Terms & Conditions

TERMS AND CONDITIONS OF SALE AND CREDIT

These Terms are the only basis upon which goods and services will be supplied by TBN to Customers. Where sales are Credit Sales, the terms upon which credit

is granted are also specified herein. By placing an Order with TBN, a Customer agrees to accept, and comply with, each of the Terms. Any terms and conditions

not contained below, or which are inconsistent with these Terms (other than those implied by statute) will not be binding upon TBN.

DEFINITIONS

In these Terms, unless the context otherwise requires:

ACL means the Australian Consumer Law Schedule of the

Competition and Consumer Act 2010 (Cth) as amended;

TBN means Total Beauty Network Pty Ltd (ACN 107 354 718) as

trustee for the TBN Unit Trust (ABN 45 618 507 187)

Agreement means any agreement entered into for the provision of

goods or services by TBN to the Customer (including, any schedules

or attachments thereto);

Consumer has the same meaning given to that term in the ACL and

in determining if the Customer is a consumer, the determination is

made if the Customer is a consumer under the Agreement;

Customer means a person, firm or corporation jointly and severally

if there is more than one, acquiring goods or services from TBN;

Credit Sales means the sale of goods or services, payment for which

is due or made after delivery to the Customer;

Goods means goods supplied by, or to be supplied by, TBN to the

Customer;

GST means the Goods and Services tax as defined in A New Tax

System (Goods and Services Tax) Act 1999 (Cth) as amended, and

includes any other broad-based consumption or value-added tax;

Guarantee and Indemnity means the guarantee and indemnity set

out in Schedule 1;

Intellectual Property means all copyright, trademarks, designs,

specifications, drawings, instruction manuals and confidential

information (whether registrable or not) owned or licensed by TBN

in respect of the Goods or Services;

New Customer Application Form means the new customer

application form attached or connected to these Terms which the

Customer has completed;

Payment Term means the period of 30 days from the date that TBN

issues an invoice to the Customer, and in which time the Customer

must make payment of the invoiced amount(s);

PPSA means the Personal Property Securities Act 2009 (Cth) as

amended;

Price List means any price list issued by TBN from time to time in

relation to the price payable for the Goods or Services;

Offer means any written quote provided by TBN to the Customer

concerning the proposed supply of goods or services by TBN to the

Customer;

Order means an order placed by the Customer pursuant to any Offer

provided by TBN;

Services means services supplied by, or to be supplied by, TBN to the

Customer in connection with the Goods; and

Terms means these Terms and Conditions of Sale and Credit.

BASIS OF AGREEMENT AND ORDERS

2.1. Unless otherwise agreed in writing, the Terms apply exclusively to

every Agreement and cannot be varied or superseded by any other

terms.

2.2. Any Offer provided by TBN to the Customer is valid for 30 days, and

is only an invitation to the Customer to place an order based upon

that Offer and is subject to the Customer entering into an

Agreement and accepting these Terms.

2.3. The Terms may include additional terms in TBN's Offer which are not

inconsistent with these Terms, or, if inconsistent, the Offer will

prevail to the extent of any inconsistency.

2.4. The Agreement is accepted by TBN, when TBN confirms its

acceptance of an Order from the Customer in writing or electronic

means or provides the Customer with the Goods and/or Services.

2.5. TBN may refuse to accept any Order.

2.6. The Customer must provide TBN with its specific requirements in

relation to the Goods and Services.

2.7. All Orders must be placed in accordance with TBN's policies and

procedures specified from time to time.

2.8. TBN may vary these Terms by written notice to the Customer at any

time. Any variations will apply to Orders placed after the date of

notice of the variations.

2.9. Any person signing the New Customer Application Form on behalf of

the Customer shall be deemed to warrant that they have authority

to bind the Customer to the terms hereof and the Customer shall be

bound by these conditions as if such person has or had authority to

bind the Customer.

2.10. The Customer agrees to pay for all Goods and/or Services provided

in the name of the Customer upon written Order where the Order

purports to be signed for and on behalf of the Customer regardless

of whether the signatory to the Order has actual or implied authority

to bind the Customer.

PRICING

3.1. Unless otherwise agreed in writing, prices specified in the Offer,

verbally or in a Price List, for the supply of the Goods and Services

exclude taxes and duties imposed on or in relation to the Goods or

Services, including (without limitation) GST and delivery, packaging,

freight, and insurance costs. The Customer must pay such taxes and

duties in addition to payment of the price of the Goods or Services

and any delivery, packaging, freight, and insurance costs in

accordance with Clause 11.

