Terms and Conditions

1. Interpretation

1.1 Definitions:

Business Day: a day (other than a Saturday, Sunday or public holiday) 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 the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

Customer: the person or firm or corporate entity who purchases the Goods from the Supplier.

Force Majeure Event: an event or circumstance beyond a party’s reasonable control which in the case of the Supplier includes but is not limited to fire, explosion, breakdown or failure of plant and machinery, lack of or breakdown of transportation facilities, excessive traffic delays, a third party failure to provide materials and/or labour, power failure, strike, lockout or labour dispute, illness, flood, drought, war, civil commotion or any restrictions imposed by, or the delay of, any government agency.

Goods: the goods (or any part of them) set out in the Order.

Intellectual Property: patents, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), 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 the Supplier’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 the Supplier.

Supplier: Mainline Products (UK) Limited (a company registered in England and Wales with company number 07003332).

1.2 Interpretation:

(a) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) a reference to writing or written includes emails except for notices required under clauses 5.2 and 10.

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. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification whether proposed by the Supplier or submitted by the Customer are complete and accurate. The Customer shall be liable to pay the Order price for the Goods (or a relevant proportion thereof, as appropriate) if the Supplier has already manufactured the Goods in fulfilment of (or partial fulfilment of) the Order and/or Specification. For the avoidance of doubt, this clause 2.2 shall apply regardless of whether the error in the Order and/or Specification renders the Goods unusable by the Customer.

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 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.

2.5 Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s leaflets, catalogues or brochures 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.

2.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 10 Business Days from its date of issue.

3. Goods

3.1 The Goods are described in the Supplier’s leaflets and catalogue as modified by any applicable Specification.

3.2 To the extent that the Goods are to be manufactured in accordance with a Specification, the Customer shall indemnify the Supplier 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 professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Supplier’s use of the Specification. This clause 3.2 shall survive termination of the Contract.

3.3 The Supplier reserves the right to amend the Order and/or the Specification if required by any applicable statutory or regulatory requirements without notice to the Customer.

3.4 Subject to clause 3.3, the Supplier is entitled to vary the Order and/or the Specification if the Supplier is unable to accommodate the particulars contained therein provided that the Supplier gives the Customer 3 Business Days’ notice in writing of the variations to be made.

3.5 If the Customer wishes to amend or cancel an Order or Specification, it must make a written request to the Supplier. Whether the Supplier accepts such amendment or cancellation is at the Supplier’s discretion.

3.6 If the Supplier accepts any amendment or cancellation, the Customer shall be liable to pay:

(a) the Order price for the Goods (or a relevant proportion thereof, as appropriate) if the Supplier has already manufactured the Goods in fulfilment (or partial fulfilment) of the Order and/or Specification; and
(b) all costs reasonably incurred by the Supplier in fulfilling the Order and/or Specification up until the date of acceptance by the Supplier of the amendment or cancellation.

 

4. Delivery

4.1 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the Order number, the type and quantity of the Goods (including the code number of the Goods, where applicable) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.

4.2 The Supplier 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 the Supplier 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. For the avoidance of doubt, the Supplier is not required to deliver the Goods to any specific person (regardless of any request made by the Customer) at the Delivery Location and the Goods shall be deemed delivered as soon as unloaded at the Delivery Location. For the avoidance of doubt, if the Supplier (or its employees, agents or contractors) requires a person at the Delivery Location to sign for the Goods, the Supplier (or its employees, agents or contractors) can obtain that signature from any person present at the Delivery Location and the Customer acknowledges that such signature will be valid proof of the delivery of the Goods to the Delivery Location.

4.4 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 or any costs associated with 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.

4.5 If the Supplier fails to deliver the Goods at all 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. For the avoidance of doubt, the Supplier 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 the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.6 If the Customer fails to accept delivery of the Goods within 3 Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’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 fourth Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
(b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

4.7 If 10 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Supplier may at its discretion:

(a) resell or otherwise dispose of part or all of the Goods; or
(b) invoice the Customer for the full Order price of the Goods.

4.8 If the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them. However, on receipt of notice and proof from the Customer within 3 Business Days of delivery of the Goods that the wrong quantity of Goods above or below 5% was delivered, a pro rata adjustment shall be made to the Order invoice.

