Terms & Conditions

JMSR Australia Pty Ltd ABN 21144043710

Terms & Conditions

Terms and conditions of supply

1. Formation and duration

1.1 On the earlier of (as applicable):

(a) full execution and acceptance of the Account Details Form and/or Credit Application Form; or

(b) placement of an Order after being issued these terms and conditions of supply, an agreement is formed between the Company, and the person or entity identified as the Retailer in the Key Details, consisting of:

(a) these terms and conditions (including as amended from time to time in accordance with clause 22.5) (Terms);

(b) the Key Details;

(d) the Account Details Form and/or Credit Application (if applicable), (together, the agreement).

1.2 The agreement will continue unless or until terminated in accordance with the Terms.

1.3 Each Order placed by the Retailer is an offer to purchase Products from the Company on the Terms and, once accepted by the Company, forms part of, and is subject to, this agreement.

1.4 If there is any inconsistency between the documents set out in clause 1.1, to the extent necessary to resolve the inconsistency, the documents will take precedence in the order set out in clause 1.1.

1.5 If the Retailer provides any terms and conditions to the Company at any time, they will be of no legal effect and will not constitute part of this agreement.

2. Orders

2.1 The Retailer must submit Orders to the Company in such manner and form as the Company directs from time to time, including by email or telephone directly to the Company’s nominated contact or business development manager. If an Order is placed over the telephone, the Retailer must email the Company confirming the Order in writing.

2.2 The Retailer must ensure that each Order contains all necessary information that the Company requires.

2.3 The first Order placed by the Retailer under this agreement must be for a minimum of $2,200 (including GST), unless otherwise agreed between the parties.

2.4 The Retailer acknowledges and agrees that the Company can and will rely on an assumption that the representative submitting an Order on behalf of a Retailer has been given express authority by the Retailer to do so, and that such Orders are valid and will become binding on acceptance by the Company.

2.5 No Order is binding until the Company accepts the Order and the Company may accept or reject an Order in its absolute discretion.

2.6 The Company does not represent or warrant that it is able to supply any particular Product and/or any particular quantity of any Product at any time.

2.7 If the Retailer modifies or cancels an Order after 2:00pm on the day the Order is placed, the Retailer is liable for any costs associated with the modification or cancellation, including additional postage costs.

2.8 The Company reserves the right to cancel Orders after they have been placed/received. Where the Retailer has paid all or part of a cancelled Order, the Company will refund the Retailer the amounts paid.

3. Prices and payment

3.1 The Prices are as specified in the Company’s price list from time to time or as otherwise specified by the Company. Prices are subject to change without notice. Delivery Costs may apply.

3.2 The Company will issue to the Retailer an invoice for the Total Price and any applicable Delivery Costs for each Order, and the Retailer will pay such invoice in accordance with this agreement.

3.3 If the Retailer does have a Credit Account, then the Retailer’s payment obligations are subject to the terms set out in the Credit Application.

3.4 If the Retailer does not have a Credit Account, then the Retailer must pay each invoice prior to dispatch of an Order and the Company is not obliged to process or dispatch any Order unless or until such payment is received, unless otherwise agreed in writing by the parties. Payment is to be made no later than 30 days from the date of the invoice.

3.5 If the Retailer fails to pay an invoice by the due date, the Company reserves the right to:

(a) charge interest on overdue amounts at the rate of 8% per annum, calculated on a daily pro-rated basis from the due date; and/or

(b) suspend the fulfilment of Orders and/or supply of Products to the Retailer, until all overdue amounts are paid; and/or

(c) suspend or cancel any credit made available to the Retailer in accordance with the Retailer’s Credit Application Form.

3.6 The Company reserves the right to cancel any credit made available to the Retailer, in its absolute discretion, at any time. If the Company cancels the Retailer’s credit, clause 3.4 applies to any subsequent Orders placed.

3.7 All amounts expressed under these Terms or other related documents (for example our Price lists) are expressed as inclusive of GST, unless indicated otherwise.

4. Delivery

4.1 The Company will promptly fulfil accepted Orders, subject to reasonable and usual lead times to deliver such Orders to the Retailer’s nominated Delivery Address. Deliveries cannot be made to post boxes.

4.2 If the Company makes any representation in relation to time of delivery of Products, including an estimated delivery date, such representation is an estimate only and the Company is not:

(a) in breach of this agreement; or

(b) liable to the Retailer for any Loss (including Consequential Loss) occasioned by delay in delivery of such Products,

4.3 The Retailer’s obligation to pay for the Products, is not affected by any delay in delivery of such Products.

4.4 If the Retailer is unable, or fails, to accept delivery of an Order at the nominated Delivery Address and Delivery Costs applied in accordance with clause 3.1, the Retailer is liable for the Delivery Costs for the attempted delivery of the Order.

