Trade Terms and Conditions
ST EVAL CANDLE CO LIMITED
- COMMENCEMENT AND TERM
This Contract is between St Eval Candle Co Limited, Company Number 04540135 (“Us, We, Our”) and the person (“You, Your”) listed in the written confirmation of order or, in the case of bespoke goods, the schedule of works (in either case, being the “Order Form”). It shall commence on the date the Order Form has been signed and dated by both parties (“Commencement Date”). It shall continue, unless terminated earlier in accordance with its terms, until goods set out in the Order Form (“Goods”) have been supplied.
2.1 Owing to traditional production methods used, Goods may vary in finish and colour. Any samples, drawings, descriptive matter, or advertising produced by Us are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force. We reserve the right to amend the specification, colour or pricing of any Goods at any time without notice.
2.2 Orders in respect of the Goods will be at the intervals and volumes as set out in Order Form or as otherwise agreed by the parties in writing.
2.3 You are responsible for ensuring that Your order as set out in the Order Form (“Order”) and any applicable specification submitted by You or agreed with You as part of the Order (“Specification”) is complete and accurate. You shall give Us all necessary information that We reasonably require in order to fulfil each Order.
2.4 We are only bound by an Order if We have accepted it unless otherwise agreed.
3.1 Unless otherwise agreed and subject to availability of the Goods, We shall dispatch Goods for delivery within such estimated date as is set out in the Order Form subject to Us being in receipt of payment in respect of those Goods unless otherwise agreed. Delivery is completed on the completion of loading of the Goods at the delivery location listed in the Order Form (“Delivery Location”).
3.2 Unless otherwise agreed: for Orders to be dispatched to the UK mainland excluding the highlands of Scotland: We shall utilise a courier who will endeavour to deliver the Order within 72 hours. In respect of Orders of less than £300 exclusive of VAT, You shall pay an additional delivery charge of £15 plus VAT. In respect of Orders of £300 or more exclusive of VAT, the Delivery shall be free of charge. For the avoidance of doubt this clause 3.2 shall not apply where our bespoke product terms (“Bespoke Product Terms”) apply.
3.3 Unless otherwise agreed, for orders to be dispatched outside of the UK mainland You may arrange for collection of the Goods from Our premises at Your own cost at such time as We agree with You.
3.4 Delivery Dates are approximate only, and the time of delivery is not of the essence. We shall not be liable for any delay in delivery of or failure to deliver any Goods that is caused by either a Force Majeure Event as defined in clause 12; or Your failure to provide Us with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
3.5 We may deliver Orders by instalments, which shall be invoiced and paid for separately. You may not cancel an instalment because of any delay in delivery or defect in another instalment.
QUALITY AND FITNESS FOR PURPOSE
4.1 If: You give notice in writing to Us within 1 day of discovery that some or all of the Goods are in some way defective, We are to be given a reasonable opportunity of examining such Goods; and You (if asked to do so by Us ) will return such Goods to Our place of business in the post. We shall, at Our option, repair or replace any Goods that are found to be defective, or refund the price of such defective Goods in full, together with any postage incurred.
4.2 We shall not be liable for any defect if: You make any further use of such Goods after giving notice of defects in accordance with clause 4.1; or the defect arises because You failed to follow Our instructions as to the storage, use and maintenance of the Goods or (if there are none) good trade practice regarding the same; or the defect arises as a result of Us following any drawing, design or Specification supplied by You; or You alter or repair such Goods without Our written consent; or the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or the Goods differ from the Order Form as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
4.3 The terms of the Contract shall apply to any repaired or replacement Goods supplied by Us.
4.4 In performing Our obligations under the Contract, We shall comply with all applicable laws, statutes, and regulations from time to time in force provided that We shall not be liable under this Contract if, as a result of such compliance, We are in breach of any of Our obligations under this Contract.
4.5 You shall order not less than the number of any minimum quantity of Goods set out in the Order Form or otherwise agreed from time to time.
TITLE AND RISK
5.1 Risk in Goods shall pass to You on completion of loading the Goods at the Delivery Location. Title to Goods shall only pass to You once We receive payment in full (in cash or cleared funds) for them or delivery takes place if later.
5.2 Until title to the Goods has passed to You, You shall: store the Goods separately from all other goods held by You so that they remain readily identifiable as Our property; not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; notify Us immediately if You become subject to any of the events listed in clause 10.1.2; and give Us such information as We may reasonably require from time to time relating to the Goods and Your ongoing financial position.
5.3 We may recover Goods in which title has not passed to You. You irrevocably license Us, Our officers, employees and agents, to enter any premises of You (including with vehicles), in order to satisfy Ourselves that You are complying with the obligations in clause 5.2, and to recover any Goods in which property has not passed to You.
5.4 We may at any time after delivery elect to transfer title in the Goods to You, in which case You shall immediately pay the Price to Us.
6.1 If You are the subject of a request, court order or other directive of a governmental or regulatory authority to withdraw any Goods from the market (Recall Notice) You shall immediately notify Us in writing enclosing a copy of the Recall Notice. Unless required by law, You may not undertake any recall or withdrawal without Our written permission and only then in strict compliance with Our instructions as to the process of implementing the withdrawal.
