DEALER TERMS AND CONDITIONS
1. INTERPRETATION
1.1 In these Conditions:'Active' means the reasonable level of genuine and regular caller or data usage on the Orange network notified in Writing to the Buyer from time to time;
'Buyer' means a person who accepts a quotation from Mainline for the sale of goods and/or services or whose order for goods and/or services is accepted by Mainline;
'Call Reselling' means the fraudulent use of an Orange SIM card to route calls for Orange devices originated on other mobile and fixed networks through call reseller's equipment;
'Clawback Period' means any period as may be specified by Orange from time to time during which Commission may be reclaimed by Orange in full or in part;
'Commission' means commission or bonus payable resulting from Pay Monthly and/or Pay As You Go connections and Upgrades including but not limited to equipment connection commission, accelerator bonus, marketing support bonus, talkplan and Upgrade commission and value added service commission;
'Conditions' means these terms and conditions as varied from time to time by Mainline and notified in Writing to the Buyer and any additional terms and conditions agreed in writing between the Buyer and Mainline;
'Contract' means any agreement between Mainline and the Buyer for the supply of goods and/or services pursuant to these Conditions and/or the terms and conditions applicable to marketing services and/or fulfilment services;
'Mainline' means Mainline Digital Communications Limited (Company No. 2973418) whose registered office is at Century Court, First Avenue, Centrum 100, Burton upon Trent DE14 2GR;
'Orange' means Orange Personal Communications Limited and all other group companies, including all subsidiaries, being any corporation controlled (directly or indirectly) by Orange, and all affiliates, being any corporation controlling (directly or indirectly) or under common control with Orange;
'Orders' means any order for goods and/or services from Mainline;
'Pay As You Go' means connection to the Orange network on pre-payment terms with a handset or SIM connection pack;
'Proofs' means such evidence as is required to confirm a customer's identity and address as notified in Writing by Mainline from time to time;
'Pay Monthly' means connection to the Orange network on monthly payment terms;
'Upgrade' means continuity of a connection under revised contractual terms;
'Website' means www.mainline.uk.com;
'Working Day' means a day from Monday to Friday other than a statutory holiday or public holiday in England; and
'Writing' includes first class post, facsimile transmission, e-mail, postings on the Website and comparable means of communication.
2. ORDERS
2.1 The Buyer acknowledges that these Conditions shall apply to all Contracts to the exclusion of any other terms and conditions other than Mainline's terms and conditions for marketing and fulfilment services where applicable except for amendments, variations or alterations notified in Writing by Mainline. Each Contract shall be made when Mainline accepts any Order. Oral representations by any employee, representative or agent of Mainline shall not form part of the Contract with the Buyer unless confirmed in Writing by a duly authorised representative of Mainline.2.2 The Buyer agrees that it is responsible for ensuring the accuracy of Orders and acknowledges that Mainline has the right to make changes to the specification of the goods and/or services if the same is changed by the manufacturer or Orange or if necessary to conform with any applicable legal or regulatory requirements.
2.3 Subject to Condition 10, all Contracts shall be on a sale basis and not sale or return.
3. PRICE
3.1 The price of the goods and/or services shall be in accordance with Mainline's current price list at the date of dispatch and as notified to the Buyer from time to time by Mainline. All prices are exclusive of VAT on an ex works basis, save as may otherwise be notified in Writing by Mainline under clause 14.11. Any additional charges levied by Mainline pursuant to these Conditions (including but not limited to interest credit or charge card charges and administration fees) shall be exclusive of VAT for which they may be subject.3.2 For the avoidance of doubt, Mainline does not offer a price protection indemnity to the Buyer.
4. TERMS OF PAYMENT
4.1 Unless otherwise notified in Writing by Mainline the Buyer agrees to the following terms of payment:4.1.1 invoices for SIM cards shall be payable immediately upon receipt of the invoice by the Buyer;
4.1.2 provided that Mainline has agreed credit terms with the Buyer, invoices for handsets shall be payable upon the earlier of:
4.1.2.1 connection by the Buyer's customer to the Orange network or any other network notified in Writing by Mainline; or
4.1.2.2 upon 30 days from delivery to the Buyer; and
4.1.3 all other invoices shall be payable immediately.
4.2 For the avoidance of doubt Mainline may in its entire discretion vary the terms for payment of invoices for handsets without the need to give reasons.
