PLEASE READ THESE TERMS CAREFULLY as they create a legally binding contract between you (the “Buyer”) and Wella Operations US LLC (“Seller”).
These terms include a binding arbitration clause and class action waiver, which means you agree to submit any dispute related to the Terms, the Services, and your relationship with Seller and its affiliates to binding arbitration rather than proceeding in court. You may opt-out of this mandatory arbitration agreement only by following the procedures below. These terms also include a jury waiver.
- General Terms of Sale: All purchases by Buyer will be made in accordance with these Seller’s Standard Terms & Conditions (the “Terms”) and any Distributor Agreement between Seller and Buyer. Buyer agrees that these Terms are legally binding and agrees to pay all charges incurred pursuant to such. If Buyer is, or subsequently becomes, bound by a Distributor Agreement, Buyer agrees that, to the extent there is any conflict between these Terms and the Distributor Agreement, the latter shall control. Seller, in its discretion, may, without notice, prospectively change these Terms. All purchase orders are subject to acceptance by Seller. Any purchase order or other proposal that includes different or additional terms that vary from these Terms are objected to and disallowed. Notwithstanding the foregoing, any such counterproposals by Buyer shall not operate as a rejection of the contract of sale, but as a rejection of the additional or different term(s).
- Shipment, Delivery, Title, and Risk of Loss: Buyer shall pay the costs of delivery of the products. Seller retains the right and title to the products sold to Buyer until Seller is paid in full for the products. Buyer shall obtain the right and title to the products upon payment to Seller of the purchase price and any taxes, excise or other charges. Shipments will be made by carriers of Seller’s selection, FOB shipping point. The risk of loss, including, but not limited to the risk of loss, theft, damage or destruction of the products, transfers to Buyer FOB shipping point. Buyer shall have 30 days from delivery to notify Seller of concealed damage, shortages, or rejected goods. All claims for returns, except in the case of defects must be made within 60 days of delivery. Buyer is responsible to arrange for return, (including obtaining return authorization number) by contacting their Wella account manager or customer service team. Buyer shall include a copy of the original invoice with the return. No returns will be allowed on brushes, skin care, or any additional categories and discontinued products.
- Delay/Non Delivery: Seller may terminate its obligations to provide product to Buyer pursuant to these Terms at any time, unless otherwise provided in a Distributor Agreement. Seller shall not be in default in the performance of its obligations under these Terms if such performance is prevented or delayed because of any cause beyond the reasonable control of Seller. Delivery dates are approximate. Seller will not accept back orders.
- Prices: Prices shown are firm for quantities listed provided Buyer and Seller have agreed on a delivery date. In the absence of an agreed date, Seller reserves the right to increase prices to those in effect when delivery is agreed on. Prices are subject to change without notice. Seller may, but shall not be obligated to, grant credit terms to Buyer. For Buyers on credit terms (not those paying by credit card, or being invoiced on a pre-pay or cash on delivery basis), the payment terms are “1% 20, Net 30”, meaning 1% discount if paid within 20 days of invoice date but no discount if paid within 30 days, based on net, not gross, price. Seller reserves the right, in its sole discretion and without prior notice, to deny, change or limit the amount or duration of credit to be allowed Buyer, either generally or with respect to a particular purchase order, and may require cash payments in advance or security satisfactory to Seller. The entire outstanding balance due on invoices shall be due immediately upon default in payment of a single invoice. Buyer agrees to pay interest in the amount of 1.5% per month, or the maximum lawful rate, whichever is less on amounts past due. Buyer agrees to pay all costs of collection incurred by Seller, including reasonable attorneys’ fees and expenses, in event of default. No set-offs, netting, withholding, or deductions are allowed. Seller reserves the right to cancel any sale if Seller deems Buyer unable to pay for any products.
- Freight Cost: (For US customers only) For parcel orders, a handling fee of $12 per order may apply for consumer orders less than $25.00. For parcel orders, a handling fee of $12 per order may apply for professional orders less than $50.00 and will be added to each invoice for direct sales to salons. An additional handling fee may be applied to all cash payments. For less-than-truckload (“LTL”) orders: a handling fee of $50.00 for LTL orders below $1,000, $100 for LTL orders from $1,000 to $9,999 and free shipping for orders over $10,000 may be applied. If, through no fault of Seller, a salon customer refuses, or is unable to accept, delivery of the shipment, at Seller’s option, a re-delivery charge may be added to the invoice equivalent to the freight charges plus a $10.00 handling fee regardless of the amount of the invoice. Any check returned to Seller due to stop payment, insufficient funds, closed account, or similar reason may be assessed a $20 administrative fee. Any account issuing more than one returned check may be placed on a cash-only basis.