4.5 If the Retailer is unable, or fails, to accept any reattempt at delivery within 10 Business Days of the original delivery date:

(a) the Company may remove the Products from the Order and resell those; and

(b) the Retailer is liable for any Delivery Costs and reasonable storage costs of the Products until the Products are resold.

4.6 If the Retailer has paid for the Products, the Company will refund to the Retailer those amounts, less the Delivery Costs and any reasonable storage costs of the Products.

5. Acceptance and defective Products

5.1 The Retailer must, within 48 hours of delivery of an Order to the applicable Delivery Address (as recorded by the Company and/or its delivery partner), inspect all Products and notify the Company of any missing or damaged Products, together with any relevant remarks and evidentiary material available and/or requested by the Company, including a copy of the relevant Order and an appropriate return slip stating style, date sold, invoice number and reason for return in respect of any such Products.

5.2 Where the Retailer does not notify the Company of such matters within the timeframe set out in clause 5.1, the Products will be deemed accepted and, to the extent permitted by any applicable laws, codes and regulations, the Company will not be liable to the Retailer for such damaged or missing Products and the Returns Policy will not apply.

5.3 Subject to clause 5.2, the Returns Policy will apply for Retailer returns.

5.4 To the fullest extent permitted by law, the Company is not liable for expired or unsold Products.

6. Risk and title / PPSA

6.1 Risk in the Product purchased by the Retailer passes to the Retailer when such Product is delivered to the Delivery Address (as recorded by the Company and/or its delivery partner).

6.2 Title to Products remains with the Company at all times, and the Retailer grants to the Company a security interest in all Products purchased by the Retailer from the Company at any time for the purposes of securing any past, present or future debt owing to the Company by the Retailer.

6.3 Until the payment in full to the Company of the Total Price for any Order, the following applies.

(a) the Company may at any time after the due date for payment of the Products for any Orders retake possession of such Products and remove the same from the Retailer’s possession or from the possession of the Retailer’s servants, agents or nominees.

(b) Such Products shall be stored by the Retailer in a manner that identifies them as the property of the Company.

(c) The Retailer may, subject to clause 6.3(d), sell any such Products in the ordinary course of business but not otherwise. If the Retailer sells any such Products while they remain the property of the Company, the proceeds of any sale will be held in trust by the Retailer for the Company absolutely.

(d) Until such time as the Price for such Products is paid in full, any right of the Retailer to sell the Products may be terminated at any time by the Company giving notice in writing to the Retailer.

(e) The Retailer grants to the Company (and/or its authorised representative) a license to enter on reasonable notice and at reasonable times upon all the premises of the Retailer or premises under the control of the Retailer at any time to inspect such Products or for the purposes of retaking possession of such Products and removing them from such premises.

6.4 For the purposes of the remainder of this clause, terms have the meaning given to them in the PPSA, including the terms ‘financing statement’, ‘financing change statement’, ‘PMSI’, ‘security agreement’ and ‘security interest’.

6.5 The Retailer acknowledges and agrees that:

(a) this agreement constitutes a security agreement and a PMSI for the purposes of the PPSA; and

(b) a security interest is taken in the Products.

6.6 The Retailer agrees to do anything (including obtaining consents, signing or producing any further documents, and/or providing any further information) which the Company asks and considers necessary for the purposes of:

(a) ensuring that the security interest is enforceable, perfected and otherwise effective; and/or

(b) enabling the Company to:

(i) apply for any registration, complete any financing statement, financing change statement or give any notification, in connection with the security interest; and/or

(ii) exercise rights in connection with the security interest.

6.7 Everything that the Company is required to do under this clause is at the Retailer’s expense.

6.8 The Retailer waives any rights it may have:

(a) to receive notices under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 134(1) and 135 and 157 of the PPSA; and

(b) under sections 142 and 143 of the PPSA.

6.9 The parties agree that sections 96 and 117 of the PPSA do not apply to these terms and

conditions.

6.10 Neither the Retailer or the Company will disclose information of the kind mentioned in section 275(1) of the PPSA, and the Retailer will not authorise, and will ensure that no other party authorises, the disclosure of such information.

7. Retailer’s sale of products

7.1 The Retailer’s compliance with the provisions of this clause 7 is a condition of the Company supplying the Products to the Retailer.

7.2 To the extent permitted by Law, the Retailer is solely responsible for the sale of the Products to its customers and any terms and conditions directly and indirectly applying to returns, refunds and exchanges to such customers are the Retailer’s responsibility, and the Retailer must not give any promises, representations, warranties or guarantees on the Company’s behalf regarding the Products. Retailer must not make any claims that the Products are intended to affect the structure or function of the body.

