Terms and conditions
Hillcliff Tools Limited - Terms and Conditions of Sale
In these conditions:
‘Buyer’ means any person, company or organisation which buys or has agreed to buy any Goods.
‘Conditions’ means these terms and conditions (as amended from time to time)
‘Contract’ means a contract between the Seller and the Buyer for the sale and purchase of Goods in accordance with these Conditions.
‘Goods’ means any item which is to be sold by the Seller.
‘Order’ means an order for the supply Goods placed by the Buyer with the Seller.
‘Seller’ means Wixroyd International Ltd.
1.1 No employee, agent or salesman has any authority to waive or vary any of these Conditions on behalf of the Seller and any variation to these Conditions shall be inapplicable unless in writing and signed by a Director on behalf of the Seller.
2. Acceptance of Order
2.1 These Conditions apply to each Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 These Conditions shall form part of every contract of sale of Goods entered into by the Seller and the placing of an Order shall be deemed to be conclusive evidence of the Buyer’s acceptance of these Conditions.
2.2 An Order constitutes an offer by the Buyer to purchase Goods in accordance with these Conditions. The placing of an Order by the Buyer, whether or not based upon a quotation, shall not be binding on the Seller, unless accepted in writing, at which point a Contract shall come into existence.
2.3 The Seller reserves the right to reject any Order and shall be under no obligation to acknowledge receipt of an Order from the Buyer.
2.4 The Buyer is responsible for ensuring the accuracy of any Order placed with the Seller.
2.5 No representations or undertakings made or given on the Seller’s behalf prior to contract shall be binding on the Seller, unless incorporated expressly in writing in a Contract. A Contract constitutes the entire agreement between the parties with respect to the relevant Goods.
2.6 Goods ordered by the Buyer which are out of stock will be placed on back order unless the Buyer shall specify ex-stock or cancel in its Order.
2.7 If the Buyer shall require any change in the terms or arrangements for the performance of a Contract it shall inform the Seller promptly and no change will be effective unless and until agreed in writing by the Seller.
2.8 If the Buyer wishes to cancel an Order, the Buyer must notify the Seller in writing within 5 days of receipt by the Seller of the Order, and any cancellation will only be deemed to have been accepted by the Seller upon the issue by the Seller of an order cancellation acknowledgement.
2.8.1 In the case of a Buyer placing with the Seller an order for goods specifically to
2.9 The Seller will only accept a call-off Order (subject to its absolute discretion) if it is for a maximum duration of 12 months and is accompanied by a detailed delivery schedule. In the event that the Buyer fails to complete the call-off Order in accordance with the delivery schedule submitted, the Seller shall be entitled to charge the Buyer, in addition to the price of any Goods that have been supplied, 100% of the list price of any Goods that are subject to the Order but which have not actually been supplied.
3.1 All specifications, drawings and data contained in the Seller’s catalogues or brochures or on the Seller’s website or otherwise supplied by the Seller are approximate only and shall not form part of a Contract or have any contractual force unless otherwise stated in writing.
3.2 The Seller reserves the right without prior notice to effect modifications and design changes and to discontinue manufacture of any Goods as part of a continuous programme of product development.
4.1 The Buyer shall be responsible for selection of the Goods ordered and determining whether they are suitable and sufficient for the Buyer’s purpose unless specific advice about this is given in writing by the Seller.
4.2 The Seller shall have no liability for the failure of the Goods to perform in accordance with any specifications when such failure shall be caused by their operation in conditions which shall be unsuitable unless the Buyer shall have stated in its Order that such conditions would apply and the Seller shall have accepted such stipulation in writing.
4.3 Where the Seller manufactures any special item based on a design or drawing submitted by the Buyer, the Seller will request written approval by the Buyer of the production drawing prior to manufacture and the Buyer shall be responsible for ensuring the accuracy of the production drawing in all respects.
5.1 Prices quoted by the Seller are based upon its prices ruling at the date of quotation and the Seller reserves the right to adjust its prices at the time of acceptance of order to reflect any increase in the cost of supplying the Goods or the publication of a new price list occurring after quotation.
