Terms & Conditions of Sale
TERMS & CONDITIONS OF SALE
IMPORTANT: YOUR ATTENTION IS DRAWN TO CONDITIONS 2.1, 6.3 and 10.
1.1 The definitions and rules of interpretation in this condition apply in these terms and conditions (Conditions):
Contract means the contract between You and Us for the sale of the Products and which incorporates these Conditions, the Order, the Order Confirmation and the Website and Retail Charter;
Confidential Information means any and all information provided by either party under the Contract that is either (i) marked as being confidential (or in the case of verbal discussions is later confirmed in writing to be confidential) or (ii) information (however communicated) that is of a type that the other party could reasonably have been expected to know that the information was confidential;
Delivery Location means the place where delivery of the Products is to take place under the Contract, as set out in the Order;
Order means any order made by You for Our Products through Our website at www.instyler.co.uk
Order Confirmation means Our written confirmation of the Order, incorporating these Conditions;
Price means the price payable by You for the Products, as notified by us;
Products means any goods to be supplied to You by Us under the Contract;
Website and Retail Charter means the Website and Retail Charter, a copy of which We can provide You, which is entered into by both You and Us if You intend to resell Our Products; and
You, Your, Yours means the person(s), firm or company who purchases the Products from Us.
1.2 Unless a contrary intention appears:
1.2.1 the masculine includes the feminine and the singular includes the plural, and vice versa;
1.2.2 a reference to any statute, enactment, order, regulation or other similar instrument shall be construed as a reference to the statute, enactment, order, regulation or instrument as amended by any subsequent statute, enactment, order, regulation or instrument or as contained in any subsequent re-enactment thereof;
1.2.3 headings are for ease of reference only and shall not affect the interpretation or construction of these Conditions;
1.2.4 any lists or examples following the word “including” shall be interpreted without limitation to the generality of the preceding words;
1.2.5 references to Conditions are, unless otherwise provided, references to clauses of these Conditions;
1.2.6 references to “writing” shall include facsimile and email.
2 FORMATION OF CONTRACT
2.1.1 Subject to Condition 2.3, the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which You purport to apply under any purchase order, confirmation of order or other document).
2.1.2 Except as otherwise provided in these Conditions, all other terms, conditions, warranties and representations (whether oral or in writing) are excluded from the Contract between Us and You. These Conditions supersede any and all prior promises, representations, undertakings or implications.
2.1.3 No statement, illustration or drawing in any circular, advertisement, trade literature or other such communication shall be deemed to imply any representation, warranty or condition. Any such statement, illustration or drawing is for guidance purposes only and shall not form part of the Contract.
2.2 No terms or conditions endorsed on, delivered with or contained in an Order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 No variation to these Conditions shall have effect unless agreed in writing by one of Our directors.
2.4 Each Order shall be deemed to be an offer by You to purchase the Products from Us, subject to these Conditions.
2.5 No Order placed by You shall be deemed to have been accepted by Us, and no Contract shall be formed, until an Order Confirmation has been issued by Us.
3 WEBSITE AND RETAIL CHARTER
The Website and Retail Charter contains provisions relating to the use of Our brand for the Products. You shall comply with the Website and Retail Charter and shall act in accordance with the provisions contained therein.
4.1 Unless agreed otherwise in writing by Us, all Prices are on ex works basis.
4.2 The Price is shown in UK pounds sterling.
4.3 Unless otherwise stated, the Price is inclusive of Value Added Tax. If You require Us to deliver to a Delivery Location which is not within the UK, You are responsible for any importation taxes, sales taxes or other charges which may be levied at that Delivery Location. Additionally, please note that when ordering from www.instyler.co.uk, You are considered the importer of record and must comply with all laws and regulations of the country in which You are receiving the goods.
4.4 We have the right to vary the Price of the Products from time to time on reasonable notice to You but We shall not exercise our right to vary the Price of the Products after We have issued an Order Confirmation.
4.5 Whilst We endeavour to ensure that all Prices displayed on Our website are accurate, errors may occasionally occur. We shall inform You as soon as We become aware of an error in the pricing of a Product. In that event, We shall also request Your confirmation whether You wish to proceed with the Order at the correct price or whether You wish to cancel Your Order. If We are unable to contact You for any reason, Your Order will be deemed cancelled. Any monies paid in respect of cancelled Orders shall be refunded in full within 30 days from the date of cancellation.
The Price shall be due and payable by You in full and cleared funds at the time You place Your Order, unless otherwise agreed in writing by Us, and the time of payment shall always be of the essence of the Contract.