7.3 The Retailer must:

(a) only sell Products that the Company has authorised the Retailer to sell and only sell such Products:

(i) to individual customers and not to sub-distributors;

(ii) within the Territory;

(iii) on or via the Sales Channels; and

(iv) in accordance with any restrictions set out in these terms and conditions of supply;

(b) be a registered business or company and maintain all necessary licences, authorisations and insurances required to sell the Products; and

(c) sell the Products in accordance with any instructions or documentation, including in compliance with any categories prescribed to the Products (eg requirements for skin consultations, etc.);

(d) cooperate in receiving any training in respect of the Products which the Company deems necessary.

7.4 The Retailer must ensure all customers wishing to purchase the Products for the first time complete a skin consultation with a qualified skin therapist or suitably trained personnel prior to the purchase of any Products.

7.5 Where a Retailer’s Sales Channels do not include online sales channels, the Retailer is expressly prohibited from selling online via third party platforms. The provisions of these Terms that apply to online sales, only apply to those Retailers where the Sales Channels include online sales channels and their inclusion in these Terms does not indicate that all Retailers are permitted to sell online.

7.6 The Retailer must not make any statement or claim concerning the Products which are misleading or include therapeutic drug or other claims that are not permitted under laws or regulations applicable to cosmetic products.

7.7 The Retailer must not sell any Products to or on any third party online marketplaces (being a website operated by a third party through which sellers can list and sell products, including, but not limited to, Amazon, eBay, ozsale.com.au, Cosmetics Now, Fresh Fragrances and Cosmetics, Senseonline, My Deal, The Beauty Club, Harvey Norman, StrawberryNet, Editor’s Pick or Skinmedix).

7.8 Without limiting the other conditions set out in this clause 7, the following conditions apply in respect of the Retailer’s Sales Channels set out in the Key Details that are online platforms.

(a) Upon formation of this agreement the Retailer’s online Sales Channels, including ecommerce sites and digital platforms, must be approved by the Company prior to being made public, including any subsequent modifications to the online Sales Channel. The Company may review the online Sales Channels from time to time and determine at any time that an online Sales Channel is not representing the brand to the standard required of it and the Company may require the Retailer to cease all sales through the online Sales Channel until the issues identified have been rectified (which must be done within 30 days of notice from the Company).

(b) The Retailer is solely responsible for the design, construction, hosting and operation of any website offering Products for sale, including without limitation the processing of customer orders and returns and the management of Product related customer service.

(c) The Retailer must comply with any and all laws and regulations applicable to the operation of online Sales Channel and employ state of the art encryption and other measures to protect customer’s privacy, security and other rights.

(d) The online Sales Channel must be of a high professional quality both in graphic design and functionality, and complementary to the Company’s brand. The online Sales Channel must operate in accordance with reasonable performance standards expected of an ecommerce website selling high-end products and in a manner that will not cause damage to the brand or image.

(e) Any website used to sell the Products must be custom design and not copied from another company’s website.

(f) Online platforms must operate under the Retailer’s name or website domain and must not register or use a domain name that includes, in whole or in part, any Company Materials.

(g) Any website must clearly display the Retailer’s contact information, including name, address, contact number and email.

(h) Any website must state that ‘JMSR is the owner of the JMSR trademarks and that the use of JMSR’s trademarks is with the permission of JMSR’.

(i) The Retailer must only sell Products via the online Sales Channels that are identified as Products to be sold online only, or as the Company directs from time to time.

(j) The Retailer must only sell and ship Products to customers located within the Territory and must not sell or ship Products to customers if the Retailer has any reason to believe that the customer is located outside the Territory.

(k) The online Sales Channel must contain a clear statement that the Products are only offered for sale to customers residing in the Territory only and where the customer’s shipping address is within the Territory.

(l) The Retailer must only display, offer to sell or sell the Products specified in this agreement (or such other products as otherwise agreed in accordance with clause 8) via the online Sales Channel and clearly display the prices for the Products online.

(m) The Retailer must only display Products on the online Sales Channel in respect of which at the time of display the Retailer maintains an adequate level of inventory physically in stock to promptly fulfil orders (maintained by the Retailer in accordance with clause 7.10).

(n) The Retailer must promptly deactivate and not display any out of stock Products until such time as the Retailer has received adequate replacement stock.

(o) The Retailer must, subject to clause 9, only display the latest images of the Products and/or any other promotional displays or logos advised or made available by the Company on the online Sales Channels.

7.9 The Retailer must act in the best interests of the Company to preserve the Company’s brand and reputation in the market, including respectful and efficient customer service, responsible and secure packaging and delivery, and use of reliable delivery services. The Retailer’s satisfaction of this obligations will be measured against the Company’s reasonable standards.

7.10 The Retailer is responsible for maintaining an appropriate level of inventory of each Product in order to be able fulfil customer purchases (whether online or instore). The Company will not send orders directly to the Retailer’s customer on the Retailer’s behalf and will not be liable for the Retailer’s failure to maintain inventory as required.