3.2. If the Customer requests any variation to the Agreement, TBN may

adjust the price to account for the variation.

3.3. If there is any change in TBN's costs incurred in relation to the Goods

and/or Services, TBN may vary its price to take account of any such

change, by notifying the Customer.

3.4. TBN may change the specifications of the Goods and/or Services at

any time without notice and without liability.

PAYMENT

4.1. Unless otherwise agreed in writing, payment for the Goods and

Services must be made strictly in full prior to collection of the Goods

or completion of the Services.

4.2. Where credit is supplied pursuant to Clause 5, full payment for the

Goods and Services must be made by the Payment Term.

4.3. Payment must be made to TBN without any deduction or set-off.

4.4. Payment terms may be revoked or amended in TBN's absolute

discretion immediately upon giving written notice to the Customer.

4.5. The time for payment is of the essence.

4.6. Credit Card Payment Charges: A surcharge of 2.0% will apply to all

Amex credit card payments made. Alternatively, you may wish to

pay by Visa, Mastercard, cash, cheque, EFTPOS, EFT or Bank Deposit

which will not incur a surcharge.

TERMS OF CREDIT

5.1. The Customer agrees that all Goods and/or Services it orders are

wholly or predominantly for business purposes and not for private

or domestic use. The Customer acknowledges and agrees that TBN

relies upon this representation in agreeing to provide the Goods

and/or Services to the Customer on credit and that the Consumer

Credit Code is of no application to any credit granted to the

Customer by TBN.

5.2. In granting credit to the Customer, TBN relies upon any

representations made by the Customer as to its ability to pay its

debts (including all amounts owing or that will be owing to TBN) and

to comply with this Clause 5. The Customer must provide TBN with

all financial information requested by TBN in support of an

application for the granting of credit. Credit will only be granted at

Total Beauty Network Customer Application

the sole discretion of TBN and upon the Customer’s submission of

all relevant information requested by TBN.

5.3. All Goods and/or Services provided to the Customer by TBN on

credit shall be paid for by the Customer within the Payment Term.

5.4. TBN shall have the right to determine credit limits and vary credit

limits at any time without notice, to terminate credit facilities at any

time without reason or notice (including but not limited to

circumstances where a credit account remains inoperative for a 12

month period), to require immediate payment for all Goods and/or

Services supplied or provided without reason upon written notice to

the Customer and to require that any director, secretary or

shareholder of the Customer (if applicable) execute and deliver the

Guarantee and Indemnity.

5.5. The New Customer Application Form gives authority to, and may be

used by, TBN to obtain information available pursuant to the Privacy

Act 1988 (Cth) and to make whatever other inquiries and obtain such

other information it deems necessary in the circumstances to

determine the acceptability, and continued acceptability of the

Customer for credit facilities and shall be sufficient authority for that

purpose.

PAYMENT DEFAULT

6.1 If the Customer fails to make payment to TBN by the due date

pursuant to Clauses 4 and 5, all money which would ordinarily

become payable by the Customer to TBN at a later date on any

account, becomes immediately due and payable without the

requirement of any notice to the Customer, and TBN may, without

prejudice to any other remedy available to it:

(a) charge the Customer interest on any sum due at 4 per cent

above the prevailing rate pursuant to Section 2 of the Penalty

Interest Rates Act 1983 (Vic), for the period from the due date

until TBN receives effective payment of all such amounts

(including interest charged under this Clause 6);

(b) charge the Customer for, and the Customer must indemnify TBN

from, all costs and expenses (including without limitation all

legal costs and expenses) incurred by TBN resulting from the

default or in taking action to enforce compliance with the

Terms, to recover any Goods, or to recover any sum due;

further goods or services to the Customer;

(d) by written notice to the Customer, terminate any Agreement so

far as unperformed by TBN; without effect on TBN's accrued

rights under any Agreement.

6.2 Clauses 6.1(c) and (d) may also be relied upon at TBN's option where

the Customer becomes bankrupt or enters into any scheme of

arrangement with its creditors or has a liquidator, administrator or

similar functionary appointed in respect of its assets.

