CLINICAL AESTHETIC DISTRIBUTORS STOCKIST AGREEMENT
The Distributor is an authorised distributor of certain cosmetic products collectively referred to herein as “the Products”;
The Distributor wishes to sell the Products to the Stockist for re-sale and the Stockist agrees to purchase the Products from the Distributor for this purpose, subject to certain terms and conditions;
The parties wish to record the terms and conditions, which will regulate the aforegoing:
NOW THEREFORE IT IS AGREED AS FOLLOWS:
Subject to the provisions of this agreement, the Distributor hereby appoints the Stockist to be a stockist, therapist and sales consultant, and the Stockist agrees to act as such, to establish, promote and extend the sale of the Products (which are more fully described in the schedule hereto) and within the territory (as determined in the schedule hereto).
2. ORDERS FOR AND SUPPLY OF PRODUCTS:
The Stockist’s orders for the Products shall be sent to the Distributor at the address set out in clause 12 below or to such other address as may subsequently be notified by the Distributor, and the Distributor shall sell the Products to the Stockist in accordance with those orders at the prices which prevail at the date the order is processed, the Distributor reserving the right to alter such prices without notice from time to time.
The Distributor undertakes to use its best endeavors to fulfill the Stockist’s orders for the Products with all reasonable despatch but shall not be liable in any way for any loss of trade or profit which the Stockist may sustain in the event of the non- or late delivery of consignments of any of the Products due to lack of stock, manufacturing or transport problems, contractual disputes, strikes, riots, lock-outs, trade disputes, acts of God, acts of restraints of any government, the imposition of restrictions on exportation, or from any other cause whatsoever.
The Stockist may be supplied with a recommended retail price list but acknowledges that he / she / it is not bound thereby in any way and may sell at such price as the Stockist may determine. The Stockist shall, however, keep the Distributor advised of all pricing changes from time to time to enable the Distributor to take account of such pricing in planning and sales analysis.
Products that are slow moving may be exchanged for others of the same value at no cost, except for the transport of the products back to the Distributor. No products with a shelf life of 12 months or less may be exchanged.
Orders can be done on-line (https://www.clinicalaestheticdist.co.za/stockist-orders) or by email (firstname.lastname@example.org) or by WhatsApp 072) 877-7357.
A delivery fee will be charged on all orders. Orders over R4,000 (Four Thousand Rand) will be delivered free of charge to major centres within South Africa. Each order is checked before leaving our stock room. It is your responsibility to check your order upon receipt thereof. Discrepancies brought to our attention after 24 hours of delivery cannot be verified.
Products shall remain the property of the Distributor until the Stockist has paid the full purchase price.
The purchase price shall be due and payable as per the following:
All orders are payable prior to shipping.
Cash deposits are subject to bank charges, and will be added to your account.
Interest will be charged on overdue accounts.
Payment Terms for Image Skincare by special arrangement in writing.
Must be discussed with Clinical Aesthetic Distributors CC prior to return. A 10% handling fee will be levied. A credit note will be issued upon receipt of the goods by CAD. Please insist on a receipt for goods returned.
No products with damaged packaging may be returned to CAD. This includes price stickers
No products may be returned if the shelf life is less than 12 months.
If a client is unhappy with her purchase due to a reaction, the product may be returned to CAD for a full credit. Should the wrong product have been given to the client, the product may not be returned to CAD for a credit.
6. DISTRIBUTOR BANKING DETAILS:
CLINICAL AESTHETIC DISTIBUTORS CC
ABSA Bank, Milnerton
Branch Code: 632-005
Account No.: 405 753 1266
Proof of payment: Use your BUSINESS NAME as a reference.
