PROFESSIONAL CUSTOMER CONTRACT
The Wella Corporation (“Wella”) distributes and sells high quality lines of professional hair care, nail care, skin care, cosmetic, makeup, and bath accessories, including Wella, Sebastian, Nioxin, Kadus Professional, System Professional and OPI (“Professional Beauty Products”). The undersigned professional customer (“Professional Customer”) wishes to purchase Professional Beauty Products from Wella and Wella is willing to sell those Professional Beauty Products to Professional Customer provided that Professional Customer agrees to the terms and conditions stated herein. Wella and Professional Customer enter into this contract ("Contract") to establish the terms and conditions upon which Professional Beauty Products will be sold by Wella to Professional Customer.
NOW THEREFORE, Wella and Professional Customer agree as follows:
1. This Contract represents the entire agreement between the parties concerning Wella’s sale and the Professional Customer’s purchase and sale or use of the Professional Beauty Products and replaces and supersedes any prior contract or agreement between Wella or its affiliates and Professional Customer governing the terms and conditions for purchase and sale or use of the Professional Beauty Products covered by this Contract. For greater certainty, this Contract does not terminate or amend in any manner any contract regarding the provision by Wella to a Professional Customer of financing for the purchase price of beauty equipment, the repayment thereof, the assignment of discounts by the Professional Customer to Wella as security therefore and other related matters, each of which contracts (and all terms and conditions thereof) remain in full force and effect. Wella may specify additional terms and conditions of sale on invoices issued to Professional Customer; in the event of any conflict between invoice terms and this Contract, the language of this Contract shall govern.
2. Wella may from time to time re-designate or introduce products or brands as Professional Beauty Products, in its sole discretion, without need to amend this Contract but which will be covered by this Contract.
3. All Professional Beauty Products purchased by Professional Customer from Wella (a) will be used by Professional Customer on its premises in connection with providing services to Professional Customer customers, or (b) in the case of retail products designed for home use by Professional Customer customers, will be sold only on the Professional Customer floor to legitimate Professional Customer individual clients in such reasonable quantities as those clients may purchase for personal home maintenance use, not to exceed six (6) units of products per client per calendar week. Each sale by Professional Customer must be recorded at the time of sale by an electronic point of sale device (typically a cash register). Professional Customer will not resell Professional Beauty Products in bulk, nor resell Professional Beauty Products to any wholesaler, retailer, diverter or re-distributor of products.
4. All Professional Beauty Products, including hair colouring products, permanent waves, nail gels and acrylics, and any other products labeled “for professional use only,” “not for retail sale” or with similar language, shall not be sold by Professional Customer to anyone under any circumstances, but may be used only by Professional Customer personnel on Professional Customer premises in connection with providing professional services to individual Professional Customer customers.
5. Professional Customer will not remove, obliterate, hide, mask or otherwise tamper with the batch codes, tracking codes, serial numbers or other codes on any Professional Beauty Products.
6. Professional Customer is strictly prohibited from and receives no license to sell Professional Beauty Products anywhere other than the at the address indicated below (and any other Professional Customer locations under common ownership) to individuals for their personal and family use. Prohibited sales methods include, without limitation, over the internet, via direct mail, telephone, or catalog.
7. All sales and distribution of Professional Beauty Products not expressly permitted by this Contract are considered “DIVERSION.” With each order for Professional Beauty Products that Professional Customer places from Wella, Professional Customer represents that the products being ordered are for Professional Customer use and sale to individual customers only as expressly provided for in this Contract. Professional Customer acknowledges and agrees that the terms of this Contract are incorporated into each and every purchase order placed by Professional Customer to Wella for Professional Beauty Products. All Professional Beauty Products are delivered in reliance upon these agreements and representations. If Professional Customer intends to use the Professional Beauty Products for anything other than Professional Customer use and resale to individuals for personal and family use, itis obtaining Wella’s products by fraud. Professional Customer understands that DIVERSION damages Wella’s brands, trademarks, and goodwill and damages its contractual relations with its distributors and other customers, and agrees that such harm cannot be remedied solely with money damages. If Wella has a subjective good faith belief that Professional Customer has diverted or intends to divert any Professional Beauty Products, Wella may terminate Professional Customer’s receipt of any or certain Wella products, at Wella's sole discretion. Such termination or any other enforcement action or any other efforts to halt or prevent DIVERSION or enforce or exercise any rights under this Contract shall not be a waiver of any rights or remedies Wella may possess, and all such rights and remedies are expressly reserved, including the ability to initiate civil or criminal legal proceedings.