- Warranty: ALL PRODUCTS WILL BE SOLD ON AN OUTRIGHT SALES BASIS AND ARE GUARANTEED TO BE IN GOOD CONDITION AND FREE OF DEFECTS IN MATERIAL AND WORKMANSHIP. BUYER ASSUMES ALL RISK WHATSOEVER AS TO THE RESULT OF THE USE OF PRODUCTS PURCHASED, WHETHER USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS OR SUBSTANCES. IN THE EVENT OF SELLER’S BREACH OF ANY APPLICABLE WARRANTY, BUYER’S SOLE REMEDY WILL BE THAT SELLER REPAIR OR REPLACE THE DEFECTIVE PRODUCT. THIS IS IN LIEU OF ALL WARRANTIES EXPRESS OR IMPLIED, AND SELLER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- Governing Law: These Terms shall be construed, and the respective rights and duties of Buyer and Seller shall be determined, according to the laws of the State of California, and controlling U.S. federal law as applicable, without giving effect to its principles of conflicts of laws. The UN Convention on Contracts for the International Sale of Goods shall not apply to these Terms. Any disputes or claims not subject to arbitration, as set forth in these Terms, will be resolved exclusively in the federal or state courts of Los Angeles, California and Buyer and Seller consent to personal jurisdiction in those courts.
Dispute Resolution and Binding Individual Arbitration:
8.1. Purpose: The term "Dispute" means any dispute, claim, or controversy, except as specifically excluded in Section 8.2 below, between Buyer and Seller, or any of Seller's current or former affiliates, including parents or subsidiaries, and any predecessor or successor entity, arising out of or relating to Buyer's relationship with Seller or its affiliates, Buyer’s use of this website, Buyer’s purchase of any products from Seller, or the interpretation, application, or enforcement of these Terms (including the validity, enforceability or scope of this "Dispute Resolution and Binding Individual Arbitration" section), whether based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory. The term Dispute is to be given the broadest possible meaning that will be enforced. If any Dispute should arise between Buyer and Seller, or any of Seller's officers, directors, employees and agents that cannot be resolved through negotiation within the time frame described in the "Notice of Dispute" clause below, Seller and Buyer agree to seek resolution of the Dispute only through arbitration of that Dispute in accordance with the terms of this Section 8, and not litigate any Dispute in court, except for those matters listed in the Exclusions from Arbitration clause. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
8.2. Exclusions from Arbitration: Buyer and Seller agree that the following causes of action and/or claims for relief are exceptions to the Disputes covered by the arbitration agreement and will be brought in a judicial proceeding in a court of competent jurisdiction (as outlined in this arbitration agreement): (i) any claim or cause of action alleging actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) any claim or cause of action seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack); or (iii) a request for the remedy of public injunctive relief, where such remedies are permitted and cannot be waived by applicable law. Buyer or Seller may alternatively bring Disputes in small claims court, to the extent a dispute meets such requirements.
8.3. Opt-Out Right: BUYER HAS THE RIGHT TO OPT OUT OF BINDING ARBITRATION AND THE CLASS ACTION WAIVER WITHIN 30 DAYS. If Buyer does not wish to be bound by the binding arbitration and class action waiver in this section, Buyer must notify Seller in writing within 30 days of the date that Buyer accepts, or anyone acting on Buyer's behalf accepts, these Terms unless a longer period is required by applicable law (the "Opt-Out Deadline"). Buyer's written notification must be sent to email@example.com and must include: (1) Buyer's name, (2) Buyer's address, (3) the email address associated with Buyer's online account with Seller, if Buyer has one, and (4) a clear statement that the Buyer does not wish to resolve Disputes with the Seller through individual arbitration.