5.2 Unless otherwise stated in writing prices quoted by the Seller are exclusive of the cost of packaging and delivery and VAT.
5.3 While the Seller makes every effort to ensure that prices stated in its sales literature and on its website are up-to-date and accurate the Buyer shall not rely on prices stated there and should contact the Seller’s sales office to verify prices before placing an Order.
5.4 The Buyer shall not be entitled to make any deduction from the price of Goods by way of setoff or counter-claim.
6.1 Save where the Buyer has a credit account with the Seller, the Buyer is requested to make payment by debit or credit card or alternatively cleared funds via cheque or bank transfer.
6.2 Where the Buyer makes payment for Goods by means of a debit or credit card the Buyer must notify the Seller that it chooses to pay by this method at the time of placing an Order. The Seller reserves the right to decline to accept payment by credit card in any particular instance. The payment will be deducted from the Buyer’s card account on or before despatch of the Goods from the Seller’s premises.
6.3 If the Buyer is a trade customer or a regular customer, the Seller will upon request open a credit account for the Buyer provided that the price of the Buyer’s first Order for Goods exceeds £100. For credit account customers the Seller requires payment to be made within 30 days after the date of invoice.
6.4 If the Buyer is from outside the United Kingdom payment for the Goods in full is required at the time the Order is placed. Paragraph 6.1 indicates accepted methods of payment.
6.5 Any cheque payment should be made out to Wixroyd International Ltd. The Seller’s bank details will be provided upon request to enable the Buyer to make any payment by means of bank transfer.
6.6 Payment made by means of a cheque, bill or documentary credit shall be deemed to be effected when honoured and all costs of discounting and encashing shall be borne by the Buyer.
6.7 Time for payment shall be of the essence of each Contract.
6.8 In the event of delay in payment the Seller shall be entitled to charge interest at the rate of 4% per annum above Barclays Bank plc base rate from time to time from the date of invoice until the date on which payment is actually made, without prejudice to its other rights.
6.9 During any period of default in payment and at any time when the Seller shall have reasonable grounds for doubting that any payment by the Buyer will be made on the due date, the Seller shall be entitled to suspend the fulfilment of any Orders and withhold delivery of any Goods, without prejudice to its right to payment for Goods delivered and costs and expenses incurred in connection with undelivered Goods which shall become immediately due and payable.
6.10 If such default or other circumstances shall continue for a period of 14 days, the Seller shall be entitled to terminate a Contract by written notice to the Buyer, without prejudice to its other rights.
6.11 The granting by the Seller to the Buyer of time or other indulgence shall not prejudice or constitute a waiver of any of the Seller’s rights under these Conditions.
6.12 The Seller shall have a general lien over any money or other property of the Buyer in its possession for all money due to it from the Buyer. If any lien is not satisfied within 14 days of such money becoming due, the Seller may apply such money, or as the case may be, sell such property as agent for the Buyer and apply the proceeds, after deducting the expenses of the sale, in each case towards the monies due and the balance (if any) shall be paid to the Buyer.
7. Delivery Times
7.1 The Buyer should contact the Seller’s sales office for current delivery times.
7.2 Any time for delivery given by the Seller shall not be of the essence of a Contract.
7.3 The Seller shall endeavour to meet the Buyer’s delivery requirements but shall not be liable for any loss or damage caused by delay in delivery and the Buyer shall not be entitled to cancel a Contract because of such delay.
7.4 Each delivery shall be considered a separate transaction and the failure of any one delivery shall not affect the due performance of a Contract as regards other deliveries.
7.5 The Seller shall be entitled to make partial deliveries and these Conditions shall apply to each delivery.
8.1 Unless otherwise agreed, delivery shall be effected at the premises of the Buyer or other place specified in a Contract for delivery and the method of carriage and choice of carrier for delivery within the United Kingdom shall be determined by the Seller.