E-mail POP to: email@example.com
7. DUTIES OF STOCKIST:
The Stockist hereby agrees that it shall at all times during the continuance in force of this agreement observe and perform the terms and conditions set out in this agreement and in particular that it shall:
At all times use its best endeavours (subject to this clause 5) to promote and extend sales of the Products to customers and potential customers;
Ensure (in the case of the Stockist operating a skin care clinic) that at the point(s) of sale there is always an qualified therapist or sales consultant in attendance;
Not either directly or indirectly sell or re-sell any of the Products outside the Republic of South Africa, whether via the Internet or otherwise, or to any pharmacy, health or retail store or any other beauty therapist (whether home- or salon-based), hairdresser or nail bar, or to any person whom the Stockist knows is intending, or, owing to the quantity of such person’s order or otherwise, may reasonably be suspected of intending, to resell the Products outside the Republic of South Africa, whether via the Internet or otherwise;
In all correspondence and other dealings relating directly or indirectly to the sale or other disposition of the Products clearly indicate that it is acting as an official stockist of the Products;
Not have any right to incur or purport to incur any liability on behalf of the Distributor, nor in any way pledge or purport to pledge the Distributor’s credit, nor accept any order nor make any contract purporting to be binding upon the Distributor unless the Distributor shall under the signature of a director first in writing have authorised same and approved all the terms and conditions thereof;
As soon as reasonably possible after becoming aware thereof, bring to the Distributor’s attention any improper or wrongful use of the manufacturer’s patents, trade marks, emblems, designs, models or other similar industrial or commercial monopoly rights, such as unauthorised use of the manufacturer’s name in any electronic mail address or website address, or the like, or those of the manufacturer’s associates, and in this regard the following provisions shall be applicable:
In this agreement “Intellectual Property” means and includes but is not limited to confidential information, know-how, copyright, registered patents and registered designs, get-up, trade dress, registered and unregistered trademarks of the Products, as created by the manufacturers from time to time.
The Stockist acknowledges that the Intellectual Property is and shall at all times remain the exclusive property of the manufacturers. In this agreement, for the sake of convenience, “the manufacturer” means the manufacturer.
The Stockist furthermore acknowledges the title of the manufacturer and the validity of any registration pertaining to the Intellectual Property in the appropriate register(s) and shall not do any act or thing which might give cause to invalidate or expunge any such registrations from such register(s).
Except as expressly provided in this agreement or in any subsequent written agreement, the Stockist shall not, during the currency of this agreement, or at any time after the termination of this agreement, use the Intellectual Property, in particular the trade marks, or any other trade names or trademarks which are so similar to the manufacturer’s trade names or trademarks as to be likely to cause deception or confusion.
The Stockist shall render all possible assistance to the manufacturer in the protection of the Intellectual Property, including but not limited to bringing to the manufacturer’s attention any improper or wrongful use or infringement thereof.
Upon the termination of this Stockist Agreement for any reason the Stockist shall forthwith cease using the Intellectual Property. The Stockist shall furthermore not retain and shall not use any trading style, company name, trade name, trade mark, domain name, business or telephone directory entries or get-up which contains, or so nearly resembles, the trademarks or get-up or other components of the manufacturer’s Intellectual Property as to be likely to cause deception or confusion.
Promptly bring to the notice of the Distributor any information received by the Stockist which is likely to be of interest, use or benefit to the Distributor in relation to the marketing of the Products;
Not cede or assign or purport to cede or assign this agreement or any rights or obligations thereunder without the prior consent in writing of the Distributor;
In purchasing the Products, be bound by the manufacturer’s conditions of sale as notified by the Distributor from time to time, and will not make any promises, representations, warranties or guarantees with reference to the Products except as are consistent with those conditions or as are expressly authorised by the Distributor in writing;
Not alter, obscure, remove, conceal or otherwise interfere with any markings or name plates or other indications of the source or origin or manner of use of the Products which may be placed thereon by the manufacturer;
Ensure that, as a condition precedent to its continued appointment as a stockist, its principals and professional staff shall attend and complete, at such place and at such time(s) as shall be mutually agreed, the annual product refresher-workshop convened by the Distributor;
Ensure that at all times the sales of Products shall be executed only by therapists or sales consultants who are trained as evidenced by the official certificate of competence.
