Terms and Conditions
YANKEE CANDLE COMPANY (EUROPE) LIMITED TERMS AND CONDITIONS OF SALE FOR TRADE CUSTOMERS
Version: 1 September 2020
Affiliate: any person, partnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, parent and intermediate holding companies, that directly or indirectly control, are controlled by, or are under common control of Company or Newell Brands, Inc.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Company: [Yankee Candle Company (Europe) Limited (registered in England and Wales with company number 03530345), whose registered office is at Poplar Way East, Cabot Park, Avonmouth, Bristol, BS11 0YH.
Company Sponsored Promotion: a time-limited promotional offer made available to the Customer by Company, subject to the Customer's compliance with such additional terms and conditions as the Company may specify from time to time.
Conditions: the terms and conditions set out in this document as amended from time to time.
Contract: the contract between Company and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from Company.
Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control.
Goods: the goods (or any part of them) set out in the Order.
Intellectual Property Rights: patents, trade marks, design rights, copyright (including rights in computer software and databases), domain names, trade names, trade dress, know how, confidential information and moral rights and other intellectual property rights, irrespective whether it is copyrightable or patentable or method of fixation, in each case whether registered or unregistered and including applications for, and the right to apply for, the foregoing and all rights or forms of protection having equivalent or similar effect to any of the foregoing which may subsist anywhere in the world and all goodwill in the aforementioned.
Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form or such other method as designated by Company.
Parties: the Customer and Company each being a party.
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) A reference to a law or legislative provision is a reference to it as amended or re-enacted. A reference to a law or legislative provision includes all subordinate legislation made under that law or legislative provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(e) A reference to writing or written includes email.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted the earlier of when Company issues a written acceptance of the Order or when delivery takes place in response to an Order, at which point the Contract shall come into existence. All Orders are accepted subject to availability of the relevant Goods.
2.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer, including any terms that may be printed upon the Order, that is inconsistent with these Conditions.
2.5 Any samples, drawings, descriptive matter or advertising produced by Company and any descriptions or illustrations contained in Company’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6 A quotation or issue of a price list for the Goods given by Company shall not constitute an offer. Unless otherwise stated, a quotation shall only be valid for a period of 30 days from its date of issue and a price list is valid for the period set out in the price list or otherwise provided in writing by a representative of Company.
2.7 Each Order that is accepted by Company shall form the basis of a separate Contract. If the Customer submits multiple Orders and these are accepted by Company, the Customer will enter into a separate Contract with Company in respect of each Order that is accepted.
2.8 Orders shall only be accepted by Company in such quantities as may be stated in Company's price list and sales literature from time to time.
2.9 If Company accepts an Order from the Customer in respect of Goods that form part of a Company Sponsored Promotion, the terms of the Company Sponsored Promotion (as amended from time to time) shall form part of the Contract.
(a) was communicated to Company before or after the communication of these Conditions to the Customer by the Company;
(b) explicitly excludes the applicability of these Conditions and/or
(c) was not protested by Company.
3.1 Company reserves the right to amend the specification of the Goods at any time without notice to the Customer.
3.2 All prices published by Company for the sale of Goods in the United Kingdom to Customer excludes amounts in respect of: (i) value added tax (VAT), which the Customer shall additionally be liable to pay to Company at the prevailing rate, subject to the receipt of a valid VAT invoice; and (ii) any other taxes, charges, levies, assessments and fees of any kind imposed by governmental or other authority, which shall be borne by Customer.
4.1 Company shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, all relevant Customer and Company reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
4.2 Unless otherwise set out in the written acceptance of an Order or any other document accepted in writing by Company, all deliveries of Goods shall be EXW Company’s production facility or distribution centre (Incoterms 2010) as designated by Company. Customer shall be deemed to accept the Goods upon delivery in accordance with Condition 4.6.
4.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Company shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Company with adequate delivery instructions (to the reasonable satisfaction of Company) or any other instructions that are relevant to the supply of the Goods.
