In these terms and conditions the following words have the following meanings:
“Contract” any contract between the Company and the Customer for the sale and purchase of Goods.
“Company” NSK UK Limited or NSK Europe Limited
“Customer” the person(s) or com-pany whose order for Goods is accepted by the Company.
“Goods” any goods which the Com¬pany is to supply to the Customer (including any of them or any part of them)
2. Basis of Contract
a) The Contract will be on these terms and conditions to the exclu¬sion of all other terms and condi¬tions (including any terms or con¬ditions which the Customer pur¬ports to apply under any pur¬chase order, confirmation of order or similar document). Each order for Goods by the Customer from the Company shall be deemed to be an offer by the Customer to pur-chase Goods subject to these terms and conditions. No addition or variation shall apply unless specifically agreed in writing by the parties.
b) No order shall be binding on the Company unless and until ac¬cepted or confirmed in writing by the Company. The Company re¬serves the right (without prejudice to any other remedy) to cancel any uncompleted order or to sus¬pend delivery in the event of any of the Customer’s commitments to the Company not being met.
c) No order which has been ac-cepted by the Company may be cancelled by the Customer except with the agreement in writing of the Company and on terms that the Customer shall indemnify the Company in full against all losses (including loss of profit, loss of business and depletion of good¬will) costs, damages, charges and expenses incurred by the Com-pany as a result of cancellation.
a) While the Company will use its rea¬sonable endeavours to comply with any dates specified by the Com¬pany for the delivery of the Goods, such dates are approxi¬mate only and may not be made of the essence by notice. If no dates are specified, delivery will be within a reasonable time. Sub¬ject to the other provisions of these terms and conditions, the Com¬¬pany will not be liable for any loss (including loss of profit), costs, damages, charges or ex¬penses caused directly or indi¬rectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence) nor un-less such delay exceeds one hundred and eighty (180) days will any delay entitle the Cus-tomer to terminate or rescind the Con¬tract.
b) Unless otherwise agreed in writing, the Company’s delivery terms are ex works (Incoterms 2010).
c) The Goods shall be at the sole risk of the Customer from the time of delivery to the Customer or to his agent or carrier (including any such agent or carrier instructed by the Company acting strictly on behalf of the Customer). In the event of loss or damage in transit, no claim will be accepted, unless the Company is advised in writing within five days of delivery or in the case of non-delivery, within 21 days of despatch. Any damage to the Goods in transit or claims for shortage should be notified to the carrier and the Company immedi¬ately following receipt at the cus¬tomer’s premises, or port of entry as the case may be.
i) Legal title and property in and beneficial ownership of the Goods shall not pass to the Customer (notwithstanding delivery of such Goods to the Customer) until the Customer has paid both the full price of such Goods and all other sums whatsoever due to the Company. Pending such payment the following provisions of this condition shall be applicable to such Goods.
ii) The Customer shall at all times in his fiduciary capacity hold the Goods as the Company’s bailee.
iii) The Customer shall mark and keep the Goods so as to identify them clearly as the property of the Company.
iv) The Company shall be entitled at any time at the Customer’s ex¬pense to enter upon the Cus¬tomer’s premises and to recover and dispose of the Goods and the Customer shall make no claim against the Company in respect of any such entry or disposal save to recover any balance due to the Customer after the Company has disposed of the Goods and re-couped all sums due from the Customer to the Company. The Customer will indemnify the Com¬pany’s representatives in re-spect of any and all claims arising from such attendance.
v) The Customer may in the ordi-nary course of business mix the Goods with other objects or con-vert the Goods into other objects whether by the process of manu¬facture or otherwise. In this event, the Customer agrees that the property in the mixture or the con¬verted goods as the case may be shall not pass to the Customer until the provisions of condition d(i) have been complied with. For the avoidance of doubt, the provi-sions of sub-paragraphs (ii) (iii) and (iv) of this condition 3 shall apply to any such mixture or con¬verted goods.