Ensure that the Products are neither exhibited, marketed nor sold at flea-markets, pavement- or garage-sales or (in the case of a skin care salon) outside the salon without the Distributor's written consent;
Generally, in the mutual interests of the Stockist, the Distributor, co-operate in promoting the brands amongst members of the public.
8. PROVISION OF PROMOTIONAL AND SCIENTIFIC LITERATURE:
The Distributor agrees to supply to the Stockist whether free of charge or at the Stockist’s cost such sales leaflets and other advertising and promotional material, including photographs, (“material) as the Distributor may consider reasonable from time to time.
Such material shall remain the property of the Distributor, as the case may be, and may not be lent to any person or (in compliance with the law of copyright) copied or disseminated or dealt with otherwise than in accordance with the Distributor’s directions from time to time.
The Stockist acknowledges that the copyright in the material is and shall at all times remain the exclusive property of the brands.
The Stockist, may use such material as is supplied as a means of promoting the sale and use of the said products and shall use such material, subject to the following limitations:
The right of use so granted is non-exclusive to the Stockist. It is personal to the Stockist and is not divisible, transferable or assignable;
The material may be exhibited or displayed only in or on the Stockist's website, in e-mail newsletters to the Stockist’s clients and in social media updates in media such as Facebook and Twitter, and always in connection only with the marketing or promotion of the Proprietor's products or treatments, and for no other purpose.
In using the IMAGE material, the Stockist shall always acknowledge the proprietorship of IMAGE by displaying in close and clear proximity to the material the words © IMAGE Skin Care (Pty) Limited.
The Stockist shall obtain the Distributor’s prior written approval of any advertising material which the Stockist proposes to use in relation to the Products and which has not been provided by the Distributor in terms of 6.1. Without affecting the generality of the Stockist’s obligations in terms of this clause, it is expressly agreed that the Stockist shall obtain the prior written approval of the Marketing Division of IMAGE (routed via the Distributor) of any material or information pertaining to the Products which the Stockist intends to use in its (or any other) worldwide website or in any other advertising medium.
The Distributor may in its discretion also supply the Stockist at cost price with scientific research material in the form of photographs, videos, computer discs, graphics and the like, as produced and owned by IMAGE. The ownership of such material, including the copyright therein, shall continue to vest in IMAGE.
9. RESERVED RIGHTS OF DISTRIBUTOR
The Distributor reserves the following rights, notwithstanding anything to the contrary herein contained, viz. the right:
In its discretion to decline to accept any order from the Stockist and, by so declining, the Distributor shall not incur any obligation to the Stockist;
To vary the first schedule hereto defining the Products either by withdrawing therefrom a class or classes of Products named therein in the event either of the manufacturer ceasing to manufacture that class or those classes of Products, or for any other good cause, or by the addition thereto of a further class or further classes of Products of the manufacturer;
If complaints should reach the manufacturer in respect of the conduct of the Stockist, more particularly the Stockist’s failure to honour the letter and the spirit of its obligations in terms of this agreement, the Distributor shall have the right in its sole discretion to rescind the Stockist’s appointment as an authorised stockist of the Products;
To appoint an independent auditor at its own cost for the purpose of investigating any complaint pursuant to 7.3 above (including a complaint by a consumer), and to this end such auditor shall be entitled to inspect the Stockist's books of account and other records, including those which pertain to any transaction(s) which the Distributor or the manufacturer has reason to believe may involve or be connected to Internet- or overseas-dealings.
The Area Representative will endeavour to contact all stockists will be contacted by e-mail, SMS or telephone. It is incumbent on the Stockist to advise the Distributor of any change of email address or contact cell phone telephone number.
10. RETURN OF DISTRIBUTOR’S PROPERTY AND DISPOSAL OF STOCK
Upon the termination of this agreement from any cause, or at the request of the Distributor at any time prior to such termination, the Stockist shall promptly return to the Distributor or otherwise dispose of as the Distributor may instruct, all samples, instruction books, technical pamphlets, catalogues, advertising material, specifications and other materials sent to the Stockist pursuant to this agreement (other than correspondence between the Distributor and the Stockist) and which the Stockist may have in its possession or under its control.
