Terms & Conditions
1.1 In these Conditions the following words have the following meanings: “Contract” means any contract between You and Wella for the sale and purchase of Products incorporating these Conditions; “Your Account” means the credit account opened and maintained by Wella in Your name; “Products” means the Professional Products and/or Salon-Exclusive Resale Products agreed to be sold to You by Wella; “Professional Products” hair and body products and hairdressing equipment and accessories exclusively for professional use by hairdressers and not for resale to private end users; “Salon-Exclusive Resale Products” hair and body products designated for either resale to private end users or use by hairdressers; “Wella” means WELLA (U.K.) LIMITED (company number 00271363); “You, Your, Yourself” means the person, firm or company to whom any quotation is given or with whom a Contract is made.
1.2 In these Conditions, unless the context otherwise requires, references to any statute or statutory provision shall be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, re-enacted or replaced.
2.1 Wella can only accept orders submitted by You for Products at or above the current agreed minimum order value quoted on Wella’s then current price list (if any). Each order for the Products by You shall be deemed to be an offer by You to purchase Products from Wella subject to these Conditions. The Contract shall be made only upon Wella’s acceptance of Your order for the Products. No order placed by You shall be deemed to be accepted by Wella until Wella issues an invoice to You or (if earlier) delivers the Products to You.
2.2 Unless varied in accordance with Condition 2.3, the Contract will be on these Conditions and no other terms and conditions, including any which You purport to apply under any purchase order, confirmation of order or other document, shall apply.
2.3 No variation of these Conditions requested by You shall be binding on Wella unless expressly agreed in writing by the Executive Director of Professional Division (or equivalent) but Wella may vary these Conditions at any time upon giving You notice.
2.4 Each order for Products accepted by Wella in accordance with these Conditions shall constitute a separate Contract.
2.5 Authorised distributors who are wholesalers must only sell Salon Exclusive Resale Products and Professional Products to other Wella authorised distributors and not to private end users. Authorised distributors who are professional hairdressers must only sell Professional Products to other Wella authorised distributors and not to private end users (as such Professional Products are for the use of professional hairdressers only) and must only sell Salon Exclusive Resale Products either to other Wella authorised distributors or in retail quantities to private end users or use such Salon Exclusive Resale Products for their personal consumption. The provisions of this Condition 2.5 apply to all sales of Products including, but not limited to, sales via the internet and You are to ensure Your compliance [and You are to procure the compliance of any authorised distributor to whom You sell such Products] with this Condition 2.5.
2.6 The provisions of Condition 2.5 also apply to sales of Products distributed by You via the internet or other media and if required by Wella You must provide evidence of Your compliance with Condition 2.5. Without prejudice to the provisions of Condition 2.5 if You are an authorised distributor who is a professional hairdresser then Your sale and distribution of Salon Exclusive Resale Productsto private end users via the internet is subject to the following additional terms and conditions: You must be a professional hairdresser and the sale must be made by You using Your own website as an “electronic shop window” and not by an independent “internet shop”. You shall be obliged to comply with all relevant legal provisions relating to sales over the internet. The presentation of the Salon Exclusive Resale Products must include the latest product literature, images and artwork produced by Wella andYour customer must be able to obtain appropriate product advice. In addition, Your customer must be informed that the Salon Exclusive Resale Products are also available at Your authorised outlet, where Your customer may get personal recommendations. Complaints from Your customers about Salon Exclusive Resale Products have to be recorded and handled by You immediately.
Wella shall not be obliged to accept return consignments resulting from internet based orders. You must document and destroy all Salon Exclusive Resale Products sold by You over the internet which are returned to You at Your own expense unless either the Salon Exclusive Resale Products are in perfect shape and condition with the tamper-evident seal and cellophane wrap undamaged or there appears to be a bona fide concern relating to product performance which has been referred back to Wella.
2.7 Where the value of the order placed is less than £130 Gross (ex VAT and discounts) Wella will apply a £15 (ex VAT) delivery charge. We may change the amount of this charge by providing you with prior notice.
3.1 All price lists, contract prices, quotations or other material issued by Wella are for guidance only. The price for the Products shall be the price set out in Wella’s price list published on the date the Contract is concluded or the contract price agreed between Wella and You (as applicable).
