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Standard terms & conditions of sale of goods and services

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  1. Definitions
    In these Conditions:
    “Seller” means NSK United Kingdom Limited.
    “Buyer” means the person, firm or company which places an order for the purchase of Goods with the Seller, as identified on the front of these Conditions.
    “Goods” means goods supplied or agreed to be supplied by the Seller to the Buyer under any Contract and shall include Non- Warranty Goods in respect of which Services have been performed where applicable.
    “Conditions” means the standard terms and conditions of sale set out in this document and any special terms and conditions agreed in writing between the Buyer and the Seller.
    “Contract” means a contract between the Seller and the Buyer for the purchase and sale of Goods, comprising the Buyer’s order, the Seller’s written form of acceptance and these Conditions. In the event of any inconsistency between these Conditions and the Buyer’s order or the Seller’s written form of acceptance, these Conditions shall prevail to the extent of the inconsistency.
  2. Formation of Contract and Basis of Sale
    2.1 The Seller shall sell and the Buyer shall purchase Goods and/or Services in accordance with and on the basis of these Conditions which the Buyer, in entering into a Contract, shall be deemed to have accepted and which shall govern a Contract to the exclusion of any other terms and conditions including any terms and conditions stipulated, incorporated or referred to by the Buyer in any order, correspondence or negotiations or in any other way.
    2.2 A quotation by the Seller does not constitute an offer and the Seller reserves the right to withdraw or revise any quotation at any time prior to the Seller’s acceptance of the Buyer’s order.
    2.3 A Contract shall be formed when Seller’s written acceptance of the Buyer’s order is communicated by the Seller or when Goods are despatched, whichever is earlier.
    2.4 No order which has been accepted by the Seller may be cancelled or varied by the Buyer, except on terms agreed in writing by the Seller. In addition to any other terms imposed by the Seller on such cancellation, in the event the Seller accepts cancellation of an order after the Seller has shipped the Goods or made them available for collection as applicable or has commenced performance of the Services, the Buyer shall pay the Seller an administration fee of 15% of the value of the Order plus VAT.
    2.5 In relation to any Contract, these Conditions, any order and Seller’s written form of acceptance shall constitute the entire agreement between the Buyer and the Seller and supersede any previous agreement or arrangement between them relating to the subject matter of that Contract.
    2.6 No representation, undertaking or promise shall be taken to have been given or implied from anything said or written in negotiations between the parties prior to the date of any Contract except as expressly stated in that Contract. Whilst the Seller takes every precaution in the preparation of its catalogues, technical circulars, price lists, promotions and its other literature, these documents are for the Buyer’s general guidance only and the particulars contained therein shall not constitute representations by the Seller and the Seller shall not be bound thereby. The Buyer shall not have any remedy in respect of any untrue statement made by the Seller upon which the Buyer relied in entering into a Contract (unless such untrue statement was made fraudulently or was as to a fundamental matter including a matter fundamental to the Seller’s ability to perform its obligations under the Contract) and the Buyer’s only remedies shall be for breach of contract as provided for in these Conditions. Misrepresentations as to fundamental matters shall be subject to the terms of Clause 9.
  3. Price
    3.1 The price of Goods shall be the price quoted by the Seller to the Buyer or as set out in the Seller’s prevailing price list applicable at the time of acceptance or as otherwise agreed in writing between the parties. For the avoidance of doubt, the Seller’s price list is subject to variation or revision by the Seller from time to time.
    3.2 Unless otherwise agreed in writing, all prices are given by the Seller on the basis that the Seller will deliver Goods ex works Seller’s premises (as notified by the Seller to the Buyer) as provided in Clause 5.1 and, where the Seller agrees to deliver Goods other than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for loading, unloading, transport, packaging and insurance in accordance with Clause 4.1.
    3.3 All prices quoted by the Seller are, unless stated otherwise, exclusive of Value Added Tax and all other applicable taxes and duties, which shall be payable by the Buyer.