4.4 If the Customer receives an invoice for the Goods which Company fails to deliver, the Customer shall notify Company within ten (10) Business Days following the date of the invoice.
4.5 Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event, Company’s decision to cancel an Order or the Customer’s failure to provide Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 To the extent that the Goods have been paid for in full in accordance with these Conditions, if ten (10) Business Days after the day on which Company notified the Customer that the Goods were ready for delivery the Customer has not accepted actual delivery of the Goods, Company may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for the balance of the price that the Customer has actually paid to Company for the Goods or, where Company has only been able to resell part of the Goods or all of the Goods at a lower price than the price paid by the Customer to Company, charge the Customer for any shortfall below the price of the Goods agreed between the Customer and Company.
4.7 If Company delivers up to and including 5% more or less than the quantity of Goods ordered by the Customer, the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice. The Customer shall notify Company and the relevant carrier in writing within ten (10) Business Days following the date of delivery of the Goods that the wrong quantity of Goods has been delivered. The Company shall not be liable to the Customer in respect of any claim made by the Customer against Company relating to the wrong quantity of Goods being delivered.
4.8 Company may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.9 The Customer shall be responsible for obtaining, at its own cost, such licences and other consents as are required from time to time in the territory for the sale and marketing of the Goods and, if required by Company, the Customer shall make those licences and consents available to Company prior to the date of dispatch of the relevant shipment.
4.10 Goods correctly delivered will not be accepted back or exchanged by Company in full or in part unless Company has agreed in writing to do so, which shall only be in exceptional circumstances.
5.1 Company warrants that on delivery, the Goods shall:
(a) be free from material defects in design, material and workmanship;
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(c) be fit for any purpose held out by Company.
5.2 Subject to Condition (a) within five (5) Business Days after delivery, the Customer gives notice in writing to Company following its discovery that some or all of the Goods do not comply with the warranty set out in Condition (b) Company is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by Company) returns such Goods to Company’s place of business at Company’s cost,
Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 Company shall not be liable for the Goods’ failure to comply with the warranty set out in Condition (a) the Customer makes any further use of such Goods after giving notice in accordance with Condition (b) the defect arises because the Customer failed to follow Company’s oral or written instructions as to the storage, commissioning, installation, use, handling, transport and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the Customer alters or repairs such Goods without the written consent of Company;
(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(e) the Goods differ from their description or specification as a result of changes made by Company to ensure they comply with applicable legislative or regulatory requirements.
5.4 Except as provided in this Condition 5.5 Except as set out in these Conditions, all warranties, conditions and other terms implied by law or otherwise are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any replacement Goods supplied by Company.
6. TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on delivery.
6.2 Title to the Goods shall not pass to the Customer until the earlier of:
(a) Company receiving payment in full (in cash or cleared funds) for the Goods and any other goods that Company has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
(b) the Customer reselling the Goods, in which case title to the Goods shall pass to the Customer at the time specified in Condition 6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Company’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify Company immediately if it becomes subject to any of the events listed in Condition (e) give Company such information relating to the Goods as Company may require from time to time.
6.4 Subject to Condition (a) it does so in its own name as principal and not as Company’s agent; and
(b) title to the Goods shall pass from Company to the Customer immediately before the time at which resale by the Customer occurs.
6.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in Condition (a) the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(b) Company may at any time:
(i) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. PRICE AND PAYMENT
7.1 The price of the Goods shall be the price agreed between the Parties, which the Customer shall confirm in the Order, or, if no price is quoted, the price set out in Company’s published price list in force as at the date of delivery.
7.2 Company may increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond Company’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give Company adequate or accurate information or instructions.
7.3 The price of the Goods excludes amounts in respect of: (i) value added tax (VAT), which the Customer shall additionally be liable to pay to Company at the prevailing rate, subject to the receipt of a valid VAT invoice and (ii) any other taxes, charges, levies, assessments and fees of any kind imposed by governmental or other authority, which shall be borne by Customer.
