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In Phase International Limited
('The Company')
Terms and Conditions of Sale

1. Definitions

The following words and expressions shall have the following meanings unless the context otherwise requires:

"Additional Charges" means the costs of carriage; any additional packaging, any taxes, duties or other charges levied by any Governmental or authority in respect of or by reason of the sale, delivery, export or import of the Goods; courier and messenger costs, in addition to the Price or Full Price;

"Contract"means any agreement for the sale and purchase of Goods which is entered into between the Company and the Customer after the Effective Date;

"the Company" means In Phase International Limited (Registered No. 04158516) whose registered office is at DB House, Rani Drive, Nottingham, NG5 1RF;

"the Customer" means the person, firm or company which has accepted these Terms and holds an account with the Company;

"Effective Date" means the date on which an order is placed over the telephone, e-mail, facsimile or other authorised means;

"Force Majeure"means circumstances beyond the control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 30 days, the Customer shall be entitled to give notice in writing to the Company to terminate the contract;

"Full Price"means the higher price for the Goods which are ordered by the Customer from the Company as specified in the Price List;

"Goods"mean those products ordered by the Customer to be supplied by the Company pursuant to these Terms;

"Price"means the discounted price for the Goods which are ordered by the Customer from the Company as specified in the Price List;

"Price List"means Company's current price list for the Goods from time to time, containing both the Full Price and the Price of all Goods available from the Company, the price list current upon the Effective Date being delivered to all new Customers immediately following the Effective Date;

"Restricted Information"means any information which is disclosed to each party by the other party pursuant to or in connection with the Contract (whether orally or in writing, and which is expressly stated to be confidential or marked as such);

"Terms"means these terms and conditions.

2. Basis of Contract 2.1

These Terms shall apply to the sale by the Company of all Goods purchased by the Customer after the Effective Date and these Terms shall govern each Contract to the exclusion of any other terms and conditions introduced or submitted by the Customer.

2.1

No variation of these Terms may be given by any of the Company's employees unless confirmed in writing by a director and no collateral or supplemental contract may be made or construed unless confirmed in writing by a director on the Company's official stationery

2.3

Any tenders or quotations will not constitute an offer and each Contract shall be made when the Company acknowledges the order placed by the Customer and not before.

2.4

The Company's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Company in writing. In entering into each Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed save that nothing in this Clause excludes the Company's liability for fraudulent misrepresentation.

3. Price / Full Price 3.1

Unless otherwise accepted by the Company the price for Goods ordered by the Customer shall be the Price relevant to the ordered Goods as stated in the Price List current as at the date of order, unless Clause 4.5 below applies in which case the Full Price shall apply.

3.2

If any increase howsoever arising in the Price or Full Price including but without being limited to any increase in the costs of manufacturing, raw materials, labour or transportation occurs after such date, the Company shall be entitled (subject to any statute or regulation) to make such addition to the Price or Full Price as shall be reasonable in the circumstances.

3.3

All Prices and Full Prices are exclusive of VAT which will be charged at the rate in force at the time of despatch

3.4

All Prices and Full Prices are exclusive of carriage.

3.5

Where a Customer requests delivery by the Company, Additional Charges will be payable by the Customer and will appear separately on the invoice, to be payable in accordance with Clause 4 below

4. Payment 4.1

The Company shall be entitled to invoice the Customer for the Goods ordered on or at any time after despatch of the Goods or any instalment thereof

4.2

The Customer shall make payment for the Price or Full Price and any Additional Charges in sterling, unless otherwise agreed in writing. Any payment received by the Company in any other currency will not be deemed to be payment for the Goods in question

4.3

Payment of the invoice shall be due and payable without any set-off or other deduction within 30 days after the last day of the month in which the Customer received the Company's invoice

4.4

In the event that the Customer fails to pay any invoice from the Company by the due date then, without prejudice to any other right or remedy available to the Company, all invoices issued to the Customer by the Company in respect of any Goods sold or supplied pursuant to these Terms shall immediately fall due for payment and any credit offered or extended by the Company to the Customer in respect of the same shall be cancelled forthwith

4.5

If the Customer fails to pay any invoice on or before the due date then, without prejudice to any other right or remedy available to the Company:-

4.5.1

the Company shall be entitled to charge the Customer the Full Price for the Goods received;

4.5.2

the Company shall be entitled to withhold delivery of any Goods agreed to be sold by the Company to the Customer or any instalment thereof (being the subject of the Contract or any other contract) until the Full Price and any Additional Charges are paid in full; and

4.5.3

the Company shall be entitled to terminate the credit account of the Customer upon notice to the Customer in writing

5. Packaging 5.1

The packaging of the Goods shall be entirely at the discretion of the Company who shall have the right to pack all the Goods in such manner, and in such quantities as the Company thinks fit and shall not be obliged to comply with any packaging requests or instructions from the Customer.

