THESE TERMS INCLUDE A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER IN SECTION 18. THIS PROVISION AFFECTS YOUR RIGHTS TO RESOLVE DISPUTES WITH PENHALIGON’S AND YOU SHOULD REVIEW IT CAREFULLY
1 These Terms
(a) These terms will apply to the sale and supply of any of the products listed on our website by us to you. Please read them carefully before ordering any products from our website. By ordering any of our products, you agree to be bound by these terms and the other documents referred to in them.
(b) You should print and keep a copy of these terms for future reference.
(c) Please click on the button marked "Proceed to Purchase" at the point of payment if you accept these terms and conditions. If you refuse to accept these terms you must not order any products from us.
(d) From time to time, we may amend these terms (see clause 7 below). Every time you submit an order to us, please check these terms to ensure you understand the terms which will apply at the time you place your order. These terms were last modified on Tuesday 2nd January 2018 with changes made to clauses 1-18
(e) These terms and any contract between us are in the English language only.
2 Information about us
(a) The website is operated by Penhaligon’s Inc. ('we','us','our'). Our registered office at 400 Madison Avenue, Suite 10B, New York, NY 10017.
(b) To contact us, please see our Contact Us page or send us an email to [email protected].
3 Our products
(a) The images of the products on our website are for illustrative purposes only. The products you received may vary slightly from those images. Although we have made every effort to display the colours accurately, we cannot guarantee that your computer's display of the colours accurately reflect the colour of the products.
(b) The packaging of the products may vary from that shown on images on our website.
4 Use of our website
(b) While we accept responsibility for statements and representations made by our duly authorised agents, please make sure you ask for any variations from these terms which may have been agreed, to be confirmed in writing.
(c) You may only purchase products from our website if you are at least 18 years old and if you are legally capable of entering into binding contracts.
(d) Only consumers may purchase products from us on this website. If you are a business wishing to purchase these products for resale please contact us at [email protected].
6 How the contract is formed between you and us
(a) Our order process allows you to check and amend any errors before submitting your order to us. Please take the time to read and check your order at each page of the order process.
(b) To place an order for products on this website, you should:
· Step 1 – Add your product to the online shopping bag
· Step 2 – Enter the bag and choose Proceed to Purchase
· Step 3 – Existing Customers: Sign in to your online account New customers: Press continue, provide your contact information and billing and delivery addresses
· Step 4 – Select Delivery Method and any Gift Message or Wrapping
· Step 5 – Select Proceed to Purchase or Pay with Paypal
By clicking "Proceed to Purchase" you confirm that you have read, understood and accept these terms and conditions.
(c) You can pay for products on our website using a debit or credit card or PayPal.
(e) If you wish to pay for the products using PayPal, select ‘Pay with Paypal’ and you will be redirected to the PayPal login page to complete the payment of the order. If you do not have a PayPal account, you can sign up at the PayPal login page before completing your order.
(f) After you place an order, you will receive an e-mail from us acknowledging that we have received your order. This does not mean that your order has been accepted. Our acceptance of your order will take place as described in clause 6(g).
(g) We will confirm our acceptance of your order by sending you an e-mail that confirms that the products have been dispatched (‘Shipping Confirmation’). It is at this point that the contract between you and us for the sale and purchase of the products ordered by you will be formed and become binding. The contract that is formed shall be in English and will include these terms and conditions.
(h) If we are unable to supply you with a product, for example because that Product is not in stock or no longer available or because of an error in the price or description on our website (see clause 13(e)) or because we are unable to obtain authorisation for your payment, we will inform you of this by e-mail as soon as possible and we will not process your order. If you have already paid for the products, we will refund you the full amount paid as soon as possible.
(i) We may decide, at our discretion, not to accept an order from you for any products.
7 Our right to make changes
(a) Minor changes. We may update or amend these terms from time to time to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements, and changes in our system's capabilities. These changes will not affect your use of the product.
(b) More significant changes. Where we make changes to these terms or to the products and such changes affect your rights under these terms or your use of the products in any material way you will be notified when the relevant changes take effect. You may then end the contract before the changes take effect and receive a refund for any products you have paid for but have not yet received.
(c) Please review these terms regularly to ensure you are aware of any of the changes we have made.
8 Your right to change your mind
(a) You have the legal right to change your mind and cancel your order at any time from the date the order was placed until 14 days after the day the order products were delivered to you. If the order is split into several deliveries over different days, the cancellation period is extended until 14 days after the date of the last delivery. Refunds will be made in accordance with our refund policy (see clause 10 below).