PASSING OF PROPERTY

7.1 Until TBN receives full payment in cleared funds for all Goods and

Services supplied by it to the Customer, as well as all other amounts

owing to TBN by the Customer:

(a) title and property in all Goods remain vested in TBN and do not

pass to the Customer;

(b) the Customer must hold the Goods as fiduciary bailee and agent

for TBN;

goods and maintain TBN's labelling and packaging;

(d) the Customer must hold the proceeds of sale of the Goods on

trust for TBN in a separate account with a bank to whom the

Customer has not given security, however, failure to do so will

not affect the Customer's obligation as trustee;

(e) the Customer must not destroy, dispose of (other than by sale

in the usual course) or damage the Goods;

(f) the Customer must not mortgage, assign or otherwise

encumber the Goods under any security (other than Clause 8 in

favour of TBN); and

(g) in the event that the Customer fails to pay for the Goods within

the Payment Term or the Customer enters into liquidation,

administration, has a receiver, receiver and manager or

mortgagee in possession appointed or becomes insolvent or the

Agreement is terminated, then any credit terms which the

Customer has with TBN will cease immediately and all amounts

owing by the Customer to TBN will become immediately due

and payable and TBN without prejudice to its other rights in

contract or general law may, subject to any law to the contrary,

without notice, enter any premises where it suspects the Goods

may be and repossess them, and for this purpose the Customer

irrevocably licences TBN , its servants and agents, to enter such

premises and also indemnifies TBN from and against all costs,

claims, demands or actions by any party arising from such

action. TBN shall have the right to sell or dispose of such Goods

removed or otherwise in its sole discretion and shall not be

responsible for any loss for actions it has carried out pursuant

to this Clause 7.1(g).

PERSONAL PROPERTY SECURITIES ACT

8.1 Notwithstanding anything to the contrary contained in these Terms,

the PPSA applies to these Terms.

8.2 For the purposes of the PPSA:

(a) Terms used in this Clause 8 that are defined in the PPSA have

the same meaning as in the PPSA;

(b) these Terms are a security agreement and TBN has a Purchase

Money Security Interest (as that term is defined in the PPSA) in

all present and future goods supplied by TBN to the Customer

and the proceeds of the Goods;

whether there are monies or obligations owing by the Customer

at any particular time; and

(d) the Customer must do whatever is necessary in order to give a

valid security interest over the Goods and their proceeds which

is able to be registered by TBN on the Personal Property

Securities Register.

8.3 The security interest arising under this Clause 8 attaches to the

Goods when the Goods are collected or dispatched from TBN's

premises and not at any later time.

8.4 Where permitted by the PPSA, the Customer waives any rights to

receive the notifications, verifications, disclosures or other

documentation specified under Sections 95, 118, 121(4), 130,

132(3)(d), 132(4), 135 and 157 of the PPSA.

8.5 TBN and the Customer agree to contract out of and nothing in the

provisions of Sections 96, 125, 129, 142 and 143 of the PPSA will

apply to these Terms.

8.6 To the extent permitted by the PPSA, the Customer agrees that:

(a) the provisions of Chapter 4 of the PPSA which are for the

benefit of the Customer or which place obligations on TBN will

apply only to the extent that they are mandatory or TBN agrees

to their application in writing; and

(b) where TBN has rights in addition to those in Chapter 4 of the

PPSA, those rights will continue to apply.

8.7 The Customer must immediately upon TBN's request:

(a) do all things and execute all documents necessary to give

effect to the security interest created under this Agreement;

and

(b) procure from any person considered by TBN to be relevant to

its security position such agreements and waivers (including as

equivalent to those above) as TBN may at any time require.

8.8 TBN may allocate amounts received from the Customer in any

manner TBN determines, including in any manner required to

preserve any Purchase Money Security Interest it has in Goods

supplied by TBN.

RISK AND INSURANCE

9.1 The risk in the Goods and all insurance responsibility for theft,

damage or otherwise in respect of the Goods passes to the

Customer immediately upon the Goods being made available for

collection from TBN's premises (Ex Works).

9.2 The Customer assumes all risk and liability for loss, damage or injury

to persons or to property of the Customer, or third parties arising

out of the use or possession of any of the Goods and Services sold

by TBN, unless recoverable from TBN on the failure of any statutory

guarantee under the ACL.

ACKNOWLEDGEMENTS

10.1 The Customer acknowledges that:

Total Beauty Network Customer Application

(a) It has not relied on any service involving skill and judgment, or

on any advice, recommendation, information or assistance

provided by TBN in relation to the Goods and/or Services or

their use or application.

