BEAUTY MALL AGENTS TERMS & CONDITIONS
BEAUTY MALL is an online sales platform dealing specifically in hair products and is run by THE BEAUTY MALL KENYA, a business registered in Kenya.
(“BEAUTY MALL ”)
1. ACCEPTANCE OF TERMS & CONDITIONS
2. CHANGES TO THE TERMS & CONDITIONS
3. USER ACCOUNT
Access to certain Services is only available to registered users; specifically, Agents.
You are solely responsible for maintaining the confidentiality and security of your username and password, and you will remain responsible for all use of your username and password, and all activity emanating from your account, whether or not such activity was authorized by you.
If your username or password is lost or stolen, or if you believe that unauthorized third parties have accessed your account, you are advised to notify BEAUTY MALL in writing through firstname.lastname@example.org and should change your password at the earliest possible opportunity.
We reserve the right to disallow, cancel, remove or reassign certain usernames in appropriate circumstances, and may, with or without prior notice, suspend or terminate your account if activities occur on that account which, in our sole discretion, would or might constitute a violation of these Terms and Conditions or our Guidelines, or an infringement or violation of the rights of any third party, or of any applicable laws or regulations.
4. AUTHORITY OF AGENT
4.1 Exclusive Sales Agent.
Subject to the Terms and Conditions, BEAUTY MALL appoints the User as BEAUTY MALL ’s sales agent for its Products, and Agent accepts such appointment. The Agent provides exclusivity to BEAUTY MALL , meaning that the Agent is not allowed to sell competing Products from other Companies or act as Agent for competing Companies.
4.2 Independent Contractors.
The relationship of BEAUTY MALL and Agent established by these Terms& Conditions is that of independent contractor, and nothing contained in these Terms& Conditions shall be construed to:
(i) Give either party the power to direct and control the day-today activities of the other, or
(ii) Constitute the parties as partners, co-owners or otherwise as participants in a joint undertaking, or
(iii) Allow Agent to create or assume any obligation on behalf of BEAUTY MALL for any purpose whatsoever. All financial and other obligations associated with Agent’s business are the sole responsibility of Agent, Agent shall be responsible for, and shall indemnify and hold BEAUTY MALL free and harmless from, any and all claims, damages or lawsuits (including BEAUTY MALL ’s attorneys’ fees) arising solely out of the acts of the Agent, its employees or its agents.
5.1 Sole Compensation.
Agent’s sole compensation under the terms of these Terms & Conditions shall be a commission of the nature and amount agreed at the time of joining Beauty Mall, which excludes Value Added Tax (VAT), discounts and potential refunds.
Commissions shall be paid in Kenya Shillings (Kshs.)
5.3 Tax Remittance,
The Agent shall be responsible for their compliance with all applicable taxes on this commission.
The Agent shall be paid less withholding tax of 5% if the amount due to them is within the bracket of the subject tax. The Agent Pin number will be required to help facilitate remittance of the tax. The tax deducted shall at any time be adjusted to apply to applicable Tax legislation in the Republic of Kenya. BEAUTY MALL has no responsibility in regards to the Agent’s compliance with applicable taxes on this commission.
5.4. Time of Payment.
The Agent shall earn the Commission for a given order when that order is paid and delivered to the customer. Payment from Company to Representative will be carried out once a month. If the outstanding payment to Representative is less than KSH 1.000 Company reserves the right to postpone the payment until the outstanding balance is above KSH 1.000.
5.5. Commission Charge-Back.
BEAUTY MALL shall have the right, while these Terms & Conditions is in effect, to write off as bad debts such overdue customer accounts as it deems advisable after notifying Agent and providing Agent the opportunity to attempt to induce payment. In each such case, BEAUTY MALL may charge back to Agent’s account only any amounts previously paid to Agent. If such accounts are paid at any time, Agent shall be entitled to the applicable commissions.
5.6. Monthly Statements.
BEAUTY MALL shall submit to Agent monthly statements of the commissions due and payable to Agent under the terms of these Terms & Conditions.
5.7. Inspection of Records.
Agent shall have the right, upon written request, at their own expense and not more than once in any twelve (12) month period, to authorize Agent’s independent auditors to inspect, at reasonable times during BEAUTY MALL ’s ordinary business hours, BEAUTY MALL ’s relevant accounting records to verify the accuracy of Commissions paid by BEAUTY MALL hereunder.
6. SALE OF THE PRODUCTS
BEAUTY MALL shall have the sole right of credit approval or credit refusal for its customers in all cases.