vi) The Customer may in the ordi¬nary course of business sell or other¬wise dispose of the Goods or any mixture or converted goods referred to in condition 3(e)(v), but shall hold the pro¬ceeds of any such sale or dis¬posal and any rights or claims against third par¬ties arising out of such sale or disposal in a fiduci¬ary capacity for and to the ac¬count of the Com¬pany and the Customer shall take all steps necessary to keep such proceeds separate from other mo¬nies, to pay over such pro¬ceeds to the Company, and to trans¬fer to the Company any such rights or claims to the extent ne¬ces¬sary to discharge in full the Cus¬to¬mer’s indebtedness to the Company.
vii) The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed to the Customer.
e) The Company reserves the right to deliver the Goods in in-stalments, in which case the Contract shall be construed as a separate contract in respect of each instalment. Failure to deliver any instalment shall not entitle the Customer to treat the Contract as repudiated.
The Company will at the request of Export Customers, arrange ma¬rine insurance of the Goods and report shipment of the Goods to the insurers but shall not be liable for any negligence or other¬wise for any error in complying with such request or omission to do so.
The price shall be the price in force at the time of delivery and the Company’s current price list does not constitute an offer to sell at the prices set out therein. The Company reserves the right to apply a minimum charge on small value orders, and to vary the prices in the Company’s price List where the exchange rate between sterling and the currency in which the price is to be paid varies by more than five per cent. between the date of publication of such price list and the date on which the Goods are delivered. The price for the Goods is exclusive of any value added tax or any other applicable tax which the Cus-tomer shall pay in addition when it is due to pay for the Goods.
The Company shall not be liable to the Customer or deemed to be in breach of the Contract by rea¬son of any delay in performing or any failure to perform any of the Company’s obligations if the de¬lay or failure was due to any cause whatsoever beyond the Company’s reasonable control (including, without limitation those arising from strikes, lockouts or any other industrial dispute or from Act of God, War, National or Local Government restriction, pro¬hibition or control, fire, flood or acci¬dents). In the event that such cir¬cumstances last for a period in excess of one hundred and eighty (180) days, the Company shall have the right to terminate the Contract.
Unless otherwise stated prices quoted include non-returnable packing. Returnable containers will be charged for if they are not returned carriage paid and in good condition within thirty (30) days of delivery; the Company must be notified of the return at the date of despatch by the Cus¬tomer.
a) EU Customers
The Company’s payment terms are net cash with order. Unless otherwise agreed by the Com-pany in writing, payment is due net cash four (4) weeks from the date of invoice.
b) Non EU Customers
Orders from Customers outside the European Union are accepted subject to either of the following modes of payment having been arranged;
i) net cash with order, or
ii) deposit at a bank nominated by the Company, of an irrevocable documentary credit of a first class bank, or a Non EU bank bearing the confirmation of a first-class London bank;
unless other payment terms shall first have been agreed by the Company.
c) Time for payment shall be of the essence. No payment shall be deemed to have been received until the Company has received cleared funds.
d) The Customer shall make all payments due under the Contract with¬out any deduction, whether by way of set-off, counterclaim or other¬wise, unless the Customer has a valid court order requiring an amount equal to such deduc¬tion to be paid by the Company to the Customer.
e) If the Customer fails to make any payment under this Contract on the due date then (without pre¬judice to its other rights and re¬medies) the Company may char¬ge the Customer interest (both before and after judgment) on the amount unpaid at the an-nual rate of three per cent (3 %) above the base rate from time to time of Barclays Bank plc and/or suspend further deliveries of the Goods until payment is made in full.
a) The Customer is responsible for obtaining all document, li-cences and authorisations which may be required to enable the Company to deliver the Goods to the Customer. For the avoidance of doubt the Company shall not be liable to the Customer for a failure to obtain any documents, licences and authorisations re¬ferred to in this Condition 9.
b) Certain products will be desig-nated as “dual-use” and some countries designated as restricted and therefore subject to Trade and Export Restrictions and con¬trols. The customer is responsible for identifying when export or trade restrictions may apply and to obtaining a licence or Govern¬ment clearance as necessary.