5.2

The cost of any additional packaging if agreed or deemed necessary by the Company, shall be an Additional Charge

6. Delivery 6.1

Goods shall be available for collection from the Company's address. Any requests from the Customer for delivery shall entitle the Company to impose an Additional Charge

6.2

Delivery dates are estimates only and time of delivery is not of the essence. If no delivery dates are so specified, delivery shall be within a reasonable time.

6.3

The Company shall have the right to deliver Goods in instalments.

6.4

In the event of a failure to accept any delivery by the Customer, otherwise than by reason of the Company's fault or by reason of Force Majeure the Price and any Additional Charges shall immediately become due for invoice in accordance with clause 4.1 and the Company shall be entitled to store the Goods until actual delivery and charge the Customer for the reasonable costs of storage (including insurance), the Goods being held at the Customer's risk.

7. Return of Goods and Order Cancellation 7.1

A Customer may return Goods which are not either damaged or defective if it informs the Company within 3 days of delivery. However it will be liable to pay a charge:

7.1.1

where the Goods are from stock held by the Company such charge shall be 25% of the Price of the Goods, in accordance with the invoice; and

7.1.2

where the Company has ordered the Goods specifically for the Customer such charge shall be 50% of the Price of the Goods, in accordance with the invoice.

7.2

Order Cancellation

7.2.1

Where a Customer places an order prior to 4.00pm on any day, the Customer may cancel that order by telephone and: -

7.2.1.1

if the order is cancelled before 4.00pm on the same day there shall be no charge to the Customer; or

7.2.1.2

if the order is cancelled after 4.00pm on the same day the Company reserves the right to charge the Customer in accordance with Clauses 7.1.1 and 7.1.2 above.

7.2.2

Where a Customer places an order after 4.00pm on any day, it shall, for the purposes of Clause 7.2.1 be treated as having placed such order at the commencement of the next day the Company is open for business.

8. Risk and Title of Goods 8.1

Risk of damage to or loss of the Goods shall pass to the Customer at the time of delivery to the address provided by the Customer to the Company when the order is placed, or some other such address as may be agreed between the parties from time to time, save in the following situations:

8.1.1

if the Customer wrongfully fails to take delivery risk shall pass to the Customer at the time when the Company has tendered delivery of the Goods;

8.1.2

if the Company is not responsible for the delivery of the Goods risk shall pass at the point when the Customer or a representative of the Customer collects the Goods from the Company's registered office. Ownership of the Goods shall not pass to the Customer until the Company has received in full in cleared

8.2

funds all sums due to it in respect of:

8.2.1

the Goods; and

8.2.2

all other sums which are or which become due to the Company from the Customer on any account.

8.3

Until ownership of the Goods has passed to the Customer, the Customer shall:-

8.3.1

hold the Goods on a fiduciary basis as the Company's bailee;

8.3.2

store the Goods (at no cost to the Company) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Company's property;

8.3.3

not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and

8.3.4 maintain the Goods in satisfactory condition and keep them insured on the Company's behalf for their Full Price against all risks to the reasonable satisfaction of the Company. On request the Customer shall produce the policy of insurance to the Company. 8.4

Until such time as the title in the Goods passes to the Customer if Goods are destroyed by an insured risk prior to the same being paid for by the Customer, the Customer shall receive the proceeds of any such insurance as trustee for the Company.

8.5

The Customer shall be entitled to resell or use the Goods in the ordinary course of business before ownership has passed.

8.6

Until such time as the title in the Goods passes to the Customer, the Company shall be entitled at any time to require the Customer to deliver up the Goods to the Company and if the Customer fails to do so forthwith, to enter upon any premises of the Customer or said party where the Goods are stores and mark, identify and repossess the Goods.

9. Retention of Title

Notwithstanding delivery and the passing of risk, property in and title to, the goods shall remain with the seller until the seller has received payment of the full price of (a) all Goods and/or Services the subject of the Contract and (b) all other goods and/or services supplied by the seller to the buyer under any contract whatsoever. Payment of the full price shall include, without limitation, the amount of any interest or other sum payable under the terms of this and all other contracts between the seller and the buyer.

10. Termination 10.1

The Company shall be entitled, without any prejudice to any other right or remedy available to the Company, to cancel the Contract, withdraw all credit facilities and suspend any further deliveries to the Customer without any liability to the Company if any of the following occur:-

10.1.1

the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or an encumbrancer takes possession or a receiver is appointed, of any of the property or assets of the

10.1.2

Customer; or

10.1.3

the Customer ceases, or threatens to cease, to carry on business; or

10.1.4

the Customer reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly

11. Warranties and Liability 11.1

Where possible the Company hereby transfers to the Customer the benefit of any manufacturer's warranty for the Goods.

