These terms and conditions are between Face Up Beauty Limited
(Company Number 8347145
) and you, the Party named in this Booking (you
), together the Parties
and each a Party
. These terms and conditions and the Booking form the entire agreement under which we will provide the Services to you. 1. DISCLAIMER
1.1 We and our Personnel are not medical practitioners, health professionals or nutritionists, and do not give medical advice, treatment or diagnoses. You acknowledge and agree that nothing in the Services we provide may be taken to be medical advice, treatment or a diagnosis by us or our Personnel, nor are they intended to be a substitute for consulting a medical practitioner. If you have any health or medical issues or concerns, you agree to speak with a medical professional prior to receiving the Services from us. 2. ACCEPTANCE
2.1 You accept these Terms by the earlier of:
(a) ticking a box online when making a Booking, indicating your acceptance of these Terms; or
(b) making part or full payment of the Price (including any Deposit).
2.2 These Terms will operate from the Start Date until the End Date (Term
2.3 When accepting these Terms, you grant us permission and consent to perform the Services on you. 3. SERVICES
3.1 In consideration of your payment of the Price, we agree to provide you the Services in accordance with these Terms and all relevant laws, whether ourselves or through our Personnel.
3.2 We will not be responsible for any Services unless expressly set out in the Booking. 4. PRICE AND PAYMENT
4.1 In consideration for us providing the Services, you agree to pay us the Price, and any other amount payable to us under these Terms, in accordance with the Payment Terms. All amounts are stated in New Zealand dollars and are exclusive of GST (unless otherwise stated).
4.2 Unless otherwise agreed between the Parties, any Deposit in the Booking must be paid before we commence the provision of the Services.
4.3 If any amounts are unpaid 7 days after the payment date (as set out in the Payment Terms), those amounts will become a debt immediately due and payable to us, and we may:
(a) charge interest at a rate equal to the Reserve Bank of New Zealand's cash rate from time to time plus 2% per annum (calculated daily and compounding monthly); and/or
(b) immediately suspend the provision of the Services until we receive payment. 5. YOUR OBLIGATIONS AND WARRANTIES
5.1 You represent, warrant, acknowledge and agree that:
(a) you are 16 years old;
(b) you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms;
(c) you will disclose to us all medical and health information (including any health conditions and if you are or could be pregnant) and will keep us updated of any changes to your medical and health information during the performance of our Services;
(d) we cannot guarantee results and that results may vary;
(e) we may suggest a number of sessions as part of the Services and if you do not obtain the amount of sessions that we recommend, the results from the Services may not be optimised;
(f) you will cooperate with us, will not interfere with our supply of the Services, and will provide us with all documentation, information, instructions and access necessary to enable us to provide the Services, as requested by us, from time to time, and in a timely manner; and
(g) the information you provide to us is true, correct and complete. 6. PHOTOGRAPHS
6.1 You grant us permission to take photos of you before and after receiving the Services to assist us in providing the Services to you. With your prior written consent, we may display the photos on our website, in social media, for print and digital media, for marketing and for other commercial purposes. 7. YOUR STATUTORY RIGHTS
7.1 We warrant that the Services will, at the time they are provided, materially conform to any requirement set out in the Booking.
7.2 If the Services do not meet a warranty, at your request and at our cost, we must re-perform the Services so that they meet or satisfy that warranty. Our obligation under this clause 7.2 is your sole remedy against us for breach of warranty.
7.3 To the maximum extent permitted by law, our warranties are limited to those stated in clause 7.1. Any implied condition or warranty (including any warranty under Part 3 of the Contract and Commercial Law Act 2017) is excluded.
7.4 You agree and represent that you are acquiring the Services for the purposes of trade. The Parties agree that:
(a) to the maximum extent permitted by law, the Consumer Guarantees Act 1993 does not apply to the supply of the Services or these Terms; and
(b) it is fair and reasonable that the Parties are bound by these Terms, including this clause 7.4.
