1 - Interpretation
1.1 - Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.3.
Contract: the contract between Hitherbest and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from Hitherbest.
Delivery Location: has the meaning given in clause 4.2.
Force Majeure Event: an event or circumstance beyond a party's reasonable control.
Goods: the goods (or any part of them) set out in the Order.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, goodwill and the right to sue for passing off, rights in designs, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer's order for the Goods, as set out in the Customer's purchase order form or the Customer's written acceptance of Hitherbest's quotation, as the case may be.
Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and Hitherbest.
Hitherbest: Hitherbest Limited (registered in England and Wales with company number 01923890).
1.2 - Interpretation:
(a) - A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) - A reference to a party includes its successors and permitted assigns.
(c) - A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(d) - Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(e) - A reference to writing or written includes fax and email.
2 - Basis of contract
2.1 - These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 - The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.3 - Any Specification supplied by the Customer to Hitherbest must be provided in electronic format.
2.4 - The Order shall only be deemed to be accepted when Hitherbest issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.5 - The Order shall only be deemed acceptable by Hitherbest if the Goods total an amount of £100 or more exclusive of any relevant delivery fees.
2.6 - The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.7 - Any samples, drawings, descriptive matter or advertising produced by Hitherbest and any descriptions or illustrations contained in Hitherbest's catalogues, brochures or website are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.8 - A quotation for the Goods given by Hitherbest shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
3 - Goods
3.1 - The Goods are described in Hitherbest's catalogue, brochure and website as modified by any applicable Specification and in particular the Order.
3.2 - To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify Hitherbest against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Hitherbest in connection with any claim made against Hitherbest for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with Hitherbest's use of the Specification. This clause 3.2 shall survive termination of the Contract.
3.3 - Hitherbest reserves the right to amend the specification of the Goods or any Specification if required by any applicable statutory or regulatory requirements. The Customer will be notified of any amendment in writing.
4 - Delivery
4.1 - Hitherbest shall ensure that:
(a) - each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(b) - if Hitherbest requires the Customer to return any packaging materials to Hitherbest, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as Hitherbest shall reasonably request. Returns of packaging materials shall be at Hitherbest's expense.
4.2 - Hitherbest shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after Hitherbest notifies the Customer that the Goods are ready.
4.3 - Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
4.4 - Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Hitherbest shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide Hitherbest with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 - If Hitherbest fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Hitherbest shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide Hitherbest with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 - If the Customer fails to take delivery of the Goods within three Business Days of Hitherbest notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Hitherbest's failure to comply with its obligations under the Contract:
(a) - delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which Hitherbest notified the Customer that the Goods were ready; and
(b) - Hitherbest shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 - If ten Business Days after the day on which Hitherbest notified the Customer that the Goods were ready for delivery the Customer has not taken actual delivery of them, Hitherbest may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.
4.8 - If Hitherbest delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice.
4.9 - Hitherbest may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5 - Quality
5.1 - Hitherbest warrants that on delivery, and for a period of 6 months from the date of delivery (warranty period), the Goods shall:
(a) - conform in all material respects with their description and any applicable Specification;
(b) - be free from material defects in design (this being a Specification supplied by the Customer and detailed in the Order), material and workmanship; and
(c) - be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
5.2 - Subject to clause 5.3, if:
(a) - the Customer gives notice in writing to Hitherbest during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) - Hitherbest is given a reasonable opportunity of examining such Goods; and
(c) - the Customer (if asked to do so by Hitherbest) returns such Goods to Hitherbest's place of business at the Customer's cost,
Hitherbest shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 - Hitherbest shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events:
(a) - the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
(b) - the defect arises because the Customer failed to follow Hitherbest's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) - the defect arises as a result of Hitherbest following any drawing, design or Specification supplied by the Customer;
(d) - the Customer alters or repairs such Goods without the written consent of Hitherbest;
(e) - the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) - the Goods differ from their description or any Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 - Except as provided in this clause 5, Hitherbest shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5 - The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6 - These Conditions shall apply to any repaired or replacement Goods supplied by Hitherbest.
6 - Title and risk
6.1 - The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 - Title to the Goods shall not pass to the Customer until Hitherbest receives payment in full (in cash or cleared funds) for the Goods and any other goods that Hitherbest has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
6.3 - Until title to the Goods has passed to the Customer, the Customer shall:
(a) - store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Hitherbest's property;
(b) - not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) - maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) - notify Hitherbest immediately if it becomes subject to any of the events listed in clause 8.1; and
(e) - give Hitherbest such information relating to the Goods as Hitherbest may require from time to time.