10. Description and specification
Whilst every effort is made to en¬sure accuracy the descriptions, illustrations and material con¬tained in any catalogues, price lists, brochures, leaflets or other descriptive matter represent the general nature of the items de-scribed therein but do not form part of the Contract or amount to any representation or warranty and should be relied upon only in the exact circumstances in which they are expressed but otherwise they are excluded from the con¬tract. The Company reserves the right to modify the design of Goods without notice.
a) Subject as provided below, the Company warrants all Goods supplied by it to be free from de-fects in material and workman-ship, but its sole liability under such warranty shall be limited to either replacing, repairing or is-suing credit (at its option) for any Goods which within twelve (12) months of delivery are returned, carriage paid, to the Company and which the Company accepts as having been defective in mate¬rials and workmanship.
b) The Company shall incur no liability under this warranty:
i) unless the Company is notified in writing within seven (7) days of the discovery of any defects by the Customer;
ii) for any Goods in which the al-leged defect is found on exami-nation to have been caused in whole or in part by misuse, ne-glect, overload, unsuitable lubri-cant, improper installation or re-pair, alteration or accident or de-fects arising from fair wear and tear, abnormal working conditions and failure to follow any instruc¬tions issued by the Company;
iii) for any transport, installation, removal, labour or other costs;
iv) for any goods not manufac-tured by an NSK Group company, but the Company will use its rea¬sonable endeavours to pass on to the Customer the benefit of any warranty or guarantee given to the Company;
v) where the defect arises be-cause the Customer has failed to follow the Company’s oral or written instructions as to the stor¬age installation, commissioning, use or maintenance of the Goods;
vi) if the Customer alters or re-pairs the Goods without the writ-ten consent of the Company; or
vii) if the defect in such Goods arises from any design defect in any drawing, design of specifica-tion supplied or approved by the Customer.
c) The Company is unable to war¬rant the suitability or fitness for any particular purpose or use of the Goods. In particular, but with¬out limiting the generality of the foregoing, Goods for aeronautical applications may only be from a supplier who has the appropriate CAA approval. If Goods are re¬quired for aeronautical use this should be disclosed to the Com¬pany by the Customer.
12. Limitation of Liability
a) The following provisions and the provisions of condition 10 set out the entire liability of the Com¬pany (including any liability for the acts or omissions of its employ¬ees, agents and sub-contractors) to the Customer in respect of:
i) any breach of these terms and conditions; and
ii) any representation, statement or tortuous act or omission in-cluding negligence arising under or in connection with the Contract.
b) All warranties, conditions and other terms implied by statute or common law (save for the condi-tions implied by section 12 of the Sale of Goods Act 1979) are ex¬cluded from the Contract; except that the Customer retains the benefit of the statutory conditions and warranties in Section 13 to 15 of the Sale of Goods Act 1979.
c) Nothing in these terms and conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or fraudu¬lent misrepresentation.
The Customer’s attention is in particular drawn to the provisions of condition 12(d):
d) Subject to conditions 12(b) and 12(c)
i) the Company’s total liability in contract, tort (including negli-gence or breach of statutory duty), misrepresentation or oth-erwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the price of the Goods, subject to price revisions;
ii) the Company shall not be liable to the Customer by reason of any representation or any implied war¬ranty, condition or other term or any duty at law or under the ex¬press terms of this Contract for any indirect or consequential loss or damage (whether for loss of profit, loss of business, increased production costs, depletion of goodwill or otherwise), costs, ex¬penses or other claims for conse¬quential compensation whatso¬ever (whether or not caused by the negligence of the Company, its employees, agents or sub-contractors) which arise out of or in connection with the Contract.
13. Special material and products
Where Goods are manufactured specially to the Customer’s speci¬fication, it is a condition of sale that the Company reserves the right to deliver, and charge for, 10 per cent (10 %) more or less than the quantity ordered. Unless oth¬erwise agreed in writing the Com¬pany does not accept any restric¬tion of its rights to manufacture, sell or offer any other customers, goods which may be manufac¬tured specially for a specific cus¬tomer or customers or goods of like pattern.