    3.4 Unless otherwise agreed in writing, all packing is non-returnable. All returnable packing cases, pallets, containers and other packaging provided to the Buyer will be charged to the Buyer at the Seller’s current prices, but such charge (less a handling fee of 50 per cent) will be refunded, or credit given in respect of it, by the Seller to the Buyer only if the packaging materials are returned to the Seller’s designated warehouse carriage paid and in good condition within 30 days of their despatch to the Buyer.
  4. Payment
    4.1 Unless otherwise agreed in writing, the Seller shall be entitled to invoice the Buyer for the price of Goods together with any loading, unloading, transport, packaging, insurance, VAT and other charges, taxes and duties payable on or at any time after delivery is effected. Unless otherwise agreed in writing, the Seller shall be entitled to invoice the Buyer the fee payable for the Services (as defined in Clause 8), together with any VAT and other charges, taxes and duties payable on or at any time following the Seller’s completion of the Services or part completion of the Services (in accordance with Clause 8.3 and 8.6).
    4.2 The Buyer shall make payment of any amount invoiced by the Seller in full within 30 days of the date of the invoice.
    4.3 All amounts due under an invoice shall be paid in full by the Buyer, and unless otherwise agreed in writing between the Buyer and the Seller, without deduction, withholding, set-off or counterclaim for any reason whatsoever, whether arising in contract, tort (including negligence), breach of statutory duty or otherwise, save as may be required by law.
    4.4 If the Buyer disputes any invoice it shall:
    4.4.1 notify the Seller in writing within 14 days of the date of receipt of the invoice, specifying the reasons for disputing the invoice; and
    4.4.2 pay to the Seller all amounts not disputed by the Buyer on the due date as set out in Clause 4.2
    4.5 If the Buyer fails, on the due date, to pay any sum due to the Seller under any invoice or in its sole discretion the Seller believes that such failure to pay on time is likely to occur or otherwise has reason to be concerned about the financial condition of the Buyer then, without prejudice to any other right or remedy available to the Seller, the Seller shall (at its option) be entitled:
    4.5.1 where applicable, to suspend performance of the Contract until payment is made in full or terminate the Contract immediately by written notice;
    4.5.2 to charge the Buyer interest (both before and after any judgment) on the amount unpaid at the rate of 4 per cent per annum above Barclays Bank Plc’s prevailing base lending rate from time to time, until payment in full is made; and
    4.5.3 to require payment for all further Goods in advance of delivery.
    4.6 Where applicable the Buyer shall be protected by the Direct Debit Guarantee.
  5. Delivery
    5.1 Unless otherwise agreed in writing, delivery of Goods shall be made, if a place for delivery is agreed in writing by the Seller, by the Seller delivering Goods to that place, or by the Buyer or its nominated carrier collecting Goods at the Seller’s premises no later than 10 days after the Seller has notified the Buyer that Goods are ready for collection. If upon the expiry of the 10 day period the Buyer has failed to collect Goods, delivery shall be deemed to have been effected on the date of expiry of the 10 day period.
    5.2 Any dates quoted by the Seller for delivery of Goods are approximate only and the Seller shall not be liable for any delay in delivery of Goods howsoever caused and time for delivery shall not be of the essence unless previously agreed by the Seller in writing.
    5.3 Where Goods are to be delivered in instalments, delivery by the Seller of any one or more of the instalments other than in accordance with these Conditions shall not entitle the Buyer to treat the Contract as a whole as repudiated.
    5.4 If the Buyer fails to take delivery of Goods at the time stated for delivery (otherwise than by reason of the Seller’s fault) or fails to give the Seller adequate delivery instructions then, without prejudice to any other right or remedy available to the Seller, the Seller may:
    5.4.1 store Goods until actual delivery and charge the Buyer for the reasonable costs (including handling and insurance) of storage; or
    5.4.2 sell Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the total amount payable by the Buyer under the Contract or charge the Buyer for any shortfall below the total amount payable by the Buyer under the Contract.
    5.5 The Buyer shall inspect or ensure an inspection is made of Goods including Non-Warranty Goods in respect of which Services have been performed within a reasonable time after delivery or collection as the case may be of such Goods.