11.2

If the Customer considers the Goods delivered to be damaged or defective it shall have 3 days from the date of receipt of goods to inform the Company in writing, specifying the serial number, details of the defect and delivery date.

11.3

Upon request from the Company the Customer shall return any damaged or defective Goods at the Customer's expense. The reasonable cost of packaging and carriage of returned Goods incurred by the Customer will be reimbursed by the Company if the Goods are found to be defective and replacement Goods shall be despatched

11.4

Subject as expressly provided in these Terms, all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. In particular, the Company makes no warranty as to the fitness of the Goods for any particular purpose even if that purpose is stated in the Customer's order. This exclusion includes recommendations or advice from the Company to the Customer relating to a specific enquiry. The Customer must satisfy itself as to the fitness for the purpose for which the Goods are intended

11.5

In the event of any claim being made by the Customer, the Customer shall give the Company a reasonable opportunity to inspect the Goods in the same condition as they were at delivery after discovery of the defect and liability will not be accepted unless this procedure is followed

11.6

Where any valid claim in respect of the Goods is made by the Customer the Company shall be entitled to replace or repair the Goods (or the part in question) free of charge or, at the Company's sole discretion, refund to the Customer the Price of the Goods (or a proportionate part of the Price), and subject to Clause 10.7 the Company shall have no further liability to the Customer

11.7

Nothing in these Terms excludes or limits the liability of the Company for death or personal injury caused by the negligence of the Company

11.8

Except as expressly provided in Clauses 10.6 and 10.7 the Company's liability in connection with the sale of Goods shall be as follows:-

11.8.1

in respect of physical damage to or loss of the Customer's tangible property to the extent that it results from the wilful default or negligence of the Company, its employees, agents or contractors, the Company's liability shall be limited to an amount of �5 (five) million pounds in respect of each incident or series of connected incidents;

11.8.2

in respect of all other direct loss (either in contract, tort or otherwise) the Company's total liability under these Terms shall not exceed the lowest cost of replacing the Goods with the same or nearest comparable product at the time of the claim;

11.8.3

in respect of any loss or goodwill or for any type of consequential, special or indirect loss or damage, the Company's liability shall be nil.

11.9

The Company shall not be liable to the Customer nor be deemed to be in breach of contract by reason of any delay in performing, or any failure to perform, any of the Company's obligations, if the delay or failure was by reason of Force Majeure

11.10

Any claim by the Customer under this Clause 10 shall not entitle the Customer to withhold or delay payment in respect of any other Goods in respect of which no such claim has been made whether or not those Goods form part of the same consignment

12. Confidential Information 12.1

Except as provided elsewhere in these Terms each party shall at all times throughout the duration of the contract and after its termination:-

12.1.1

use its best endeavours to keep all Restricted Information confidential and accordingly not to disclose any Restricted Information to any other person; and

12.1.2

not use any Restricted Information for any purpose other than the performance of the obligations under the contract.

12.2

Any Restricted Information may be disclosed by the parties to:

12.2.1

any governmental or other authority or regulatory body; or

12.2.2

any employees of either party or any of the aforementioned persons, to such extent only as is necessary for the purposes contemplated by the contract, or as is required by law and subject in each case to each party using its best endeavours to ensure that the person in question keeps the same confidential and does not use the same except for the purposes for which the disclosure is made.

12.3

Any Restricted Information may be used by the parties for any purpose, or disclosed by the parties to any other person, to the extent only that:-

12.3.1

it is at the date hereof, or hereafter becomes, public knowledge through no fault of the parties (provided that in doing so the disclosing party shall not disclose any Restricted Information which is not public knowledge); or

12.3.2

it can be shown by the disclosing party, to the reasonable satisfaction of the other party, to have been known to disclosing party prior to its being disclosed to it by the other party.

13. Entire Agreement

These Terms constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in writing between the parties. All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.

14. Notice

Any notice required or permitted to be given by either party to the other under these Terms shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice and any such notice shall be deemed served on the next working day following posting where the recipient's address is in Great Britain, or on the seventh working day following posting where the recipient's address is outside of Great Britain. Any notice sent by facsimile or delivered personally shall be deemed served on successful transmission of the facsimile or at the time of personal delivery, provided the same occurs on a working day. Any notice sent by electronic mail shall be deemed served 24 hours after being sent to the correct electronic mail address of the addressee provided the same occurs on a working day.

15. Waiver

No failure or delay by either party in exercising any of its rights under the contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.

16. Law and Jurisdiction

English law shall apply to the Contract, and the parties submit to the non-exclusive jurisdiction of the English courts.

17. Severance

If any provision of these Terms is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected.

18. Assignment 18.1

The Company may assign the contract or any part of it to any person, firm or company.

18.2

The Customer shall not be entitled to assign the contract or any part of it without the prior written consent of the Company.