
- The Buyer agrees to indemnify Yasmin against infringement or unauthorised use of Yasmin’s intellectual property rights.
- Yasmin is entitled to recover all costs of enforcing its Intellectual Property rights should the Buyer infringe upon these.
- Any notice to be given by the Buyer to Yasmin shall be sent to Yasmin’s valid business address or the valid email address of a current Yasmin employee with whom the Buyer has been dealing in relation to good purchased. No notice shall be deemed to have been given until it is actually received at a valid Yasmin address.
- Any notice required under these Terms and Conditions may be given by any Yasmin party, any director or authorised person of Yasmin.
- Any notice may be given at the Buyer’s registered address or other address stipulated in application in connection with these Terms and Conditions or as notified in writing for the purposes of this clause. Without limitation, this includes any electronic address of the Buyer.
15. Severance – If any provision of this Agreement is determined to be void by any court of competent jurisdiction, then such determination shall not affect any other provision in the agreement and each such other provision shall remain in full force and effect.
16. Security Interest – The Buyer gives Yasmin a Security Interest in all of the Buyer’s present and after-acquired property in which Goods or materials supplied by Yasmin have been attached or incorporated. The Buyer agrees that these Terms and Conditions, including any order in invoice covering the goods ordered by the Buyer, together constitute a security agreement for the purposes of the PPSA.
17. Personal Properties Securities Act 2009
- The Buyer hereby acknowledges that these Terms and Conditions constitute a security agreement which creates a security interest in favour of Yasmin. The Buyer agrees to grant a “Purchase Money Security Interest” (“PMSI”) to Yasmin
- The Buyer acknowledges and agrees that by assenting to these terms the Buyer grants a security interest (by virtue of the retention of title clause in these Terms and Conditions of Trade) to Yasmin and all Goods previously supplied by Yasmin to the Buyer (or for the Buyer’s account) and these terms shall apply notwithstanding anything express or implied to the contrary contained in the Buyer’s purchase order(s).
- The Buyer undertakes to:
Sign any further documents and/or provide any further information (which information the Buyer warrants to be complete, accurate and up-to-date in all respects) which Yasmin may reasonably require to enable registration of a financing statement or financing change statement on the Personal Property Securities Register (“PPSR”).
Not register a financing change statement as defined in section 10 of the PPSA or make a demand to alter the financing statement pursuant to section 178 of the PPSA in respect of the Goods without the prior written consent of the Company.
Give Yasmin not less than 14 days’ written notice of any proposed change in the Buyer’s name and/or any other changes in the Buyer’s details, including but not limited to changes in the Buyer’s address, phone number, email address, trading name or business practice.
The Buyer waives any rights it may have under sections 115 of the PPSA upon enforcement.
- Pursuant to section 157 of the PPSA, unless otherwise agreed to in writing by Yasmin, the Buyer waives the right to receive the verification statement in respect of any financing statement or financing change statement relating to the security interest.
- The Buyer agrees that immediately on request by Yasmin the Buyer will procure from any persons considered by Yasmin to be relevant to its security positon such agreement and waivers as Yasmin may at any time require.
- The Buyer gives Yasmin a security interest in:
1) All goods supplied by Yasmin that are described in any invoice, delivery or shipping documentation of Yasmin. Without limitation, this includes any Yasmin property referred to in these Terms and Conditions;
2) All present and future inventory and account as original collateral;
3) The security interest given by the Buyer is given as beneficial owner. If the Buyer is a trustee of any trust, the Buyer will acknowledge that the security interest given by the Buyer applies to the assets of the trust and personal assets. The Buyer appoints Yasmin as the attorney by way of security for the purposes of this clause and in respect of any enforcement powers;
4) Any security interest that arises under this clause is a continuing security interest. It applies to all real property, personal property and any proceeds. It is not extinguished or in any way diminished even if any goods or any part of them is commingled with and becomes part of a product or a mass as part of an assembling or commingling process;
5) Any security interest arising secures the due and punctual payment of all moneys payable by the Buyer under these Terms and Conditions;
6 ) Any account arising by virtue of any sale of any goods supplied to the Buyer takes effect as a transfer;
7) Yasmin may register a financing statement, including any financing change statement, on the PPSR;
The Buyer acknowledges that until the Buyer has paid for all goods that the Buyer is not the owner of those goods; To the extent the law allows, Yasmin do not need to give any notice required by the PPSA or any other law, including any notice mentioned in any of the enforcement provisions in Chapter 4 of the PPSA.
1) If an Event of Default occurs or is continuing, Yasmin may immediately enforce the necessary Terms and Conditions to obtain payment for goods supplied. Without limitation this may include any one or more of the following:
1. Retaking possession of nay goods not paid for by the Buyers;
2. Suspending delivery of any goods on order and/or refusing to process any unfulfilled orders;
3. Enforcing any security interest;
4. Requiring payment in cash on delivery; and/or
5. Requiring payment of any proceeds held by the Buyer in a separate account or otherwise;
6. Appointing a receiver and manager of any of the Buyer’s real or personal property that is subject to a security interest. The Buyer agrees that any such receiver and manager has the powers conferred by the Corporations Act.
2)The powers exercisable by Yasmin are those given by these Terms and conditions, including the PPSA, at law or in equity;
3) In the event that the Buyer has not been paid for the sale of Yasmin’s goods by any customer of the Buyer, at Yasmin’s option, Yasmin may in addition to the powers in s120 of the PPSA, collect that account on giving the Buyer’s customer notice in writing to that effect. Yasmin will be entitled to issue proceedings in the Buyer’s name against the Buyer’s customer for recovery of that account for Yasmin’s benefit. The Buyer indemnifies Yasmin in respect of any such action and proceedings. For the purposes of this clause, the Buyer must keep proper records and accounts in respect of such unpaid sales, including the dates of sale, price, amount and identity of such customer and Yasmin’s goods;
4) At Yasmin’s may at its discretion, despite s14(6) of the PPSA, apply for any moneys received of any Purchase Money Security interests obligations of the Buyer’s on a pro rata basis;
5) The Buyer will pay enforcement costs in relation to the PPSA and for any legal costs incurred by an agent of Yasmin.
- Negative Pledge
1) The Buyer agrees not to grant any security interest over any of the Buyer’s personal property except in the ordinary course of business;
2) The Buyer agrees not to grant a security interest in any account as original collateral under s64 of the PPSA.
1) Any security agreement that arises under these Terms and Conditions is confidential. Despite this, the Buyer agrees that Yasmin may disclose any information concerning the Buyer to any interested person under section 275(6) of the PPSA.