7.11 If the Sales Channels expressly provide for the Retailer to sell the Product online and the Retailer acts in contravention of its obligations under this clause 7, or any requirement under this agreement, the Company may immediately revoke any authorisation to sell online and the Retailer must immediately cease the sale of the Product via any online Sales Channel and comply with any reasonable directions of the Company in respect of such revocation.

8. Sales Channels

8.1 The Retailer and the Company may agree in writing (email is approved) to vary the Sales Channels and/or Products to remove a Sales Channel and/or Product and/or include additional or new sales channels and/or Products. A reference to Sales Channel or Products under this agreement is a reference to the then current list of Sales Channels or Products as agreed in writing between the Company and the Retailer.

8.2 The Retailer and Company agree that the Retailer must have a physical store listed as a Sales Channel and that any online Sales Channels are ancillary to that physical store. If the Retailer and Company agree to remove the physical store as a Sales Channel, irrespective as to whether the Retailer still has an online Sales Channel, the Company can terminate this agreement immediately on notice to the Retailer and clause 18 will apply.

8.3 The Company reserves the right to discontinue any line of Products for any reason. The Company will provide written notice to the Retailer of such discontinued Products and with effect from the date of such notification, no further Orders may be made by the Retailer in respect of those discontinued Products.

9. Intellectual property

9.1 Subject to the terms of this clause 9 and notice of any direction and/or requirements by the Company from time to time , the Company permits the Retailer to use any Company Materials provided by the Company to the Retailer for the sole purpose of selling the Products (in accordance with this agreement) and fulfilling its obligations under this agreement.

9.2 The ownership of all rights (including Intellectual Property Rights), title, interest in and to the Company Materials will not be altered, transferred or assigned under this agreement, and the Retailer has no right to use Company Materials for any other purpose.

9.3 In using the Company Materials, the Retailer must comply with the Brand Guidelines, and any directions from the Company given from time to time.

9.4 The Retailer must:

(a) ensure that it does not use the Company Materials in a manner that dilutes, defames, disparages or harms the Company or JMSR’s reputation, or which may bring the Company or JMSR into disrepute;

(b) not remove any copyright, trademark or other similar ownership indicia from and Company Materials when using the Company Materials on the Retailer’s website;

(i) under any circumstances, apply to vary, amend, alter or invalidate any of the Company Materials;

(ii) sell, charge, acquire a mortgage over or encumber the Company Materials in any way;

(iii) in any language, anywhere in the world, apply for registration of or use any trade mark identical or deceptively similar to any logos, trade marks (registered or unregistered), symbols (whether or not such form part of any Company Materials) owned and/or licensed by the Company;

(iv) use the Company Materials in any manner which could cause confusion as to the origin of the Products or lead the customer to believe that the Retailer and the Company’s relationship is anything more than independent parties;

(v) register any domain names that relate in any way to this agreement, the Company, JMSR (or either of their related companies or brands) and/or the Company Materials;

(vi) make any attempt to prevent use of the Company Materials, by the Company and/or any third party licenced to use such Company Materials by the Company;

(vii) use or deal with the Company Materials in any manner other than as specifically provided for, and in such manner as may be allowed, under this agreement; and/or

(viii) assist any third party, whether directly or indirectly, to undertake any of the activities listed above.

9.5 The Retailer will not make any claim to ownership of, or any other right, title or interest in the Company Materials or any associated goodwill, and all goodwill and other rights arising from the use of the Company Materials by the Retailer before, during, or after the Term shall accrue and inure to the benefit of the Company and/or its licensors.

9.6 Where the Retailer suspects, or receives notice of, any infringement or threatened infringement of the Company Materials, including any common law passing off by reason of imitation or otherwise the Retailer must promptly notify the Company giving all necessary details and particulars and provide all information and assistance reasonably requested by the Company.

9.7 Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this agreement without the prior written consent of the other party, such consent to be provided in that party’s sole and absolute discretion. This clause does not restrict:

(a) the Company from publicly identifying and promoting the Retailer as a retailer of the Products; and/or

(b) the Retailer from publicly identifying and promoting the fact that is a retailer of the Products.

10. Reporting obligations

10.1 At the Company’s request and upon reasonable notice, the Retailer must provide to the Company the following reports, in a format advised by the Company.

(a) Any information reasonably requested by the Company relating to the sale of Products via the Sales Channels.

(b) Other reports showing the following from the applicable reporting period:

(i) the number of skin consultations undertaken in compliance with clause 7; and

(ii) adverse effects claims made in respect of Products.

10.2 The Company must not use any copies of the reports provided under clause 10.1 for any purpose related to the Company’s own competing sales, including without limitation for the purpose of establishing pricing, dividing market share and/or the provision of goods or services in the Territory. The Retailer is not required to disclose any pricing information to the Company.

11. Adverse Effects

11.1 The Retailer must promptly notify the Company of any adverse effects from the Products (the Claim) upon receiving notice from a customer.

