The Yankee Candle Company, Inc.
Standard Terms and Conditions
UNLESS OTHERWISE EXPRESSLY AGREED
IN WRITING, ALL PURCHASES ARE
SUBJECT TO THE FOLLOWING TERMS
AND CONDITIONS:
1. OFFER AND ACCEPTANCE: This Purchase
Order is only an offer to enter into a contract. For this
Purchase Order to be a valid and effective offer, it
must be executed by a duly authorized agent of the
Buyer. Buyer may revoke, amend or modify this offer
at any time prior to Seller’s acceptance. Any of the
following acts constitute Seller’s acceptance of this
Purchase Order and all terms and conditions herein:
(a) Seller’s execution and return of the
acknowledgment copy of the Purchase Order or
Seller’s own acknowledgment form, (b) Seller’s
commencement of performance pursuant to this
Purchase Order, (c) Seller’s delivery of any of the
products ordered or (d) Seller’s acceptance of any
payment by Buyer hereunder. Acceptance of this
Purchase Order is expressly limited to and conditioned
upon acceptance of the terms set forth below, which
terms cannot be altered or amended without our
express written agreement. Acceptance shall be
binding upon Seller and Seller’s successors, assigns
and delegatees.
2. PRICES: All prices shall be stated in this Purchase
Order and are firm and not subject to escalation. Seller
represents and warrants that the prices set forth in this
Purchase Order are at least as low as those currently
being quoted by Seller to commercial users for the
same products, in like quantities, under similar
circumstances. If no price is stated for any product, the
price for that product shall be the lowest price
currently quoted or charged by Seller for that product,
but in no event higher than the price most recently
quoted or charged to Buyer by Seller for that product.
3. TAXES: Unless otherwise provided in this
Purchase Order, the price includes, and Seller shall
pay, all excise, sales, use, transfer or other taxes,
federal, state and local, in connection with the sale or
delivery of the products to Buyer.
4. TERMS OF PAYMENT: Payment terms shown
on the front of this purchase order shall be from the
later of the date Buyer receives Seller’s invoice or the
date on which Buyer accepts the products.
5. QUANTITIES: Unless Buyer has otherwise agreed
in writing, Seller must deliver the exact quantities
specified. Buyer reserves the right to reject incomplete
deliveries and to return at Seller’s risk and expense
excess quantities delivered.
Revised 3/29/12
6. PACKAGING AND SHIPMENT: All products
shall be packaged, marked and otherwise prepared for
shipment by Seller in suitable containers in
accordance with sound commercial practices. Seller
shall mark on all containers all necessary handling,
loading and shipping instructions, including but not
limited to; Buyer’s Purchase Order number; Buyer’s
item number and bar code; description of product
contained and quantity therein. An itemized packing
list shall be included with each shipment on the
outside of shipping container stating same
information. Bills of lading and delivery slips must
also include Purchase Order number and description
of product.
7. DELIVERY: Buyer’s production and marketing
schedules are established in part in reliance upon the
delivery information specified in this Purchase Order.
The date on the reverse hereof is the date of arrival at
Buyer’s facility. Time and place of delivery are of the
essence in the performance of this Purchase Order.
Any provision for delivery in installments shall not be
construed as making the obligations of Seller
severable. If delivery cannot be made at the specified
time and place, Seller shall promptly notify Buyer of
the earliest possible date for conforming delivery.
Notwithstanding such notice, and unless otherwise
agreed by Buyer in writing, Seller’s failure to effect
conforming delivery shall entitle Buyer to revoke any
acceptance, to cancel this order without liability to
Seller, to receive a full refund on any amounts paid, to
purchase substitute products elsewhere, to return at
Seller’s risk and expense all or any part of a
nonconforming delivery and to hold Seller
accountable for any loss or additional costs incurred.
Buyer’s receipt or acceptance of all or part of a
nonconforming delivery shall not constitute a waiver
of any claim, right or remedy Buyer has under this
Purchase Order or under applicable law.
8. TITLE AND RISK OF LOSS: Title to and risk of
loss for products (other than software products)
purchased which conform to this Purchase Order shall
pass to Buyer upon receipt and acceptance at Buyer’s
premises. Title to and risk of loss for nonconforming
products and for all property provided to Buyer by
Seller shall remain with Seller.