(b) Our Penhaligon’s Promise
In addition to your legal rights under clause 8(a), we offer our customers (who are consumers) purchasing through our website for deliveries to addresses in the US a Penhaligon’s Promise which is more generous than your rights as a consumer under law. We have highlighted the way in which this is more generous in the table below. Please note you also have statutory rights in relation to the products as a consumer which are not affected by the Penhaligon’s Promise
How our Penhaligon’s Promise is more generous
14 day period to change your mind
60 day period to change your mind
(c) Therefore if you change your mind and wish to cancel your order you may do so at any time within a period of 60 days from the date you placed the order with us. To cancel your order please notify us by: emailing us at [email protected], or writing to us at Penhaligon’s Inc., 400 Madison Avenue, Suite 10B, New York, NY 10017 and in either case including your name, address, details of your order and email or, by printing off and posting or by emailing to us a completed model cancellation form available here. Refunds will be made in accordance with our refund policy (see clause 10 below).
9 Damaged or faulty products and your other rights to terminate
(a) We are under a legal duty to supply products that conform to your order which we accepted. Therefore if what you have bought is faulty, broken on arrival or mis-described (minor variations do not count see clause 3(a)) and we agree with you following an examination of the returned product, then we will (at your choice) either replace the product free of charge or, refund you the price of the product and the postage you paid for the product and any reasonable costs you incur in returning the item to us in accordance with our refund policy (see clause 10 below). Simply return the faulty product to us unused by sending the product to the address shown in the refund policy: Penhaligon’s Inc, Attn: Customer Service, c/o CDL Logistics, LLC, 23 Roosevelt Avenue, Suite 12, Somerset, NJ 08873.
(b) You also have the right to terminate the contract between you and us for the supply of any product where:
· we have told you about an error in the price or description of the product you have ordered and you do not wish to proceed;
· there is a risk that supply of the products may be significantly delayed because of events outside our control;
· we have suspended or have notified you that we are going to suspend supply of the products for a period of more than 30 days beyond the order delivery date specified in your order confirmation email; or
· where we have done something wrong or failed to do something in breach of the contract between you and us.
(c) In any of the circumstances detailed above please notify us by e-mailing us at [email protected] or writing to us at Penhaligon’s Inc., 400 Madison Avenue, Suite 10B, New York, NY 10017 detailing the cause for concern. The contract will end as soon as we receive your notification and if you are entitled to a refund we will refund you in full for the price of any products (plus postage costs) you have paid for and which have not yet been provided. You may also be entitled to compensation.
(d) As a consumer, you will always have legal rights in relation to products that are faulty or not as described. These legal rights are not affected by the returns policy in this clause 9 or these terms. Advice about your legal rights is available from the Federal Trade Commission or local Better Business Bureau.
(a) If you end the contract with us for any reason after products have been dispatched to you or you have received them, you must return them to us. If you are exercising your right to change your mind you must return the products to us as soon as reasonably practicable and in any event within 14 days of telling us you wish to end the contract.
(b) You will be responsible for the cost of returning the products to us unless:
· you are exercising your right under our Penhaligon’s Promise (and the delivery address for products is within the US);
· the products you received are faulty or not as described; or
· if you are ending the contract because we have told you of an upcoming change to the product or these terms, an error in pricing or description, a delay in delivery due to events outside our control or because you have a legal right to do so as a result of something we have done wrong. (see clause 9(d)).
(c) You must take reasonable care of the products while they are in your possession and unless you are exercising your rights under the Penhaligon’s Promise products must be returned to us unused and in their original packaging.
(d) If you chose to return any products to us, we will not be responsible for loss or damage to them in transit. If you are returning your products by post, we recommend that products are sent by registered post with your local post office or by courier so that you can track the products and that you always retain evidence of posting or proof of shipment and the tracking number until the purchase price has been refunded.
(e) If products are damaged or lost in delivery we reserve the right to charge you, or not to refund any amounts due to you, that are attributable to the loss or damage.
(f) We will refund to you using the same method originally used by you to pay us for your purchase.
(g) If you cancel your order in accordance with these terms you will receive a full refund of the price you paid for the products including delivery costs except as follows:
· we are only obliged to refund delivery costs for the least expensive delivery method we offer. Therefore if you chose a more expensive form of delivery when ordering (e.g. next day delivery) we will not pay the difference between this method of delivery and our least expensive method of delivery;
· we may reduce your refund of the price (excluding delivery costs) to reflect any deduction in the value of the products if this has been caused by your handling of the products which would not be permitted in a shop. You have a legal obligation to take reasonable care of the products while they are in your possession and are responsible for the risk of damage during transport. If we refund you the price paid before we are able to inspect the products and later discover you have handled them in an unacceptable way, you must pay us an appropriate amount.
