These Conditions apply (unless otherwise previously agreed in writing) to the supply of Goods by C9 ANZ to the Buyer from time to time. Any supply of Goods by C9 ANZ to the Buyer made after the date of acceptance of these Conditions is a supply pursuant to the supply agreement constituted by the Contract; these Conditions and the relevant order accepted by C9 ANZ and any such supply does not give rise to a new or separate agreement.

 

  • 1. DEFINITIONS

In these Conditions:

  • 1.1 “C9 ANZ” means Cloud Nine ANZ Pty Ltd registered in Australia with Australian Company Number 640 337 015 and whose registered office is situated at Tower One International Towers Sydney Level 17, 100 Barangaroo Avenue, Barangaroo, NSW 2000, Australia;

  • 1.2 “Ancillary Services” means services necessary for and ancillary to delivery of Goods;

  • 1.3 “Buyer” means any person or persons, firm or firms, company or companies, authority or authorities who shall order or buy the Goods.

  • 1.4 “Contract” means the particular individual contract for the supply of the Goods and any Ancillary Services by C9 ANZ to the Buyer.

  • 1.5 “Defects Returns Register” means the written record maintained by the Buyer detailing those Goods that are defective within the Warranty Period, which shall include those detailed outlined in Part One of the Schedule;

  • 1.6Delivery Location” that address agreed between C9 ANZ and the Buyer or otherwise where the Goods are to be delivered or collected, as appropriate.

  • 1.7 “Goods” means the goods (or instalments or part thereof) supplied or sold by C9 ANZ to the Buyer as specified in the Order Acknowledgement.

  • 1.8 “Incoterms” means Incoterms 2010 as published by the International Chamber of Commerce in 2010 or such other edition in force at the date when the Contract is made.

  • 1.9 “Intellectual Property” means patents, registered and unregistered trademarks, registered designs, applications for any of the foregoing and the right to apply for any of the foregoing in any part of the world, confidential information, business names, brand names, copyright and rights in the nature of copyright and design rights and get up, know how, domain names, inventions, service marks, and database rights and like rights wherever situated in the world.

  • 1.10 “Order”
    means an order placed for the Goods.

  • 1.11 “Order Acknowledgement” means the document entitled Order Acknowledgement generated by C9 ANZ and sent by post e-mail by C9 ANZ to the Buyer.

  • 1.12 “Special Conditions” means such additional terms agreed from time to time in writing between C9 ANZ and the Buyer.

  • 1.13 “Time of Delivery” has the meanings given in Clause 7.

  • 1.14 Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted.

  • 1.15 To the extent of any conflict between these Conditions and the Special Conditions, the Special Conditions shall prevail.

  • 1.16 Reference to any Clause is to a clause of these Conditions.

  • 1.17 In this document and in any Special Conditions:

    • 1.17.1 the headings are for convenience only and shall not affect the interpretation of this document or those Special Conditions;

    • 1.17.2 the use of the plural shall include the singular and the use of the singular shall include the plural;

    • 1.17.3 references to the masculine, feminine or neuter genders shall include each and every gender.

  • 2. ORDERS AND THE APPLICABILITY OF TERMS

    • 2.1 Unless otherwise expressly agreed in writing by C9 ANZ every Contract shall incorporate and be governed in all respects by these Conditions and any Special Conditions which shall prevail over any other contractual provisions proffered by the Buyer in any correspondence, Order or other documentation which shall have no application to the Contract unless otherwise agreed in writing by C9 ANZ. The Buyer agrees that no actions taken by C9 ANZ shall be interpreted as C9 ANZ accepting any contractual provisions proffered by the Buyer.

    • 2.2 No Contract shall take effect unless and until an Order Acknowledgement has been despatched by C9 ANZ to the Buyer.

    • 2.3 All Orders shall be made by a formal written purchase order generated by the Buyer, which shall be sent by an authorised representative of the Buyer. All Orders shall be sent to au-orders@cloudninehair.com.

    • 2.4 Orders shall only be made for full carton quantities of the Goods.