6.4 - Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Hitherbest receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a) - it does so as principal and not as Hitherbest’s agent; and
(b) - title to the Goods shall pass from Hitherbest to the Customer immediately before the time at which resale by the Customer occurs.
6.5 - If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.1, then, without limiting any other right or remedy Hitherbest may have:
(a) - the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(b) - Hitherbest may at any time:
(i) - require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
(ii) - if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7 - Price and payment
7.1 - The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in Hitherbest's published price list in force as at the date of delivery.
7.2 - Hitherbest may, by giving notice to the Customer at any time up to 5 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) - any factor beyond Hitherbest's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) - any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) - any delay caused by any instructions of the Customer or failure of the Customer to give Hitherbest adequate or accurate information or instructions.
7.3 - The price of the Goods:
(a) - excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Hitherbest at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) - excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
7.4 - Hitherbest may invoice the Customer for the Goods on or at any time after the completion of delivery.
7.5 - Hitherbest may request payment in advance of the delivery of the Goods and this will be agreed between the parties in writing and set out in the Order.
7.6 - If the Customer requires a technical drawing to be produced, Hitherbest reserve the right to charge the Customer for the production of the drawing.
7.7 - The Customer shall pay the invoice in full and in cleared funds within 20 Business Days of the date of the invoice. Payment shall be made to the bank account nominated in writing by Hitherbest. Time for payment is of the essence.
7.8 - If the Customer fails to make any payment due to Hitherbest under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Bank of England's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount. Hitherbest may also instigate credit control procedures, which may involve sending invoice reminder letters or instructing a third party to conduct legal proceedings. The Customer shall be liable for any charges in relation to late payment under this clause 7.8 beyond the charges mentioned in the Order.
7.9 - If the Customer fails to make any payment due to Hitherbest under the Contract by the due date for payment, Hitherbest may suspend all other contracts and agreements between the parties until payment has been made in full by the Customer.
7.10 - The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Hitherbest may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Hitherbest to the Customer.
8 - Termination
8.1 - Without limiting its other rights or remedies, Hitherbest may terminate this Contract with immediate effect by giving written notice to the Customer if:
(a) - the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;
(b) - the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(c) - the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) - the Customer's financial position deteriorates to such an extent that in Hitherbest's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.2 - Without limiting its other rights or remedies, Hitherbest may suspend provision of the Goods under the Contract or any other contract between the Customer and Hitherbest if the Customer becomes subject to any of the events listed in clause 8.1(a) to clause 8.1(d), or Hitherbest reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
8.3 - Without limiting its other rights or remedies, Hitherbest may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
8.4 - On termination of the Contract for any reason the Customer shall immediately pay to Hitherbest all of Hitherbest's outstanding unpaid invoices and interest.
8.5 - The Customer may terminate the Contract in whole or in part at any time before delivery with immediate effect by giving Hitherbest written notice, whereupon Hitherbest shall discontinue all work on the Contract. The Customer shall pay Hitherbest fair and reasonable compensation for any work in progress on the Goods at the time of termination, including loss of anticipated profits or any consequential loss.
8.6 - Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
8.7 - Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
9 - Limitation of liability
9.1 - Nothing in these Conditions shall limit or exclude Hitherbest's liability for:
(a) - death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) - fraud or fraudulent misrepresentation;
(c) - breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) - defective products under the Consumer Protection Act 1987.
9.2 - Subject to clause 9.1:
(a) - Hitherbest shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) - Hitherbest's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 85% of the price of the Goods.
10 - Force majeure
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 3 weeks, the party not affected may terminate this Contract by giving 5 Business Days written notice to the affected party.
11 - General
11.1 - Assignment and other dealings.
(a) - Hitherbest may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) - The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Hitherbest.
11.2 - Entire agreement.
(a) - This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) - Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
11.3 - Intellectual Property Rights
(a) - All Intellectual Property Rights in or arising out of the Specifications (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Hitherbest.
(b) - The Customer shall not sub-license, assign or otherwise transfer the rights granted in Clause 11.3(a).
(c) - The Customer grants Hitherbest a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to Hitherbest for the term of the Contract for the purpose of providing the Goods to the Customer.
11.4 - Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.5 - Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
11.6 - Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
11.7 - Notices.
(a) - Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(i) - delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) - sent by fax to its main fax number or sent by email to firstname.lastname@example.org.
(b) - Any notice shall be deemed to have been received:
(i) - if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(ii) - if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service ;and
(iii) - if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 11.7(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) - This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
11.8 - Third party rights. No one other than a party to this Contract shall have any right to enforce any of its terms.
11.9 - Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
11.10 - Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
Terms and conditions were last updated on the 13/04/2022