It is expressly understood by Agent that full responsibility for all collection rests with BEAUTY MALL , provided, at BEAUTY MALL ’s request, Agent will provide reasonable assistance in collection of any accounts receivable. In the event that Agent, with the approval of BEAUTY MALL , purchases Products from BEAUTY MALL and resells said Products to its own customers, Agent shall have the sole right of credit approval or credit refusal for its own customers and full responsibility for all collection for such customers rests with Agent.
6.3 Product Availability.
BEAUTY MALL shall not be responsible to Agent or any other party for its failure to fill accepted orders, or for its delay in filling accepted orders, when such failure or delay is due to a cause beyond BEAUTY MALL ’s reasonable control.
7. ADDITIONAL OBLIGATIONS OF AGENT
6.1 Promotion of the Products.
Agent shall, at its own expense, promote the sale of the Products.
Agent shall provide himself or herself with, and be solely responsible for,
(i) such facilities, employees, and business organization, and
(ii) such permits, licenses, and other forms of clearance from governmental or regulatory agencies, if any, as it deems necessary for the conduct of its business operations in accordance with these Terms& Conditions .
6.3 Customer Service.
Agent shall diligently assist its customers’ personnel in using the Products and shall perform such additional customer services as good salesmanship requires and as BEAUTY MALL may reasonably request.
6.4 Product Complaints.
Agent shall promptly investigate and monitor all customer and/or regulatory complaints and/or correspondence concerning the use of the Product. Agent shall immediately notify BEAUTY MALL of all such complaints and/or correspondence in accordance with the following:
(a) Agent shall advise BEAUTY MALL of all complaints relating to incidents of serious and unexpected reactions to the Product as promptly as possible but not more than two (2) calendar days following the date Agent receives such complaint following the date Agent receives such complaint.
6.5 Expense of Doing Business.
Agent shall bear the entire cost and expense of conducting its business in accordance with the terms of these Terms& Conditions.
Agent shall not make any false or misleading representations to customers or others regarding BEAUTY MALL or the Products. Agent shall not make any representations, warranties or guarantees with respect to the specifications, features or capabilities of the Products that are not consistent with BEAUTY MALL ’s documentation or BEAUTY MALL ’s literature describing the Products.
7. ADDITIONAL OBLIGATIONS OF BEAUTY MALL
7.1 Training by BEAUTY MALL .
BEAUTY MALL may provide sales training to Agent’s personnel at periodic intervals, with the frequency and content of the training to be determined by BEAUTY MALL .
7.2 Regulatory Approvals.
BEAUTY MALL shall be responsible for obtaining all statutory approvals necessary to distribute the Products in the Republic of Kenya.
7.3 Telephone Marketing and Technical and Sales Support. BEAUTY MALL shall provide a reasonable level of online marketing and technical support to Agent. BEAUTY MALL shall use its best efforts to support Agent’s sales and marketing activities.
7.4 Delivery Time.
BEAUTY MALL shall use its best efforts to fulfill delivery obligations as committed in acceptances.
7.5 New Developments.
BEAUTY MALL shall inform Agent of new product developments relating to the Products.
During the term of these Terms& Conditions, Agent shall have the right to indicate to the public that it is an authorized Agent of the Products and to advertise (within the Territory) such Products under the trademarks, marks, and trade names that BEAUTY MALL may adopt from time to time (“Trademarks”). Agent shall not alter or remove any Trademark applied to the Products. Except as set forth in this clause 7, nothing contained in these Terms & Conditions shall grant to Agent any right, title or interest in the Trademarks.
9. CONFIDENTIAL INFORMATION
Agent acknowledges that by reason of its relationship to BEAUTY MALL hereunder it will have access to certain information and materials concerning BEAUTY MALL ’s technology, and products that are confidential and of substantial value to BEAUTY MALL , which value would be impaired if such information were disclosed to third parties. Agent agrees that it will not use in any way for its own account or the account of any third party, nor disclose to any third party, any such confidential information revealed to it in written or other tangible form or orally, identified as confidential, by BEAUTY MALL without the prior written consent of BEAUTY MALL . Agent shall take every reasonable precaution to protect the confidentiality of such information. Upon request by Agent, BEAUTY MALL shall advise whether or not it considers any particular information or materials to be confidential. In the event of termination of this
Terms & Conditions , there shall be no use or disclosure by Agent of any confidential information of BEAUTY MALL , and Agent shall not manufacture or have manufactured any devices, components or assemblies utilizing any of BEAUTY MALL ’s confidential information.
This section shall not apply to any confidential information which is or becomes generally known and available in the public domain through no fault of Agent.