    5.6 If the Buyer wishes to make a claim for non-delivery, damage, shortage or breakage of or to Goods, the Buyer shall:
    5.6.1 endorse the carrier’s receipts “unexamined”;
    5.6.2 notify in writing the carrier and the Seller within 2 days of the date of delivery including details of the alleged non-delivery, damage, shortage or breakage; and
    5.6.3 not make any use of the Goods before the Seller has had the opportunity to inspect the same.
  6. Risk and Title
    6.1 The risk of loss and damage to Goods shall pass to the Buyer on delivery.
    6.2 Notwithstanding delivery and the passing of risk in any Goods, the property in them shall not pass to the Buyer and shall remain in the Seller until the Buyer shall have paid to the Seller in full the price for them together with any other sums which are or which become due under any Contract.
    6.3 Until such payment, the Buyer shall (at no cost to the Seller) carefully store Goods in such a way as to enable them to be identified as the property of the Seller, maintain Goods in a satisfactory condition including in compliance with any care and maintenance instructions communicated by Seller from time to time and keep them insured to the reasonable satisfaction of the Seller for their full price against all risks at the Buyer’s own expense. The Buyer shall obtain an endorsement of the Seller’s interest in the Goods on its insurance policy, subject to the insurer being willing to make the endorsement. On request the Buyer shall allow the Seller to inspect those Goods and the insurance policy. The Seller reserves the right to charge the Buyer for the reduction in value of any Goods plus a handling charge if the Buyer fails to comply with its obligations regarding the maintenance of Goods as set out in this Clause 6.3.
    6.4 The Seller reserves the immediate right of repossession of any Goods which have not been paid for to which the Seller has retained title as aforesaid exercisable at any time after delivery or collection of Goods and the Buyer hereby grants an irrevocable right and licence to the Seller’s employees, agents and contractors to enter upon all or any premises where Goods are stored without prior notice for this purpose.
  7. Warranties
    7.1 The Seller warrants that Goods will be free from material defects in materials or workmanship and Goods and/or Services will correspond in all material respects with the Seller’s specification at the time of delivery of Goods or completion of performance of Services and for a period of 12 months following delivery or completion of performance as applicable, or such other period as notified in writing to the Buyer by the Seller upon delivery or completion of performance as applicable (the “Warranty Period”).
    7.2 The Seller shall be under no liability under the warranty in Clause 7.1:
    7.2.1 in respect of any defect in Goods arising from fair wear and tear, wilful damage, dropping, neglect, failure to follow the Seller’s instructions or (if there are none) good trade practice, or the Buyer altering or repairing such Goods without the Seller’s written consent;
    7.2.2 in the case of a defect that is apparent on normal visual inspection, if the Buyer fails to comply with its obligations under Clauses 5.5 and 5.6, or otherwise if the Buyer fails to notify any claim in respect of Goods based on an alleged breach of the warranty within 5 days after the discovery of the alleged breach; or
    7.2.3 if the Buyer makes any further use of the Goods after giving notice in accordance with Clause 5.6.2 or 7.2.2 as the case may be.
    7.3 The Buyer must not return any Goods to the Seller under any circumstances unless the Seller has agreed to such return in writing.
    7.4 Where any valid claim in respect of Goods which is based on a breach of the warranty in Clause 7.1 is notified to the Seller within the applicable Warranty Period, the Seller shall replace Goods (or any part(s) in question) free of charge or (at the Seller’s sole discretion) refund to the Buyer the price of affected Goods (or a proportionate part of the price). Such replacement or refund shall be the Seller’s sole liability and the Buyer’s sole remedy for breach of the warranty in Clause 7.1.
    7.5 The warranty period shall commence on the date of delivery listed on the sales invoice document from the seller, and where appropriate this shall include a serial number.
  8. Repair Services
    8.1 The Seller may, at the Buyer’s request as further described in Buyer’s order and in accordance with the terms of this Clause 8, provide repair services (the “Services”) in respect of Goods that are no longer covered by the warranty stated in Clause 7.1, or Goods referred to in Clause 7.2 (collectively referred to herein as “Non-Warranty Goods”).