6.1 Delivery of the Products shall take place at the Delivery Location. It is Your responsibility to ensure that the address of the Delivery Location is accurate. We shall not be responsible if this Delivery Location is incorrect.
6.2 Next day delivery is guaranteed in respect of Your Order if:
6.2.1 the Delivery Location is situated in the UK; and
6.2.2 Your Order is received before  pm GMT the preceding day; and
6.2.3 there is sufficient stock for Us to fulfil Your Order. We shall try to inform You, as soon as it is reasonable to do, if We find out that there is insufficient stock to fulfil Your Order. As a gesture of good will, We shall nevertheless try to deliver that part of Your Order which is in stock first, and then fulfil rest of Your Order when stock is in. However, We cannot fulfil the above commitments for any reason, this shall not entitle You to terminate this Contract.
6.3 Delivery times or dates in respect of deliveries outside the UK are estimates only and are not guaranteed.
6.4 The time for delivery shall not be of the essence of the Contract.
6.5 We shall be entitled to deliver the Products in separate instalments. Any delay or failure by Us to deliver, or any claim by You in respect of any one or more of the instalments in accordance with these Conditions, shall not entitle You to treat the Contract as a whole as repudiated.
6.6 We reserve the right, at Our sole option, to cancel or withhold the delivery of any Products, in whole or in part:
6.6.1 until receipt of Your payment for the Products;
6.6.2 if any of the events at Condition 11.1 occur.
6.7 On delivery of the Products, You shall check the Products against the delivery note. We shall not be liable for any damage, destruction, breakage or shortage of the Products delivered to You, unless You give Us notice of such damage, destruction, breakage or shortage within forty-eight (48) hours of the date of delivery. Risk in the Products shall pass to You on delivery.
6.8 If, for any reason, You fail to take delivery of any of the Products on the date of delivery, or We are unable to deliver the Products because You have not provided appropriate instructions, documents, licences or authorisations, We may store the Products until delivery at a later date, at Your cost (including but not limited to storage and insurance costs). If You fail to take delivery of the Products within fourteen (14) days following the date of the first attempted delivery, We may rescind the Contract and sell the Products to a third party.
6.9 Subject to the other provisions of these Conditions, We shall not be liable for any direct, indirect or consequential loss, including but not limited to, loss of profit, costs, damages, charges or expenses caused by any delay in the delivery of the Products (even if caused by Our negligence). Delay in delivery of the Products, howsoever arising, shall not entitle You to terminate the Contract.
7.1 We shall not be liable for any non-delivery of Products unless You give Us written notice within seven (7) days of receipt of Our advice of despatch.
7.2 Our liability for non-delivery of the Products shall be limited, at Our sole discretion, to:
7.2.1 delivering the Products within a reasonable time; or
7.2.2 issuing a credit note against any invoice raised for such Products, at the pro rata Contract rate based on the quantity of the Products which have not been delivered; or
7.2.3 refunding at the pro rata Contract rate the price paid for the quantity of the Products which have not been delivered;
and this shall be Your sole and exclusive remedy in relation to such non-delivery.
8 RISK AND TITLE
8.1 The Products are at Your risk from the time of delivery in accordance with Condition 6.7 above.
8.2 Notwithstanding Condition 8.1 above, the legal and beneficial ownership of the Products shall not pass to You until We have received in full and in cleared funds:
8.2.1 all sums due to Us in respect of the Products; and
8.2.2 all other sums due or becoming due to Us from You.
8.3 Until ownership of the Products has passed to You, You must:
8.3.1 hold the Products on a fiduciary basis as Our bailee;
8.3.2 store the Products, at no cost to Us, separately from other products belonging to You so they remain readily identifiable as Our property;
8.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Products;
8.3.4 maintain the Products in satisfactory condition, insured on Our behalf for their full price against all risks to Our satisfaction;
8.3.5 hold the proceeds of the insurance referred to in Condition 8.3.4 on trust for Us and not mix them with any other money nor pay the proceeds into an overdrawn bank account,.
8.4 In respect of Products of which ownership has not passed to You:
8.4.1 You may resell the Products, solely on the following conditions:
(a) any sale shall be effected in the ordinary course of Your business at full market value; and
(b) any such sale shall be deemed to be a sale of Our property on Your own behalf and You shall deal as principal when making such a sale[; and
(c) You shall remain liable to Us in respect of the Price of the Products which You have resold]; and
8.4.2 We shall be entitled to:
(a) recover payment for the Products notwithstanding that ownership of the Products has not passed from Us;
(b) in the following circumstances, require You to deliver up the Products to Us, and if You fail to do so forthwith, We may recover the Products:
(i) if You commit any material breach of any of Your obligations under these Conditions; or
(ii) if any of the events at Condition 11.1occur.