3.2 Where Wella gives You a quotation, Wella may withdraw that quotation at any time unless and until Wella issues You with a written confirmation of order.
3.3 All Product prices are exclusive of VAT. You will be charged VAT at the rate in force at the date of invoice.
3.4 All Product prices are exclusive of delivery charges (quoted in Wella’s then current price list or as otherwise agreed) which will be added to the invoice Wella issue to You, if applicable.
4 PAYMENT AND YOUR ACCOUNT
4.1 The Account Information Form is Your application to become a Wella customer. If Wella accept Your application, Wella will open Your Account.
4.2 Orders for Professional Products and/or Salon-Exclusive R esale Products: Wella will invoice You for the full amount due on or after delivery and invoices are payable in accordance with Condition 4.3.
4.3 Unless otherwise specified in these Conditions or in writing by an authorised Wella (U.K.) Ltd employee, all invoices shall be paid within 30 days of the date of invoice. Time for payment shall be of the essence of the Contract and no payment shall be deemed to have been received until Wella receive cleared funds.
4.4 You shall make all payments due under the Contract to Wella without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless You have a valid court order requiring Wella to pay You an amount equal to such deduction.
4.5 If You do not pay Wella any amount You owe Wella on time (whether under a Contract or otherwise), subject to Condition 11.1, Wella reserves the right to:
4.5.1 immediately and without notice or liability to You, suspend the delivery of any further Products to You and Wella shall not be required to resume delivery of those Products to You until all amounts You owe Wella have been paid in full;
4.5.2 charge You interest on all outstanding amounts due at the rate of 4% per annum above the base rate of Bank of England from time to time in force which shall accrue daily from the due date to the date of actual payment, after as well as before judgement, and which You shall pay to Wella immediately on demand; and
4.5.3 require You to pay Wella immediately on demand on a full indemnity basis all costs, charges and expenses (including the costs of legal representation) which Wella incur in chasing You for payment.
4.5.4 If you pay by a cheque, direct debit or other item and Your bank or building society does not honour this payment a return payment fee of £10 will be applied directly to your account and will be due and payable immediately. We may change the amount of this fee by providing you with prior notice.
4.6 Products are not sold on a ‘sale or return’ basis.
4.7 If Wella exercises its discretion to exchange or accept back non-faulty Products then Products You return to Wella must be in a saleable condition and You must pay an administration charge of the higher of £40 or 10% of the full price of the returned Products.
5.1 Unless otherwise agreed in writing between Wella and You, Wella will arrange for the Products to be delivered to You at Your delivery address as set out in Your Account Information Form. The Products are at Your risk when they are ready to be unloaded at Your delivery address.
5.2 Wella shall use reasonable endeavours to deliver the Products on any dates specified by Wella for delivery of the Products, but time of delivery shall not be of the essence and You shall not be entitled to make time of delivery of the essence by notice to Wella.
5.3 Subject to Condition 8.3, Wella shall not be liable to You for any losses whatsoever which You suffer as a direct or indirect result of any delay in the delivery of all or any of the Products, even if caused by Wella’s negligence, and You shall not be entitled to terminate the Contract unless such delay exceeds 5 weeks.
5.4 If for any reason You do not accept delivery of the Products when they are ready to be delivered or if Wella are unable to deliver the Products because You have not provided Wella with appropriate instructions or payment:
5.4.1 risk in the Products will immediately pass to You;
5.4.2 the Products will deemed to have been delivered to You; and
5.4.3 Wella may store the Products until actual delivery takes place and You will be liable to reimburse Wella for all related costs and expenses Wella incurs, including but not limited to the costs of storage and insurance.
5.5 You shall not be entitled to reject a delivery of Products and cancel the Contract by reason only of Wella delivering up to 5% more or less than the quantity of Products You have ordered. If there is a shortfall Wella will either make up the shortfall or only charge You for the quantity actually received. If there is a surplus You can either return the surplus to Wella or retain it, provided that if You retain it Wella will invoice You for the full quantity actually received.