(b) it has not made known, either expressly or by implication to

TBN, any purpose for which it requires the Goods and/or

Services and it has the sole responsibility of satisfying itself that

the Goods and/or Services are suitable for the Customer's use.

Customer has obtained all necessary permits, licenses and

qualifications required to store, and use the Goods.

DELIVERY

11.1 If agreed in the Order, TBN can arrange delivery of the Goods to the

Customer.

11.2 The Customer can arrange, at its own cost, for the collection of the

Goods from TBN's premises within seven (7) days of notification that

the Goods are ready. If the Customer does not collect the Goods

within this time, the Customer will be deemed to have taken delivery

from such date and will be liable for storage charges payable

monthly on demand.

11.3 The Customer will be responsible for all costs associated with

collection of the Goods, including packaging, freight, and insurance.

11.4 Delivery is deemed to occur upon the earlier of the Goods being

collected from TBN's premises ‘Ex Works’, or the Goods being

deemed to be delivered in accordance with Clauses 11.1 & 11.2.

11.5 Any period or date for delivery of the Goods and/or completion of

Services stated by TBN is intended as an estimate only and is not a

contractual commitment. TBN will use all reasonable endeavours to

meet any estimated dates for delivery of the Goods and/or

completion of the Services.

11.6 If TBN cannot complete the Services by any estimated date, it will

complete the Services within a reasonable time.

11.7 The Customer indemnifies TBN against any loss or damage suffered

by TBN, its subcontractors or employees as a result of delivery,

except where the Customer is a Consumer and TBN has not used due

care and skill.

11.8 TBN reserves the right to make part delivery of Orders.

LIABILITY

12.1 Except as specifically set out in the Terms, or contained in any

express warranty statement provided with the Goods and Services,

the Agreement does not include by implication any other term,

condition or warranty in respect of the quality, merchantability,

acceptability, fitness for purpose, condition, description, assembly,

manufacture, design or performance of the Goods and Services, or

any contractual remedy for their failure.

12.2 If the Customer is a Consumer, nothing in these Terms restricts,

limits or modifies the Customer's rights or remedies against TBN for

failure of a statutory guarantee under the ACL.

12.3 If the Customer on-supplies the Goods to other consumers:

(a) if the Goods and/or Services are not of a kind ordinarily acquired

for personal, domestic or household use or consumption, then

the amount specified in Section 276A(1) of the ACL is the

absolute limit of TBN's liability to the Customer;

(b) if the Goods and/or Services are of a kind ordinarily acquired for

personal, domestic or household use or consumption, then

payment of any amount required under Section 274 of the ACL

is the absolute limit of TBN's liability to the Customer,

howsoever arising under or in connection with the sale,

installation, use of, storage or any other dealings with the Goods

and/or Services by the Customer or any third party.

12.4 If Clause 12.2 or 12.3 does not apply, then other than as stated in

the Terms or any written warranty statement, TBN is not liable to

the Customer in any way howsoever arising under or in connection

with the sale, installation, use of, storage or any other dealings with

the Goods and/or Services by the Customer or any third party.

12.5 TBN is not liable for any indirect or consequential losses or expenses

suffered by the Customer or any third party, howsoever caused

including but not limited to loss of turnover, profits, business or

goodwill or any liability to any other party, except to the extent of

any liability imposed by the ACL.

12.6 TBN is not liable for any loss or damage suffered by the Customer

where TBN cancels or suspends the supply of goods and/or services

as permitted by these Terms.

12.7 Nothing in the Terms is to be interpreted as excluding, restricting or

modifying the application of any State or Federal legislation

applicable to the sale of goods or supply of services which cannot be

excluded, restricted or modified.

CANCELLATION

13.1 If, through circumstances beyond TBN's control, TBN is unable to

provide the Goods and/or Services, then TBN may, by written notice

to the Customer and without any liability to the Customer, cancel

any Offer or Order (even if it has already been accepted).

13.2 No purported cancellation or suspension of an Order by the

Customer is binding on TBN after that Order has been accepted.

However, if TBN accepts the Customer's cancellation, TBN may

charge the Customer for the cost of any Goods ordered or Services

commenced prior to the cancellation.