8. Professional Customer agrees to maintain contemporaneous records relating to its receipt, inventory, transfer, shipment or sale of Professional Beauty Products (collectively “sales data”) for three (3) years, and to make all such records available to Wella immediately upon request in writing or upon presentation of a Wella representative without prior notice, so that Wella may investigate possible DIVERSION or to otherwise facilitate enforcement of this Contract. Wella will also have the right to inspect and count all inventory of Professional Beauty Products, wherever located. If an audit fails to establish the authorized sales, use or storage of Professional Beauty Products, or otherwise reveals that there has been a breach of this Contract, Professional Customer shall pay to Wella any and all costs associated with the audit or examination of Professional Customer’s records, including attorney, investigator and accountant fees.
9. In the event that Professional Customer engages in DIVERSION or in the event that Wella conducts an audit of Professional Customer, and the audit findings are inconclusive as to any suspected DIVERSION engaged in by Professional Customer, Wella may place Professional Customer in its Probation Program. Under a written Amendment in the form attached to this Contract, Wella's Probation Program will establish the terms and conditions under which a Professional Customer may continue to purchase Professional Beauty Products, which may include loss of any discounts, rebates or allowances, loss of credit terms, increased inventory oversight, submission of personal credit information, personal guarantee, posting of a bond or other collateral/security, and any other requirements which Wella deems advisable under the circumstances of the probation.
10. If Professional Customer violates or attempts or threatens to violate this Contract, directly or indirectly, Wella shall be entitled to obtain an injunction in any court of competent jurisdiction against Professional Customer prohibiting such violation. As DIVERSION may be difficult to detect and contract damages from DIVERSION are difficult to assess, upon Wella’s written request Professional Customer will pay to Wella as a genuine pre-estimate of damages and as contract liquidated damages a sum equal to the full retail price normally charged by Professional Customer plus 50% for any of the Professional Beauty Products sold to Professional Customer in the last 24 months prior to termination (or such lesser time period that Professional Customer has purchased products from Wella) which are conclusively presumed to have been resold or otherwise distributed by Professional Customer in violation of this Contract, and that Professional Customer will further pay as damages whatever costs are incurred by Wella to recover any such diverted product. Professional Customer shall have the right to deduct from this liquidated damages sum any sales which Professional Customer can prove (by documentary point of sale evidence) were made in compliance with this Contract during the relevant time period. Wella shall have the right to recover either these liquidated damages or actual damages for breach of contract, at its sole discretion. This liquidated damages provision will not limit or otherwise affect any tort or other damages or remedies unless and only to the degree such damages or remedies are duplicative of contract damages.
11. DIVERSION harms both Professional Customer and Wella. Accordingly, Professional Customer must share in the effort to halt DIVERSION, including reporting any solicitations to purchase, sell or distribute Professional Beauty Products in violation of this Contract, or any other suspicious activity to Wella. Failure to do so may result in termination or placement into the Probation Program. If Professional Customer does report such solicitations or suspicious activity and that information leads to a successful civil or criminal prosecution or a monetary settlement, Wella will provide Professional Customer with a monetary reward which, in Wella’s judgment, is commensurate with the value of the judgment or settlement. Professional Customer agrees to cooperate with any investigation or prosecution by Wella of DIVERSION or attempted DIVERSION.
12. Professional Customer will take appropriate steps to ensure that all of its employees, directors, officers, agents, on-site contractors and shareholders are made aware of this Contract, and that they comply with it.
13. The terms of this Contract shall apply to all lines of Professional Beauty Products which Professional Customer currently purchases from Wella and/or which Professional Customer may purchase from Wella in the future. Regardless of whether Professional Customer ceases to purchase any or all Professional Beauty Products from Wella or Wella ceases to sell any or all Professional Beauty Products to Salon, the obligations of the Professional Customer under this Contract continue to apply to all orders of Professional Beauty Products by Professional Customer and survive termination of any supply, sale or purchase obligations or arrangements or the termination or expiry of this Contract.
14. The parties represent, warrant, and agree that this Contract does not create a franchise between parties hereto and that Professional Customer has not paid a franchise fee, directly, or indirectly, to Wella. Wella and Professional Customer are not and shall not be considered as joint venturers, partners, agents, servants, employees, or fiduciaries of each other and neither shall have the power to bind or obligate the other, except as set forth in this Contract. The sole relationship between Wella and Professional Customer will be that of independent contracting parties. Professional Customer acknowledges that Wella has not made any representation to Professional Customer other than those set forth in this Contract. Wella retains the right not to sell to Professional Customer and Professional Customer retains the right not to purchase from Wella.
