Terms and Conditions

Terms and Conditions of Trade

1. Application of Terms 

1.1. All Goods supplied to the Buyer by the Seller are subject to the following Terms. These Terms, together with any quotation, order, invoice or other document supplied by the Seller constitute the entire Agreement between the Buyer and the Seller for the Goods. If the Buyer orders or accepts any Goods, the Buyer is deemed to have accepted these Terms.

1.2. The Seller may amend these Terms from time to time by notice to the Buyer and by publication on the Seller’s website at probeauty.co.nz. The change will take effect from the time specified on the Seller’s website.  By continuing to receive Goods or by placing any order for Goods, the Buyer shall be deemed to have accepted the updated Terms.

1.3. If the Buyer executes any Supplemental Terms as a Company or a Trust, each Director or Trustee (as the case may be, of the Buyer) warrants that he/she is authorised to enter into the relevant Supplemental Terms on behalf of the Buyer and has the full power, capacity and authority to execute, deliver and perform its obligations in accordance with these Terms.

1.4. Nothing in these Terms affects any rights that the Buyer may have as a “Consumer” under the Fair Trading Act 1986 (“FTA”) and the Consumer Guarantees Act 1993 (“CGA”). The Buyer will not be a “Consumer” if the Buyer acquires Goods, or holds itself out as acquiring the Goods, in Trade.

1.5. If there is any conflict or inconsistency between these Terms and any Supplemental Terms, then, unless otherwise expressly provided in these Terms to the contrary, the Supplemental Terms will prevail over these Terms.

2. Definitions

2.1. “Buyer” means the customer named on any Supplemental Terms entered into with the Seller, or otherwise any person, firm, Company or other entity buying the Goods from the Seller.

2.2 “Goods” means all Goods provided by the Seller to the Buyer, including as expressly identified in any Supplemental Terms.

2.3. “Seller” means Quinn International Limited.

2.4. “Supplemental Terms” includes any credit application form, quotation, order, invoice or other document or amendments expressed to be supplemental to these Terms.

2.5. “Terms” means the Terms and Conditions set out in this Agreement.

2.6. “Trade” means any Trade, business, industry, profession, occupation, activity of commerce or undertaking.

3. Price

3.1. Unless otherwise expressly stated in any Supplemental Terms, all prices listed or quoted for the Goods will be those applying at the time that the Seller processes the Buyer’s order of the Goods.

3.2. All Prices stated in any Supplemental Terms are exclusive of freight or delivery charges. Unless otherwise stated in any Supplemental Terms the Buyer shall pay freight or delivery charges in addition to the stated price for the Goods.

3.3. Unless otherwise stated in any Supplemental Terms the quoted or invoiced price for Goods is in New Zealand Dollars and excludes any GST (and any other taxes and duties assessed or levied in connection with the supply of Goods to the Buyer). The Buyer shall pay GST and any other taxes or levies in addition to the stated price for the Goods.

3.4. Any Recommended Retail Price for the Goods is a guide only and the Seller is not obliged to comply with such Recommended Retail Price.

3.5. If the Buyer shall seek to vary any order of Goods made by the Buyer, such variation shall only be effective if expressly agreed by the Seller and any costs incurred by the Seller as a result of such variation shall be paid by the Buyer.

3.5.1. Where the Seller, at its sole discretion, accepts cancellation of an order, the Seller may charge the Buyer or may levy a handling charge of up to 10% of the original price for the Goods; and

3.5.2. Where the Seller agrees, at its sole discretion, to a variation in the quantity of the Goods, the Goods shall be priced either at the rate applicable to the original quantity or revised quantity, at the Seller’s absolute discretion.

4. Payment

4.1. Unless other payment terms are otherwise recorded in the Supplemental Terms, payment will occur through your Account and will be one of the following, at the Seller’s discretion:

4.1.1. Payment up front where the Buyer must pay the Seller the price in full before the Seller processes the order for Goods; or

4.1.2. If the Seller has approved the Buyer’s application for credit terms, which shall be at the Seller’s sole discretion, the Seller will issue an invoice for the Goods, when the Seller processes the Order for Goods. Payment for Goods and any other amounts due under these Terms must be made on the 20^th of the month following the invoice issue date.

4.2. Payment must be made in full by the applicable due date by way of cleared funds.

4.3. The Buyer may not set off against or deduct from the sale, any sums owed or claimed to be owed to the Buyer by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.