9. INSPECTION AND REJECTION: Buyer may
inspect and test all products at reasonable times
before, during and after manufacture. If any inspection
or test is made on Seller’s premises Seller shall
provide reasonable facilities and assistance for the
safety and convenience of Buyer’s inspectors in such
manner as shall not unreasonably hinder or delay
Seller’s performance. All products shall be received
subject to Buyer’s inspection, testing, approval and
acceptance at Buyer’s premises notwithstanding any
inspection or testing at Seller’s premises or any prior
payment for such products. Products rejected by Buyer
as not conforming to the Purchase Order may be
returned to Seller at Seller’s risk and expense and shall
not be replaced by Seller without Buyer’s written
authorization.
10. WARRANTIES: In addition to any other express
or implied warranties, Seller warrants that all products
delivered hereunder will be merchantable, new,
suitable for the uses intended, of the grade and quality
specified, free from all defects in design, material and
workmanship, will conform to all samples, drawings,
descriptions and specifications furnished, and will be
free of liens and encumbrances. Seller warrants that
software products provided hereunder will perform
substantially in accordance with applicable product
specifications in effect at the time of delivery. These
warranties shall survive any delivery, inspection,
acceptance, payment or resale of the products and
shall extend to Buyers and Buyer’s customers. These
warranties shall be construed as conditions as well as
warranties and shall not be deemed to exclude Seller’s
standard warranties or other rights or warranties which
Buyer may have or obtain. At its expense and option,
Seller shall replace or repair any products not
conforming to the foregoing warranties and shall
correct all software products not performing
substantially in accordance with applicable product
specifications. If after notice Seller fails promptly to
replace or repair any such product or to correct any
such software product, Seller shall promptly refund to
Buyer the full purchase price paid by Buyer for all
such products.
11. INTELLECTUAL PROPERTY;
NONINFRINGEMENT: (a) Seller acknowledges
and agrees that all specifications, drawings, diagrams,
schematics, sketches, models, samples, designs,
technical information or data, written, oral, or
otherwise, furnished by Buyer or on Buyer’s behalf is
and shall remain Buyer’s sole and exclusive property,
and shall be returned promptly to Buyer or its
designee (together with all copies) upon the earlier of
Buyer’s request or the termination or completion of
this Purchase Order. Seller acknowledges and agrees
that all such intellectual and industrial property, as
well as the terms of this Purchase Order and the
existence and content of the relationship between the
Seller and Buyer, shall be treated as confidential, and
shall not be used or disclosed by Seller except as
required in the course of performing this or other
Purchase Orders for Buyer. Unless Buyer has
otherwise agreed in writing, information and material
furnished or disclosed by Seller to Buyer shall not be
considered to be confidential or proprietary, and shall
be acquired by Buyer free of restrictions of any kind.
(b) Seller acknowledges and agrees that any
copyrightable product made, designed or developed
for Buyer in connection with the performance of this
Purchase Order shall be a “work made for hire” within
the meaning of Section 201 of the Copyright Law of
1976. Seller hereby assigns to Buyer any and all
Revised 3/29/12
inventions, discoveries, computer programs, software,
data, technologies, designs, innovations and
improvements, and the related patents, copyrights,
trademarks, trade names and other industrial and
intellectual property rights and applications therefor,
made and conceived by Seller or its agents or
employees in connection with the performance of this
Purchase Order. Seller hereby appoints any of Buyer’s
officers as its duly authorized attorney, and Seller
agrees to cooperate to the extent Buyer may
reasonably request, for the purposes of executing,
filing, prosecuting and protecting the foregoing. (c)
Seller represents and warrants that the products
delivered hereunder do not infringe any United States
or foreign patent, trademark, trade secret or copyright,
or any proprietary, intellectual property, industrial
property, contract or other right held by any third
party. (d) Seller shall include all provisions of this
Section 11 for the benefit of Buyer, including this
Section 11(d), in all subcontracts made under this
Purchase Order.
12. TOOLS AND EQUIPMENT: All tools, dies,
molds, patterns, jigs, artwork, printing plates, proofs,
masks and other equipment and materials furnished by
Buyer to Seller or paid for by Buyer, directly or
indirectly, and any replacements shall remain Buyer’s
property. Seller shall safely store such property
separately from Seller’s property, shall plainly identify
such property as Buyer’s property and shall not use, in
any other manner whatsoever, such property except in
filling this or other Purchase Orders for Buyer. All
such property shall be held at Seller’s risk, shall be
insured by Seller at its expense for an amount equal to
its replacement cost and with Buyer named as loss
payee and shall be returned to Buyer or its designee
upon the earlier of Buyer’s request or the termination
or completion of this Purchase Order.