5.6 Wella may deliver the Products by installments and each installment shall be treated as a separate Contract so that failure to deliver or a defect in one or more installment shall not entitle You to reject the other installments or to refuse to pay for Products actually delivered.
6.1 Ownership of the Products shall not pass to You until Wella have received in full, in cleared funds, all sums due to Wella in respect of:
6.1.1 the Products; and/or
6.1.2 all other sums which are or which become due to Wella on any account, although in the case of Professional Products and/or Salon-Exclusive Resale Products, ownership will pass to You when You use them if this occurs earlier.
6.2 Until ownership of the Products has passed to You, You must:
6.2.1 hold the Products on behalf of Wella, take responsibility for keeping them safe and deal with them in accordance with Wella’s instructions;
6.2.2 store the Products separately from all Your other Products in such a way that they remain readily identifiable as Wella’s property; and
6.2.3 maintain the Products in satisfactory condition.
6.3 Subject to the provisions of Conditions 2.5 and 2.6, You may resell the Products before ownership has passed to You provided that:
6.3.1 unless otherwise agreed by Wella in writing, any resale of the Products by You is in the ordinary course of Your business at full market value;
6.3.2 any resale of the Products is a sale of Wella’s property on Your own behalf and You shall deal as principal when making the resale; and
6.3.3 You shall hold such part of the proceeds of the resale of the Products as represent the amount owed by You to Wella for those Products on behalf of Wella and You shall account to Wella accordingly.
6.4 Your right to possession to the Products shall be terminated immediately if either:
6.4.1 You (being an individual) have a bankruptcy order made against You or make an arrangement or composition with Your creditors or take or suffer any similar or analogous action in consequence of debt, or You (being a body corporate) convene a meeting of creditors, enter into liquidation, or have a receiver and/or manager, administrator or administrative receiver appointed of Your undertaking or any part thereof, or a resolution is passed or a petition presented to any court for You to be wound up or any steps are taken (including, without limitation, the making of an application or the giving of any notice) by You or any other person for the appointment of an administrator in respect of You, or any proceedings are commenced relating to Your insolvency or if You take or suffer any analogous action in consequence of debt; or
6.4.2 any amount You owe Wella has still not been paid 30 days after the due date.
6.5 Wella shall be entitled to recover payment for the Products from You even though ownership has not passed from Wella.
6.6 You grant Wella, its agents, employees and sub-contractors an irrevocable licence at any time to enter any premises where Products may be stored in order to recover them where Your right to possess them has terminated.
7.1 Subject to the other provisions of these Conditions, Wella warrants that:
7.1.1 upon delivery the Professional Products and the Salon-Exclusive Resale Products will be of satisfactory quality subject to use in accordance with their instructions and Wella’s recommendations.
7.2 If the Products are defective at the date of delivery to You or You are sent an inaccurate or incomplete delivery, You must:
7.2.1 notify Wella of the problem within 7 days of actual delivery; and
7.2.2 at Wella’s request, return the relevant Product(s) to Wella at Your own expense. If You fail to take these steps, Wella shall not be liable to You for such defect or inaccurate or incomplete delivery and You shall not be entitled to cancel the Contract.
7.3 If You notify Wella of any defect or inaccurate or incomplete order and return any defective Product(s) to Wella in accordance with Condition 7.2, then, subject to the claim being valid, Wella reserves the right at its sole option to either:
7.3.1 pay You damages; or
7.3.2 refund the purchase price to You; or
7.3.3 deliver substitute and/or additional Product(s) to You, provided that any damages recoverable by You pursuant to this Condition
7.3 shall be limited to the purchase price of the relevant Product(s).
7.4 Wella shall not be liable for a breach of any of the warranties in Condition 7.1 if:
7.4.1 You make any further use of the Products after giving notice to Wella of the defect;
7.4.2 the defect arises because You fail to follow Wella’s oral or written instructions as to the storage, installation, use or maintenance of the Products and/or good trade practice; or
7.4.3 You alter or repair the Products without Wella’s prior written consent.
8 LIMITATION ON LIABILITY
8.1 Subject to Condition 7, the following provisions set out the entire financial liability of Wella to You in respect of:
8.1.1 any breach of these Conditions, and
8.1.2 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
8.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by Section 12 of the Sale of Goods Act 1979) are to the fullest extent permitted by law, excluded from the Contract.