4.3 The time for payment of Mainline's invoices shall be of the essence.
4.4 If the Buyer fails to make any payment under any Contract when it falls due then without prejudice to any other right or remedy, Mainline may have:
4.4.1 all invoices issued by Mainline in respect of any goods and/or services sold or supplied pursuant to this or any other contract which may exist between the parties shall immediately fall due for payment;
4.4.2 Mainline shall be entitled to (without prejudice to any other right or remedy it may have to):
4.4.2.1 cancel or suspend further deliveries to the Buyer under any order; and/or
4.4.2.2 sell or otherwise dispose of any goods which are the subject of any order by the Buyer, whether or not appropriated thereto, and apply the proceeds of the sale to the overdue payment; and/or
4.4.2.3 charge interest at 8% per annum above the base rate set by the monetary policy committee of the Bank of England from time to time, until payment in full is made, such interest accruing on a day to day basis on the outstanding amount.
4.5 In the event that the Buyer tenders payment by way of credit card or charge card acceptable to Mainline and subject to Mainline's express consent to such means of payment, then the Buyer agrees to meet any additional charge levied by Mainline from time to time.
4.6 Mainline shall at all times have the right to require security for payment before continuing with a delivery of any order.
4.7 Mainline may (at its entire discretion and without prejudice to its other rights) agree from time to time that whilst it will at all times invoice for the full price of handsets in accordance with clause 4.1, provided that the handset is connected to the Orange network within 30 days of date of supply, Mainline will only seek payment of the balance due after setting off the agreed Commission. Mainline shall at all times have the right to withdraw this concession on payment terms under this clause 4.7 without notice and without the need to give any reason.
4.8 Mainline shall at all times have a right to set-off any monies due to the Buyer against any sums or balance owed by the Buyer to Mainline.
5. COMMISSION AND CHARGES
5.1 Mainline may from time to time pay Commission to the Buyer, which will be calculated at the rates prevailing as at the date of connection to the Orange network, and provided that Mainline has first received a corresponding payment from Orange. All such Commissions are calculated and paid based on information supplied by Mainline at appropriate rates from time to time as notified to the Buyer from time to time. Any clawback/talkplan changes will be referenced back to the original connection date.5.2 The Buyer agrees that Mainline shall have the right to withhold payments to it of all or any due Commission for any reason until any Clawback Period has elapsed and agrees to supply forthwith to Mainline copy customer contracts, Proofs and any other documentation required by Mainline to assist it in assessing the risk to it of a clawback.
5.3 Mainline reserves the right to reclaim in full or part any Pay Monthly Commissions (including any additional bonuses) where:
5.3.1 handsets supplied to or on behalf of the Buyer are disconnected and/or returned under any money back guarantee scheme operated from time to time by Orange and/or Mainline;
5.3.2 handsets supplied to or on behalf of the Buyer are disconnected by reason of non-payment of deposit or failure to supply Proofs;
5.3.3 handsets supplied to or on behalf of the Buyer are connected and/or disconnected through fraud or suspected fraud (in each case as Mainline may in its entire discretion determine)and even where acceptable Proofs are received Mainline shall be entitled to withhold 50% of any Commission clawed back under this clause 5.3.3. For the avoidance of doubt disconnections or connections which are identified by Mainline as fraudulent shall be disregarded in assessing any accelerator bonus paid;
5.3.4 Pay Monthly Commission is paid to the Buyer in error, howsoever arising;
5.3.5 in respect of an account with the Buyer's customer, no payment has been received by Orange or where any outstanding payments remain due to Orange in relation to the customer's account;
5.3.6 value added services are cancelled or downgraded by the Buyer's customer within 120 days of the original service take up or under the terms of any specific Orange service or within any other period as may be notified in Writing by Mainline from time to time
5.3.7 loyalty promotions are connected and subsequently disconnected within 120 days of connection or such other period as may be notified in Writing by Mainline from time to time;
5.3.8 any connection, disconnection or talkplan change, in the sole belief of Mainline and/or Orange, has been made for the commercial gain of either the Buyer's customer or the Buyer;
5.3.9 Orange suspends or terminates a customer from the Orange network within 120 days of connection or such other period following connection as may be notified in Writing by Mainline from time to time due to a breach by the customer of the Orange network terms and conditions;
5.3.10 a Buyer's customer connected through Mobile Number Transfer is subsequently disconnected within 120 days of connection or such other period following connection as may be notified in Writing by Mainline from time to time;
5.3.11 connections do not become or cease to be Active at any time during the period of the Pay Monthly contract between the Buyer's customer and Orange;
5.3.12 Orange terminates any connection for Call Reselling; and/or
5.3.13 Mainline suffers clawback of commission by Orange for reasons Orange notifies to Mainline, and those reasons apply to any sales made to the Buyer or by the Buyer.