13. CHANGES: Buyer may, at any time and from
time to time, by notice to Seller, make changes in
specifications, designs, drawings, method of packing
or shipments, quantity ordered, destinations and
delivery schedules and Seller shall immediately
comply therewith. If any such change causes a
material increase or decrease in Seller’s cost or the
time for performance, an equitable adjustment shall be
made to the price or delivery schedule, or both. Any
claim by Seller for adjustment under this Section 13
shall be deemed waived unless made in writing within
10 days after receipt of written notice by Buyer of the
change. No change, modification or revision of this
Purchase Order by Seller shall be binding upon Buyer
unless in writing and signed by Buyer’s duly
authorized representative. Nothing contained in this
Section 13 shall excuse Seller from diligently
proceeding with the order as changed.
14. COMPLIANCE WITH LAWS: (a) Seller shall
comply with all applicable governmental laws,
ordinances, codes, rules, regulations, programs, plans
and orders in the performance of this Purchase Order.
At Buyer’s request, Seller shall provide appropriate
certificates of compliance. (b) Seller shall obtain all
permits or licenses required in connection with the
manufacture, sale, shipment and installation of the
products ordered hereby. (c) If in connection with the
products to be delivered under this Purchase Order,
Seller is required to comply with Occupational Safety
and Health Act’s hazardous communications standard
(48 Fed. Reg.53280(1983)), Seller agrees to provide
Buyer with copies of the applicable Material Safety
Data Sheets at the time of delivery to Buyer’s
premises of the products ordered hereunder which
require such compliance, and any updates of such
sheets required to be delivered by Seller to Buyer
under such laws and regulations and/or upon request.
15. CANCELLATION: (a) Buyer may, by notice to
Seller, cancel the whole or any portion of this
Purchase Order in the event of (i) proceedings,
voluntary or involuntary, in bankruptcy or insolvency,
by or against Seller, (ii) the appointment, with or
without Seller’s consent, of any trustee or receiver for
any substantial portion of Seller’s assets, (iii) any
assignment for the benefit of Seller’s creditors or (iv)
Seller’s breach of any provision contained herein. In
the event of any such cancellation, Buyer may
procure, upon such terms and in such manner as Buyer
may deem appropriate, products comparable to the
products covered by the Purchase Order so terminated,
and Seller shall be liable to Buyer for any excess cost
of such comparable products. In the event of any such
cancellation, Buyer may require Seller to deliver to
Buyer in the manner and to the extent directed by
Buyer, any completed or partially completed products,
and such delivery shall be credited against any
prepayment by Buyer properly allocable to such
products. Seller shall continue performance of this
Purchase Order to the extent not canceled. Except to
the extent specifically set forth herein, Buyer shall
have no obligation or liability to Seller in respect of
the canceled portion of this Purchase Order. Buyer’s
rights set forth in this Section 15 shall be in addition to
Buyer’s other rights in the event of Seller’s default. In
the event of any such cancellation all deposits or
prepayments shall be deemed to have been held in
trust for Buyer’s benefit and shall be returned to Buyer
promptly upon request. (b) All of Seller’s obligations
set forth in this Purchase Order shall survive the
cancellation, termination or completion of this
Purchase Order.
16. ASSIGNMENT: Seller shall not delegate or
subcontract any duties or assign any rights or claims
under this Purchase Order without Buyer’s prior
written consent, and any such attempted delegation,
subcontract or assignment shall be void.
17. GOVERNING LAW: This Purchase Order and
the rights and obligations of the parties hereunder shall
be governed by and interpreted, construed and
enforced as a sealed instrument in accordance with the
laws of the Commonwealth of Massachusetts, United
States of America.
18. AUTHORIZATION: Seller represents and
warrants that it has been duly authorized to execute,
deliver and perform this Purchase Order, and the
person signing on the Seller’s behalf has the power
and authority to do so.
Revised 3/29/12
19. INDEMNIFICATION: Seller shall indemnify
and hold Buyer harmless against any and all claims,
losses, liabilities, damages, costs or expenses,
including attorneys’ fees and court costs, and shall
defend all actions and proceedings at its sole expense,
resulting from the breach or alleged breach of any
representation, warranty or agreement made by Seller
in this Purchase Order, including, without limitation,
Seller’s obligations to deliver products pursuant to this
Purchase Order and Seller’s representations,
warranties and agreements contained in this Purchase
Order.