4.4. If payment is not made by the due date, the Seller may, without prejudice to its other rights and remedies, charge the Buyer default interest at the 90 day bank bill rate (as quoted on the Reuters Page BKBM at 10.45am) plus a premium of 2% per annum, calculated on a daily basis from the due date until payment in full is made by the Buyer.

4.5. The Buyer must pay all expenses, legal costs and collection costs of the Seller in relation to any default by the Buyer under these Terms.

4.6. The Seller reserves the right to restrict or withhold the supply of Goods to the Buyer until payment in full for the Goods is received from the Buyer.

4.7. The Seller may deduct, set off, or withhold any amount (whether by way of counter-claim, set off or otherwise) from any money owing by the Seller to the Buyer or the Buyer’s related companies on any account whatsoever.

4.8. If the Seller shall at any time deem the credit of the Buyer to be unsatisfactory, it may require security for payment and may suspend performance of its obligations until the provision of sufficient security. All reasonable costs and expenses of or incurred by the Seller as a result of such suspension and any recommencement, shall be payable by the Buyer on demand.

5. Delivery

5.1. The Seller will use its reasonable endeavours to make delivery at the time specified in the Supplemental Terms (if a time is specified) but the Buyer agrees that all delivery dates are estimates only and the Buyer must take delivery of the Goods whenever they are tendered for delivery. The Seller shall not be responsible for any loss or damage incurred by the Buyer or any other person by reason of any delay in delivering the Goods, however caused.

5.2. The Seller may, at its discretion withhold Delivery of the Goods until payment in full is made by the Buyer.

5.3. Delivery shall be deemed to have been made at the time the Goods are delivered to the Buyer’s nominated address even if the Buyer is not present at the address.

5.4. Where the Buyer requests a particular method of delivery and the Seller agrees in writing, then the Buyer shall cover the cost of such method of delivery from the dispatch point of the Seller.

5.5. The Seller reserves the right to dispatch the Goods in one delivery or in instalments. Where the Seller elects to deliver in instalments, the Seller is entitled to payment for each instalment delivered, as if it was a separate contract.  Failure to deliver any instalment does not entitle the Buyer to repudiate the contract as to any remaining instalments.

6. Shortfalls, Claims or Loss in Transit

6.1. No claim for any shortfall in quantity of Goods will be considered unless the Buyer gives notice of the claimed shortfall, in writing, within 3 days of the date of delivery. The Seller’s liability for shortfalls in the quantity of Goods delivered is limited to the Seller making up any shortfall.

6.2. Goods leaving the Seller’s premises, or the premises of the manufacturer of the Goods (as the case may be) are deemed to be adequately packed. Any claims for damage or loss in transit must be made against the carrier in the prescribed manner.

6.2.1. Prior to acknowledging the delivery to the carrier, the Buyer must ensure that the complete consignment as per the carrier’s note has been received;

6.2.2. Should there be a shortfall or visible damage to the outer packaging, the carrier’s note must be enclosed accordingly.

6.2.3. Within 24 hours of receipt of the consignment, the Buyer must ensure that all Goods received are in good condition and or order or notify the Seller accordingly.

6.3. The Buyer must afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Buyer alleges that the Goods are damaged or defective in any way.

6.4. No claims for defective or damaged Goods will be considered unless the Buyer gives notice of the defect or damage in writing within 7 days of the date of delivery. While no liability for defect or damaged or lost or defective Goods will be accepted by the Seller after 7 days of delivery of the Goods, the Buyer should still provide details of any claim to the Seller.

6.5. For defective Goods, which the Seller has agreed in writing that the Buyer is entitled to reject the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods.

7. Return of Goods for Credit

7.1. Goods supplied ex stock, can only be returned if:

7.1.1. The Seller (in its sole discretion) has agreed in writing to accept the return of the Goods; and

7.1.2. The Goods are returned at the Buyer’s cost within 14 days of the Delivery date; and

7.1.3. The Seller will not be liable for Goods which have not been stored or used in a proper manner by the Buyer; and

7.1.4. The Goods are returned in the condition in which they were delivered and with all packaging material, in as new condition as is reasonably possible in the circumstances.

7.2. The Seller may (in its discretion) accept the return of Goods for credit, but this may incur a restocking fee of fifteen percent (15%) of the value of the returned Goods, plus any freight charges.

8. Guarantees and Seller’s Liability

8.1. Where Goods are not manufactured by the Seller, the Buyer is only entitled to such benefits and warranties (if any) as the Seller may obtain under any guarantee or warranty provided to the Seller by the manufacturer of the Goods. The Seller makes no representation to the Buyer that the Seller holds or is entitled to hold any guarantees or warranties from a manufacturer of the Goods.