In order to validly terminate the arbitration agreement, Seller must receive Buyer's opt out notice no later than 3 days after the Opt-Out Deadline for it to be valid. Buyer agrees that Buyer must pursue any claim in arbitration or small claims court if Seller does not receive an opt-out notice from Buyer, or if Seller receives an opt-out notice from Buyer more than 3 days after the Opt-Out Deadline.
8.4. Notice of Dispute: IF BUYER HAS A DISPUTE WITH SELLER, BUYER MUST SEND WRITTEN NOTICE TO firstname.lastname@example.org , TO GIVE SELLER THE OPPORTUNITY TO RESOLVE THE DISPUTE INFORMALLY THROUGH NEGOTIATION. Buyer's notice must contain the following information: (1) Buyer's name, (2) Buyer's address, (3) Buyer's email address or phone number associated with Buyer's account, (4) Buyer's online membership ID, if any, (5) Buyer’s order number, if any, (7) a brief description of the nature of the complaint, and (7) the resolution sought (together, the “Required Information”). If Buyer's notice does not contain all of the Required Information (or an explanation of why Buyer is unable to include any of the Required Information), then the Notice of Dispute shall be without effect, and must be resent before any arbitration or other legal action may be initiated against Seller. This requirement is intended to inform Seller that Buyer has a Dispute to be resolved. Buyer and Seller agree to negotiate resolution of the Dispute in good faith for no less than 60 days after Buyer provides notice of the Dispute. If Buyer and Seller do not resolve the Dispute within 60 days from receipt of Buyer's notice of the Dispute, Buyer or Seller may pursue a claim in arbitration pursuant to the terms in this section.
8.5. Class Action Waiver: BUYER AND SELLER AGREE THAT ARBITRATION WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH BUYER AND SELLER SPECIFICALLY AGREE TO DO SO IN WRITING, EXCEPT AS OTHERWISE DESCRIBED BELOW IN THIS PARAGRAPH AND THIS SECTION 8. IF APPLICABLE LAW PRECLUDES ENFORCEMENT OF THE LIMITATION IS THIS PARAGRAPH AS TO A PARTICULAR REMEDY, THEN A CLAIM SEEKING THAT REMEDY (AND ONLY THAT REMEDY) MUST BE SEVERED FROM THE ARBITRATION AND BROUGHT IN COURT.
In addition to the AAA Rules, Buyer and Seller agree that upon motion of one or more affected parties, and after providing all other affected parties an opportunity to be heard, the arbitrator may, in its discretion, coordinate more than one arbitration proceeding initiated under this arbitration agreement, in order to promote efficiency in discovery and to avoid inconsistent legal rulings. For the avoidance of doubt, any coordination under the preceding sentence will be limited only to currently pending arbitrations initiated under this agreement, and the arbitrator may not preside over any form of a representative or class proceeding. All parties will retain the right to request an individualized hearing.
If a court or arbitrator determines, in an action between Buyer and Seller, that this class action waiver is unenforceable, this arbitration agreement will not apply to Buyer. If Buyer opts out of the arbitration agreement as specified above, this class action waiver will not apply to Buyer. Neither Buyer, nor any other customer, can be a class representative, class member, or otherwise participate in a class, consolidated or representative proceeding without having complied with the opt-out procedure set forth above.
8.6. Initiation of Arbitration/Selection of Arbitrator: If Buyer and Seller are unable to resolve a Dispute through the pre-dispute negotiation process, Buyer or Seller may then, and only then, initiate an arbitration proceeding with the American Arbitration Association ("AAA"), in accordance with the rules of the AAA (as applicable, and as modified by this Section 8), including the Commercial Arbitration Rules and Consumer Arbitration Rules, as applicable (the “AAA Rules”). The AAA Rules and information about arbitration and fees are available online at www.adr.org or by calling 1-800-778-7879. The terms of this section govern in the event they conflict with the AAA Rules. Should the AAA decline to administer the arbitration or otherwise be unable to administer the arbitration for any reason, Buyer agrees that Seller shall select an alternative arbitration forum, and that Buyer will agree in writing to administration of the arbitration by the alternative arbitration forum selected by Seller.
8.7. Arbitration Procedures: Because the product Seller provides to Buyer concerns interstate commerce, the Federal Arbitration Act ("FAA") governs the arbitrability of all Disputes. However, applicable federal or state law may also apply to the substance of any Disputes. The arbitration shall be conducted in the English language.