(h) We will make any refunds due to you as soon as possible. If you are exercising your right to change your mind then We will process any refund due to you as soon as possible and, in any case, no later than 14 days after the day we receive the returned products from you or (if earlier) the day you provide us with evidence that you have sent the products.
(a) Delivery charges and timescales will vary depending on the delivery address and the delivery method you select when you submit an order to us. Details of estimated delivery times are given on our website. Please read clause 16 about what happens if there is an event outside our control which results in a delay in delivery or failure to deliver the product. We will contact you with a revised estimated delivery date if there is an event outside our control.
(b) We will use our best efforts to send you your products by the estimated delivery date set out in the order confirmation email, or, if no date is specified, then no later than 30 days following the date of your order confirmation email. If we are unable to meet the estimated delivery date we will contact you with a revised estimated delivery date.
(c) Delivery will be completed when we deliver the products to the address you gave us.
(d) If no one is available at your address to take delivery and it is not possible to leave the products securely at the premises, you will be left a note informing you that delivery has been attempted and that products have been returned to our courier’s premises, in which case, please contact us or our courier to rearrange delivery.
(e) If after a failed delivery, you do not re-arrange delivery or collect the products from the delivery depot notified to you we will contact you for further instructions and may charge you for storage costs and any further delivery costs. If, despite our reasonable efforts, we are unable to contact you or re-arrange delivery or collection we may end the contract and we will refund you the money you have already paid for the order but reserve the right to deduct from the refund a reasonable sum as compensation for any costs we have incurred as a result.
(f) We are responsible for the products until the point they are delivered to you. You are responsible for the products on delivery and will own the products once we have received your order payment in full.
(g) You should check all products you receive against your order as soon as possible. If you discover that the products are damaged or mis-described after delivery, it is advisable to tell us as soon as possible as your legal rights as a consumer vary depending on the time period.
12 International delivery
(a) We deliver to the countries listed here. However there are restrictions on some products for certain international delivery destinations, so please review the information on that page carefully before ordering products.
(b) If you order products from our website for delivery to one of the international delivery destinations we supply to, delivery charges and timescales will vary depending on the delivery location and the delivery method you select when you submit an order to us. Your order may also be subject to import duties and taxes which are applied when the delivery reaches that destination. You will be responsible for payment of any such import duties and taxes. We have no control over these charges and we cannot predict their amount.
(c) You must comply with all applicable laws and regulations of the country for which the products are destined. We will not be liable or responsible if you break any such law.
13 Price of products and delivery charges
(a) The prices of the products will be as quoted on our website from time to time. We take all reasonable care to ensure that the prices of products are correct at the time when the relevant information was entered onto the system. However, if we discover an error in the price of any products you ordered, please see clause 13(e) for what happens in this event.
(b) Prices for our products may change from time to time, but changes will not affect any order which we have confirmed with a Shipping Confirmation.
(c) The price of a product includes sales and/or use tax (where applicable) at the applicable current rate chargeable in the state of delivery for the time being. However, if the rate of sales and/or use tax changes between the date of your order and the date of delivery, we will adjust the sales and/or use tax you pay, unless you have already paid for the products in full before the change in sales and/or use tax takes effect.
(d) The price of a product does not include delivery charges, which you must also pay. Our delivery charges are as quoted on our website from time to time and are dependent on the delivery method you choose when you place your order. Delivery charges are available on our website, and will be displayed before you submit your order to us. Please take the time to read and check your order at each stage of the order process.
(e) Our website contains a large number of products. It is always possible that, despite our reasonable efforts, some of the products on our Website may be incorrectly priced. If we discover an error in the price of the products you have ordered we will inform you of this error and we will give you the option of continuing to purchase the product at the correct price or cancelling your order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing. Please note that if the pricing error is obvious and unmistakeable and could have reasonably been recognised by you as a mispricing, we do not have to provide the products to you at the incorrect (lower) price.
14 Discount and promotion codes
(a) Occasionally, we may offer special promotions (such as discounts or offers) on certain products. We have the right to withdraw such promotions at any time and they may also be subject to time restrictions, availability and other terms and conditions.
(b) To avoid disappointment, please ensure you check the terms for a promotional offer before trying to redeem it.
(c) We may occasionally offer promotional discounts, with or without a promotion code. Promotions with codes are usually only valid for one transaction and once the code is used it will be deactivated and will no longer be valid.
(d) Promotions cannot be added to an order after the order is confirmed, therefore you must ensure that the voucher is registered before you confirm and pay for the products.
(e) We do occasionally work with third parties to offer promotions related to our products but we are not responsible for promotions related to our products where such promotions are published on external websites or other media which have not been approved by us.
15 Our liability
(a) If we fail to comply with these terms, we are responsible for loss or damage you suffer that is a natural, foreseeable consequence of our breach of these terms or our negligence, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if they were an obvious consequence of our breach or if they were contemplated by you and us at the time we entered into the contract.
