Terms of Business
1.1 Definitions. In these Conditions, the following definitions apply:
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.6.
Contract: the contract between the Supplier 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 the Supplier.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer’s order for the Goods, as set out in the Quotation.
Quotation: the Suppliers quotation for the supply of Goods.
Supplier: Exalto Bearings UK Limited, registered in England and Wales with company number 09783576
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 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.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6 A Quotation for the Goods given by the Supplier shall not constitute an offer. A Quotation shall only be valid for a period of 20 days from its date of issue but, due to the volatility of the LME metal market, the Supplier reserves the right to amend the price applicable in a Quotation at any time and the price for any Order will be as amended or the price for the Goods based on the LME metal market price on the date the Order is accepted.
3.1 The Goods are described in any specification but if none, then as described in a Quotation.
3.2 The Supplier may make any changes to the specification, design, materials or finishes of the Goods which:
(a) Are required to conform with any applicable safety or other statutory or regulatory requirements; or
(b) Do not materially affect their quality or performance.
4.1 Delivery of the Goods will be made ex-works, as defined in the latest version of INCOTERMS, or to such other location as the parties may agree at any time after the Supplier notifies the Customer that the Goods are ready.
4.2 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier 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 the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods
4.3 The Customer shall inspect the Goods on delivery and shall notify the Supplier within 14 days of delivery of:
(a) Any damage to the Goods which occurred in transit;
(b) Any defect or suspected defect in the Goods where the defect should be apparent on reasonable inspection;
(c) Any discrepancy of the Goods from their specification or the Quotation.
5.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery, the Goods shall:
(a) Conform in all material respects with their description and any applicable specification;
(b) Be free from material defects in design, material and workmanship; and
(c) Be fit for any purpose held out by the Supplier.
5.2 Subject to clause 5.3, if:
(a) the Customer gives notice in writing to the Supplier 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) The Supplier is given a reasonable opportunity of examining such Goods; and
(c) The Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost,
The Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 The Supplier shall not be liable for 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 Customer makes any further use of such Goods after becoming aware of or should have been aware of any failure of the Goods to comply with the warranty set out in clause 5.1;
(c) The defect arises because the Customer failed to follow the Supplier’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;
(d) The defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
(e) The Customer alters or repairs such Goods without the written consent of the Supplier;
(f) The defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
(g) The Customer has failed to comply with its obligations in clause 4.5; or
(h) 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, the Supplier 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 the Supplier.
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 the Supplier has received payment in full (in cash or cleared funds) for the Goods and for any other goods that the Supplier has supplied to the Customer.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) Hold the Goods on a fiduciary basis as the Supplier’s Bailee;
(b) Store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
(c) Not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) Maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
But the Customer may resell or use the Goods in the ordinary course of its business.
7. Price and payment
7.1 The price of the Goods shall be the price set out in the Quotation, subject to variations in accordance with clause 2.6, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.
7.2 The Supplier may, by giving notice to the Customer at any time 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 the Supplier’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 the Supplier adequate or accurate information or instructions.
7.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer, unless otherwise specified in the Quotation.
7.4 The price of the Goods is exclusive of amounts in respect of value added tax which the Customer shall pay to the Supplier.
7.5 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery and payment is due, in the currency of the invoice within 30 days from the date of invoice, unless otherwise specified by the Supplier.
7.6 The Customer shall pay the Supplier’s invoices in full and in cleared funds in accordance with clause 7.5. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence. The Late Payment of Commercial Debts (Interest Act) 1998, as amended, and any orders made thereunder shall apply to all outstanding invoices.
7.7 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (due date), then the Supplier may, after having notified the Customer in writing, suspend its performance of the Contract until all outstanding payments have been received. If the Customer has not paid any amounts due within 3 months the Supplier shall be entitled to terminate the Contract by notice in writing to the Customer and to claim compensation for the loss it has incurred. The compensation shall not exceed the agreed purchase price.
7.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier 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 the Supplier to the Customer.
8. Customer’s insolvency or incapacity
8.1 If the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
8.2 For the purposes of clause 8.1, the relevant events are:
(a) The Customer becomes subject to, seeks to commence, or proceedings are initiated against the Customer for any form of insolvency proceedings;
(b) The Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
(c) The Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9. Limitation of liability
9.1 Nothing in these Conditions shall limit or exclude the Supplier’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;
(d) Defective products under the Consumer Protection Act 1987; or
(e) Any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
9.2 Subject to clause 9.1:
(a) The Supplier shall under no circumstances whatever 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) the Supplier’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 the price of the Goods.
10. Force majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable.
11.1 Assignment and subcontracting.
The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
Any notice given to a party under or in connection with the Contract shall be in writing and shall be sufficiently given to a party if delivered by hand or sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail addressed to a party’s principal place of business and any notice so given shall be deemed to have been affected at the time of delivery.
If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
11.5 Third party rights.
A person who is not a party to the Contract shall not have any rights under or in connection with it.
Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.
11.7 Governing law and jurisdiction.
The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
(Version 3: 14th February 2018)