    • 2.5 Should a certificate of origin (or other certification or documentation) be required by the Buyer, the Buyer shall request such a certificate in the Order; the costs associated with the certificate (or other documentation) of origin shall be borne by the Buyer. The cost of any amendments required to such documentation post issue of them shall be borne by the Buyer.

    • 2.6 C9 ANZ will accept no responsibility whatsoever for any error or omission in the transmission of the Buyer’s Order to it.

    • 2.7 C9 ANZ shall be entitled to rely in all respects and in all circumstances on the contents of the Order Acknowledgement as stating the quantity of the Goods that are to be supplied. Accordingly, it shall be the Buyer’s sole responsibility to check the Order Acknowledgement and to notify C9 ANZ within two (2) working days after the receipt of the same where the Goods are not properly stated in the Order Acknowledgement.

    • 2.8 Where there is a conflict between the Order Acknowledgement and any quotation or estimate that C9 ANZ may have given, the Order Acknowledgement shall always prevail.

    • 2.9 These Conditions shall apply to any services that C9 ANZ supplies which are ancillary to the supply of the Goods to the maximum extent feasible.

  • 3. PUBLICATIONS AND REPRESENTATIONS

    • 3.1 All descriptions, illustrations and information contained in (i) C9 ANZ’s catalogues, website, price lists, advertising matter and other publications and (ii) labels attached or affixed to C9 ANZ’s packaging or any other collateral item relating to the Goods shall be regarded as approximate only and are to present merely a general idea of the goods described in them and shall not form part of the Contract or be deemed to import any warranty regarding the Goods unless and to the extent that the contrary is expressly agreed in writing by C9 ANZ.

    • 3.2 Each of the parties acknowledges that it is not entering into the Contract in reliance upon any representation, warranty, collateral contract or other assurance (except those set out in the Contract and the documents referred to in it) made by or on behalf of any other party before the execution of the Contract. Each of the parties waives all rights and remedies which, but for this clause, might otherwise be available to it in respect to any such representation, warranty, collateral contract or other assurance, provided that nothing in this Clause 2 shall limit or exclude any liability for fraud.

  • 4. PRICES

    • 4.1 Save as otherwise agreed in writing by C9 ANZ or as indicated in the Order Acknowledgement or any Special Conditions, the price of the Goods will be that prevailing at the Time of Delivery and listed in C9 ANZ’s current price list.

    • 4.2 Prices shall, unless otherwise agreed in writing or as stated in the Order Acknowledgment, exclude transportation, insurance, and delivery, with such related costs being charged separately by C9 ANZ to the Buyer in the circumstances where C9 ANZ bears the costs.

    • 4.3 Where Goods are delivered by instalments then the price payable for each instalment shall be the current list price at the date of despatch of such instalment.

    • 4.4 Save as expressly stated otherwise by C9 ANZL in writing, prices are quoted by C9 ANZ exclusive of GST, which C9 ANZ shall (where appropriate) add at the appropriate prevailing rate.

    • 4.5 C9 ANZ shall be entitled to charge the Buyer interest on any sums paid late under a Contract from the due date until the date of payment. Such interest shall be calculated on a daily basis at the rate of four per cent (4%) above the base lending rate of HSBC Australia Ltd from time to time prevailing, after as well as before any judgment.

    • 4.6 C9 ANZ shall notify the Buyer of any increase in the price of the Goods by providing the Buyer with 30 days’ notice of any such intended price increase.

  • 5. RESERVATION OF TITLE – RISK AND PROPERTY

    • 5.1 Risk of damage to or loss of the Goods shall pass to the Buyer at the Time of Delivery.

    • 5.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, title to the Goods shall not pass to the Buyer until the earlier of:

      • 5.2.1 C9 ANZ having received in cash or cleared funds payment in full of the price of the Goods; or

      • 5.2.2 the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer in accordance with Clause 5.3

    • 5.3 Subject to Clause 5.5, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before C9 ANZ receives payment for the Goods. However, if the Buyer resells the Goods before that time:

      • 5.3.1 it does so as principal and not as C9 ANZ’s agent; and

      • 5.3.2 title to the Goods shall pass from C9 ANZ to the Buyer immediately before the time at which resale by the Buyer occurs.