7.5 This clause 7 will survive the termination or expiry of these Terms. 8. REFUND AND CANCELLATION POLICY
8.1 We will refund the Deposit or Price to you if we cannot proceed with the Services due to a health condition preventing you from receiving the Services.
8.2 Your Cancellation: You may cancel or reschedule your Booking by contacting us, identifying your appointment and requesting cancellation of your appointment. Your appointment will not be cancelled until we provide confirmation of the cancellation of your appointment in writing.
8.3 Where you cancel your Booking:
(a) more than 48 hours before the start time of your Booking, the Price or Deposit (if applicable) paid for the Booking will be used as credit towards your next or rescheduled Booking; and
(b) less than 48 hours before the start time of your Booking, you will not be entitled to a refund for the Price or Deposit (if applicable) and it will be forfeited.
8.4 You agree that the above cancellation fees are a genuine pre-estimate of our loss due to blocking your appointment date and time and preventing other clients from booking that appointment date and time.
8.5 Our Cancellation: Due to unforeseen circumstances such as illness or Force Majeure Event, you acknowledge that we may need to reschedule the date and/or time of your Booking. Where we need to reschedule your Booking, we will notify you at our earliest convenience and we will reschedule your Booking to a mutually agreed time.
8.6 We reserve the right to cancel a Booking at any time where you have disclosed medical or health information to us which we determine, in our sole discretion, renders us unable to safely provide the Services to you. In such cases, we will cancel or reschedule your Booking , at our absolute discretion, provided that either:
(a) the medical or health information you provided to us is no longer relevant and will no longer impact our ability to provide the Services; or
(b) you have obtained a written medical clearance from your medical practitioner and have provided it to us.
8.7 If we are not able to reschedule your Booking as per the requirements in clause 8.6(a) or 8.6(b), we will provide a refund of the portion of the Price in relation to the Services that we have not yet provided. 9. TERM AND TERMINATION
9.1 These Terms will commence on the Start Date and will continue until the End Date, unless earlier terminated in accordance with this clause 9.
9.2 Either Party may terminate these Terms if the other Party:
(a) breaches a material term of these Terms, and that breach has not been remedied within 10 Business Days of the Party in breach being notified by the other Party of the breach and the steps required to remedy the breach; or
(b) is unable to pay its debts as they fall due.
9.3 On termination or expiry of these Terms, and without limiting our rights under these Terms or at law we will immediately cease providing the Services and you agree:
(a) that any amounts you have paid for Services are non-refundable;
(b) to pay us our additional costs arising from, or in connection with, termination if we terminate these Terms under clause 9.2;
(c) to pay us all amounts due and payable to us under these Terms (including for all Services provided by us) up to the date of termination and including for Services which have been provided and have not yet been invoiced to you, as a debt immediately due and payable; and
(d) to promptly return or give us access to recover all property belonging to us on request (including any Intellectual Property or Confidential Information), and to give us or our Personnel such rights of access necessary to exercise our rights under this clause.
9.4 The accrued rights, obligations and remedies of the Parties are not affected by termination of these Terms.
9.5 This clause 9 will survive the termination or expiry of these Terms. 10. LIABILITY, INDEMNITY AND EXCLUSIONS
10.1 Exclusions: Despite anything to the contrary in these Terms, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by (whether directly or indirectly):
(a) breach of these Terms, any law or third party rights by you;
(b) any side effects which occur from the Services, including as a result of your own negligence or you not providing us with your current health and medical information; and
(c) any information, documentation, specifications or directions given by you.
10.2 Limitation of Liability: Despite anything to the contrary in these Terms, to the maximum extent permitted by law:
(a) neither Party will be liable for any Consequential Loss;
(b) a Party's liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel); and
(c) our maximum aggregate Liability in relation to the provision of the Services or these Terms will be limited to us resupplying the Services to you or, in our sole discretion, to us repaying you the amount of the Price paid by you to us in respect of the provision of the relevant Services to which the Liability relates.