7.4 Company may invoice the Customer for the Goods before delivery, or on or at any time after delivery.
7.5 The Customer shall pay the invoice in full and in cleared funds prior to delivery unless credit facilities have been agreed in writing by Company. Company has the right to withdraw credit facilities for any reason and at any time by notice in writing to the Customer. Payment shall be made to the bank account nominated in writing by Company. Time of payment is of the essence.
7.6 If any credit facilities are offered to the Customer by Company (subject to Company's complete discretion and the carrying out of appropriate credit checks), the ordinary timescales for payment will be thirty (30) days following the date of Company's invoice (unless Company notifies the Customer or agrees with the Customer to the contrary in writing).
7.7 If the Customer fails to make a payment due to Company under the Contract by the due date, then, without limiting Company’s remedies under Condition 7.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against Company in order to justify withholding payment of any such amount in whole or in part. Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Company to the Customer.
8.1 Once Company has accepted an Order (and the Contract has come into existence in accordance with Condition 8.2 Company shall, in its complete discretion, be entitled to close the Customer's account if the Customer fails to place any Orders with Company for a period of at least six (6) months and Company has no outstanding deliveries for the Customer that it is yet to make.
8.3 Company shall, in its complete discretion, be entitled to close the Customer’s account with immediate effect and cancel any Orders pending for delivery in the event the Customer breaches Condition
9.1 No Goods may be returned unless they fall under Condition 9.2 Where Company authorises the Customer to return the Goods, with the exception of any non-conformance of the Goods under Condition 9.3 If any Goods are returned without Company’s authorisation, the Customer shall immediately arrange to collect the returned Goods and shall be responsible for all insurance and risk associated with such Goods. The Customer shall further indemnify Company on demand for any and all costs and losses that Company incurs in relation to any unauthorised returned Goods, including storage costs.
9.4 If, Company, at its sole discretion, accepts an unauthorised return from the Customer of any Goods in their original packaging, undamaged and in a resaleable condition, the Customer shall be liable to pay a restocking fee equal to 40% of the price of the Goods.
10.1 Company’s liability under the Contract shall be limited as set out in this Condition 10.2 Notwithstanding any other provision in the Conditions or the Contract, nothing in the Conditions or the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by a party’s negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for a party to exclude or restrict liability.
10.3 Subject to Condition (a) Company shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of legislative provisions, or otherwise, for:
(i) any loss of profit or anticipated profit;
(ii) any loss of business, loss of contracts, loss of revenue or anticipated savings;
(iii) any loss of business opportunity;
(iv) any loss of use, loss of overhead recovery or business interruption costs;
(v) any damage to reputation or depletion of goodwill;
(vi) any loss resulting from any product recall; or
(vii) any special, indirect or consequential loss,
howsoever arising under or in connection with the Contract; and
(b) Company's total aggregate liability to the Customer in respect of all losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of legislative provisions, or otherwise, shall in no circumstances exceed the greater of £1,000 or the Contract price of the Goods set out in the relevant Order.
10.4 This Condition 11. INTERNET AND USE OF SOCIAL MEDIA
11.1 The Customer acknowledges and agrees that the brand image associated with the Goods is of critical importance to Company and must be uniformly represented. The Customer shall not and shall procure that its customers (who are not end users) shall not:
(a) create, register or otherwise seek or maintain any interest whether directly or indirectly in any domain name or social media handle which contains all or any words of (or words confusingly similar to) the brands or trade marks, any local language versions thereof or any other part of the brands or trade marks relating to the Goods (a “Brand Domain Name/Social Media Handle”). In the event that the Customer or any of its customers (who are not end users) register or otherwise have an interest in any Brand Domain Name/Social Media Handle, in addition to any rights or remedies available to Company, the Customer shall at its sole expense cause such Brand Domain Name/Social Media Handle to be immediately transferred to Company or its designated Affiliate. The Customer shall notify Company immediately in writing if any internet keywords or adwords that contain any of the brands or trade marks in the Goods are offered to Customer for purchase or ownership;
(b) create or permit any linking from any other web site to any web site developed or maintained by Company or Newell Brands, Inc. or their Affiliates, but shall establish such hyperlinks or other link or connection to Company’s website or other websites to its websites as Company may request in writing;
(c) without Company’s explicit and prior written consent create a website that purports to be an official website of the brands relating to the Goods as the Customer acknowledges and agrees that this could cause confusion for customers of the Goods as to who the seller of the Goods is; [and/or]
(d) cause or allow all or any part of the brands or trade marks relating to the Goods to be otherwise used or displayed, in whole or in part, in any electronic mail address or in connection with any other internet related activity; [and/or]
(e) promote, advertise for sale or sell the Goods on online marketplaces. In this Condition11.2 The Customer will be solely responsible for the content of any website that it uses to promote the Goods and for compliance with any applicable laws and regulations and will indemnify and hold harmless Company on demand for any claim and/or damage as a result of non-compliance by the Customer with such laws and regulations.