Seller agrees to pay all filing, administration, and arbitrator fees, other than the initial filing fee to be paid by Buyer, and if Buyer's Dispute is for less than $1,000, Seller shall reimburse Buyer for the filing fee upon written request for reimbursement with documentation of insufficient funds to pay the fee. In the event that Buyer is able to demonstrate that the costs of arbitration would be prohibitive as compared to costs of litigation, Seller will pay as much of the filing fee in connection with the arbitration as the arbitrator deems necessary in order to prevent the arbitration from being cost-prohibitive as compared to the costs of litigation. In all other cases, Seller and Buyer will bear the fees and expenses for their own respective attorneys, experts, witnesses, and for preparation and presentation of evidence at the arbitration. To the extent otherwise permitted by law, the arbitrator may also allocate arbitrator compensation, administrative fees, and/or the prevailing party’s reasonable attorney’s fees to the losing party upon the arbitrator’s determination that a claim or counterclaim was filed for purposes of harassment or is patently frivolous. Any arbitration will be confidential, and Buyer and Seller agree not to disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award.
Ordinarily, pre-hearing information exchanges will be limited to the reasonable production of non-privileged documents directly relevant to the dispute. Unless the arbitrator determines that an additional form of information exchange is necessary to provide for a fundamentally fair process, those documents will be limited to Buyer's account history, and communications directly related to Buyer's purchases of products from the Seller, or Buyer's membership with Seller. Any issues regarding discovery, or the relevance or scope thereof, shall be determined by the arbitrator, and the arbitrator’s determination shall be conclusive.
8.8. Arbitration Location: Buyer or Seller may initiate arbitration in either Los Angeles County, California or the United States county in which Buyer resides. In the event that Buyer selects the county of Buyer's United States residence, Seller may transfer the arbitration to Los Angeles County in the event that it agrees to pay any additional fees or costs Buyer incurs as a result of the change in location as determined by the arbitrator. For claims under $25,000, the arbitration will not involve any personal appearance by the parties or witnesses but will instead be conducted based solely on written submissions, unless Buyer or Seller request an in-person or virtual hearing, or the arbitrator determines that an in-person or telephone appearance is required. Virtual hearings shall be preferred, unless the arbitrator determines that a party’s right to a fundamentally fair process would be impaired without an in-person hearing. In the case of an in-person hearing, the hearing shall be conducted in a mutually convenient location. Seller will ordinarily request that the hearing be held in Los Angeles County, California. Buyer may petition the arbitrator to select an alternative location for the hearing. The arbitrator’s selection of a hearing location shall be final and binding. Buyer agrees that, in the event of an in-person hearing, any Seller employee or affiliate who is based outside of the United States and who is participating in the hearing, may participate by telephone or video conference, and his or her physical presence shall not be required.
8.9 Arbitration Award: The arbitrator will have the power to grant declaratory or injunctive relief, whether interim or final, only in favor of Buyer individually and only to the extent necessary to provide relief warranted by Buyer's individual claim without affecting other customers, and any provisional measures ordered by the arbitrator may be enforced by any court of competent jurisdiction. Nothing in this section will prevent Buyer from seeking public injunctive relief separately from arbitration in court, and any such application will not be deemed incompatible with the agreement to arbitrate or as a waiver of the right to arbitrate Buyer's individual claims. Buyer and Seller agree that any proceedings seeking a remedy of public injunctive relief will proceed after the arbitration of all arbitrable Disputes, and will be stayed pending the outcome of the arbitration pursuant to section 3 of the Federal Arbitration Act.) The arbitrator’s award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
8.10. Severability: If any clause within this arbitration agreement (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this section, and the remainder of this arbitration agreement will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable in its entirety, this entire arbitration agreement will be unenforceable, and the Dispute will be decided by a court.
8.11. Continuation: This section survives any termination of this agreement or the provision of Seller's products or services to Buyer.
8.12 Jury Waiver: IF FOR ANY REASON A DISPUTE PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, BUYER AND SELLER EACH WAIVE ANY RIGHT TO A JURY TRIAL.