11.2 To constitute a Claim under this clause 11, the Retailer must;

(a) complete the Adverse Effects Form on the Website, as updated from time to time, with sufficient information regarding the adverse effect, including a photograph of the skin the subject of the adverse effect; and

(b) return the Product the subject of the adverse effect, to the Company within 14 days of receiving notification of the adverse effect.

11.3 To the extent permitted by law, the Company will not accept the Claim if:

(a) the customer is using products from other brands on the skin at the same time as the Products; or

(b) the Product returned under clause 11.2(b) is substantially used i.e. used more than a few times.

11.4 If the Company accepts the Claim, it will send the Retailer a replacement Product. The Retailer may, at its discretion, offer the customer a refund or replace the Product with an equally priced Product at no charge.

11.5 If the Retailer fails to submit the Claim to the Company as required under this clause 11, the Company may:

(a) immediately suspend the Retailer’s right to sell the Products, at its own discretion;

(b) undertake an audit of the Retailer’s compliance with this agreement under clause 13,

irrespective of whether an audit has been undertaken in the preceding 12 months; and/or

12. Complaints and Recalls

12.1 If the Retailer receives any complaints relating to the Products, the Retailer will promptly forward the details of such complaints to the Company and the Company will use reasonable endeavours to assist and support the Retailer in responding, however such responses will ultimately be the responsibility of the Retailer. For any complaints relating to faulty products, the Retailer should refer to Part 2 of the Returns Policy.

12.2 The Company may initiate a Recall at its absolute discretion.

12.3 The Retailer may initiate a Recall:

(a) where required to do so under an applicable Law and/or by a Regulatory Authority; or

(b) otherwise, with the Company’s consent, which the Company will not unreasonably

withhold.

12.4 The parties shall cooperate and work in good faith to conduct a Recall or other similar action with respect to a Product.

12.5 The Retailer must:

(a) follow all reasonable directions from the Company in respect of any Recall; and

(b) cooperate and assist in the conduct of the Recall and use best endeavours to provide such assistance at no charge to the Company.

12.6 Subject to clause 12.7, the Company will be liable for the costs of a Recall, including the costs to return any Recalled Products to the Company and/or destroy them, and will replace the same with replacement Products if available or otherwise credit the Retailer for the value of the Recalled Products.

12.7 Where a Recall is a result of the act or omission of the Retailer, including because of a breach of this agreement by the Retailer, then in such case, the costs of the applicable Recall, including the costs to return or destroy any Recalled Products, will be the expense of the Retailer and the Company will not be obliged to replace the same with replacement Products and/or otherwise credit the Retailer.

12.8 Nothing in this clause 12 limits the Retailers right to submit a Claim for adverse effects underclause 11.

13. Audit and inspection

13.1 Subject to the Company’s compliance with clause 10.2 and upon 10 Business Days’ advance written notice (or a shorter timeframe if required by any applicable laws, codes or regulations and/or at the requirement of direction of any government, legal or regulatory body or authority), the Retailer must allow the Company (either by itself or through an authorised representative appointed by the Company) to:

(a) access the Retailer’s premises to inspect the premises and facilities of the Retailer; and/or

(b) conduct an audit to assess Retailer’s compliance with its obligations under this agreement and/or any applicable laws, codes or regulations, subject to such inspection or audit only being permitted to take place once in any 12-month period (unless required for cause or required under any applicable laws and/or at the requirement of direction of any government, legal or regulatory body or authority).

13.2 Any inspection of the Retailer’s premises and/or audit under this clause 13 is explicitly for the purpose of verifying compliance by the Retailer with the terms of this agreement.

13.3 The Retailer must participate in and co-operate with any inspection or audit carried out under clause 13.1 in good faith, including by providing the Company with reasonable access to the Retailer’s premises, records, books and personnel as is required for the purposes of the inspection or audit.

13.4 The Company and its authorised representatives may take copies of the Retailer’s records and books as are reasonably required for the purposes of carrying out the inspection or audit. Those copies will be Confidential Information of the Retailer.

13.5 In the event that an inspection or audit reveals any failure of the Retailer to comply with this agreement and/or any of its obligations under this agreement (including any obligations under any applicable laws, codes or regulations), the Retailer will immediately rectify such failure (including at the reasonable direction the Company and/or its appointed representative).

14. Warranties

14.1 Each party represents and warrants to the other party that:

(a) it has the full right, power and authority to enter into this agreement and to perform its obligations under this agreement; and

(b) there are no pre-existing rights or obligations which would prevent it from complying with its obligations under this agreement; and

14.2 Subject to any express warranties in this agreement but otherwise to the fullest extent permitted by any applicable laws, codes and regulations, the Company expressly exclude all warranties, conditions and representations in whatever form, relating to the Products, including any warranties or representations relating to performance, quality or fitness for use, fitness for a particular purpose, guarantee of a particular result or outcome.