    • 5.4 Until such time as the title in the Goods passes to the Buyer, the Buyer shall hold the Goods as C9 ANZ’s fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as C9 ANZ’s property, but shall be entitled to resell or use the Goods in the ordinary course of its business.

    • 5.5 If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in Clauses 1 and 12.1.6, then, without limiting any other right or remedy C9 ANZ may have:

      • 5.5.1 the Buyer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and

      • 5.5.2 C9 ANZ or its appointed agent may at any time:

        • 5.5.2.1 require the Buyer to deliver up all Goods in its possession that have not been resold; and

        • 5.5.2.2 if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.

      • 5.6 Until such time as the property in the Goods passes to the Buyer C9 ANZ shall be entitled at any time to require the Buyer to deliver up the Goods to C9 ANZ and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.

      • 5.7 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of C9 ANZ, but if the Buyer does so all monies owing by the Buyer to C9 ANZ shall (without prejudice to any other right or remedy of C9 ANZ) forthwith become due and payable.

      • 5.8 Separately, the Buyer hereby charges all its right, title and interest to and in the proceeds of sale of the Collateral (as defined in the PPSA) as original collateral, or any of it, in favour of C9 ANZ.

    • 6. PAYMENT

      • 6.1 C9 ANZ shall be entitled to submit an invoice and packing slip to the Buyer at any time after the Order Acknowledgement.

      • 6.2 The Buyer shall pay the invoice in full and in cleared funds without deduction or set-off before the Time of Delivery, except in circumstances otherwise agreed in writing by C9 ANZ. Payment shall be by electronic transfer to an account designated by C9 ANZ. Time for payment shall be of the essence.

      • 6.3 All payments shall be in Australian Dollars, unless agreed otherwise in writing between C9 ANZ and the Buyer

    • 7. DELIVERY

      • 7.1 Where C9 ANZ agrees or states a specified delivery date it will do so in writing, usually by email; C9 ANZ shall use reasonable endeavours to deliver on or before the relevant date, but C9 ANZ shall be under no obligation to do so. Typically, where there are sufficient quantities of the Goods in stock to fulfil an Order the Order will be available for delivery or collection within five (5) working days of C9 ANZ’s Acknowledgement of Order (this does not apply to orders where C9 ANZ requests advance payment for the Goods).

      • 7.2 C9 ANZ shall not be obliged to make delivery at any specified time. The Buyer shall be obliged to accept any delivery during the hours of 8:30 a.m. and 4:30 p.m. on a day on which the banks are open for a full range of transactions in the territory in which the Buyer is situated (the “Normal Delivery Hours”). If the Buyer requests that delivery take place at a specified time or outside the Normal Delivery Hours and the same is recorded in the Order Acknowledgement, C9 ANZ will use its reasonable endeavours to deliver at the specified time. C9 ANZ may charge an additional amount for such delivery, at C9 ANZ’s absolute discretion.

      • 7.3 Delivery shall be to the Delivery Location. Time shall not be of the essence with respect to any of C9 ANZ’s obligations arising under the Contract.

      • 7.4 C9 ANZ shall not be liable in respect of any loss incurred by the Buyer arising from any delay in delivery of the Goods or performance of any service.

      • 7.5 Where the Goods are delivered by C9 ANZ the Time of Delivery shall be when the Goods are delivered to the Delivery Location. C9 ANZ will generally deliver by road or sea.

      • 7.6 Where the Goods are collected from C9 ANZ, the Time of Delivery shall be when the Goods are lifted over the side of the Buyer’s transporting vehicle.

      • 7.7 Where the Goods are delivered in some manner other than as specified in Clauses 3 to 7.6 above, the Time of Delivery shall be when the Goods leave C9 ANZ’s premises.

      • 7.8 The provisions of Clauses 3 to 7.7 above are subject to any contrary provision of the Order Acknowledgement which may specify a different Time of Delivery. Without limitation, the Order Acknowledgement may specify that an Incoterm applies in which event the Time of Delivery shall be when delivery is effected as stated in that Incoterm (and if none is so stated, then in accordance with the provisions of this Clause 7).