- Limitation of Liability: SELLER WILL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, STATUTORY, OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUES, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. SELLER’S LIABILITY ON ANY CLAIM OF ANY KIND FOR ANY LOSS OR DAMAGE ARISING OUT OF, RESULTING FROM, OR CONCERNING ANY ASPECT OF THESE TERMS OR FROM THE PRODUCTS OR SERVICES FURNISHED HEREUNDER SHALL NOT EXCEED THE PRICE OF THE SPECIFIC PRODUCT SHIPPED WHICH GIVES RISE TO THE CLAIM. Buyer is responsible for any hazardous waste management.
Salon Buyer agrees that the products are solely for use in Buyer’s salons and for sale to individual salon clients, in reasonable quantities for home use, and shall not be supplied, sold or distributed to any other company, individual or business. All products labeled “for professional use only,” “not for retail sale,” or with similar language shall not be sold by Salon Buyer to anyone. Distributor Buyer agrees that it will sell professional salon products only to salons that provide full time hair-care and nail care services for use in their professional salons or for resale to legitimate salon clients. Distributor Buyer agrees that it will sell products only to salons, licensed professionals and educational institutions. Distributor Buyer shall maintain for three years records of all diversion tracking codes on all products sold in full case quantities. All sales and distribution of the products not expressly permitted herein, including unauthorized internet sales, are subject to any penalties and damages in accordance with Seller’s policy.
Notwithstanding the provisions contained in Seller’s Professional Customer Contract (Section 3) limiting sales by Professional Customers (as defined in that Contract) to consumers to sales taking place within the physical salon, Seller reserves the right to allow Professional Customers to resell and ship, to their clients, via Wellastore.com retail products designed for personal home use in reasonable quantities, not to exceed a number of units of products, per client, per time period, as determined at Seller’s sole discretion.
Products purchased on Wellastore.com labeled for “professional use only”, “not for retail sale”, or similar such language, including oxidative coloring products, may not be sold by Professional Customers to consumers. Salon Buyer understands and agrees to assume sole and full responsibility for liability for any personal injury claims arising out of the sale of such professional use only products to consumers and, further, agrees to indemnify Wella Operations US LLC against any such claims.
- Seller’s Rights: If Buyer should fail in any manner to fulfill these Terms, Seller may defer further shipments until such default is cured. Remedies provided herein shall be in addition to, and not in lieu of, other remedies that may be available to Seller. If for any reason, the quantities of the products covered hereby or of any materials used in the production of the products reasonably available to Seller shall be less than Seller total needs for its own use and for sale, Seller may allocate its available supply of products among its existing or prospective purchasers and/or its own departments, divisions and affiliates in such manner Seller deems proper in Seller’s sole discretion, without thereby incurring liability on account of the method of allocation determined or its implementation or for failure to perform these Terms.
- Termination: If the Buyer shall for any reason terminate this order in whole or in part, the notice of termination must be given in writing. The Seller shall then cease to work and the Buyer shall pay the Seller: (a) the price provided in the order for all products which have been specially manufactured, modified, or ordered by Seller on a non-cancellable basis prior to the termination. Such products shall be delivered to the Buyer; and (b) actual expenditures made by the Seller in connection with the uncompleted portion of the order, including reasonable cancellation charges paid or incurred by the Seller.
- Complete Contract: This document contains the entire agreement of the parties concerning the purchase and sale of the products and can only be modified or changed in writing and signed by authorized representatives of both parties. These Terms shall create no continuing rights or obligations for Seller or Buyer.
- No Assignment: These Terms are not transferable by either party without the prior written consent of the other party, except that Seller may assign these Terms without Buyer’s consent if the assignment is to an affiliate or if the assignment is carried out as part of a merger, restructuring, or reorganization, or sale or transfer of all or substantially all of Seller’s assets.
- Compliance with Laws; Export Laws: Buyer and Seller shall comply with all applicable international, national, state, regional and local laws and regulations with respect to their performance of these Terms. Buyer agrees to adhere to all applicable US export laws and regulations with respect to the products.
- Miscellaneous: No waiver by Seller of any of these Terms or any breach hereof shall constitute or be deemed to be a waiver of any such term or any such breach in any other case. No waiver shall be deemed to occur as a result of the failure to enforce any term or condition of these Terms. If any clause or portion hereof shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining clauses or portions shall remain in full force and effect. The paragraph headings are for convenience only and shall not be used in interpreting or construing these Terms.