Terms of Trade

TERMS OF TRADE

Dermatech Limited (Dermatech) supplies goods and services to the Customer identified on the front page of these terms (“the Customer”) subject to the following terms and conditions. Dermatech reserves the right to amend these terms at any time which terms shall thereafter apply in respect of any obligations entered into between the Customer and Dermatech after notice of such amendment. These terms shall apply subject only to terms in writing in relation to the provision of specific services that are expressly stated to prevail over these terms.

Customer Account

1. Should an account application be approved in the name of an individual customer and subsequently the individual customer registers his business as a limited liability company, a new application form must be completed in the name of the company. Failure to do so will be treated as non-notification of the company formation and the account will still operate in the name of the individual customer until the new application has been approved.
2. The Customer hereby irrevocably authorises any person or company to provide Dermatech with such information as Dermatech may require in response to its credit enquiries.
3. The Customer authorises Dermatech to furnish to any third party details of this application and any subsequent dealings that the Customer may have with Dermatech for the purposes of deciding whether to extend credit to the Customer, or if Dermatech wishes to take action for non payment of an account. The Customer acknowledges that information regarding it may be registered and kept on a national credit database and that information may be given to other customers accessing the database.

Payment

4. All accounts are due for payment by the 20th of the month following date of invoice.
5. If accounts are not paid in full by the 20th of the month following date of invoice then interest at one and a half per cent (1.5%) per month shall be payable on the lowest balance for the month calculated as at the 20th of each month.
6. Unless the Customer raises any objections to the balance outstanding on any Dermatech statement within 20 working days of the date of issue of that statement the Customer shall be deemed to have accepted the balance shown on that statement as being correct.
7. In the event of default in payment the Customer agrees to pay all collection and legal costs (on a solicitor/client basis) and other incidental expenses incurred in respect of recovery of the debt.
8. Dermatech reserves the right to close any account or require the Customer to purchase goods on a cash only basis.
9. Where delivery is to be effected at the Customer’s premises, then unless otherwise agreed the Customer shall pay the costs associated with the delivery.
10. GST: All prices quoted are exclusive of GST and the Customer shall pay GST on all charges upon demand.

Return of Goods to Dermatech

11. No goods may be returned by the Customer without the Customer completing the relevant return form and prior written authorisation from Dermatech.
12. All goods supplied to you must be inspected upon delivery for any faulty packaging or other damage.
13. Subject to clauses 11 and 12 Dermatech will give a refund or replace within a reasonable time any damaged, faulty or incorrectly dispatched goods supplied to the Customer, provided that (1) the Customer advises Dermatech of any details of the damage, fault or incorrect dispatch within 24 hours of delivery to the Customer, and (2) the Customer couriers the goods concerned to Dermatech within 7 days of so advising.
14. If a client returns a faulty product to the Customer and the fault was not obvious when the goods were first receipted by the Customer then, provided there has been no product used, Dermatech shall offer full replacement of the product to the Customer if the product is returned via courier to Dermatech within 7 days of delivery to the client or 120 days after delivery of the Product to the Customer whichever first occurs.
15. If a client returns a product that is faulty and that fault was not obvious when the goods were first receipted by the Customer and the product has been used by a client, the product must be returned to Dermatech via courier within 7 days. If the fault is found to be the responsibility of Dermatech, Dermatech will offer a relative discount on the next purchase of product by the Customer if the product is returned via courier to Dermatech within 7 days of delivery to the client or 120 days after delivery of the Product to the Customer whichever first occurs.
16. Notwithstanding clause 11-15 Dermatech shall have no liability for any claims made by the Customer in respect of glycolic based product where a client complains of an adverse reaction to the use of the product if the Customer cannot provide to Dermatech’s reasonable satisfaction, evidence that the client had a full consultation on use of the product and the client sampled the product before purchase.
17. Derrmatech’s liability to the Customer under this agreement is limited to the return of the goods in accordance with clauses 11-16.