    • 8. DELIVERY BY INSTALMENTS

      • 8.1 C9 ANZ shall be entitled to deliver the Goods by instalments. Each instalment shall be treated as if it constituted a separate and distinct contract between C9 ANZ and the Buyer.

      • 8.2 Any failure, suspension or delay by C9 ANZ in respect of any part-delivery of the Goods or the discovery of any defect in any of the Goods so delivered shall not entitle the Buyer to cancel the remainder of the Contract and shall not affect the obligations of the Buyer in respect of the remainder of the Goods or the remainder of the Contract.

    • 9. SUITABILITY OF STORAGE FACILITIES AND goods MANAGEMENT (“PRODUCT STORAGE CONDITIONS”)

      • 9.1 C9 ANZ reserves the right at any time to refuse to make delivery of the Goods if in its sole opinion the storage facilities proposed by the Buyer are inadequate or unsuitable or unsecure.

      • 9.2 Where the Goods are delivered by C9 ANZ such delivery shall in no way constitute a commitment or representation by C9 ANZ as to the adequacy or suitability of the Buyer’s storage or offloading facilities.

      • 9.3 The Buyer shall at all times be solely responsible and liable to ensure that the Buyer’s storage facilities are adequate and suitable for the storage of the Goods. The Goods (including their packaging and all labelling) should be kept as supplied and in excellent resaleable condition at all times and should be stored, as a minimum requirement, in dry conditions at a temperature above 2ºC and below 30ºC and in accordance with any additional provisions to the Buyer by C9 ANEZ in writing from time to time.

      • 9.4 The Buyer shall at all times, keep accurate and up to date records of all Goods held by, owned by, or under the stewardship of the Buyer and will provide a copy of these records, together with any Goods related information, upon written request made by C9 ANZ.

      • 9.5 The Buyer will ensure that all Goods are managed and processed to supply on a First-In-First-Out (FIFO) basis, ensuring at all times that where possible, the oldest Goods are used to satisfy sales orders in the first instance.

      • 9.6 C9 ANZ or its authorised agent or representative, immediately upon request, will be allowed access to inspect any and all Goods held by, owned or under stewardship of the Distributor, at the Distributor’s own cost.

    • 10. FAILURE TO ACCEPT DELIVERY WHEN TENDERED

      • 10.1 Where any delay in delivery of the Goods is caused by the Buyer (or the Buyer has refused to take delivery), C9 ANZ shall be entitled to charge the Buyer all proper costs arising out of such delay including without limitation the cost of returning the Goods to C9 ANZ’s premises, of storing the Goods and of re-delivering the Goods.

      • 10.2 Notwithstanding Clause 1, and subject to any contrary provision that C9 ANZ may agree to in writing, the Buyer shall be entitled to re-schedule on not more than one (1) occasion delivery of the Goods by giving C9 ANZ written notice of at least five (5) days thereof.

      • 10.3 In circumstances where the Buyer fails to collect the Goods from the Delivery Location within five (5) working days of the specified delivery date, the Buyer shall be responsible for those additional costs associated with the handling, and storage of the Goods plus associated administration costs in that amount which is equal to three percent (3%) of the value of the Order.

    • 11. FORCE MAJEURE AND HARDSHIP

      • 11.1 “Force Majeure Event” means any circumstance beyond a party’s reasonable control (including its sub-contractors) including, without limitation:

        • 11.1.1 acts of God, flood, drought, earthquake or other natural disaster;

        • 11.1.2 epidemic or pandemic virus, disease or other illness;

        • 11.1.3 terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;

        • 11.1.4 nuclear, chemical or biological contamination or sonic boom;

        • 11.1.5 fire, destruction of premises and/or property or shortage of raw materials;

        • 11.1.6 any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;

        • 11.1.7 collapse of buildings, fire, explosion or accident; and

        • 11.1.8 any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same Group as that party);

        • 11.1.9 non-performance by suppliers or subcontractors (other than by companies in the same Group as the party seeking to rely on this clause, or companies in the same Group as that party); and

        • 11.1.10 interruption or failure of utility service.