8.2. The Seller’s liability for any loss, injury or damage whatsoever suffered by the Buyer, which is attributable to any defect in or failure of the Goods (whether as a result of any failure of design, materials or workmanship in the Goods or otherwise) is limited to the Seller repairing or replacing the defective or failed Goods. The Seller shall only be liable to repair or replace any defective or failed Goods that are returned to the Seller within 12 months of delivery of the Goods (or such other period as may be expressly agreed in the Supplemental Terms).  After expiry of 12 months following delivery of the Goods (or such other period as expressly agreed in the Supplemental Terms), all liability on the Seller’s part under this clause, under the Terms in respect of the Goods whatsoever, ceases.

8.3. The Seller shall not be liable to repair or replace any defective or failed Goods where the defect or failure arises as a direct or indirect result of the Buyer’s misuse, accident or neglect of the Goods or any improper operation, maintenance, installation, modification or adjustment of the Goods.

8.4. To the fullest extent permitted by law, the Supplier will not be liable to the Buyer for any special, indirect or consequential damage, loss (including loss of profit) or injury of any kind whatsoever.

8.5. The Seller’s liability under this clause and under these Terms is confined to the Buyer specified in the Supplemental Terms only and the Seller shall have no liability to any subsequent purchaser of the Goods or client or customer of the Buyer. The Buyer may not assign its rights and obligations under these Terms without the consent of the Seller at its absolute discretion.

9. Risk and Title

9.1. The Seller retains all legal and equitable title to the Goods supplied to the Buyer until full payment is made to the Goods supplied by the Seller.

9.2. Notwithstanding that the ownership of Goods remains with the Seller, all risk of any loss, damage and deterioration in relation to any Goods supplied, passes to the Buyer on delivery.

9.3. Until legal and equitable title to Goods supplied by the Seller passes to the Buyer, the Buyer will hold the Goods as the Seller’s bailee and, if it is so required by the Seller, store those Goods separately and clearly identify such Goods as the property of the Seller. The Goods must be kept in good condition.

10. Security

10.1. Unless expressly defined in this section, the terms used in these Terms shall have the same meaning as set out in the Personal Property Securities Act (“PPSA”).

10.2. The Buyer grants the Seller a Security Interest in the Goods supplied by the Seller to the Buyer, (either before or after the date of these Terms) and the proceeds of all Goods. This Security Interest is granted by the Buyer to the Seller as Security for all amounts owing by the Buyer to the Seller and for the performance of the Buyer’s obligations under these Terms.

10.3. The Seller has the right to take possession of any Goods in the event of any unpaid amounts outstanding to the Seller being overdue, in accordance with clause 15.2.

10.4. It is expressly agreed that:

10.4.1. to the fullest extent possible, the Seller and the Buyer contract out of the application of Sections 114(1)(a), 133 and 134 of the PPSA;

10.4.2. the Buyer’s rights as debtor in Sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA shall not apply to these Terms;

10.4.3. each Security Interest created by these Terms is continuing, notwithstanding any immediate payments, settlements of accounts or anything else;

10.4.4. the requirement of the Seller to provide the Buyer a verification statement following registration by the Seller of a financing statement or a financing change statement under Section 148 of the PPSA is waived;

10.4.5. the Seller has the right to allocate payments;

10.4.6. the Buyer has received value from the Seller as at the date of first delivery of the Goods and the Buyer has not agreed to postpone the time for attachment of the security interest granted to the Seller under these Terms nor to subordinate such security interest in favour of any person;

10.4.7. the Buyer must not make any change to the Buyer’s details without giving notice to the Seller, 10 working days before the change becomes effective;

10.4.8. no Security interest created under these Terms is discharged, nor are the Buyer’s obligations affected by any amendment to, or the validity or enforceability of, or failure to enforce these Terms, or anything else whatsoever that, but for this clause, may have discharged these Terms or affected the Buyer’s obligations under these Terms;

10.4.9. The Buyer must not consent to or enter into any agreement which permits any supplier or other person to register as security interest in respect of the Goods, which ranks in priority to the Seller’s rights as a first ranking security holder.

10.5. All costs of enforcement under these Terms are chargeable to the Buyer’s account, including legal fees and disbursements on a solicitor and own client basis of obtaining any orders required under the PPSA.