    8.2 Where the Seller is willing to provide Services following a request by the Buyer, unless otherwise agreed in writing between the parties, the Seller shall provide the Buyer with an estimated fee for the Services which shall include, without limitation, the cost(s) of transporting the Non-Warranty Goods (if arranged by the Seller), the cost(s) of any spare parts required (as detailed in the Seller’s prevailing spare parts price list applicable at the date of provision of the fee estimate), and labour costs to be incurred in providing the Services (as indicated by the Seller from time to time). Upon written acceptance of the estimate by the Buyer, the Seller shall commence performance of the Services. All fees estimated are, unless stated otherwise, exclusive of VAT and all other applicable taxes and duties, which shall be payable by the Buyer.
    8.3 In the event that, during the performance of the Services, the Seller determines that the actual cost of providing the Services will or may exceed by 10% (or more) the estimated fee provided in accordance with Clause 8.2, the Seller shall provide the Buyer with a new fee estimate for the Services. In the event that the Seller has not received the Buyer’s written acceptance of the new estimate within 5 days of providing the new estimate, the Buyer will be deemed to have accepted the new fee estimate and the Seller shall continue performance of the Services. In the event that the new fee estimate is rejected by the Buyer, the Seller may discontinue performance of the Services and shall be entitled to invoice the Buyer for any Services performed up until the date of discontinuance of the Services, in accordance with Clause 4.
    8.4 Unless otherwise agreed in writing between the parties, the Buyer shall be solely responsible for the delivery and collection of the Non-Warranty Goods to and from the Seller’s premises.
    8.5 The Seller warrants that the Services shall be performed with reasonable skill and care.
    8.6 The Seller shall use reasonable endeavours to perform the Services within a reasonable time but time shall not be of the essence for the performance of the Services. In the event that, during the performance of the Services, the Seller determines that the Non-Warranty Goods are not reasonably capable of repair, or parts or materials necessary to perform the Services are not immediately available, the Seller reserves the right (at its sole discretion) to delay or discontinue performance of the Services and the Seller shall be entitled to invoice the Buyer for any Services performed up until the date of such delay to or discontinuance of the Services, in accordance with Clause 4.
    8.7 Risk in the Goods shall remain with the Buyer throughout performance of the Services (including any transportation for the purposes of performance of the Services). Any parts removed from the Non- Warranty Goods as part of Seller’s proper performance of the Services shall become the property of the Seller on removal.
  9. Liability
    9.1 The Seller shall be under no liability to the Buyer for any loss of profit, loss of income, loss of business, loss of revenue, loss of goodwill, or for any indirect or consequential loss or damage of any kind, in each case howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the parties and whether arising in tort (including negligence), contract or otherwise.
    9.2 The Seller’s maximum aggregate liability under or in connection with any Contract, whether arising in contract, tort (including negligence) or otherwise, shall in no event exceed the total amount payable by the Buyer under that Contract.
    9.3 The Seller’s maximum aggregate liability for or in respect of any Services, whether arising in contract, tort (including negligence) or otherwise, shall in no event exceed the total fee(s) payable in respect of the Services in question.
    9.4 Nothing in these Conditions shall exclude or limit the Seller’s liability for (i) fraud, (ii) death or personal injury caused by its negligence (including negligence as defined in s.1 Unfair Contract Terms Act 1977), (iii) breach of terms regarding title implied under the Sale of Goods Act 1979 and/or Supply of Goods and Services Act 1982, or (iv) any other liability to the extent that the same may not be excluded or limited as a matter of law.
    9.5 Save as expressly provided in Clauses 7.1 and 8.5, all conditions, warranties, representations and terms, express or implied, whether by statute, common law or otherwise in relation to Goods and/or Services are hereby expressly excluded.