5.4 Mainline reserves the right to reclaim in full or part any Pay As You Go Commissions (including any additional bonuses) where:-
5.4.1 handsets supplied to or on behalf of the Buyer are not connected to a genuine customer (being an account holder whose account has been opened in good faith and in the absence of fraud as to identity or purpose) or handsets supplied to or on behalf of the Buyer are disconnected due to failure to provide Proofs;
5.4.2 a top up of at least £10.00 is not undertaken by the Buyer's customer within 90 days of connection or a top up for such other value in such period as may be notified in Writing by Mainline from time to time is not made. For the avoidance of doubt the initial £1.00 credit supplied at registration is not classed as a top up; and/or
5.4.3 the sale of handsets is in the sole belief of Mainline and/or Orange for the commercial gain of either the Buyer or its customer.
5.5 Mainline reserves the right to reclaim in full or in part any Commission (including additional bonuses) where:
5.5.1 Mainline suffers any other clawback of Commission or loss by Orange due to any sales made to the Buyer or by the Buyer; and/or
5.5.2 the validity of the connection of handsets supplied to or on behalf of the Buyer is not verified by Orange for any reason at any time.
5.6 Where Mainline pays any Commission, it reserves the right to reclaim such commissions and/or withhold payment (including any additional bonuses) if the validity of the connection is not verified by Orange for any reason at any time.
5.7 Where there is a clawback of Commission Mainline shall promptly notify the Buyer of Orange's reasons for the clawback if reasons are given and any clawback shall be referenced back to the date on which the Commission was originally calculated.
5.8 For the avoidance of doubt clause 5.7 will apply regardless of whether Orange notifies Mainline of its reasons. The Buyer shall be obliged to continuously update itself with Mainline's policy regarding Proofs and any changes to the provisions of this clause 5.
5.9 Mainline reserves the right to recover any losses incurred by Mainline to Orange as a result of any sale made to or by the Buyer.
5.10 Mainline will issue a weekly statement of activity by the Buyer with Mainline (“Remittance Notification”) to the Buyer detailing account activity in the preceding week. Each Remittance Notification shall contain where appropriate a break down of the Buyer's customer connections, sales of goods, the level of the Buyer's Commission for the previous week and any Commission withheld or reclaimed. For the avoidance of doubt the Remittance Notification may contain details of sales of goods and connections for which Commission is not yet payable under the Remittance Notification. Where the Remittance Notification is not challenged by the Buyer within 21 days of receipt the Remittance Notification will be deemed to be correct and accepted by the Buyer.
5.11 Claims in respect of queried Commissions will only be considered if full information as required by Mainline is supplied within 21 days from the date of the relevant transaction date.
>5.12 Mainline operates a self billing scheme for commissions and the Buyer warrants that it shall:
5.12.1 comply with any self billing agreement with Mainline from time to time in force; and
5.12.2 notify Mainline immediately of any change in its VAT status; and
5.12.3 comply with all relevant legislation in relation to its VAT registration and status.
5.13 Commissions will be self-billed by Mainline to the Buyer on a weekly basis in arrears or such other basis as Mainline may, in its entire discretion, from time to time determine. Additional Commissions and bonuses will be paid monthly in arrears or on such other basis as Mainline may, in its entire discretion, from time to time determine.
5.14 If in any calendar month the level of handsets supplied to or on behalf of the Buyer for Pay Monthly connections:
5.14.1 which are disconnected; and/or
5.14.2 returned under any Orange money back scheme operated from time to time exceeds a certain percentage of the total number of handsets supplied to or on behalf of the Buyer which were connected as Pay Monthly connections in the preceding month, then Mainline may in its entire discretion charge the Buyer an administration fee on each handset which is disconnected and/or returned during the relevant calendar month. The relevant percentage shall be as notified by Mainline in Writing from time to time.
5.15 If in any calendar month the level of handsets supplied to or on behalf of the Buyer for Pay As You Go connections:-
5.15.1 which are disconnected; and/or
5.15.2 returned under any Orange money back scheme operated from time to time exceeds a certain percentage of the total number of handsets supplied to or on behalf of the Buyer which were connected as Pay As You Go connections in the preceding month, then Mainline may in its entire discretion charge the Buyer an administration fee on each handset which is disconnected and/or returned during the relevant calendar month. The relevant percentage shall be as notified by Mainline in Writing from time to time.
