1. INTERPRETATION

• (a) Buyer means the person, persons, partnership, body corporate or other statutory entity that either buys or agrees to buy the Goods.
• (b) Company means D-Line USA Inc., registered in the state of Delaware, trading from 2671 Technology Drive, Suite 112, Louisville, KY 40299, USA.
• (c) Company Materials means including, but not limited to, the Company’s catalogues, drawings, price lists and other advertising material used from time to time.
• (d) Contract means the contract between the Company and the Buyer for the sale of the Goods in accordance with these Terms and Conditions.
• (e) Force Majeure Event means any cause affecting, preventing or hindering the performance by the Company of its obligations under the Contract arising from acts beyond its reasonable control, including, acts of God, riots, war, acts of terrorism, fire, flood, storm or earthquake, any disaster, any industrial dispute relating to the Company, the Company’s personnel or any other failure in the Company’s supply chain.
• (f) Goods means all items supplied or to be supplied by the Company to the Buyer.
• (g) Intellectual Property Rights or IPRs means including, but not limited to, trade marks, copyright, design rights and database rights, both registered and unregistered.
• (h) Order means the Buyer’s order for the supply of Goods as set out in a purchase order or other agreed written form.
• (i) The heading of each clause shall not be deemed to be part of the clause and shall not affect its general construction or interpretation.
• (j) A reference to a statute or statutory provision is a reference to it as amended or re-enacted and includes all subordinate legislation made under the same.

2. BASIS OF CONTRACT

• (a) The Order constitutes an offer by the Buyer to purchase Goods in accordance with these Terms and Conditions.
• (b) The Order shall only be deemed to be accepted when the Company issues written acceptance of the Order to the Buyer at which point and on which date the Contract shall come into existence.
• (c) These Terms and Conditions apply to the 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.
• (d) The Company Materials are non-binding and subject to change. To the extent the Company has given the Buyer a quotation, such quotation shall not constitute an offer, is subject to change and is only valid for the specific period stated (if any).
• (e) The Company reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.

3. PRICE

Unless a fixed price has been agreed by the Company in writing, the price shall be the Company’s price prevailing at the date of despatch of the Goods. All prices are deemed exclusive of shipping, customers duties, incidental import duties, insurance, sales taxes, packaging and other incidental costs (unless otherwise agreed in writing), which shall be invoiced to, and are payable by, the Buyer at the rate prevailing.

4. DESPATCH AND DELIVERY

• (a) Any times quoted for despatch and/or delivery are to be treated as estimates only and the Company shall not be liable for failure to despatch and/or deliver within such times. The Company shall not be liable for any delay in despatch and/or delivery of the Goods that is caused by a Force Majeure Event or the Buyer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
• (b) The Company shall deliver, or make available for collection by the Buyer, the Goods at the location set out in the Order or such other location as the parties may agree (Location) at any time after the Company notifies the Buyer that the Goods are ready.
• (c) Delivery is completed on the completion of, where the Company delivers, unloading or, where the Buyer collects, loading, of the Goods at the Location.
• (d) Returnable packaging, cases, drums etc separately invoiced, will be credited in full if returned in good condition, carriage paid, to the Company within 28-days of receipt.

5. RISK AND STORAGE

The risk in the Goods shall pass to the Buyer on delivery. If by reason of instructions or lack of instructions from the Buyer despatch in accordance with the Contract is delayed for 14-days after the Buyer has been notified that the Goods are ready for despatch or collection, the risks in the Goods shall pass to the Buyer who shall take delivery or arrange for storage and for the purpose of clause 10 (payment) the Goods shall thereupon be deemed to have been delivered. If the Goods are considered to have been delivered, and for so long as storage facilities permit, the Company may store the Goods, and the Buyer shall pay a reasonable charge therefore, and the risk of loss or damage caused by whatsoever means, will be borne by the Buyer.

6. LOSS OR DAMGE IN TRANSIT

When the price quoted includes delivery by the Company, the Company shall replace free of charge Goods damaged in transit or not delivered in accordance with the Order provided that the Company is given written notification of such damage or non- delivery as follows: (a) damage in transit - within 3 days of receipt of Goods; and (b) non delivery - within 14 days of receipt of invoice.