8.5 You hereby grant Us, Our agents, sub-contractors and employees an irrevocable licence at any time to enter premises where the Products are or may be stored, to inspect these Products, or where Your right to possession has terminated, to recover these Products.
8.6 Where We are unable to determine whether Your right to possession has terminated in respect of any Products, You shall be deemed to have sold all Products in the order in which We invoiced such Products to You.
8.7 On termination of the Contract, howsoever arising, Our rights, but not Yours, under this Condition 8 shall remain in full force and effect.
9 FAULTY PRODUCTS
9.1 In the event that any Products are found to be faulty within the earlier of twelve (12) months:
9.1.1 of the date You purchased the Products for Your own use; or
9.1.2 of the date of the sale by You to an end user (if You purchased the Products not as an end user);
and such date of purchase or sale, whichever is appropriate, is duly evidenced to Our satisfaction by the provision of a copy of the relevant proof of purchase or sale, You shall be entitled to return such Products to Us.
9.2 In the event that We reasonably consider any Product returned in accordance with Condition 9.1 is:
9.2.1 not faulty; or
9.2.2 damaged or otherwise caused to be unworkable as a result of any of Your actions and/or that of the end user of the Product;
We may at Our sole discretion, return the same to You [and We reserve the right to require You to reimburse Us for Our reasonable expenses in examining and returning such Products to You]. We shall have no further obligations to You in respect of these Products.
9.3 Subject to Conditions 9.1 and 9.2, We shall, at our absolute discretion:
9.3.1 repair or replace faulty Products; or
9.3.2 refund the price of faulty Products, based on the quantity of the Products which are faulty, pro rata to the Price paid under the Contract.
10 LIMITATION OF LIABILITY
10.1 Nothing in these Conditions excludes or limits Our liability for death or personal injury caused by Our negligence, fraud or fraudulent misrepresentation, or any other liability that cannot be restricted by law.
10.2 Save as provided by Section 12 of the Sale of Goods Act 1979 and in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Subject to Condition 10.1:
10.3.1 Our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with or under the Contract shall be limited to the Price payable for the Products under the Contract; and
10.3.2 We shall not be liable in contract, tort (including negligence), statutory duty or otherwise howsoever for any claim, damage, loss or costs in respect of (whether direct or indirect):
(a) loss of profit;
(b) loss of use;
(c) loss of anticipated contracts and/or savings;
(d) loss of goodwill;
(e) loss of opportunity;
(f) loss of business and/or business interruption; or
(g) any indirect loss or consequential or special loss or damage;
and both You and We hereby acknowledge that each type of loss under this Condition 10.3.2 shall be severable in accordance with Condition 14.2.
10.4 We shall also not be liable for, and You shall indemnify and keep indemnified Us against, any and all actions, awards, proceedings or claims, complaints, costs, expenses (including legal expenses and disbursements), penalties, damage or loss arising by reason of the sale and/or use of the Products after You become aware of any defect in the Products, or after circumstances have occurred which should reasonably have indicated to You of the existence of a defect in the Products.
11.1 If You purchase the Products as a consumer, within the meaning of the Consumer Protection (Distance Selling) Regulations 2000, You have a right to cancel this Agreement within seven working days beginning with the day after the day on which this Agreement is concluded. If You wish to cancel the Agreement, You must let Us know in writing by letter, fax or email and comply with Our returns policy as shown here. We shall provide you with a full refund of the Price paid within 30 days from the date on which You give Us notice of cancellation.
11.2 We are entitled to terminate the Contract immediately on written notice if:
11.2.1 You fail to observe or perform any of Your obligations under the Contract; or
11.2.2 (being an individual or partnership):
(a) You suspend, or threaten to suspend, payment of Your debts, or are unable to pay Your debts as they fall due, or admit Your inability to pay Your debts, or are deemed either unable to pay Your debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986;
(b) You make or propose to make an arrangement or composition with Your creditors, or otherwise take the benefit of any statutory provision for the time being in force for the relief of insolvent debtors;
(c) You are or propose to become the subject of a bankruptcy petition or order;
(d) You die or, by reason of illness or incapacity (whether mental or physical), are incapable of managing Your own affairs or become a patient under any mental health legislation;
11.2.3 (being a company):
(a) You are, or We reasonably consider You to be, unable to pay Your debts when they fall due, as defined in Section 123 of the Insolvency Act 1986;
(b) You make or propose to make any arrangement or composition with Your creditors or make an application to a court of competent jurisdiction for the protection of Your creditors in any way;
(c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with Your winding up;
(d) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed over You;
(e) a floating charge holder over Your assets has become entitled to appoint or has appointed an administrative receiver;
(f) a person becomes entitled to appoint a receiver over Your assets or a receiver is appointed over Your assets;
11.2.4 You suffer actions analogous to those described in Conditions 11.2.2 and/or 11.2.3 in any jurisdiction;
11.2.5 We, acting reasonably, have serious doubts as to Your solvency;
11.2.6 any distraint is levied against You or Your property by any third party;