SHORTAGES AND EXCHANGES

14.1 Subject to Clause 14.2 and 14.5, TBN will not be liable for any

shortages, damages or non-compliance with the specifications in the

Agreement unless the Customer notifies TBN with full details within

7 days of delivery otherwise the Customer is deemed to have

accepted the Goods. TBN must be given the opportunity to inspect

the Goods and/or inquire about the provisions of the Services and

investigate the complaint before any further dealing.

14.2 When any shortages, claim for damages goods or non-compliance

with the Agreement specifications is accepted by TBN, TBN may, at

its option, replace the Goods or refund the price of the Goods.

14.3 Subject to Clause 14.5, TBN will not under any circumstances accept

Goods for return that:

(a) have been specifically produced, imported or acquired to fulfill

the Agreement.

(b) are discontinued goods or no longer stocked by TBN;

(d) have been used; or

(e) are not in their original condition.

14.4 The Customer must bear the cost for the return of Goods and pay all

freight charges associated with the return of the Goods.

14.5 If the Customer is a Consumer, nothing in this Clause 14 limits any

remedy available for a failure of the guarantees in Sections 56 and

57 of the ACL.

RETURNS

15.1 Return of Goods is not accepted by TBN.

15.2 Subject to written approval from TBN, goods that are normally

stocked by the Company may only be returned for credit within 14

days from invoice.

15.3 A handling and re-stocking fee applies at the greater of 15% of the

purchase price or $50. This fee may be waived by TBN at its

discretion.

15.4 Goods are transported and returned at the Customer’s expense and

risk.

INTELLECTUAL PROPERTY

16.1 The Customer acknowledges that it has no proprietary right or

interest in the Intellectual Property.

16.2 The Customer must not register or record or attempt to register or

record anywhere in the world the Intellectual Property or any part

thereof or anything similar to it nor aid or abet anyone else to do so.

16.3 Any Intellectual Property provided by TBN to the Customer remains

TBN's exclusive property and must be returned to TBN on demand

and must not be copied or communicated to any third party without

TBN's express written consent.

FORCE MAJEURE

17.1 TBN shall have no liability whatsoever under these Terms to the

extent that such fulfillment is prevented by circumstances beyond

its reasonable control, including but not limited to industrial

disputes, strikes, lockouts, fires, pandemics, epidemics, accident,

breakdown in machinery, delays in transport, import or export

restrictions, restrictions or prohibitions by any government or any

Total Beauty Network Customer Application

semi-government authorities on import or export or otherwise, act

of God, act of terrorism, or act of war, or any other events beyond

TBN’s control wherever or whenever they may occur.

17.2 If an event of force majeure occurs, TBN may terminate the

Agreement by written notice to the Customer.

MISCELLANEOUS

18.1 Entire Agreement

Any Agreement between TBN and the Customer for the supply of

Goods and/or Services will be governed only by these Terms. TBN

will not be bound by any terms and conditions that do not appear in

these Terms or are inconsistent with these Terms. However, TBN

may amend the Terms from time to time, but those amendments

will not take effect until TBN has notified the Customer in writing of

those amendments. Any Orders placed with TBN after the Customer

has been notified of amendments to the Terms will be deemed to

be Offers to acquire goods or services upon the amended Terms.

18.2 Assignment

The Customer may not assign, transfer or otherwise dispose of any

of the rights or obligations of this or any other Agreement with TBN

that is subject to these Terms without the prior written consent of

TBN.

18.3 Waiver

TBN's failure to enforce any of these Terms shall not be construed

as a waiver of any of TBN's rights. TBN may make concessions with

respect to the operation of these Terms. Those concessions will be

of no legal effect unless they are in writing, and will:

18.3.1 be of the nature of a single concession or

indulgence; and

18.3.2 not constitute any general or future waiver or intent

to waiver with respect to any future occurrence or event.

18.4 Severance

In the event of the invalidity of any provision of these Terms, that

provision (the Relevant Provision) is to be severed from the valid

provisions of these Terms and the invalidity of the Relevant

Provision will not affect the application of the remaining parts and

provisions.

18.5 Notices

A notice must be in writing and handed personally or sent by

facsimile or prepaid mail to the last known address of the addressee.

Notices sent by pre-paid post are deemed to be received upon

posting. Notices sent by facsimile are deemed to be received upon

the sender's facsimile machine confirming such transmission.

18.6 Governing Law

The law of Victoria from time to time governs the Terms and the

parties agree to the non-exclusive jurisdiction of the Courts of

Victoria.