      • 11.2 Provided it has complied with clause 11.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event (“Affected Party”), the Affected Party shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations, other than any obligation to pay any money to the other.

      • 11.3 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.

      • 11.4 The Affected Party shall:

        • 11.4.1 as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Contract; and

        • 11.4.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

      • 11.5 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than three (3) months, the party not affected by the Force Majeure Event may terminate the Contract by giving one (1) month’s written notice to the Affected Party.

 

  • 12. TERMINATION

    • 12.1 If:

      • 12.1.1 the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of a solvent amalgamation or reconstruction) or has an administrator or administrative receiver appointed over the whole or any part of its assets; or

      • 12.1.2 an encumbrancer takes possession of, or a receiver is appointed in respect of any of the property or assets of the Buyer; or

      • 12.1.3 the Buyer ceases, or threatens to cease, to carry on business; or

      • 12.1.4 C9 ANZ reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly; or

      • 12.1.5 any event takes place in any jurisdiction other than Australia which is analogous to any of the above under this Clause 12.1; or

      • 12.1.6 the Buyer is in breach of any material provision of the Contract and fails to remedy such breach within thirty (30) days of a notice from C9 ANZ indicating the breach and requiring the Buyer to remedy the same

then, without prejudice to any other right or remedy available to C9 ANZ, C9 ANZ shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer.

  • 12.2 Where Clause 1 applies and if the Goods have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

  • 13. WARRANTY

    • 13.1 C9 ANZ warrants to the Buyer that for a period of three (3) months (or such other period notified in writing by C9 ANZ from time to time) from the Time of Delivery (“Warranty Period”), the Goods shall:

      • 13.1.1 conform with their description

      • 13.1.2 be free from material defects in design, material and workmanship; and

      • 13.1.3 be of satisfactory quality.

    • 13.2 Subject to Clause 3, if:

      • 13.2.1 the Buyer gives notice in writing to C9 ANZ during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in Clause 13.1;

      • 13.2.2 C9 ANZ is given a reasonable opportunity of examining such Goods; and

      • 13.2.3 the Buyer (if asked to do so by C9 ANZ) returns such Goods to C9 ANZ’s place of business, at the Buyer’s cost;

13.3 C9 ANZ shall, at its option, repair or replace the defective Goods, or provide a refund at its sole discretion to the Buyer.

  • C9 ANZ shall not be liable for the Goods’ failure to comply with the warranty set out in Clause 1 in any of the following events:

    • 13.3.1 the defect arises because the Buyer failed to follow C9 ANZ’s oral or written instructions as to the storage of the Goods or (if there are none) good practice regarding the same; or

    • 13.3.2 the Buyer alters or repairs such Goods without the written consent of C9 ANZ; or

    • 13.3.3 the defect arises as a result of wilful damage, negligence, or abnormal storage conditions; or

    • 13.3.4 the Buyer has not provided an up-to-date and accurate Defects Returns Register to C9 ANZ by email to au-orders@cloudninehair.com and all other documents or items detailed in Part Two of the Schedule by recorded delivery mail to C9 ANZ; or

    • 13.3.5 any other warranty conditions provided from time to time to the Buyer in writing by C9 ANZ have not been satisfied.

  • 13.4 Except as provided in this Clause 13, C9 ANZ shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in Clause 13.1.

  • 13.5 In the circumstance where the Buyer has sold the Goods to an end-customer (being a person who purchases the Goods from the Buyer for their intended purpose), and the end-customer makes a claim to the Buyer for Goods that are defective, the Buyer must redirect all such warranty claims to C9 ANZ, within 24 hours of receipt of the claim.

  • 13.6 These Conditions shall apply to any repaired or replacement Goods supplied by C9 ANZ.

  • 13.7 All claims for defective Goods will include the provision of Part Two of the Schedule, and handled and dealt with in accordance with the provisions contained at Part Three and Part Four of the Schedule.

  • 13.8 The Buyer shall not destroy or dispose of any defective Goods without C9 ANZ’s prior written consent.