Security Interest

18. In placing any order the Customer expressly represents that the Customer:
    1. Is solvent; and
    2. Has not committed an act of bankruptcy; and
    3. Being a company, knows of no circumstances which would entitle any debenture holder or secured creditor to appoint a receiver or which would entitle any creditor or shareholder to apply to the Court to liquidate the company or exercise any other rights over or against the Customer’s assets.
19. Ownership of all goods supplied to the Customer by Dermatech will not pass upon delivery, but will remain with Dermatech until Dermatech has received total payment in clear funds of all moneys owing by the Customer to Dermatech (whether relating to those goods, or services, or to any other personal property supplied). Dermatech holds a Security Interest in all goods supplied to the Customer for payment of those moneys.
20. Until all moneys due to Dermatech are paid by the Customer, the Customer agrees to act as a fiduciary of Dermatech and that the Customer will:
    1. Not sell, charge or part with possession of the goods, otherwise than for their full values in the ordinary course of business;
    2. Not alter, obliterate, or deface the goods and will not alter, obliterate, deface, cover up, or remove any identity mark indicating that the goods are Dermatech’s property.
    3. Store the goods in such manner that they are clearly identifiable as Dermatech’s property and must keep separate records of the goods;
    4. Hold the proceeds of the resale of the goods in trust for Dermatech, in a separate and identifiable manner.
21. At Dermatech’s request, the Customer will promptly deliver, execute or do (or cause to be executed, delivered or done) any documents, contracts, agreements, deeds or other action that Dermatech may require from time to time to give effect to these Terms and Conditions, including without limitation doing all such things as Dermatech may require to ensure that the Security Interest created under these Terms and Conditions constitutes a perfected Security Interest over the goods. This includes, but is not limited to, providing any information Dermatech requests to complete a financing statement or a financing change statement for the Personal Property Securities Register.
22. The Customer waives any right to receive a verification statement under the Personal Property Securities Act 1999 (“PPSA”).
23. Nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and Conditions. The Customer’s rights as a debtor in sections 116, 120(2), 121, 125, 129 and 131 of the PPSA shall not apply to these Terms and Conditions.
24. The Customer’s right to sell goods will terminate forthwith on written notice of such termination being delivered by Dermatech to the Customer’s place of business.
25. The Customer’s right to possession of the goods shall cease if:
    1. Not being a company, the Customer commits an available act of bankruptcy; or
    2. Being a company, the Customer does anything or fails to do anything in circumstances where such act or omission operates to entitle a receiver or liquidator to take possession of any assets or which would entitle any person to apply to the Court to liquidate the company; or
    3. The Customer is overdue in making payment of any sum due to Dermatech and Dermatech makes demand. Demand may be made upon the Customer or any employee or authorised agent of the Customer by Dermatech or any employee or authorised agent of Dermatech either in writing at any time prior to repossession or verbally or in writing at the time of repossession; or
    4. Notice is given terminating the Customer’s right to sell goods; or
    5. This agreement is terminated.
26. For the purpose of recovery of the goods Dermatech may by the Dermatech’s employee(s) or agent(s) enter upon any premises where the goods are stored or where they are reasonably thought to be stored and may repossess the same. This permission is irrevocable and the Customer agrees that the employees, servants or agents of Dermatech so entering are not trespassing. The Customer irrevocably agrees the Customer will not seek to invoke the provisions of the Trespass Act 1980 to warn such persons to leave the Customer’s premises, nor will the Customer procure any other person to take such action.
27. Any goods held by the Customer which meet the description of goods on an invoice in respect of which either payment has not been made in full or in respect of which title to goods has not transferred from Dermatech hereunder shall, in the absence of separate storage of goods in terms of subclause 20(c) of this clause and in the absence of evidence to the contrary, be deemed to be goods to which Dermatech has retained title so that Dermatech shall be entitled to exercise any of Dermatech’s remedies hereunder against such goods.
28. If the Customer has not received the proceeds of sale of goods subject to this clause then the Customer will within seven (7) days of being called upon so to do by the Dermatech assign to Dermatech all rights which the Customer may have against the person or persons to whom the Customer has supplied any goods.
29. Following repossession of goods Dermatech shall sell the goods in whatever manner Dermatech deems appropriate whether wholesale or retail, and shall credit the account of the Customer with the net proceeds of sale. The net proceeds of sale shall be the actual price received for the goods less all costs of sale including if incurred, rental of premises, staff wages, transport costs, advertising costs and all out of pocket expenses. Dermatech shall be obliged to list all goods repossessed but shall not be obliged to record or account for the sale of goods on an item by item basis. Proceeds of sale may be accounted for globally.
30. The debt owing by the Customer to Dermatech at the date of repossession of goods shall, as between the parties, be deemed to include any payment previously received by Dermatech which might be claimed to be void under any law relating to bankruptcy, liquidation or the protection of creditors – irrespective of whether such a claim shall have been made at that date.