15. Indemnity and liability

15.1 The Retailer indemnifies the Company against any and all Losses arising out of or in connection with:

(a) the Retailer’s breach of this agreement and/or any applicable laws, codes and regulations; and/or

(b) Intellectual Property Rights infringement claims;

(d) any third party claims (including from the Retailer’s customers) arising out of in connection with the items set out in clauses 15.1(a) to 15.1(c).

15.2 Subject to clause 5 and to the fullest extent permitted by law:

(a) the Company’s aggregate liability in connection with this agreement whether in contract, tort (including negligence), statute or otherwise will not exceed an amount equal to the amounts paid by the Retailer to the Company in the 6 months preceding the event giving rise to such liability; and

(b) the Company will not be liable to the Retailer, whether such liability is based on breach of contract, tort (including negligence), statute or otherwise for any Consequential Loss, indirect, incidental, punitive or special Losses of any kind (including loss of profit, loss of opportunities or business interruption).

16. Confidential Information

16.1 Each party must keep all Confidential Information confidential and use such information for the sole purpose of performing the obligations under this agreement.

16.2 Neither party may use or disclose the Confidential Information except:

(a) to that party’s employees or advisers on a need-to-know basis and that party must ensure that such persons understand and comply with the obligations imposed by this agreement;

(b) as required by law, subject to that party notifying the other party immediately if that party becomes aware that such disclosure may be required; or

16.3 Upon the expiry or termination of this agreement the parties must, on request, return or securely destroy all Confidential Information in that party’s control.

17. Termination

17.1 The termination rights in this clause are in addition to any other termination rights of a party set out throughout these Terms.

17.2 The Company may terminate this agreement with immediate effect if:

(a) the Distributor Agreement is terminated for any reason, expires and is not renewed;

(b) if JMSR tells the Company that the Retailer can no longer be an authorised retailer of the Products;

(d) an inspection or audit under clause 13 reveals any failure of the Retailer to comply with this agreement and/or any of its obligations under this agreement.

17.3 Either party may terminate this agreement:

(a) for any reason by giving the other party 30 days written notice; or

(b) on notice if the other party:

(i) breaches this agreement and fails to remedy such breach within 15 Business Days’ notice from the other party requesting the breach be remedied; or

(ii) breaches this agreement and that breach is not capable of remedy; or

(iii) becomes insolvent, enters into liquidation, has an administrator appointed, enters any scheme or arrangement with, or assignment for the benefit of, its creditors, and/or undergoes, or is subject to, any other similar events.

18. Effect of termination

18.1 If this agreement is terminated for any reason, then the following will apply.

(a) The Retailer will not place any further Orders.

(b) The Company may, in its sole discretion:

(i) cancel some or all Orders placed prior to the date of termination, but not yet fulfilled and refund any amounts already paid by Retailer in respect of such cancelled Order; or

(ii) honour and deliver to the Retailer some or all Orders placed prior to the date of termination (in which case, Retailer must pay all amounts owing for such Orders).

(i) pay all outstanding amounts owing to the Company under this agreement;

(ii) cease:

(A) holding itself out as a seller of the Products; and

(B) using all Company Materials.

(d) Unless otherwise advised by the Company, the Retailer may continue to sell the Products for a period of three (3) months after the date of termination or expiry. At the end of the three (3) month period the Retailer must comply with clause 18.1(c) and 18.1(e).

(e) On expiry or termination of this agreement, the Retailer will advise the Company in writing of the inventory of unsold Products held by the Retailer as at the date of termination or expiry. Following receipt of such inventory, the Company may at its option repurchase some or all of the Products held by the Retailer at the date of termination. The purchase price payable by the Company for Products so repurchased will be:

(i) in the case of Products delivered to the Retailer 30 days before the date of termination or expiry, an amount equal to the Price paid by the Retailer for such Products plus a reasonable amount determined by the Company to cover the costs of delivery of the Products back to the Company;

(ii) in the case of Products delivered to the Retailer between two (2) to six (6) months before the date of termination or expiry, 50% of an amount equal to the Price paid by the Retailer for such Products plus a reasonable amount determined by the Company to cover the costs of delivery of the Products back to the Company; and

(iii) in the case of Products delivered to the Retailer between six (6) to 12 months before the date of termination or expiry, a reasonable amount determined by the Company, including to cover the costs of delivery of the Products back to the Company.

19. Force Majeure

19.1 The Company will not be in breach of this agreement, and the Retailer shall have no right of action against the Company in respect of any Loss (including Consequential Loss) occurring to them, by reason of any failure or delay in fulfilment or delivery of an Order that arises as a result of:

(a) a Force Majeure Event, including delays in transit, delays caused by accidents and/or delays caused by inability to source components and materials for Products; and/or

(b) any act or omission of any third party manufacturers or suppliers in relation to the Products.