BEAUTY MALL shall be solely responsible for the design, development, supply, production and performance of its products and the protection of its trade names and patents. BEAUTY MALL agrees to indemnify, hold the Agent harmless against and pay all losses, costs, damages or expenses, whatsoever, including counsel fees, which the Agent may sustain or incur on account of infringement or alleged infringements of patents, trademarks or trade names resulting from the sale of BEAUTY MALL 's products, or arising on account of warranty claims, negligence claims, product liability claims or similar claims by third parties. The Agent shall promptly deliver to BEAUTY MALL any notices or papers served upon it in any proceeding covered by this Indemnification Terms & Conditions , and BEAUTY MALL shall defend such litigation at its expense. The Agent shall, however, have the right to participate in the defense at its own expense unless there is a conflict of interest, in which case, the Agent shall indemnify BEAUTY MALL for the expenses of such defense including counsel fees.
11. TERM AND TERMINATION
11.1 Term. These Terms & Conditions shall continue in full force and effect for a period of three years from the date above, unless terminated earlier under the provisions of these Terms& Conditions. Thereafter, these Terms & Conditions shall be renewed automatically for successive additional three year terms under the same terms and conditions unless either party chooses not to continue the relationship and provides written notice ninety (90) days prior to the natural expiration of the existing three-year term.
These Terms & Conditions may be terminated by as follows:
11.2.1.By either party if the other party becomes insolvent or bankrupt, or files a voluntary petition in bankruptcy, or has had filed for an involuntary petition in bankruptcy (unless such involuntary petition is withdrawn or dismissed within ten days after filing) in which event termination may be immediate upon notice; or
11.2.2. BEAUTY MALL reserves the right to terminate these Terms& Conditions within one (1) months notice including reasons like lack of performance, however, BEAUTY MALL shall not be obliged to defend such termination.
11.2.3 By either party if the other party fails to cure any breach of a material covenant, commitment or obligation under these Terms& Conditions, within 45 days after receipt of written notice specifically setting forth the breach from the other party; or
11.2.4 By either party if the other party is convicted or pleads to a crime or an act of fraud that materially impacts on its performance or its fiduciary duties hereunder, in which event termination may be immediate upon notice.
11.3 Return of Materials.
All Confidential Information and other property belonging to BEAUTY MALL shall remain the property of BEAUTY MALL and will be immediately returned by Agent upon termination. Agent shall not make or retain any copies of any Confidential Information that may have been entrusted to it.
11.4 Return of the Products.
Upon the termination of these Terms& Conditions, BEAUTY MALL shall repurchase any inventory and instrumentation of the Agent at Agent’s cost.
Any notice required or permitted by these Terms& Conditions shall be in writing.
The parties may not assign or transfer these Terms& Conditions or any of its rights and obligations under these Terms& Conditions without the prior written consent of the other party, which shall not be unreasonably withheld.
12.3 Compliance With Law.
BEAUTY MALL and Agent agree that they will comply with all Kenyan laws, regulations and requirements applicable to obligations under these Terms& Conditions.
12.4 Property Rights.
Agent agrees that BEAUTY MALL owns all right, title, and interest in the product lines that include the Products and in all of BEAUTY MALL ’s patents, trademarks, trade names, inventions, copyrights, know-how, and trade secrets relating to the design, manufacture, operation or service of the Products. The use by Agent of any of these property rights is authorized only for the purposes herein set forth, and upon termination of these Terms& Conditions or any reason such authorization shall cease.
12.5 Severability. If a court of competent jurisdiction in Kenya shall hold any provision(s) of these Terms& Conditions invalid, illegal or unenforceable, the remainder of the Terms & Conditions shall be valid and enforceable and the parties shall negotiate in good faith a substitute, valid and enforceable provision that most nearly affects the parties’ intent in entering into these Terms& Conditions.
12.6 Modification; Waiver. These Terms& Conditions may not be altered, amended or modified in any way except by a writing signed by both parties. The failure of a party to enforce any provision of the Terms & Conditions shall not be construed to be a waiver of the right of such party to thereafter enforce that provision or any other provision or right.
12.7 Entire Terms & Conditions. These Terms& Conditions and the exhibits hereto represent and constitute the entire Terms & Conditions between the parties, and supersedes and merges all prior negotiations, Terms & Conditions s and understandings, oral or written, with respect to any and all matters between the Agent and BEAUTY MALL .
12.8 Counterparts. These Terms& Conditions may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
12.9 Alternative Dispute Resolution. Parties agree to explore alternative dispute resolution as the first alternative to resolve any disputes under these Terms& Conditions and agree to be bound by resolutions arising from the alternative dispute resolution mechanism agreed upon. Should the alternative dispute resolution yield no results, the Parties may proceed to move a court of competent jurisdiction.
By applying you hereby agree to be bound by these Terms & Conditions and warrant that you understand what is set herein.