(b) We only supply the products to you for domestic and private use. You agree not to use the product for any commercial, business or re-sale purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
(c) We do not in any way exclude or limit our liability for death or personal injury caused by our negligence, fraud or fraudulent misrepresentation or for any breach of any terms implied by law including your right to receive products as described and match information we provided to you and any sample or model seen or examined by you; of satisfactory quality; fit for any particular purpose made known to us; supplied with reasonable skill and care and, where installed by us, correctly installed.
16 Events outside our control
(a) We may have to suspend performance of the contract between us if we are unable to perform our obligations due to any act, event or non-happening, omission or accident outside our reasonable control which includes:
· strikes, lock-outs or other industrial action by third parties;
· civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
· fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
· failure of public or private telecommunications networks;
· impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
· the acts, decrees, legislation, regulations or restrictions of any government; or
· any failure or service outage that falls outside our control.
(b) We will contact you in advance to tell you we will be suspending supply of the product, unless the problem is urgent or an emergency in which case we will contact you as soon as reasonably possible. If we have to suspend delivery of the product for longer than 30 days beyond the estimated delivery date then unless you agree to the revised date you may contact us to end the contract and we will refund any sums you have paid in advance for the product in accordance with our refund policy. Where we do we will have no further liability to you.
17 Other important terms
(a) We may transfer our rights and obligations under a Contract to another organisation. We will contact you to let you know if we plan to do this. If you are unhappy with the transfer or you feel that the service you are now receiving is not the same then you may contact us to end the Contract within 14 days of being notified of it and we will refund you any payments you have made in advance for products not provided.
(b) You need our consent to transfer your rights to someone else (except that you can always transfer our guarantee). You may only transfer your rights or your obligations under these terms to another person if we agree to this in writing.
(c) Nobody else has any rights under this contract (except someone you pass your guarantee on to). This contract is between you and us. No other person shall have any rights to enforce any of its terms, except as explained in clause 17(b) in respect of our guarantee. Neither of us will need to get the agreement of any other person in order to end the contract or make any changes to these terms.
(d) Even if we delay in enforcing this contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date. For example, if you miss a payment and we do not chase you but we continue to provide the products, we can still require you to make the payment at a later.
(e) Which laws apply to this contract. If you reside in the United States, these terms shall be governed by and construed in accordance with the laws of the State of New York and controlling U.S. federal law as applicable, without regard to its conflict of law principles.
18 Mandatory and binding Arbitration
To the maximum extent permitted by applicable law, you and Penhaligon’s agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. Except where prohibited, you and we agree to submit to the personal and exclusive arbitration of disputes relating to these terms and your purchases (if any) under the rules of the American Arbitration Association. Please visit www.adr.org for more information about arbitration.
Any arbitration between you and us, to the extent necessary, will be conducted in New York, New York, and you waive any right to claim that such location is an inconvenient forum. You agree not to sue us or bring arbitration in any other forum. The arbitration will be conducted in English. A single independent and impartial arbitrator will be appointed pursuant to the rules of the American Arbitration Association. Both you and we agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens for everyone involved:
· the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration;
· the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and
· any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement describing the reasons for the disposition of any claim.
You also acknowledge and understand that, with respect to any dispute with us arising out of or relating to your use of the Services:
· You are giving up your right to have a trial by jury;
· You are giving up your right to serve as a representative, as a private attorney general, or in any other representative capacity, or to participate as a member of a class of claimants, in any lawsuit involving any such dispute; and
· You must file any claim within one (1) year after such claim arose or it is forever barred.
If this arbitration provision is found to be null and void, then all disputes arising under the Terms between us will be subject to the jurisdiction of the state and federal courts located in New York, New York, and you and we hereby submit to the personal jurisdiction and venue of these courts.
This agreement to arbitrate will not preclude you or Penhaligon’s from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude you or Penhaligon’s from (i) applying to the appropriate court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, or (ii) seeking relief in any state or federal court for disputes related to a violation or possible violation of Penhaligon’s intellectual property rights. In the event of any litigation or arbitration arising from or related to these Terms, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred including staff time, court costs, attorneys’ fees, and all other related expenses incurred in such litigation or arbitration.
19 Contact us
If you have any questions about us, these terms, our website or our products, please do not hesitate to contact us at [email protected] or by pre-paid post to Penhaligon’s Inc., 400 Madison Avenue, Suite 10B, New York, NY 10017. We will confirm receipt of this by contacting you in writing, normally by e-mail. If you are exercising your right to cancel under the Penhaligon’s Promise, please see here for how to tell us this.