In the case of such goods manu¬factured specially to the Cus¬tomer’s specification the Cus¬tomer shall indemnify the Com¬pany against all losses and dam¬ages awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement of any patent, copyright, design, trade mark or other intellectual property rights of any person with results from the Company’s use of the Customer’s specification.
14. Intellectual Property
All patent, copyright, design, trade mark or other intellectual property rights in the Goods are and shall remain vested in the Company and nothing in these terms and conditions shall be construed as granting to the Customer a licence or other right of manufacture of the Goods.
15. Legal Construction
These conditions and the Con-tract shall in all respects be con-strued and operate in accordance with English Law and the parties here¬to submit to the exclu¬sive juris¬diction of the English courts.
16. Electronic Information
Any information provided elec-tronically by the Company is pro-vided ‘as is’ and without warran-ties of any kind express or im-plied. Such information is the copyright of the Company, and may be used solely in connection with making purchases from the Company and not for any other purpose.
a) The Company employees or agents are not authorised to make any representations or give any advice or recommendations concerning the goods unless confirmed by the Company in writing. Without prejudice to con¬dition 12(c), when entering into any contract the Customer ac¬knowledges that it does not rely on and waives any claims for breach of, any such representa¬tion, advice, or recommendation which are not so confirmed.
b) The Company shall, without prejudice to any other right or remedy available to it, be entitled to terminate the Contract or sus¬pend any further deliveries under Contract without any liability to the Customer, or if Goods have been delivered and not paid for immediately demand payment of the price due, in any of the fol¬lowing circumstances:
i) The Customer makes any vol-untary 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 or has passed a winding-up petition or ordered against it a winding up order (other than for an amalga-mation or reconstruction); or
ii) An encumbrancer takes pos-session of, or a receiver is ap-poin¬ted over, any of the property or assets of the Customer: or
iii) The Customer ceases, or threatens to cease, to carry on business: or
iv) The Company reasonably ap-pre¬hends that any of the events men¬tioned above are about to occur.
c) The headings in these terms and conditions are for conven-ience only and shall not affect their interpretation.
d) Any notice required or permit-ted to be given by either party to the other under these terms and conditions shall be in writing and addressed to the other party at its registered office or principal place of business. Any notice delivered personally shall be deemed re¬ceived when delivered; any notice sent by fax shall be deemed re¬ceived on despatch (provided the normal answer back shall have been received); any notice sent by first class post shall be deemed to be received forty eight (48) hours after posting; PRO¬VIDED ALWAYS, that where de¬livery occurs after 4 pm or occurs on any day other than a normal working day such notice shall be deemed to have been received at 9 am on the next working day.
e) Each right or remedy of the Company under this Contract is without prejudice to any other right or remedy of the Company whether under this Contract or not.
f) Failure by the Company to en-force or partially enforce any pro¬vision of this Contract will not be construed as a waiver of any of its rights under this Contract.
g) This Contract is personal to the Customer who may not assign, license or sub-contract all or any of its rights or obligations under this Contract without the Com¬pany’s prior written consent. The Company may assign, license or subcontract all or any part of its rights or obligations, including re¬ceivables, under this Contract with¬out the Customer’s consent.
h) The parties acknowledge and agree that the Company sells Goods as principal only, to the intent and with the effect that no other person or persons shall have any rights or obligations, or be entitled to sue or be sued, un¬der the contracts it enters into.
i) Save as expressly provided for, nothing in this Contract shall cre¬ate any rights for third parties un¬der the Contracts (Rights of Third Parties) Act 1999 or any equiva¬lent statute or rule of law in any jurisdiction.
j) This Contract shall be governed by and construed in accordance with the laws of England and Wales.
NSK UK Ltd. • Northern Road • Newark • Nottinghamshire NG24 2JF • UK • Tel. +44 (0) 1636 605123 • Fax +44 (0) 1636 643050 • www.nskeurope.co.uk
Registered Office: Belmont Place, Belmont Road, Maidenhead, Berkshire, SL6 6TB, UK • Co. Reg No. 2215151 • VAT No. GB 613 8153 56
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