11.2.7 You cease, or threaten to cease, to carry on all or a substantial part of Your business; or
11.2.8 You are late in paying, or do not pay, any monies due to Us from You.
12.1 Each party shall, and shall procure that their employees, agents, representative and sub-contractors shall, keep secret and not disclose any Confidential Information in relation to the other party obtained by reason of the Contract, except information that is in the public domain.
12.2 The obligations under Condition 12.1 will not apply to the extent that the Confidential Information (based on documentary evidence):
12.2.1 is already publicly known at the time it is disclosed to the receiving party;
12.2.2 later becomes publicly known other than as a result of a breach by the receiving party of Condition 12.1;
12.2.3 was already known to the receiving party before it was disclosed;
12.2.4 is required to be disclosed by the receiving party by a court order or statutory law, provided that the receiving party will inform the disclosing party as soon as possible of any such obligation to disclose;
provided always that if the receiving party is seeking to rely upon any of the exceptions set out above then the Confidential Information shall not be deemed to be within one of the exceptions merely because it is in more general information within such exceptions. In addition, any combination of features disclosed will be deemed to be within the public domain only if both the combination itself and its use fall within the exceptions.
12.3 This Condition 12 shall apply during the continuance of the Contract and after its termination howsoever arising.
13 FORCE MAJEURE
We reserve the right to defer the date of delivery of the Products or to cancel the Contract without liability to You, and We shall not be liable for any failure to meet Our obligations under the Contract if We are prevented from, or delayed in, the carrying on of Our business due to circumstances beyond Our reasonable control, including, but not limited to, acts of God, governmental actions, war or national emergency, acts of terrorism, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, snow, explosion, flood, storm, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to Our workforce), failure of a utility service or transport network, or restraints or delays affecting carriers or inability or delay in obtaining supplies or adequate or suitable materials, or other similar events.
14.1 You expressly acknowledge and agree that, in entering into the Contract, You do not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Contract or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract.
14.2 If any provision of the Contract or these Conditions is held invalid, illegal or unenforceable by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if the Contract had been executed with the invalid, illegal or unenforceable provision eliminated.
14.3 Each of Our right or remedy under the Contract is without prejudice to any other rights or remedies belonging to Us, whether under the Contract or not.
14.4 Any failure or delay by Us in enforcing or partially enforcing any of Our rights or remedies under the Contract shall not be construed as a waiver of any of Our rights under the Contract and shall not prevent Us from later reasserting such rights or remedies.
14.5 Any notice or other communication given under these Conditions shall be in writing and shall be served by delivering it personally or sending it by pre-paid recorded delivery or registered post or fax or email to Our registered office and Your address, as set out in the Contract, or such other address as shall be notified by each party to the other from time to time.
14.6 Any such notice shall be deemed to have been received:
14.6.1 at the time of delivery, if personally delivered; or
14.6.2 forty-eight (48) hours from the date of posting in the case of pre-paid recorded delivery or registered post; or
14.6.3 at the time of transmission, if sent by fax; or
14.6.4 at the time the email is available to be read in the recipient’s in-box, if sent by email;
but if notice is not received within business hours (meaning 9 am to 5 pm Monday to Friday, except a public holiday in the place of receipt), the notice shall be deemed to have been received when business next starts.
14.7 Except as otherwise provided in these Conditions or the Contract, a person who is not a party to the Contract shall have no rights pursuant to the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Conditions or the Contract.
14.8 You shall not be entitled to assign, sub-contract or otherwise dispose of the Contract or any part of it without Our prior written consent.
14.9 We may assign or sub-contract all or any part of Our obligations under the Contract to any person, firm or company.
14.10 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by, and construed in accordance with, English law and both You and We submit to the exclusive jurisdiction of the English courts.14.11 If You have any comments, questions or requests regarding the Products, please contact Us at InStyler Custom Services, P.O. Box 724, Altrincham, WA15 5BJ, telephone 0330 123 9101 (if You call from within the UK) or +44 330 123 9101 (if You call from outside the UK) or email firstname.lastname@example.org.