7.1 You shall not actively sell any of the Goods as a Prime Item as these sales are reserved to another distributor.
7.2 In this clause 7, a Prime Item is an item which:
7.2.1 is sold on any website operated by the online retailer known as Amazon.com,inc or any of its affiliates or subsidiaries (“Amazon”); and
7.2.2 is subject to the benefits of the “Amazon Prime” membership service offered by Amazon.
7.3 A breach of clause 7.1 will be deemed a material breach of this Contract enabling Us to terminate in accordance with clause 10.1.
PRICE AND PAYMENT
8.1 You shall pay for Goods in accordance with this clause 8.
8.2 The Price excludes:
8.2.1 the costs of insurance of the Goods, which shall be invoiced to You in addition to the Price and transportation which will be invoiced to You in accordance with clause 3; and
8.2.2amounts in respect of VAT, which You shall additionally be liable to pay to Us at the prevailing rate (if applicable), subject to the receipt of a valid VAT invoice.
8.3 We may invoice You for the price of Goods plus VAT at the prevailing rate (if applicable) on or at any time after We confirm the relevant Order to You.
8.4 You shall pay invoices in full in cleared funds immediately unless otherwise agreed by Us. Payment shall be made to the bank account nominated in writing by Us. Where direct debit payments are made in respect of invoices older than 14 days, You shall pay to Us a 5% surcharge on demand.
8.5 If You fail to make any payment due to Us under the Contract by the due date for payment, then, without limiting Our remedies under clause 10 You shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Lloyds TSB base rate from time to time, but at 4% a year for any period when that base rate is below 0%.We may also suspend all further deliveries of Goods until payment has been made in full.
8.6 All amounts due under this Agreement from You to Us shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). We may at any time, without limiting any of Our other rights or remedies, set off any amount owing to Us against any amount payable by Us to You.
LIMITATION OF LIABILITY
9.1 We have obtained insurance cover in respect of certain aspects of Our own legal liability for individual claims not exceeding £2,000,000 per claim. The limits and exclusions in this clause reflect the insurance cover We have been able to arrange and You are responsible for making Your own arrangements for the insurance of any excess liability.
9.2 Nothing in this Contract shall limit or exclude the Our liability for:
9.2.1 death or personal injury caused by Our negligence, or the negligence of Our employees, agents or subcontractors (as applicable);
9.2.2 fraud or fraudulent misrepresentation; or
9.2.3 any matter in respect of which it would be unlawful for Us to exclude or restrict liability.
9.3 Subject to clause 9.2:
9.3.1 We shall not be liable to You, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
9.3.2 Our total liability to You for all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, shall not exceed the total sums paid and/or payable by You for Goods under the Contract.
10.1 Without limiting its other rights or remedies, either party may terminate this Contract with immediate effect by giving written notice to the other party if:
10.1.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
10.1.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
10.1.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
10.1.4 the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Contract is in jeopardy.
10.2 Without limiting Our other rights or remedies, We may terminate the Contract with immediate effect by giving written notice to You if You fail to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.
10.3 Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
11.1 We grant to You the non-exclusive right to use the logo and such other images as are identified within the Order or otherwise agreed between You and Us in writing (“Our Intellectual Property Rights”) in the promotion, advertisement and sale of the Goods, subject to this Contract. You acknowledge and agrees that all rights in Our Intellectual Property Rights shall remain Ours, and that You have and will acquire no right except for the right to use Our Intellectual Property Rights as expressly provided in this Contract.
11.2 Except as otherwise agreed within the Order Form, You shall not:
11.2.1 alter or make any addition to the labelling or packaging of the Goods displaying Our Intellectual Property Rights;
11.2.2 make any addition or modifications to the Goods or to any advertising and promotional materials supplied by Us; or
11.2.3 alter, deface or remove any reference to Our Intellectual Property Rights, any reference to the Supplier or any other name attached or affixed to the Goods or their packaging or labelling.
11.3 You shall not sub-license, assign, transfer, charge, or otherwise encumber the right to use, reference, or designate Our Intellectual Property Rights to any other party, except as otherwise expressly permitted under this Contract.
11.4 Unless otherwise agreed in the Order Form, You:
11.4.1 shall market and sell the Goods only under Our Intellectual Property Rights, and not in association with any other trade mark, brand or trade name; and
11.4.2 shall not use Our Intellectual Property Rights as part of the name under which You conduct Your business, or any connected business, or under which You sell or service any goods (except the Goods), or in any other way, except as expressly permitted under this Contract.
12.1 Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond a party's reasonable control including but not limited to flood, natural disaster, epidemic or pandemic, terrorist attack or war, fire, or accident, any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition (“Force Majeure Event.”). If the period of delay or non-performance continues for 6 weeks, the party not affected may terminate this Contract by giving 30 days' written notice to the affected party. Without prejudice to the foregoing, a party is deemed to have failed to perform any of its obligations under this Contract where the party’s costs in doing would increase by such an amount or percentage (if any) as is listed in the Order Form.
12.2 Assignment and other dealings. You shall not assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of Your rights or obligations under the Contract without Our prior written consent. We may at any time assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of Our rights under this Contract.
12.3 Entire agreement. This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
12.4 Variation and waiver. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives). No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.5 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
12.6 Notices. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or email. A notice or other communication shall be deemed to have been received: if delivered by hand, when left at the address referred in this clause 12.6; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.7 Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
12.8 Governing law and jurisdiction. This Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.