7. INCORRECT DELIVERY

Unless otherwise agreed, Goods rejected by the Buyer as not complying with the description of the Goods ordered or not being free from material defects in design, material and workmanship, must be so rejected in writing within 28 days of receipt and the Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full. The Company shall not be liable under this clause 7 to the extent the Buyer has altered the Goods in any way or the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.

8. BUYER’S OBLIGATIONS

• (a) The Buyer may re-sell the Goods on its own proprietary website. The Buyer shall not offer the Goods for re-sale on third-party websites or other ecommerce platforms or knowingly supply to sub-buyers who intend to offer the Company’s products for re- sale on third-party websites or other ecommerce platforms, without the Company’s prior written consent.
• (b) The Buyer shall not re-sell Goods that have been altered in such a way as to give sub-buyers / end-users the impression that the Goods are in their unaltered and original state.
• (c) All IPRs in Company Materials belong to the Company or its licensors, or are otherwise used by the Company as permitted under applicable law. The Buyer may not copy, reproduce, republish, adapt, modify or otherwise use any of the Company Materials or IPRs for any commercial, public purpose without the prior written consent of the Company or the relevant licensor. All use of any such Company Materials or IPRs must be in accordance with applicable laws.

9. EXPORT POLICY

Goods may be subject to the customs and export control laws and regulations of the United States of America and may also be subject to the customs and export laws and regulations of the country in which the Goods have been manufactured and/or received. The Buyer agrees not to supply, export, sell, lease or otherwise transfer the Goods outside of the United States of America without having obtained all necessary authorizations from American authorities and the authorities of the countries in which the Goods have been manufactured and/or received, such authorizations and related fees and costs to be at the Buyer’s expense. The Buyer also agrees not to sell, lease or otherwise transfer the Goods to other natural or legal person, organization or entity with regard to which there is credible reason to believe that they will fail to comply or intend not to comply with this clause 9.

10. PAYMENT

Unless otherwise agreed in writing, payment in full is due in respect of any Goods delivered, within 30-days following the end of the month of delivery, beyond which, payment will become overdue. If at any time any sum of money owed to the Company is overdue, the Company reserves the right to: (a) withhold the delivery of any Goods until such times that all sums due to the Company have been paid; and (b) charge interest on the overdue amount at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated and compounded monthly. 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 Buyer shall pay the interest together with the overdue amount. The Buyer shall not be entitled to withhold or set-off payment of any amount due to the Company under the Contract whether in respect of any claim of the Buyer in respect of faulty or defective Goods or for any other reason which is contested or liability for which is not admitted by the Company.

11. TITLE

All Goods are supplied to the Buyer by the Company subject to the following:

• (a) The Goods shall remain the sole and absolute property of the Company as legal and equitable owner until both: (i) full payment for the Goods has been received by the Company; and (ii) all sums owing and due to the Company by and from the Buyer (together with any sums which may have become due in respect of any Goods ordered but for which payment has not become due hereunder) have been discharged.
• (b) Until such payment the Buyer shall be in possession of the Goods solely as bailee for the Company and in a fiduciary capacity, and shall store the Goods in such a way so as to enable them to be identified as the property of the Company, and shall insure the Goods as from the date of delivery.
• (c) If the Buyer sells the Goods before the property in them passes to the Buyer then the Buyer, in a fiduciary capacity and as a strict duty, will hold the proceeds from such sale separate from its other monies.
• (d) The Company reserves the right of re-possession of any Goods to which it has retained title as aforesaid and thereafter to re-sell the same. This right shall continue to subsist notwithstanding the termination of the Contract for any reason and is without prejudice to any accrued rights of the Company thereunder or otherwise.