5.16 If in any calendar month the level of handsets supplied to or on behalf of the Buyer for Upgrades which are cancelled exceeds a certain percentage of the total number of Upgrades supplied to or on behalf of the Buyer in the same calendar month, then Mainline may in its entire discretion charge the Buyer an administration fee on each upgraded handset which is cancelled or returned during the relevant calendar month. The relevant percentage shall be as notified by Mainline in Writing from time to time.
5.17 Mainline reserves the right to recharge to the Buyer all invoices plus an administration fee to cover all invoices received from Orange for line rental which would have been chargeable in respect of:
5.17.1 handsets lost in transit otherwise than due to the fault of Mainline; and/or
5.17.2 handsets which are connected through fraud or suspected fraud (in each case as Mainline may at its entire discretion determine).
5.18 The Buyer agrees to place a 'goods in transit bar' on all handsets it dispatches by mail order. Mainline shall have the right to recharge to the Buyer all invoices received from Orange for airtime used plus an administration fee to cover all costs incurred by Mainline for handsets where a 'goods in transit bar' has not been employed.
6. MARKETING
6.1 As part of Mainline's marketing strategy it may allocate its marketing budget to contribute towards relevant and pre-approved advertising and promotional activity to support the Buyer. Such funds can only be applied for marketing activity that has been pre-approved in Writing by Mainline.6.2 At no time shall the Buyer have any interest or entitlement to any allocated marketing budget which it is agreed will always remain the property of Mainline.
6.3 The Buyer warrants that it shall not engage in any unsolicited distance selling practices to proactively Upgrade Orange customers.
6.4 Separate terms and conditions apply, subject always to these Conditions, to the provision of marketing goods and/or services by Mainline.
7. DELIVERY
7.1 Delivery shall be deemed to have been made when the Buyer collects the goods from Mainline or, in the event that Mainline arranges carriage at the Buyer's request and expense, at the time the Buyer receives the goods at its place of business or such delivery address as the parties may agree in Writing.7.2 Upon delivery the Buyer shall ensure all packaging is intact and is in accordance with Mainline's security procedures and packaging protocols from time to time notified in Writing by Mainline. The signing of the delivery note shall be deemed to be acceptance of delivery of all the goods in accordance with the Order, delivery note and invoice. The Buyer agrees that any attempt to qualify a signature to accept delivery will be of no effect without the prior approval of Mainline in Writing. Notwithstanding the above all queries concerning a delivery shall be notified to Mainline in Writing within 48 hours of delivery. Mainline shall be entitled to make good any shortage or non delivery of the goods.
7.3 Any quoted delivery dates are approximate and time of delivery shall not be of the essence.
7.4 Where delivery is in instalments each delivery shall constitute a separate contract. Failure to deliver any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated. Each handset or other item shall be regarded as a separate Order by the Buyer from Mainline and the Buyer shall have no right to set-off against the balances on other contracts with Mainline or any company or companies within the Mainline group.
7.5 If the Buyer fails to take delivery of the goods (otherwise than by reason of Mainline's fault) or fails to give Mainline adequate instructions for delivery then, without prejudice to any other right or remedy available to it, Mainline may:
7.5.1 store the goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage and redelivery; or
7.5.2 sell the goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Buyer for any shortfall below the price agreed in accordance with clause 3.1.
8. RISK AND PROPERTY
8.1 Risk of loss or damage to goods shall pass to the Buyer on delivery, save in the following situations:-8.1.1 if Mainline is responsible for delivery of the goods risk shall pass to the Buyer at the time when Mainline has tendered delivery of the goods; or
8.1.2 if Mainline is not responsible for delivery of the goods risk shall pass to the Buyer at the time when the Buyer or a representative of the Buyer collects the goods from Mainline.
8.2 The Buyer agrees that should it request Mainline's delivery courier or any employee of Mainline to take returns of goods, such goods shall be at the Buyer's risk, unless collection has been arranged and authorised by Mainline in its entire discretion.
8.3 Property in the goods shall not pass to the Buyer until Mainline has received in cash or cleared funds payment in full for the goods and/or services and all other sums payable by the Buyer to Mainline for which payment is then due. Until property passes to the Buyer, the Buyer agrees to hold goods of Mainline separate from those of third parties and properly stored, protected, insured and identified as Mainline's property and the Buyer agrees to deliver up the goods to Mainline on demand and grants to Mainline a right of entry to the Buyer's premises or those of any third party for the purpose of recovering goods. The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the goods which remain the property of Mainline, but if the Buyer does so all monies owing by it to Mainline shall (without prejudice to any other right or remedy of Mainline) forthwith become due and payable. If the goods are destroyed by an insured risk before property in the goods passes to the Buyer and prior to the same being paid for by the Buyer, the Buyer shall receive the proceeds of any such insurance as trustee for Mainline.