  • 14. LIABILITY

    • 14.1 Save as expressly provided in these Conditions or in any individual Contract, all terms, conditions and warranties implied by statute, common law or otherwise howsoever arising are excluded to the fullest extent permitted by law.

    • 14.2 The following provisions in this Clause 2 set out C9 ANZ’s entire liability (including any liability for the acts and omissions of its employees, agents or sub-contractors) to the Buyer in respect of:

      • 14.2.1 a breach of C9 ANZ’s contractual obligations;

      • 14.2.2 a tortious act or omission for which C9 ANZ is liable;

      • 14.2.3 an action arising out of a misrepresentation made by or on behalf of C9 ANZ arising in connection with the performance or contemplated performance of the Contract or out of an act done or omission made as a consequence of the entry into the Contract by C9 ANZ.

    • 14.3 The total liability which C9 ANZ shall owe to the Buyer and in respect of all claims shall not exceed the price of the Goods sold under the Contract, unless agreed otherwise by C9 ANZ and set out in the Order Acknowledgement or any Special Conditions.

    • 14.4 C9 ANZ shall in no circumstances be liable to the Buyer for any:-

      • 14.4.1 pure economic loss;

      • 14.4.2 loss of profit;

      • 14.4.3 loss of business;

      • 14.4.4 loss of contracts;

      • 14.4.5 like loss; and

      • 14.4.6 any indirect loss.

    • 14.5 The Buyer shall only be entitled to bring a claim against C9 ANZ where the Buyer issues legal proceedings against C9 ANZ within the period that is the period of twelve (12) months commencing on the date upon which the Buyer ought reasonably to have known of its entitlement to bring such a claim.
    • The exclusion of liability referred to in this Clause 14 does not apply so as to exclude or limit C9 ANZ’s liability:

      • 14.6.1 for death or personal injury resulting from the negligence of C9 ANZ, its servants or agents; or

      • 14.6.2 arising as a consequence of the application of any statute where to do so would contravene that statute or cause a provision of these terms to be void. Any stated exclusion or limitation in these terms is only to the full extent permitted at law; save that nothing in this Clause 14 shall confer a right or remedy upon the Buyer to which the Buyer would not otherwise be entitled.

    • 14.7 The provisions of this Clause 14 shall survive the termination of the whole or a part of the Contract.

    • 14.8 The Buyer shall follow the procedure set out in Part Two of the Schedule when submitting claims for defective Goods.

  • 15. INTELLECTUAL PROPERTY RIGHTS

    • 15.1 The Buyer shall indemnify C9 ANZ against all costs, claims, losses, expenses and damages incurred by C9 ANZ or for which it may be liable due to or arising directly or indirectly out of any infringement or alleged infringement of all and any Intellectual Property Rights occasioned by the importation, manufacture or sale of the Goods if made to the specification or special requirements of the Buyer.

    • 15.2 Unless otherwise agreed in writing with C9 ANZ:

      • 15.2.1 C9 ANZ shall be the exclusive proprietor of copyright in all original documents supplied or produced by C9 ANZ to the Buyer in connection with the Contract;

      • 15.2.2 all Intellectual Property Rights in or relating to the Goods shall (subject to any existing rights of any third party in any Intellectual Property Rights incorporated or used in the design of the Goods) be the exclusive property of C9 ANZ and neither the Buyer nor any agent, contractor or other person authorised by the Buyer shall at any time make any unauthorised use of such Intellectual Property Rights.

    • 16. CLAIMS

      • 16.1 The Buyer (or its agent) shall inspect the Goods on the date of their delivery to the Delivery Location and advise C9 ANZ (and any carrier) immediately in writing to au-orders@cloudninehair.com of any apparent defect, damage, shortage or loss (against the packing list, delivery note and invoice (if raised)) before accepting delivery of the Goods; the delivery note pertaining to the Goods shall be annotated with full details of any discrepancy or defect.