19.2 If a Force Majeure Event occurs, the affected party must notify the other party and the obligations of the party (excluding any payment obligations) will be suspended to the extent that they are affected by the relevant Force Majeure Event until that Force Majeure Event has ceased.

19.3 If a Force Majeure Event continues for more than 60 days, the Retailer may terminate the affected Orders and the Company will refund to the Retailer any amounts paid in respect of that cancelled Order.

20. Notices

20.1 A notice, consent or other communication under this agreement is only effective if it is in writing, signed by or on behalf of the party giving it and it is received in full and legible form at the addressee’s email address, set out in the Key Details (or as updated by a party by giving notice in accordance with this clause).

20.2 A notice given or served in accordance with clause 20.1 is taken to be received by the receiving party on the earlier of:

(a) delivery to the email address to which it was sent; or

(b) one hour after the email enters the server of the email address to which it was sent, provided that the sender does not receive any delivery or transmission error or other automated message that the email has not been delivered.

21. Dispute resolution

21.1 Any party who claims to have a dispute against another party must issue a Dispute Notice.

21.2 Within 7 days after the other party receives the Dispute Notice, the parties must meet to resolve the dispute. Each party will be represented by a person having authority to agree to such resolution or methods of resolution. All aspects of the meetings will be confidential and without prejudice to the parties’ rights, obligations and liabilities.

21.3 If the parties do not resolve the dispute within 30 days (or such longer period the parties may agree in writing) after the Dispute Notice, then either party may initiate court proceedings in relation to the dispute.

21.4 Despite the existence of a dispute, each party must continue to perform its obligations under the agreement unless those obligations are the subject of the dispute.

22. General

22.1 The Retailer acknowledges and agrees that any approvals required under this agreement may be subject to JMSR’s approval in addition to the Company and that the Company can withhold any such approval in its sole discretion.

22.2 The relationship between the parties is that of principal and independent contractor. Nothing in this agreement will be taken as giving rise to a relationship of employment, agency, partnership or joint venture. Except as otherwise provided in this agreement, the parties acknowledge and agree that neither party will have any authority to bind the other party or to enter into an agreement in the name of the other party.

22.3 This agreement constitutes the entire agreement between the parties relating to the subject matter of the agreement and supersedes all prior discussions and communications.

22.4 The Retailer must not assign, transfer or otherwise deal with these Terms or any right under this agreement without the prior written consent of the Company, which must not be unreasonably withheld. The Company may assign, transfer or otherwise deal with these Terms in its absolute discretion.

22.5 The Company reserves the right to amend these Terms from time to time by giving the Retailer notice, and such amendments will take effect within 2 weeks of such notice. The Retailer’s placement of an Order after the date that is 2 weeks from such notice will constitute acceptance of such amendments.

22.6 The failure of either party to enforce any provisions under this agreement will not waive the right of such party thereafter to enforce any such provisions.

22.7 If any part of this agreement is or becomes illegal, invalid or unenforceable in any relevant jurisdiction, the legality, validity or enforceability of the remainder of the agreement will not be affected and this agreement will be read as if the part had been deleted in that jurisdiction only.

22.8 Any warranty, indemnity, or obligation of confidentiality in this agreement will survive termination. Any other term which by its nature is intended to survive termination of this agreement survives termination of this agreement.

22.9 This agreement is governed by and construed under the laws of Victoria, Australia and the parties submit to the non-exclusive jurisdiction of the courts of Victoria.

23. Definitions and interpretation

23.1 In this agreement, terms have the meaning given to them throughout the agreement (including the schedules) and, unless the context otherwise requires, as follows.

Adverse Effects Form means the adverse effects form on the Website.

Brand Guideline means the brand and marketing guide provided by JMSR, from time to time.

Business Day means a day, between 8:00am and 5:00pm that is not a Saturday, Sunday, bank holiday or a public holiday in Victoria or in the state, province or equivalent that the Retailer is located (as the context requires)

Company Materials means the Company’s business and brand names, logos, trademarks (registered or unregistered), symbols, signs, advertising material, promotional aids, information, documents, content, images, and other materials owned or licensed by the Company, including the same items in respect of the Products and JMSR.

Confidential Information means confidential, proprietary and commercially-sensitive information (irrespective of the form or the manner in which the information is disclosed, or the time of such disclosure) including information which:

(a) is identified as confidential or ought to have been known to be confidential; and

(b) relates to the business affairs and practices, including financial information, business opportunities, business plans, business processes and methodologies, but does not include information which is in, or comes into, the public domain other than by a breach of this agreement, or which is independently known to the other party as evidenced by its written record. In the case of the Company, Confidential Information also includes the information described above in respect of JMSR.

Consequential Loss means any Loss that does not arise naturally in the ordinary course of things from the event or circumstance giving rise to the Loss.