Exclusion of Warranties and Conditions

31. If you are acquiring the goods for business purposes, the guarantees under the Consumer Guarantees Act 1993 do not apply. If the Consumer Guarantees Act 1993 does apply then that Act shall prevail where there is any inconsistency between it and this contract.
32. No warranty, term or condition shall be implied against Dermatech by any statute (except where pursuant to Section 31 above the Consumer Guarantees Act 1993 applies, or other legislation applies where the warranties cannot be excluded or limited), common law or otherwise. No representation, express condition or warranty shall be binding on Dermatech unless it is in writing and signed on behalf of Dermatech, by its directors, and in no circumstances will Dermatech be liable to the Customer for any expenses costs or damages (whether foreseeable or not) resulting from the supply of goods or services by Dermatech. No agent or representative of Dermatech is authorised to make any representations, statements, warranties, conditions or agreements not expressly specified in this agreement or this schedule and Dermatech is not in any way bound by any such representations, statements, warranties, conditions or agreements.
33. Th Customer warrants that it has not relied on any representation made by Dermatech which has not been stated expressly in this Agreement or upon any catalogues or publicity material produced by Dermatech.

Limitation of Liability of Dermatech

34. The Customer’s sole remedy against Dermatech will be limited to breach of contract and Dermatech’s sole and total liability for any such claim shall be limited, at the option of Dermatech, to the supplying of the goods again; or the payment of the cost of having the goods supplied again pursuant to clause 11 –17.
35. Dermatech shall not be liable in Tort (including negligence), Contract (except as provided in clause 34), or Equity, or under any Statute, or otherwise at law for any losses or damages whether general, special, exemplary, punitive, direct, indirect or consequential (including any claim for loss of business, property, profit or data) however caused which may be suffered or incurred by the Customer or any third person, or which may arise directly or indirectly out of or in respect of any breach of Dermatech’s obligations under this Agreement or any other agreement between the Customer and Dermatech or by reason of the failure or omission on the part of Dermatech to comply with its obligations under this Agreement even if Dermatech had been advised of the possibility of such damages or loss.
36. If any court of competent jurisdiction determines that the Customer is entitled to compensation from Dermatech, or Dermatech is liable to the Customer; and for any reason whatever Dermatech cannot rely on the exclusion of liability set out in clauses 34 and 35; the maximum combined amount Dermatech will have to pay the Customer will not in any event exceed an amount equivalent to the price invoiced by Dermatech for the Products or goods giving rise to the claim or $10,000, whichever is the lesser amount.
37. Notwithstanding anything herein, no employee, agent or director of Dermatech will be liable to the Customer for breach of any duty of care in Tort (including negligence), Contract, Equity or otherwise in relation to the performance of obligations under this Agreement or in relation to the subject matter of this Agreement.
38. The Customer must indemnify Dermatech upon demand against any claims by the Customer's employees, agents, customers or other persons in respect of any loss, damage or injury arising from services supplied or other parties’ goods including without limitation sprays and chemicals or in respect of any other matter whatsoever.

Risk

39. The Customer agrees that any goods carried by Dermatech at the request of the Customer (who is referred to in this paragraph 36as “owner”) are carried “at owner’s risk” within the meaning of section 8 of the Carriage of Goods Act 1979. This means that Dermatech will pay no compensation if the said goods are lost or damaged, unless Dermatech intentionally loses or damages them.

Force majeure

40. Dermatech is not liable for failure or delay in supply or delivery of goods or services caused by:
    1. "Force majeure", which means failure or delay in supply or delivery due to reasons beyond the reasonable control of Dermatech including, but not by way of limitation, strikes, lockout, difficulty in procuring suitable materials, goods or substances required for the manufacture of the goods, act of God, unsafe weather conditions that prevent flying, shortage of stocks, shortage of labour, delays in transit, legislative, governmental, other prohibitions or restrictions, fire, flood, hostilities, commotions or other causes whatsoever beyond the control of Dermatech; or
    2. mechanical breakdown in any equipment used to supply goods or services to the Customer.

Waiver

41. All original rights, powers, exemptions and remedies of Dermatech remain in full force notwithstanding any neglect, forbearance or delay in enforcement. Dermatech shall not be deemed to have waived any condition unless the waiver is in writing signed by the Manager of Dermatech.

Acceptance of Terms

42. All goods or services are supplied on the basis of these terms. No variation is binding on the parties unless it is in writing and signed by both parties. If there is any inconsistency between these terms and any other submitted by you or any other arrangement with us, these terms prevail unless otherwise agreed by us in writing.
43. The terms hereof bind the Customer, and the Customer’s agent, attorney, executors, trustees, mortgagees, receivers, liquidators, and official assignee.

Governing Law

44. The Law of New Zealand shall apply to this Agreement except to the extent expressly negatived or varied by this agreement.