8.2 The Buyer shall be responsible for paying the Seller’s carriage costs unless it shall make its own arrangements with the agreement of the Seller prior to the Seller arranging carriage. If the Goods shall be collected by the Buyer or by a carrier pursuant to arrangement made by the Buyer, delivery shall be deemed to take place on collection.
8.3 If the Buyer requires delivery to be made outside the United Kingdom, the Seller recommends that the choice of carrier shall be determined by the Buyer and that the Buyer notifies such choice to the Seller at the time of placing its Order. In the absence of such notification the Seller will choose the carrier.
8.4 If delivery should be delayed at the request of the Buyer, the Seller may place the Goods in store at the Buyer’s risk and the Buyer shall pay such storage costs and other costs incurred by the Seller as a result of such delay.
9. Title and Risk
9.1 Title to the Goods shall remain with the Seller until payment in full is made by the Buyer.
9.2 The provisions of Condition 9.1 shall not prevent the Buyer from fixing the Goods to any other product or selling the Goods in the normal course of business but in the event of sale to the extent of the Buyer’s indebtedness to the Seller in respect to the Goods, the Buyer shall hold the proceeds of sale or the right to receive the same on trust for the Seller and shall, at its request, either (i) place the proceeds of sale in a separate account of the Buyer in such a way as to be identifiable as in the beneficial ownership of the Seller, or (ii) assign the right to receive the proceeds of sale to the Seller.
9.3 If before title to the Goods passes to the Buyer the Seller becomes subject to any of the events listed in Condition 9.5, or the Seller reasonably believes that any such event is about to happen and notifies the Buyer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Buyer may have, the Seller may at any time require the Buyer to deliver up the Goods and, if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
9.4 The risk in the Goods shall pass to the Buyer on delivery or placing in store in accordance with Condition 8.
9.5 For the purposes of Condition 9.3, the relevant events are:
(a) the Buyer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the Buyer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Buyer;
(d) (being an individual) the Buyer is the subject of a bankruptcy petition or order;
(e) a creditor or encumbrancer of the Buyer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets;
(f) (being a company) 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 the Buyer;
(g) (being a company) a floating charge holder over the Buyer’s assets has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the Buyer’s assets or a receiver is appointed over the Buyer’s assets;
(i) any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Conditions 9.5(a) to (h) (inclusive);
(j) the Buyer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
(k) the Buyer’s financial position deteriorates to such an extent that in the Seller’s opinion the Buyer’s capability to adequately fulfil its obligations under a Contract has been placed in jeopardy; and
(l) (being an individual) the Buyer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
10. Inspection, Transit Delays and Non Delivery
10. 1 The Buyer must inspect the Goods as soon as is reasonably practicable after delivery and shall within 7 days of delivery give notice to the Seller in detail of any defect in the Goods or of any other complaint which the Buyer may have in relation to the Goods. If the Buyer fails to give such notice the Goods shall be conclusively presumed to be in all respects in accordance with the relevant Contract and free from any defect which would be apparent on reasonable examination, and the Buyer shall be deemed to have accepted the Goods accordingly.
10.2 In the event that the Buyer establishes to the Seller’s reasonable satisfaction that the Goods are not in accordance with the relevant Contract or are so defective, the Buyer’s sole remedy in respect of such non-accordance or defects shall be limited as the Seller may elect to the replacement of the Goods or refund of the purchase price or, where sums are owed by the Buyer to the Seller, the issue of a credit note or a credit card account refund against return of the Goods.
10.3 Queries regarding shortages of Goods must be made within 7 days of the despatch date and must be accompanied by the despatch note. Queries regarding Goods invoiced but not delivered must be made within 10 days of invoice date and the invoice number must be quoted. In no circumstances shall the Seller be liable to compensate the Buyer in damages or otherwise for non delivery of late delivery of the Goods or any of them for whatever reason or for any loss consequential or otherwise arising from non delivery or late delivery.
11.1 The Seller shall be under no obligation to accept the return of any Goods unless they are faulty or are found to be damaged upon delivery.