      • 16.2 Within ten (10) working days after the Time of Delivery the Buyer shall make a further inspection of the Goods to determine any defect, damage, shortage or loss (against the packing list, delivery note and invoice (if raised) and shall give to C9 ANZ (by email to au-orders@cloudninehair.com) notice of any claim for any defect, shortage, damage or loss to the Goods whilst in transit. If the Buyer fails to do so, the Goods shall be conclusively presumed to have been received and accepted by the Buyer without any claim for any defect, shortage, damage or loss.

      • 16.3 In the event of a valid claim for defect, loss, damage, or non-compliance with the Contract or non-delivery, C9 ANZ undertakes at its option either to repair, reprocess or replace the items concerned at its expense or shall make a full refund at its sole discretion, but shall not be under any further or other liability in connection with such non-delivery, loss, damage or non-compliance.

      • 16.4 The provisions of this Clause 16 shall only apply where any claim for any defect, shortage, damage or loss to the Goods is apparent on visual inspection.

      • 16.5 Nothing in this Clause 16 shall permit the Buyer to refuse to accept any delivery (including delivery affected by collection by the Buyer) of the Goods unless otherwise agreed in writing by C9 ANZ.

    • 17. CONFIDENTIALITY

The Buyer and C9 ANZ undertake that they will not at any time hereafter use, divulge or communicate to any person, except to their professional representatives or advisers or as may be required by law or any legal or regulatory authority, any confidential information concerning the business or affairs of the other party which may at any time come to their knowledge and each of the Buyer and C9 ANZ shall use their respective reasonable endeavours to prevent the publication or disclosure of any confidential information concerning such matters.

  • 18. PPSA

18.1    Defined terms in this clause have the same meaning as given to them in the PPSA.

  • 18.2 C9 ANZ and the Buyer acknowledge that these Conditions constitute a Security Agreement and entitle C9 ANZ to claim:

(a) a Purchase Money Security Interest (“PMSI”) in favour of C9 ANZ over the Collateral supplied or to be supplied to the Buyer as Grantor pursuant to these Terms; and

(b) a security interest over the proceeds of sale of the Collateral referred to in (a) as original collateral.

18.3    The goods supplied or to be supplied under these Conditions fall within the PPSA classification of ”Other Goods” acquired by the Buyer pursuant to these Terms.

18.4    The Proceeds of sale of the Collateral referred to in clause 14.2(a) falls within the PPSA classification of “Account”.

18.5    C9 ANZ and the Buyer acknowledge that C9 ANZ, as Secured Party, is entitled to register its Security Interest in the Collateral supplied or to be supplied to the Buyer pursuant to these Terms and in the relevant Proceeds.

  • 18.6 To the extent permissible at law, the Buyer:

  • (a) waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Buyer to C9 ANZ;

  • (b) agrees to indemnify C9 ANZ on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the enforcement or attempted enforcement of any Security Interest granted to C9 ANZ by the Buyer;

  • (c) agrees that nothing in sections 130 and 143 of the PPSA will apply to these Terms or the Security under these Terms;

  • (d) agrees to waive its right to do any of the following under the PPSA:

  • (i) receive notice of removal of an Accession under section 95;

  • (ii) receive notice of an intention to seize Collateral under section 123;

  • (iii) object to the purchase of the Collateral by the Secured Party under section 129;

  • (iv) receive notice of disposal of Collateral under section 130;

  • (v) receive a Statement of Account if there is no disposal under section 132(4);

  • (vi) receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged;

  • (vii) receive notice of retention of Collateral under section 135;

  • (viii) redeem the Collateral under section 142; and

  • (ix) reinstate the Security Agreement under section 143.

    • 18.7 All payments received from the Buyer must be applied in accordance with section 14(6)(c) of the PPSA.

  • 19. ENTIRE AGREEMENT

The Contract and these Conditions (together with all the other documents to be entered into pursuant to it) set out the entire agreement and understanding between the parties relating to the matters contemplated by the Contract, and all conditions, terms and warranties, whether express or implied, are excluded if they are not expressly set out in the Contract.

  • 20. ASSIGNABILITY

The Buyer shall not be entitled to assign the benefit or burden of the whole or any part of any Contract without the prior written consent of C9 ANZ. C9 ANZ may sub-contract the performance of its obligations as it sees fit, provided always that C9 ANZ shall remain responsible for the acts and omissions of its subcontractors.