10.6. The Buyer must promptly execute documents and do such further acts as may be required by the Seller to ensure the Seller is paid all sums due to the Seller and to otherwise protect the interests of the Seller under these Terms, including to register the Security interest granted to the Seller under these Terms under the PPSA and to ensure that the security interest is a first ranking perfected security interest over the Goods and any proceeds.

11. Branding and Online Sales

11.1. The Buyer will comply with the Seller’s individual Brand Supply Agreements where applicable.

11.2. The Buyer must comply with all of the Seller’s requirements in stated in the Seller’s  Online Protection Guidelines when stocking one of Probeauty’s online protected brands.  Any contravention of such Guidelines by the Buyer shall be a breach of these Terms.

11.3. The Seller reserves the right to approve the Buyer’s advertising and promotion of the Seller’s Goods on the Buyer’s own website and/or social media accounts at any point in time and the Seller may require the Buyer to amend the advertising and promotion of such Goods (or part of them) on the Buyer’s own website and/or social media accounts at the Seller’s discretion so as to maintain the Seller’s brand consistency and quality.

11.4. The Seller reserves the right to approve the use and/or presentation of the Seller’s marketing material related to the Goods on the Buyer’s own website and social media accounts prior to the Buyer uploading such marketing material on the Buyer’s own website and/or social media accounts and the Seller may require the Buyer to remove any such marketing material (or part of it) from the Buyer’s own website and/or social media accounts at the Seller’s discretion at any time.

11.5. The Buyer is not permitted to sell, re-sell or otherwise dispose of any Goods purchased from the Seller on the Trade Me website, the Facebook Market Place or any other third party selling website whatsoever.

12. Compliance

12.1. The Buyer shall ensure that the Goods ordered are fit and suitable for the purpose for which they are required by the Buyer and the Seller is not liable if they are not.

12.2. The Buyer shall be responsible for obtaining any necessary permits, and for compliance with all regulations, by-laws, or rules in connection with the marketing, sale and use of the Goods.

13. Confidentiality and Intellectual Property

13.1. The parties agree to treat as confidential, any information relating to the other party, which by its nature, or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as “Confidential Information”.

13.2. Neither party will use or disclose any Confidential Information except as so far as may be reasonably necessary to enable that party to fulfil its obligations or exercise its rights under these Terms (and is permitted under clause 13.1 or as required by Law.

13.3. All intellectual property in the Goods remains the sole and exclusive property of the Seller.

14. Use of Information

14.1. For the purposes of facilitating the Seller’s business, the Buyer authorises the Seller:

14.1.1. To request all information it may require about the Buyer from the Buyer and the Buyer agrees to release such information to the Seller;

14.1.2. To collect Buyer information from any third parties and the Buyer authorises those third parties to release the Buyer’s information to the Seller;

14.1.3. To hold or buy information given to the Seller by the Buyer or any third party;

14.1.4. To use or buy information for the purposes related to facilitating the administration of the Seller’s business, including giving any information to persons to facilitate the collection of debts from the Buyer.

14.2. All information provided by the Buyer to the Seller will be stored and used in accordance with our Privacy Policy.

15. Default

15.1. Without prejudice to the Seller’s other remedies at law, the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unfulfilled and all amounts owing to the Seller will, whether or not due for payment, become immediately payable if:

15.1.1. Any money payable to the Seller becomes overdue or in the Seller’s opinion the Buyer will be unable to make an opinion when it falls due;

15.1.2. The Buyer has exceeded any applicable credit limits provided by the Seller;

15.1.3. The Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with its creditors, or makes an assignment for the benefit of its creditors; or

15.1.4. A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer.

15.2. If any of the clauses 15.1.1 – 15.1.4 apply the Seller reserves the right to and the Buyer agrees that the Seller (or its agents) is entitled to enter onto the Buyer’s premises where the Goods may be situated and remove and take possession of any Goods and the Seller shall not be liable in contract, tort or otherwise for any costs, losses, damages or expenses suffered by the Buyer or any third party as a result of exercising the Seller’s right under this clause. The Buyer indemnifies the Seller against any liability that the Seller may have to any third party (including legal costs on a solicitor-client basis) as a result of the Seller exercising the Seller’s rights under this clause. At the Seller’s sole discretion, the Seller may resell or dispose of any Goods removed from the Buyer and apply any sale proceeds, less a handling fee of 15% of the removed goods, which the Seller shall be entitled to charge, towards any moneys owing to the Seller by the Buyer.

16. Cancellation

16.1. Without Prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation, including those relating to payment, under these Terms, the Seller may suspend or terminate the supply of Goods to the Buyer. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercise its rights under this clause.