12. LIMITATION OF WARRANTY

• (a) The Company warrants to the Buyer that for a period of 12 months from the date of delivery of the Goods:
  (i) that such Goods will materially conform to the specifications, drawings, samples, intended use or other descriptions furnished by the Company on or around the date the Order is accepted or as agreed in writing between the Company and the Buyer; and
  (ii) that the Goods shall be free from material defects in materials and workmanship under normal and proper use.
• (b) No warranty is given for Goods that have been subject to misuse, improper installation, improper storage, corrosion or negligence or that have been disassembled, repaired, modified or used in any other manner contrary to the Company’s instructions or recommendations.
• (c) The warranties in this clause 12 are exclusive except for title. TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE BUYER ACCEPTS THAT REPAIR OR REPLACEMENT OF THE GOODS SHALL BE THE SOLE AND EXCLUSIVE REMEDY AND COMPANY’S ENTIRE LIABILITY FOR AND BREACH OF THE LIMITED WARRANTIES SET FORTH IN THIS CLAUSE 12.

13. LIMITATION OF LIABILITY

• (a) NOTWITHSTANDING ANY PROVISION IN THIS CONTRACT TO THE CONTRARY, TO THE FULLEST EXTENT PERMITTED BY LAW THE COMPANY SHALL UNDER NO CIRCUMSTANCES BE LIABLE IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE FOR DAMAGE TO PROPERTY OR EQUIPMENT OTHER THAN GOODS SOLD UNDER THIS CONTRACT, OR FOR BUSINESS INTERRUPTION, CLAIMS OF CUSTOMERS OF THE BUYER OR ANY SPECIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLERARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOSS OF USE, REVENUE OR PROFIT OR DIMUNITION OF VALUE HOWSOEVER ARISING AND REGARDLESS OF WHETEHR SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE COMPANY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
• (b) TOTAL CUMULATIVE LIABILITY OF THE COMPANY ARISING FROM OR RELATED TO THIS CONTRACT, HOWSOEVER THE CLAIMS ARE BASED, SHALL NOT EXCEED THE PRICE OF THE GOODS ON WHICH SUCH LIABILITY IS BASED.

14. INSOLVENCY OF BUYER

This clause applies if:

• (a) the Buyer makes any voluntary arrangements or assignments with its creditors or becomes subject to bankruptcy or insolvency proceedings; or
• (b) the Buyer seeks the protection of any statute providing for a moratorium on its obligations; or
• (c) an encumbrance takes possession of any of the property or assets of the Buyer; or
• (d) the Buyer ceases or threatens to cease to carry on business; or
• (e) the Company reasonably apprehends that any of the aforesaid is about to occur in relation to the Buyer and notifies the Buyer accordingly.

If this clause applies then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further transactions under the Contact without any liability to the Buyer and if the Goods have been delivered but not paid for, the price shall become immediately due and payable not withstanding any previous agreement or arrangements to the contrary.

15. FORCE MAJEURE

The Company shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure is caused wholly or in part by a Force Majeure Event.

16. CANCELLATION

The Contract, once made, cannot be cancelled by the Buyer without payment of reasonable cost for damages. The provisions of this clause 1615 do not confer the right of the Buyer to return Goods to avoid cancellation charges.

17. GENERAL

• (a) Sub-Contracting: The Company may sub-contract all or part of any Order.
• (b) Patents and Trade Marks: The Buyer acknowledges that the Company gives no warranty, nor shall any be implied by any provision of these Terms and Conditions, that the Goods do not or will not constitute an infringement of any rights relating to patents, trade marks, registered designs and applications for any of the foregoing trade or business names or copyright.
• (c) Severability: The invalidity of the whole or any part of these Terms and Conditions shall not affect the validity of the remaining part of the particular clause of these Terms and Conditions.
• (d) 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.
• (e) Jurisdiction: The Contract and any dispute or claim (including noncontractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be construed in accordance with the laws of the state of Kentucky without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the state of Kentucky. Any legal suit, action or proceeding arising out of or relating to this Contract shall be instituted in the federal courts of the United States of America or the courts of the state of Kentucky, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
• (f) Safety Information: It is the responsibility of the Buyer to inform sub-buyers / end- users that Goods must be properly installed and maintained, and of relevant design, construction, installation and safety information as per applicable laws and regulations, codes of practice and the manufacturer’s instructions. The Company accepts no responsibility whatsoever for any loss or injury howsoever caused as a result of any infringement of the aforesaid safety information.