  • 21. WAIVER

Save in respect of a waiver granted in writing, the failure of C9 ANZ at any time to enforce a provision of the Contract shall not be deemed a waiver of such provision or of any other provision of the Contract or of C9 ANZ’s right thereafter to enforce that or any other provision of the Contract.

  • 22. SEVERABILITY

If a provision in these Conditions or a Contract is determined by a Court or tribunal of a competent jurisdiction to be wholly or partly unenforceable for any reason:

(a) such unenforceability shall not affect the rest of the Contract; and

(b) the parties shall in good faith amend and if necessary novate the Contract to reflect as near as may be the spirit and intention behind such unenforceable provision or provisions so that the same comply with the laws of that jurisdiction.

  • 23. STATUS

Nothing in these Conditions shall create any joint venture, agency or partnership between C9 ANZ and the Buyer.

  • 24. VARIATIONS

Save where permitted otherwise pursuant to these Conditions, all variations to any Contract or to these Conditions must be made in writing and be signed by a duly authorised officer of both parties. Each party shall at its own cost do and execute, or arrange for the doing and executing of, each necessary act, document and thing reasonably requested of it by the other party to implement the Contract

  • 25. PROPER LAW

Every Contract to which these Conditions apply shall be construed and take effect in accordance with the laws of New South Wales and the parties hereby accept the exclusive jurisdiction of the Courts of New South Wales.

 

Schedule

Part One – Defects Returns Register

Defective product name

Quantity of products

Purchase Order number(s) to which the defective product relates

The serial number of the defective product – both by way of:-

  • Batch / Rating plate serial number; and
  • Valmarc unique QR serial number (if available).

Date the Buyer purchased the defective product from C9 ANZ

Date checked / QA test by the Buyer

Description of fault type

 

Part Two – Procedure for submission of claims

Subject to Clause 13, in order to claim repaired or replacement products from C9 ANZ in exchange for defective Goods that are within warranty, or to claim a refund (at C9 ANZ’s sole discretion), the Buyer will send a Defects Returns Register, (highlighting the unit quantities of the claim), to C9 ANZ, the last Friday of each calendar month, in the first instance by e-mail to au-orders@cloudninehair.com

The Buyer will send an accurately completed Defects Returns Register

The Buyer will confirm that they have sent the following documents by recorded mail delivery, to C9 ANZ:

  • Hard copy /print out of the Defects Returns Register
  • Physical defective Goods (in warranty Goods only)

Part Three – other provisions relating to defective Goods

The Defects Returns Register will be initially checked by C9 ANZ, within 10 business days of receipt by email from the Buyer. Any discrepancies and/or out of warranty Goods will be highlighted by C9 ANZ to the Buyer by return email and unless found to be genuine and within warranty, will be removed from the Defects Return Register and the claim will be reduced accordingly.

C9 ANZ may replace defective Goods with an alternative product to the same value, if like for like products are unavailable

Part Four – physical verification of defective Goods

On receipt of the physical defective Goods returned to C9 ANZ (or to a nominated representative or agent of C9 ANZ), within 10 business days of such receipt, C9 ANZ (or a nominated representative or agent of C9 ANZ), will audit and check each physical item to the Defects Returns Register, together with any associated defective product information requested above and confirm by e-mail to the Buyer, the final approved repair, replacement or credit listing.

Any discrepancy between the physical defective Goods received by C9 ANZ, (and/or a nominated representative or agent of C9 ANZ), and the Defects Returns Register, or any query in relation to whether the Goods are in warranty or defective, will at the discretion of C9 ANZ, be removed from the Defects Return Register and the claim will be reduced accordingly.

 Shipping and Insurance costs

If C9 ANZ decides, (at its sole discretion), to repair or replace the in-warranty defective Goods, it will ship the repaired or replacement products within 24 days of physical receipt as per Part Four of this Schedule.

Shipping costs relating to the transportation of repaired or replacement products will be at the cost of C9 ANZ, unless the Buyer requests that these are to be transported by air freight, in which case, this will be at the Buyer’s cost.