15. This Agreement applies to all Professional Beauty Products supplied by Wella to the Professional Customer and shall continue to be in full force and effect during all periods that Wella is supplying any such products to the Professional Customer or that the Professional Customer has possession or control of any such products and for a period extending for two (2) years following the date of the last supply of any such products by Wella to the Professional Customer (or two (2) years following the last date that the Professional Customer has possession or control over any such products, if such date is later than the date of Wella's last supply of any such products to the Professional Customer). Provided that Wella may, in its discretion, at any time, and from time to time, terminate, in whole or in part, future supplies of Professional Beauty Products to Professional Customer immediately upon written notice. In the event of any such termination, Professional Customer waives any claim for damages against Wella and Wella shall have the right and option to immediately repurchase any or all Professional Beauty Products sold to the Professional Customer by Wella which the Salon has in stock and which are the subject of any such termination, at the lowest price that the Professional Customer paid for such products within the one year prior to termination, less any discounts, rebates or allowances applicable to those purchases, and to destroy all unsaleable products. Products are unsaleable if cases are opened, the product has been discontinued, the cases are damaged, the product containers are damaged or otherwise determined unsaleable in Wella's sole discretion.
16. Nothing contained in this Contract shall be construed to prevent or prohibit Wella or its affiliates from producing, selling, or distributing a department store line, internet line, or retail line of products branded as Wella, Sebastian, Nioxin, or OPI products or from distributing such products through any other distributional channel, structure, or method of any kind.
17.Wella is entitled, without restriction, to delegate, subcontract, transfer or assign this Agreement or any of its rights or obligations, whether in whole or in part, without the prior written consent of Professional Customer.
18. All disputes arising out of or in connection with this Contract, or in respect of any legal relationship associated with or derived from this Contract, shall be settled by arbitration administered by the American Arbitration Association(“AAA”) in accordance with its Commercial Arbitration Rules before a single arbitrator who is knowledgeable about contract law and business litigation. If the parties are unable to agree upon an arbitrator, then AAA shall select the arbitrator. The place of the arbitration shall be Los Angeles, California. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Wella and Professional Customer agree that each may bring claims against the other only in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.
19. This Contract shall be governed by and construed in accordance with the laws of the State of Delaware, USA. If any provision of this Contract is found to be unenforceable, the other provisions of this Contract shall remain in full force and fully enforceable.
20. This Contract may be executed in counterparts and all such counterparts shall for all purposes constitute one agreement, binding on the parties hereto, provided that each party has executed at least one counterpart and delivered it to the other party, and each shall be deemed to be an original, notwithstanding that all parties are not signatory to the same counterpart. The Contract may be executed and delivered by either of the parties by transmitting to the other a copy of the Contract (executed by such delivering party ) by facsimile, telecopies or computer transmission (or similar means of electronic communication or transmission) and delivery in that manner by a party shall be binding upon such party and deemed to be an original.
21. Except as otherwise provided in this Contract, this Contract may be amended solely by a written instrument signed by both of the parties, and which specifically states that it constitutes an amendment to this Contract.
22. The failure of either party to enforce at any time any provision of this Contract shall in no way be construed as a waiver of such provision and shall not affect the ability of such party to thereafter enforce each and every such provision.
I understand that as a Wella employee, I have the benefit of purchasing available products from wella.professionalstore.com at an employee discount and am bound to the guidelines defined in the Professional Customer Contract and applicable terms and conditions. I agree not to re-sell any items purchased and understand that any such action can lead to disciplinary action up to and including termination of my employment. Wella reserves the right to change or suspend this benefit at any time including the level of discount & which products are offered for purchase. If my employment at Wella ends, I will no longer have employee access to wella.professionalstore.com.
I certify that I am currently enrolled as a cosmetology student and understand that I need to email a picture of my valid cosmetology student ID to the wella.professionalstore.com team to purchase professional salon products from wella.professionalstore.com at a student discount. After 12 months from today, if I am still enrolled in cosmetology school, I will need to resubmit a picture of my valid cosmetology student ID to maintain my student discount on wella.professionalstore.com. If no longer a student, I realize I must submit my cosmetology license information to access special graduation promotions and offers on wella.professionalstore.com. Student discounts on wella.professionalstore.com purchases are only available to cosmetology students.