11.2 In exceptional cases the Seller may at its discretion accept the return of Goods in which case the Buyer will be credited with the price of the Goods set out in the invoice less a handling charge of 20% of that price. A return will only be accepted if the Seller’s sales office has first agreed to the return and issued a goods return number, if the return is made within 30 days of the date of the invoice, and if the Goods are returned with their packaging intact and unmarked.
12.1 Save as expressly provided in these conditions, all warranties, conditions or other terms implied by statute or common law are hereby excluded.
12.2 Where any valid warranty claim in respect of any of the Goods which is based on any defect in the quality of condition of the Goods is notified to the Seller, then the Seller shall be entitled to repair or replace the Goods free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price) but the Seller shall have no further liability to the Buyer.
12.3 The Seller shall have no limit on its liability for death or personal injury caused by the Seller’s negligence or the negligence of its employees.
12.4 Subject to Condition 12.3, the Seller shall have no liability to the Buyer in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever and whatever the cause thereof:
(a) for any increased costs or expenses;
(b) for any loss of profit, business, contracts, revenues, opportunity or anticipated savings, or
(c) for any special, indirect or consequential loss or damage of any nature whatsoever.
12.5 Subject to Conditions 12.3 and 12.4 and notwithstanding anything contained in these Conditions, the Seller’s liability in contract, tort (including negligence or breach of statutory duty) or otherwise arising by reason of or in connection with the supply of the Goods shall be limited to a sum equivalent to the price of the Goods supplied.
Subject to any statutory provision to the contrary, the Seller shall have no liability for any loss of damage suffered by any third party caused directly or indirectly by the Goods, whether as the result of their operation or use or otherwise and whether as the result of any defect there in or otherwise and the Buyer shall indemnify the Seller from any claim arising from any such loss or damage.
14. Force Majeure
The Seller shall not be liable for any loss or damage sustained by the Buyer caused by delay or failure to perform a Contract arising from any act of God, war, riot, strike, lock-out, government control or regulation, abnormal weather conditions, accident, breakdown or any other circumstances beyond the Seller’s control and in such event, insofar as a Contract shall not have performed, the Seller may either terminate such Contract and return any advance payment received or delay for such period as may be necessary.
15.1 All drawings and other documents supplied by one party to the other shall remain the copyright and property of the party supplying the same and may not be copied or reproduced without its consent and such documents shall be returned in the event of a Contract not being made or completed.
15.2 Any trade secret or confidential information supplied by either party to the other shall be kept confidential and shall not be disclosed to any party without the consent of the party supplying the same.
16.1 The Buyer shall notify the Seller immediately of any circumstances coming to its attention which may be likely to give rise to any claim that the Goods infringe the rights of any third party and shall permit the Seller to conduct any action or negotiations in respect there of in the name of the Buyer but at the Seller’s expense.
16.2 In the event of any such claim being successful, the Seller shall indemnify the Buyer against any liability it may sustain to such third party, but shall have no other liability to the Buyer in respect thereof.
Any notice to be given by either party to the other shall be properly given if sent by telex, e-mail or post to the party to be served at its head office or last known address and shall be deemed to have been served, in the case of postal delivery, when the normal course of post it would have been delivered.
18. Assignment and Subcontracting
18.1 The Seller may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under a Contract.
18.2 The Buyer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under a Contract without the prior written consent of the Seller.
19. Third Party Rights
A person who is not a party to a Contract shall not have any rights under or in connection with it.
Except as set out in these Conditions, any variation to a Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Seller.
21. Sale to Consumers
If the Buyer is a consumer purchasing Goods under a distance contract, as those terms are defined in the Consumer Protection (Distance Selling) Regulations 2000 (“the Distance Selling Regulations”) these conditions shall be subject to the provisions of the Distance Selling Regulations and in the event of there being any conflict between these conditions and the Distance Selling Regulations, the Distance Selling Regulations shall prevail.
Each Contract shall be governed by, and construed in accordance with, English law and the parties irrevocably submit to exclusive jurisdiction of the courts of England and Wales to determine any dispute between them in relation thereto.