16.2. The Seller may cancel any contract to which these Terms apply or cancel delivery of any Goods at any time before the Goods are delivered, by giving written notice to the Buyer. On giving such notice the Seller shall repay the Buyer any money paid by the Buyer for the Goods.  The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.

16.3. If the Buyer shall seek to cancel any order of Goods made by the Buyer, such cancellation shall only be effective if expressly agreed by the Seller.  Where the Seller, at its sole discretion, accepts cancellation of an order, the Seller may charge the Buyer or may levy a handling charge of up to 10% of the original price for the Goods.

16.4. Cancellation of orders for Goods made to the Buyer’s specifications, or for non‑stock list items, will not be accepted by the Seller once production has been commenced or an order has been placed.

17. Disputes

17.1. If a dispute arises between the parties, then either party may send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute.

17.2. Within 14 days of service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute.

17.3. At any such conference, each party shall be represented by a person having authority to agree to resolution of the dispute.

17.4. If the dispute cannot be resolved, either party may, by further notice in writing, delivered to the other, refer the dispute to arbitration.

17.5. Any arbitration should be undertaken by a single Arbitrator agreed between the parties, or failing agreement, by two Arbitrators (one to be appointed by each party, and their Umpire) appointed by them prior to arbitration. Such arbitration to be carried out in accordance with the provisions of the Arbitration Act 1996.

18. Exclusion and Limitation of Liability

18.1. Except as expressly provided in these Terms, all warranties, undertakings, inducements, descriptions, conditions (including but not limited to fitness or suitability for purpose), tolerance to any conditions, merchantability or otherwise or representations whether expressed, implied, statutory or otherwise relating in any way to the Goods or to these Terms, are to the maximum extent permitted by law, expressly excluded.

18.2. If the Client is acquiring the Goods in Trade, for the purposes of section 5D of the Fair Trading Act 1986 (“FTA”) and Section 43 of the Consumer Guarantees Act 1993 (“CGA”), the Seller and the Buyer acknowledge and agree that, to the extent permitted by law:

18.2.1. The Goods provided to the Buyer under or in connection with these Terms are being provided and acquired in Trade;

18.2.2. To the extent that the FTA and/or the CGA applies to the sale of the Goods to the Buyer under these Terms, in respect of all matters under or in connection with these Terms the parties are contracting out of the CGA and Sections 9, 12(a) and 13 of the FTA;

18.2.3. The parties each have an opportunity to receive advice from a lawyer prior to contracting under these Terms; and

18.2.4. It is fair and reasonable for the parties to be bound by this clause.

18.3. Except where applicable law, including the FTA, expressly requires otherwise, the Seller is not liable in any event for:

18.3.1. Any special, indirect or consequential damage, loss or injury of any kind or for any loss of business, profit, data or anticipated savings, suffered by the Buyer or any other person, however caused, even if the Seller had been advised of the possibility of such damage, loss or injury, or arising directly or indirectly from any breach of the Seller’s obligations arising under or in connection with these Terms or from any cancellation of these Terms or from any negligence, representation or other act or omission on the part of the Seller, its agents or contractors; or

18.3.2. Any loss, damage or injury caused to the Buyer’s agents, contractors, customers, visitors, tenants, trespasses or other persons whatsoever (whether similar to the foregoing or not) arising as aforesaid. The Buyer shall indemnify the Seller against any claim by any of the foregoing persons in respect of any loss, damage or injury arising as aforesaid above.  For the avoidance of doubt the above clause does not apply if the Buyer is not in Trade.

19. Errors

19.1. The Seller may correct any clerical errors or omissions, whether in computation or otherwise in any supplemental terms, quotation, acknowledgements, invoices whatsoever.

20. General

20.1. The failure by either party to enforce any provisions of these Terms must not be treated as a waiver of that provision, nor will it affect that party’s right to subsequently enforce that provision.

20.2. If any provision of these Terms shall be invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

20.3. These Terms and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Courts of New Zealand.

20.4. The Seller shall be under no liability whatsoever to the Buyer for any direct, indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these Terms.

20.5. The Seller will not be liable to the Buyer for any loss or damage directly or indirectly arising out of or in connection with any delay in delivery of the Goods or failure to perform any of the provisions of these Terms where such delay or failure is caused directly or indirectly by an act of God, earthquake, fire, conflict, labour dispute, civil commotion, intervention of a Government, inability to obtain labour, materials, facilities, accidents, pandemics, interruptions of or delays in transportation or any other cause beyond the Seller’s control.