8.3 Nothing in these Conditions excludes or limits liability for death or personal injury caused by the negligence of Wella or its employees, agents or sub-contractors, or for fraudulent misrepresentation.
8.4 Subject to Conditions 8.2 and 8.3:
8.4.1 Wella’s total liability in contract, tort, misrepresentation or otherwise arising in connection with the performance or contemplated performance of this Contract shall be limited to the price payable for the Products under the Contract plus 5%; and
8.4.2 Wella shall not be liable to You for any indirect loss or damage or for any loss of profit, loss of business, or depletion of goodwill (in each case whether direct or indirect) howsoever caused which arises out of or in connection with the Contract.
9.1 Wella may terminate the Contract immediately on giving You written notice if any of the circumstances set out at Conditions
6.4.1 and/or 6.4.2 apply.
9.2 If the Contract is terminated for any reason:
9.2.1 You shall remain liable to Wella for any of Your obligations which arose prior to termination of the Contract or which arise as a result of termination of the Contract; and
9.2.2 all amounts which have been invoiced to You by Wella shall become immediately due and payable, notwithstanding the provisions of Condition 4.4; and
9.2.3 Wella may terminate any or all other contracts it has with you.
10 FORCE MAJEURE
Wella reserves the right to defer the date of delivery of Products or to cancel the Contract or reduce the volume of Products ordered by You, without liability to You, if Wella are prevented from or delayed in carrying on its business due to circumstances beyond Wella’s reasonable control. Such circumstances shall include, 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 labour disputes (whether or not relating to Wella’s workforce), restraints or delays affecting carriers or delays in obtaining supplies. If the event in question continues for a continuous period of over 5 weeks, You shall be entitled to terminate the Contract on giving Wella prior written notice.
11.1 If Wella enforces any right or remedy Wella has under the Contract this shall not prevent Wella from relying on any other right or seeking any other remedy Wella may have, whether under the Contract or otherwise.
11.2 If Wella fail to enforce or delay in enforcing any provision of the Contract, You shall not be entitled to interpret such failure or delay as a waiver by Wella of any of Wella’s rights under the Contract. If Wella do waive any breach of the Contract by You, You shall not be entitled to interpret such waiver as a waiver of any subsequent breach.
11.3 You shall not be entitled to assign the Contract or any part of it without Wella’s prior written consent. Wella may, however, assign its rights and sub-contract its obligations under the Contract to any person, firm or company at any time without notice to You.
11.4 If any provision of the Contract is found, by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly unenforceable or unreasonable for any reason it shall, to the extent of such unenforceability or unreasonableness, be deleted from the Contract and the remaining provisions of the Contract shall remain in full force and effect.
11.5 The parties to the Contract do not intend that any term of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
11.6 If You are two or more persons, You shall be jointly and severally liable under the Contract.
11.7 Any written notice which You need to send Wella under the Contract should be sent to Wella at the address in Condition 1.1.
If Wella need to send You a written notice under the Contract Wella will send it to Your invoice address as stated on Your Account Application Form or as otherwise notified to Wella by You in writing. Notices can be delivered by either Wella or You by hand or by pre-paid first class post. A notice delivered by hand shall be deemed to have been received at the time of delivery and
a notice sent by pre-paid first class post shall be deemed to have been received 2 days after posting.
11.8 Each party to the Contract agrees to comply with all applicable health and safety legislation and regulations from time to time in force.
11.9 Wella (U.K.) Limited shall sell and You shall purchase products as principals only. This therefore means that no other person shall have any rights or obligations, or be entitled to sue or liable to be sued, under the contracts entered into between Wella (U.K.) Limited and Yourself.
12 LAW AND JURISDICTION The Contract shall be governed and construed in accordance with the law of England and Wales and the parties to this Agreement irrevocably agree that, subject as provided below, the courts of England and Wales shall have exclusive jurisdiction over any claim or matter arising under or in connection with this Agreement and that accordingly any proceedings in respect of any such claim or matter may be brought in such courts. Nothing in this clause shall limit the right of Wella to take proceedings against You in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.