Credit Account means, if applicable, the Retailer’s credit account as set out in the Credit Application Form, if applicable.

Credit Application Form means, if applicable, the application for credit completed, executed and submitted to the Company by the Retailer and accepted by the Company.

Delivery Address means the delivery address set out in the Key Details.

Delivery Costs means the delivery costs, if any, specified in the invoice issued to the Retailer once an Order is placed for the Products.

Distributor Agreement means the distributor agreement between JMSR and the Company, as entered into from time to time.

Dispute Notice means a notice issued by a party claiming a dispute has arisen, which is issued to the other party setting out the nature of the dispute and all other information relevant to the dispute.

Force Majeure Event means any act, event or cause including pandemic, earthquakes, cyclones, floods, fires, lightening, storms or other acts of God, strikes or industrial disputes, riots, terrorist acts, civil disturbances, breakages of machinery, or industrial conditions, or arising out of any other unexpected and exceptional cause, delays in transportation and dispositions or orders of governmental authority, which:

(a) directly or indirectly results in a party being prevented from or delayed in performing any of its obligations under this agreement; and

(b) is beyond the reasonable control of that party.

GST has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999.

Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, confidential information, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registered, registrable or patentable.

MSS means Marini SkinSolutions, Inc.

Losses means any judgment, debt, damage, loss, cost, expense or liability howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, or otherwise.

Order means an order for the purchase of Product by the Retailer from the Company.

PPSA means, the Personal Properties Securities Act 2009 (Cth).

Products means the Products listed on our Website and product information materials, permitted to be sold by the Retailer under these Terms as advised by, and under the instruction of, the Company.

Price means the prices designated by the Company from time to time as the price at which Products will be sold to the Retailer inclusive of any applicable goods and services tax or GST, but exclusive of any Delivery Costs.

Recall means any recall of the Products for any reason whatsoever, whether initiated by the Company (including if alerted to an issue by the Retailer), or any applicable government, legal or regulatory body or authority, and whether compliance is voluntary or mandatory, due to any quality or other concerns relating to the Products.

Returns Policy means the returns policy at Schedule 1 of this agreement, as updated from time to time.

Territory means the States and Territories of Australia

Total Price means the total amount payable under an Order.

Website means the Company’s website located at https://www.mariniskinsolutions.au/ (or other URL advised by the Company from time to time), including any backend login available to the Retailer to view Products and access the Adverse Effects Form.

23.2 In this agreement unless the context otherwise requires:

(a) clause and subclause headings are for reference purposes only;

(b) the term “including”, or similar expressions, is not used as, nor intended to be interpreted

as, a term of limitation;

(d) any reference to a party to this agreement includes its successors and permitted assigns;

(e) any reference to “$” or “dollars” is a reference to Australian dollars, unless otherwise indicated or agreed in writing; and

(f) a reference to any law is to be construed as a reference to that law as from time to time amended or to any law from time to time replacing, extending, consolidating or amending the same.

Schedule 1 – JMSR Australia Returns Policy Effective from June 2023.

Part 1. Damaged Goods / Shipping Error of Products supplied to Retailer:

Subject to clause 5.2 of the Terms, Products damaged in shipment to a Retailer and all other shipping errors will be replaced at no charge. JMSR Australia Pty Ltd (the Company) will provide a free express post bag on request from a Retailer to return the damaged Product.

The replacement Product will be shipped with the Retailer's next Order after the Product has been received at the Company's Melbourne office. It is the Retailer’s responsibility to ensure the Product is shipped and received by the Company.

Part 2. Faulty Products returned by Retailer's customers:

If the Retailer is required to provide a refund or replacement to a customer pursuant to the statutory guarantees in the Australian Consumer Law, then the Company will provide a remedy as described below.

a. This process applies where a product fails to meet statutory guarantees of acceptable quality, fitness for purpose known to the Company, or goods corresponding with their description.

b. Where a customer returns a Product and receives a refund or replacement product, the Company will provide free return shipping and credit the Retailer's account the full amount paid upon receipt of the Product.

Except as described above, and to the fullest extent permitted by law, the Company will not provide a remedy to a Retailer for any other customer return, and the Retailer is responsible for meeting their own obligations to customers under the Australian Consumer Law.

Part 3: Other Retailer Returns:

For any returns not covered by Part 1 or Part 2 above, and on a pre-approved basis only, a Retailer may return Product within 30 days of invoice date subject to a 25% restocking fee. Please contact the Company via email for approval. Returned Product must be in “As New Condition” upon receipt by the Company (unopened, unused with no stickers, scratches or other defining marks).

The Retailer is responsible for shipping costs related to this category of returns. Upon receipt of Product, the Company will credit the account for the amount paid per item subject to stated restocking fees.

Email: accounts@mariniskinsolutions.au

Web: mariniskinsolutions.au

Tel: 1800 330 855