The Stockist shall further immediately cease any further use of any photographs and shall immediately hand over to the Distributor all negatives, printed material carrying or featuring any photographs and all dies, blocks, advertising material and the like which the Stockist obtained from or was authorised to use.
Upon such termination the Stockist shall forthwith deliver to the Distributor, or otherwise dispose of as the Distributor directs, those Products or any parts thereof which remain the property of the Distributor and which the Stockist may have in its possession or under its control.
The costs of carriage, insurance, duty and charges incurred in any such return or other disposal shall be borne equally between the parties, unless otherwise agreed between them.
Nothing contained in this agreement shall preclude the Distributor in its sole discretion and at its cost from ordering the recall or return of any Products or consignments thereof which the manufacturer has determined may not be sold or distributed, and in the event of such order of recall or return the provisions of 8.1 shall apply mutatis mutandis.
If either party (”the defaulting party”) shall:
be placed in liquidation or sequestration, whether provisional or final; or commit an act of insolvency; or
enter into a compromise with its creditors, as a body, or the majority in number and amount thereof; or be in breach of any of the terms of this agreement and if the breach is capable of remedy, fails to remedy the breach within a period of 14 (fourteen) days after the receipt of written notice from any other party calling upon it so to do: provided that, if the breach is one which in the circumstances prevailing is not reasonably capable of being remedied within the said period of 14 (fourteen) days, then the defaulting party shall be allowed such additional period to remedy the breach as is reasonably required therefore; or if the breach is not capable of being remedied, it goes to the root of this agreement or has been committed persistently despite written warnings from the other party; the other party shall be entitled to terminate this agreement without prejudice to any claim of any nature whatsoever it may have against the defaulting party arising out of this agreement or the breach thereof.
12. DOMICILIUM OF EACH PARTY
The Distributor chooses as its official address for the service upon it of all documents, notices and orders and for all other purposes arising out of or in connection with this agreement the following, namely -
Unit K14, Centurion Business Park
Phone : 021-5523499
E-mail : firstname.lastname@example.org
The Stockist chooses as its official address for the service upon it of all documents and notices including shipping documents and for all other purposes arising out of or in connection with this agreement the details supplied in the STOCKIST REGISTRATION FORM/TRAINING BOOKING FORM/STOCKIST ORDERS.
Either party may from time to time by written notice to the other party vary or alter its official address, provided that such variation or alteration shall become effective only 14 (fourteen) days after service of the notice in question.
Any notice to either party shall be addressed to it at its official address and be sent either by prepaid registered post, by telex or facsimile or e-mail or be delivered by hand. In the case of any notice:-
sent by prepaid registered post, it shall be deemed to have been received, unless the contrary is proved, on the 5thbusiness day after posting;
delivered by hand, it shall be deemed to have been received, unless the contrary is proved, on the date of delivery, provided such date is a business day or otherwise on the next following business day;
No waiver by a party of any its rights arising from any breach, failure or default in performance by the other party, and no failure, refusal or neglect by a party to exercise any right hereunder or to insist upon strict compliance with or performance of the other party’s obligations under this agreement, shall constitute a waiver of the provisions of this agreement, and a party may at any time require strict compliance with the provisions of this agreement.
This agreement constitutes the entire agreement between the parties who acknowledge that there are no other oral or written understandings or agreements between them relating to the subject matter of this agreement. No amendment, consensual cancellation or other modification of this agreement shall be valid or binding on a party hereto unless reduced to writing and executed by both parties hereto.
The Stockist acknowledges that the Distributor has entered into an agreement with CLINICAL AESTHETIC DISTRIBUTORS and that all the terms and conditions that may apply to the Distributor and which affects the rights conferred herein shall at all times also apply hereto.
* Cosmetic products within the IMAGE® range of products manufactured by or for IMAGE Skin Care (Pty) Limited, subject to the provisions of this agreement.
* All other products in respect of which the Distributor has distributorship rights in relation to his / her Territory as defined in the Distributorship Agreement.