4.9 The Supplier 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 The Supplier warrants that on 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 5.4, if:

(a) the Customer gives notice in writing and provides evidence to the Supplier within 10 Business Days (or in 3 months in the case of defects not reasonably apparent on inspection) from the date of delivery of the Goods that some or all of the Goods do not comply with the warranties set out in clause 5.1; and
(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 properly packaged and insured at
the Customer’s cost (but refunded if the claim is accepted); and
(d) the Customer has paid all invoices issued by the Supplier to the Customer in respect of the Goods in question and any other Goods supplied to which the Supplier’s invoices have fallen due for payment, the Supplier shall, at its option:

(a) repair the defective Goods; or
(b) replace the defective Goods; or
(c) refund the price of the defective Goods in part or in full; or
(d) pass on the warranties provided by third party manufacturers in relation to Goods that have not been wholly manufactured by the Supplier so that the Customer can pursue the third-party manufacturer directly and thus extinguish all liability of the Supplier in relation to the defective Goods.

5.3 Any Goods that are replaced by the Supplier at its discretion are to be returned by the Customer to the Supplier in accordance with the Supplier’s instructions at that time. Title in the Goods replaced shall pass to the Supplier upon delivery of the replacement goods.

5.4 The Supplier 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:

5.5 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.

5.6 The conditions and 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.

5.7 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 earlier of:

(a) the Supplier receives payment in full (in cash or cleared funds):

(i) for the Goods (which includes any interest or other sums payable under the Order or these Conditions), in which case title to the
Goods shall pass at the time of payment of such sum;
(ii) the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to
the Customer (which includes any interest or other sums payable under the Order or these Conditions) 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; and

(b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.

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 the Supplier’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 the Supplier immediately if it becomes subject to any of the events listed in clause 8.1; and
(e) give the Supplier such information relating to the Goods as the Supplier may require from time to time.

6.4 Subject to clause 6.4, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives
payment for the Goods. However, if the Customer resells the Goods before that time:

(a) it does so as principal and not as the Supplier’s agent; and
(b) title to the Goods shall pass from the Supplier 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 the Supplier 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) the Supplier 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.

6.6 All Intellectual Property Rights in the drawings, designs, patterns, items and products used or provided by the Supplier under this Contract shall remain in the ownership of the Supplier (or any third party owner, as the case may be) and the Customer shall not, and shall procure that third parties shall not, use, copy or reproduce any such items without the consent of the Supplier.

 

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 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 up to 3 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 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:

(a) excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) excludes the costs and charges of packaging, insurance and delivery and transport of the Goods, which shall be invoiced to the Customer.

7.4 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.

7.5 The Customer shall pay the invoice in full and in cleared funds by the end of the month following the month in which the invoice was dated. Payment shall be made to the bank account nominated in writing by the Supplier. Time for payment is of the essence.

7.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 8% per annum above Royal Bank of Scotland plc’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.

7.7 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). 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. Termination

8.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:

(a) the Customer commits a breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 5 Business
Days of the Customer being notified in writing to do so;
(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation, 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), the Customer is struck off, there is a bankruptcy petition being presented or a bankruptcy order being made for the bankruptcy of the Customer, the Customer otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(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 the Supplier’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, the Supplier may suspend provision of the Goods under the Contract or any other contract between the
Customer and the Supplier (whether paid for by the Customer or not) if the Customer becomes subject to any of the events listed in clause 8.1(a) to clause 8.1(d), or the Supplier 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, the Supplier 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 the Supplier all of the Supplier’s outstanding unpaid invoices and interest.

8.5 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.

8.6 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

Please read this clause carefully.

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; or
(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 whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach
of statutory duty, or otherwise, for any:

(i) loss of profit;
(ii) loss of goodwill;
(iii) loss of business or business opportunity;
(iv) loss of anticipated savings;
(v) any loss incurred by the Customer because of the deliberate or dishonest breaches or actions of any employees, contractors, agents or subcontractors (as applicable) of the Supplier;
(vi) any wasted time or expenditure; or
(vii) 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 paid by the
Customer for the Goods.

9.3 The Customer must commence legal proceedings against the Supplier for any claim, regardless of the cause of action, within 12 months of the Customer becoming aware (or 12 months from when the Customer ought to have become aware) of the facts giving rise to any such claim (but in any event within six years of the date of the Supplier’s act or omission alleged to have caused loss to the Customer). A failure to do so will result in the claim being time barred and all liability of the Supplier in relation to such claim being discharged. For the avoidance of doubt, this clause is intended to reduce the limitation periods set out in the Limitation Act 1980.

 

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 6 months 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) The Supplier 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 the Supplier.

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 or negligent misstatement based on any statement in this agreement.

11.3 Variation. Subject to clauses 3.3 and 3.4 of these Conditions, no variation of this Contract shall be effective unless it is in writing and signed by the
parties (or their authorised representatives).

11.4 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.

11.5 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.

11.6 Notices.

(a) Any notice or other communication given to a party under or in connection with clauses 5.2 and 10 of the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre- paid first class post or other next working day delivery service or commercial courier.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address  referred to in clause 11.6(a); 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, if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

11.7 Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.

11.8 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.

11.9 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.