10.3 This clause 10 will survive the termination or expiry of these Terms. 11. INTELLECTUAL PROPERTY 1
1.1 As between the Parties, all Intellectual Property Rights developed, adapted, modified or created by or on behalf of us or our Personnel (including in connection with these Terms, the provision of the Services and/or developed by us or our Personnel independently of these Terms), will at all times vest, or remain vested, in us. Nothing in these Terms constitutes a transfer or assignment of any of our Intellectual Property Rights unless expressly stated.
11.2 This clause 11 will survive the termination or expiry of these Terms. 12. CONFIDENTIALITY
12.1 Subject to clause 12.2, you must keep confidential, and not use or permit any unauthorised use of, all Confidential Information.
12.2 Clause 12.1 does not apply where the disclosure is required by law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with these Terms and provided that you ensure the adviser complies with the terms of clause 12.1.
12.3 This clause 12 will survive the termination or expiry of these Terms. 13. GENERAL
13.1 Amendment: We may amend these Terms at any time, but any such amendments will only apply to new Bookings.
13.2 Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the President of the New Zealand Law Society to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction, or will operate to prevent a Party from taking steps to recover any debt.
13.3 Entire agreement: These Terms contain the entire understanding between the Parties, and supersede all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
13.4 Force majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control, including a Force Majeure Event, whether known or unknown at the Start Date.
13.5 Further assurance: You agree to promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and your obligations under it.
13.6 Governing law: These Terms are governed by the laws of New Zealand. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New Zealand.
13.7 GST: If and when applicable, GST payable on the Price will be set out in our invoice or our website. You agree to pay the GST amount at the same time as you pay the Price.
13.8 Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
13.9 Precedence: To the extent there is any ambiguity, discrepancy or inconsistency in or between the terms of these Terms and the Booking, these Terms will prevail. 14. INTERPRETATION & DEFINITIONS
14.1 In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in the Booking, and:
Booking means the booking for the Services you make online through our website, to which these Terms are attached by reference.
Business Days means a day on which banks are open for general banking business in Auckland, New Zealand, excluding Saturdays, Sundays and public holidays.
Confidential Information includes information which:
(a) is disclosed to you in connection with these Terms at any time;
(b) is prepared or produced under or in connection with these Terms at any time;
(c) relates to our business, assets or affairs; or
(d) relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,
whether or not such information or documentation is reduced to a tangible form or marked in writing as "confidential", and howsoever you receive that information. Consequential Loss
includes any consequential, special or indirect loss, damage or expense, or any real or anticipated loss of revenue, loss of profit, loss of use, loss of occupation, loss of benefit, loss of financial opportunity, or economic loss (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise, and howsoever arising). Deposit
means the deposit as set out in the Booking. End Date
means the date we consider the Services to be complete or supplied to you in accordance with these Terms. Force Majeure Event
means any one, or combination of law or government regulation which comes into force or any act of God, flood, war, revolution, civil commotion, political disturbance, fire explosion, ionizing radiation, contamination by radioactivity, nuclear, chemical or biological contamination, disease, epidemic, pandemic (including in relation to the coronavirus, severe acute respiratory syndrome coronavirus 2, or any mutation thereof), government sanctioned shutdown, global economic downturn or any other cause whatsoever over which a Party has no control. GST
means the goods and services tax within the meaning of the Goods and Services Tax Act 1985. Intellectual Property
means any copyright, registered or unregistered designs, patents or trade mark rights, domain names, know-how, inventions, processes, trade secrets or Confidential Information, circuit layouts, software, computer programs, databases or source codes (including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing). Intellectual Property Rights
means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property. Liability
means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party, a Party or otherwise. Payment Terms
means the Price, method and timing of payment set out in the Booking. Personnel
means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents. Premises
means the location where the Services are to be supplied, as set out in the Booking. Services
means the services we agree to perform under these Terms, as further particularised in the Booking. Start Date
means the date these Terms are accepted in accordance with clause 2.1. Term
has the meaning given to it in clause 2.2. Terms
means these terms and conditions and any agreed Booking and any documents attached to, or referred to in, each of them.