  10. Intellectual Property Rights
    10.1 Notwithstanding delivery of and the passing of title in any Goods, nothing in any Contract shall have the effect of granting or transferring to, or vesting in, the Buyer any intellectual property rights in or to any Goods nor of granting, directly or indirectly, any licence to the same.
    10.2 The Buyer shall indemnify, and keep indemnified, the Seller fully on demand against any and all actions, claims, losses (including, without limitation, loss of profit, revenue or goodwill) damages, costs and expenses (including legal cost and expenses) incurred by, or awarded against, the Seller in connection with, or paid or agreed to be paid by the Seller in settlement of, any claim of alleged infringement of any rights of a third party as a result of or in connection with the carrying out by the Seller, its employees, subcontractors or agents of any work required to be done to Goods in accordance with the requirements or specifications of the Buyer.
  11. Force Majeure
    Notwithstanding anything to the contrary in these Conditions, the Seller shall not be in breach of these Conditions nor liable to the Buyer for any loss or damage which may be suffered by the Buyer as a direct or indirect result of the supply of Goods or performance of the Services by the Seller being prevented, hindered, delayed or rendered uneconomic by reason of circumstances, causes or events beyond the Seller’s reasonable control. In such circumstances the Seller shall be entitled to a reasonable extension of the time for performing such obligations. If due to such circumstances, causes or events the Seller has insufficient stocks to meet all its commitments the Seller may apportion available stocks between its customers at its sole discretion.
  12. Confidentiality
    Each party agrees and undertakes that it will keep confidential, will not use for its own purposes and will not without the prior written consent of the other party disclose to any third party, any information of a confidential nature belonging or relating to the other party which may become known to it unless such information is or becomes public knowledge (other than by breach of this Clause) or is required to be disclosed by order of a competent authority.
  13. Termination
    Without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to treat any Contract as repudiated and/or to withhold any further deliveries of Goods or performance of Services without any liability to the Buyer and, if any Goods have been delivered or Services performed but not paid for, the total amount payable therefor shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary, if:
    13.1 the Buyer is, or is deemed to be, insolvent, or is unable to pay its debts as they fall due;
    13.2 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or passes a resolution for its voluntary winding up or has a petition for its compulsory winding up presented against it;
    13.3 an encumbrancer takes possession, or a receiver or administrative receiver is appointed, of any of the property or assets of the Buyer;
    13.4 the Buyer ceases, or threatens to cease, to carry on business;
    13.5 any equivalent or analogous event or proceeding occurs in any other applicable jurisdiction;
    13.6 the Seller reasonably believes that any of the events mentioned above is about to occur in relation to the Buyer or any other matter which in the opinion of the Seller may prejudice its rights against the Buyer; or
    13.7 the Buyer commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 7 days after receipt of notice in writing to do so.
  14. General
    14.1 No variations to these Conditions or to any Contract shall be effective unless made in writing signed by the duly authorised representatives of the parties.
    14.2 Failure by the Seller to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
    14.3 If any provision or part of a provision of these Conditions shall be, or shall be found by any court of competent jurisdiction to be, invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of these Conditions, all of which shall remain in full force and effect.
    14.4 The Contracts (Rights of Third Parties) Act 1999 shall not apply to any Contract.
    14.5 The Buyer may not assign, transfer, novate or otherwise dispose of all or any of its rights or obligations under any Contract without the prior written consent of the Seller.
    14.6 Any notice to be given pursuant to these Conditions shall be sent to the intended recipient’s registered office address or any other address as notified from time to time. Notice shall be regarded as properly given if sent in writing and shall be deemed to have been served on delivery if sent by hand, 48 hours after despatch if sent by post, and on confirmation of transmission if sent by facsimile.
    14.7 All Contracts and these Conditions will be construed in accordance with the laws of England and the Buyer hereby agrees that the English courts shall have exclusive jurisdiction in relation to any claim brought by the Buyer against the Seller but that the Seller shall be entitled to bring a claim against the Buyer in any court of competent jurisdiction.
    14.8 All inbound and outbound telephone calls are recorded for quality and training purposes. Call recordings are handled in compliance with applicable regulations.
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