20. INSURANCE: Seller shall maintain with an
insurance company or companies Comprehensive
General Liability Insurance (including liability
hereunder) in the minimum amount of $1,000,000. At
Buyer’s request, a certificate of such insurance shall
be filed with Buyer and shall provide for 10 days prior
written notice to Buyer of cancellation or material
change. Liability insurance limits shall not be
construed to limit Buyer’s right of indemnity
hereunder.
21. SET-OFF: Any amount owed to Seller by Buyer
or any of Buyer’s affiliates shall be subject to
deduction for any set-off counterclaim or
indemnification right arising out of this or any other
Purchase Order to Seller from Buyer or any of Buyer’s
affiliates.
22. SEVERABILITY; REMEDIES; WAIVER: In the
event that any one or more provisions contained in this
Purchase Order shall be held by a court of competent
jurisdiction to be invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of
the remaining provisions contained herein shall not in
any way be affected or impaired thereby. The
remedies contained herein are cumulative and in
addition to any other remedies at law or equity.
Buyer’s failure to enforce, or waiver of a breach of,
any provision of this Purchase Order shall not
constitute a waiver of any other breach or of such
provision.
23. ENTIRE AGREEMENT: This Purchase Order is
the complete and exclusive statement of the contract
between Buyer and Seller with respect to Buyer’s
purchase of the products or services. In case of a
conflict between the terms and conditions on the face
of this Purchase Order and the terms and conditions
contained on this reverse side to this Purchase Order,
the terms and conditions on the face of this Purchase
Order shall control.
24. ADDITIONAL OR INCONSISTENT TERMS:
Any term or condition set forth in any Sales Order
provided to Buyer by Seller which is in any way
different from, inconsistent with or in addition to the
terms and conditions set forth herein will not become
a part of this Purchase Order or be binding upon
Buyer. If Seller objects to any term or condition set
forth herein, this objection must be in writing and
received by Buyer at the address stated on the opposite
side prior to Seller’s delivery. Buyer’s failure to object
to terms contained in any communication from Seller
will not be a waiver of the terms set forth herein.
Seller shall not condition any delivery upon the
abrogation or modification of any of the terms and
conditions included in this Purchase Order.
25. WORK TO BE COMPLETED ON BUYERS
PREMISES BY SELLER: In the event that Seller is
required, as a part of its fulfillment of the terms of this
Purchase Order, to perform work or services on
Buyer’s premises, Seller assumes entire responsibility
and liability for losses, expenses, damage, demands
and claims in connection with or arising out of any
injury or alleged injury (including death) or damage to
property, sustained or alleged to have been sustained
in connection with or to have arisen out of the
performance of such work or services by Seller. Seller
shall indemnify and hold Buyer harmless from and
against any and all claims, demands, actions, causes of
action, suits, damages, expenses (including attorneys’
fees) and liabilities, contingent or otherwise,
whatsoever resulting from or arising in any manner on
account of or by reason of any injury to or death of
any person or any damage to or loss of property which
may occur to be alleged to have occurred as a result of
or in connection with the performance of such work or
services in connection with this Purchase Order. Buyer
reserves the right to eject and/or refuse entry to any of
Seller’s employees for any reasons sufficient to Buyer,
without informing Seller of the reason for such
ejection or refusal of entry, and such action by Buyer
shall not constitute a ground for non-performance by
Seller.
26. Affirmative Action. This order is subject to the
requirements of Title VII of the Civil Rights Act of
1964, as amended, Section 503 of the Rehabilitation
Act of 1973, as amended, Section 402 of the Vietnam
Era Veterans Readjustment Assistance Act of 1974, as
amended, Executive Order 11246, as amended, and all
other civil rights related laws and regulations that have
or may be enacted, as amended. All requirements
under the aforementioned statutes, orders and
applicable regulations, including but not limited to
paragraphs 1 through 7 of Executive Order 11246, as
amended, are incorporated herein by reference.
THE YANKEE CANDLE®COMPANY, INC. • P.O.
BOX 110 • SOUTH DEERFIELD,
MASSACHUSETTS 01373-0110
Revised 3/29/12