11.3 The Customer shall comply with Company’s stipulations regarding the form, content and quality standards relating to the use of the internet (or other electronic media) in connection with the Customer’s business.
11.4 The Customer shall not participate in or contribute towards any website or other public medium or communication the object or likely effect of which is the denigration of the Goods and/or Company.
11.5 The Customer shall not use social media to promote or advertise the Goods or reference the brands or trade marks relating to the Goods without Company’s prior written consent, except where such use is legitimate under applicable trademark law. Where Company provides such consent Customer must:
(a) strictly comply with any social media policy and guidelines issued by Company in relation to the use of such account or site;
(b) ensure that any such site or profile does not contain pages where third parties can upload content which cannot be edited and/or deleted; and
(c) at the request of Company, grant to Company administrator rights or other control in respect of any online networking site relating to the brands, trade marks and/or Goods.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 The Customer acknowledges and agrees that all Intellectual Property Rights in the Goods are owned by Newell Brands, Inc. and/or its Affiliates including but not limited to, those featured on the Goods and any labels, user documentation and other literature supplied by Company in connection therewith, shall remain the property of Newell Brands, Inc. and/or its Affiliates and that all rights and goodwill in any such Intellectual Property Rights vests and shall remain vested in Newell Brands, Inc. and/or its Affiliates.
12.2 The Customer may make use of the trade marks relating to the Goods in so far as they are relevant to the Goods and used in connection with the provision, advertising and sale of the Goods under the Contract, provided that Customer shall first obtain the written approval of Company, Newell Brands, Inc. or relevant Affiliate (as applicable) for all promotional, advertising or sales material incorporating any such trade marks prior to the use of any such material (“Customer Materials”). For the avoidance of doubt the beforementioned written approval is not required if the Customer’s use of the trade marks is legitimate under applicable trademark law. The Customer shall use its best endeavours to ensure that its customers also comply with the requirements of this Condition 12.3 The Customer shall not and shall ensure that its customers that are not end users shall not, at any time during the term of the Contract register, apply for, or use any trade mark, trade name or trade dress that is identical or similar to or is a local language version of, or contains any of the marks used by or belonging to Company, Newell Brands, Inc. and/or their Affiliates. In the event that the Customer or any of its customers (who are not end users) register or apply for any trade mark or trade name or trade dress that is identical or similar to or is a local language version of or contains any of the trade marks or any other trade marks owned by the Company, Newell Brands, Inc. or their Affiliates, in addition to any rights or remedies available to Company, the Customer shall at its sole expense cause such trade marks trade names and/or trade dress to be immediately transferred to Company or its designated Affiliate.
(a) not in any way alter or modify the Goods or the packaging or labelling of the Goods as supplied by Company unless such alterations and/or modifications first have been approved by Company in writing provided that Company shall not unreasonably withhold its consent to the Customer having labels, user documentation and other literature relating to the Goods translated into an appropriate language for use on, on the packaging of, or to accompany, the Goods in the territory in which are intended for resale;
(b) subject to Condition (c)