9. LIABILITY
9.1 Nothing in these Conditions excludes or limits the liability of either party for death or personal injury caused by that party's negligence or for fraudulent misrepresentation.9.2 Subject to clause 9.1, the maximum liability of Mainline for any loss or damage suffered by the Buyer (whether in contract, tort or otherwise) shall not exceed the value of the price paid for the goods and/or services under the Contract in respect of each incident or series of connected incidents.
9.3 Mainline shall not be liable for any consequential loss or indirect loss (including loss of profit) suffered by the Buyer whether this loss arises in contract tort or otherwise.
9.4 Subject as expressly provided in these Conditions, and except where the goods are sold to a person dealing as a consumer, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.5 In the event that the goods do not correspond with their specification or have defects in material or workmanship then the Buyer's rights of warranty shall be limited to those provided by the manufacturer of the goods, and/or Orange (as appropriate) and the Buyer shall have no claim against Mainline as supplier of the goods.
9.6 If notwithstanding clauses, 9.3, 9.4 and 9.5 Mainline is found liable for any loss or damage suffered by the Buyer the aggregate liability of Mainline in respect of all loss or damage (other than the liability in respect of clause 9.1) shall not exceed the value of Contracts concluded within the quarter immediately preceding any claim for loss or damage.
10. RETURNS
10.1 The Buyer may be entitled to return handsets to Mainline where the handset qualifies under any applicable returns policy or replacement guarantee maintained by Orange from time to time in which case the following provisions shall apply:10.1.1 in respect of handsets returned by the Buyer's customer under any applicable Orange money back scheme:
10.1.2 the Buyer must disconnect the handset with Orange and obtain an RA number from Orange in respect of the handset (“RA Number”);
10.1.3 the Buyer must return the handset to Mainline within 7 days of obtaining the RA Number; and
10.1.4 Commission paid to the Buyer in respect of the handset returned will be clawed back at the point of disconnection and the handset will be credited to the Buyer's account once the RA Number has been validated.
10.1.5 in respect of handsets returned by the Buyer under any applicable Orange replacement guarantee:
10.1.6 the Buyer shall obtain or shall advise the Buyer's customer to obtain a fault code from Orange and to inform the Buyer of the fault code;
10.1.7 the Buyer shall follow Orange's procedure for replacements under its 28 day guarantee and obtain an RA Number for the faulty handset; and
10.1.8 the handset must be returned to Mainline within 7 days of the issue of the RA Number together with the completed Mainline Instant Phone Replacement Form.
10.2 Mainline shall be entitled to return to the Buyer and to apply a carriage charge in respect of any handset which is returned by the Buyer to Mainline under Condition 10.1:
10.2.1 without an RA Number;
10.2.2 with an invalid RA Number; and/or
10.2.3 which is received by Mainline after 7 days from the date of issue of the RA Number.
10.3 Mainline shall be entitled to reduce any credit for handsets returned by the Buyer under Condition 10.1 with damaged and/or missing parts.
10.4 Mainline may at its entire discretion agree from time to time to re-purchase or give credit for handsets returned by the Buyer which have not been connected to the Orange Network at the then prevailing price for such goods. Where the Buyer wishes to return handsets under this Condition 10.4 the following provisions shall apply:
10.4.1 the Buyer shall return the handset within 60 days of the original sale by Mainline as conclusively evidenced by the date label on the handset packaging; and
10.4.2 where Mainline in its entire discretion agrees to the return of the handset Mainline will raise a credit for the handset less a re-stocking fee; or
10.4.3 where Mainline chooses not to accept any handset returned under this Condition 10.4 it shall return the handset to the Buyer and apply a carriage charge.
10.5 For the avoidance of doubt, Mainline shall not accept any handset returned by the Buyer pursuant to Condition 10.4 which:
10.5.1 was sold to the Buyer as non-returnable goods;
10.5.2 is returned with damaged and/or missing parts; and/or
10.5.3 is returned with damage to the silver Mainline security seal on the packaging and shall return the handset to the Buyer who shall be liable for a carriage charge.
10.6 If Mainline agrees to the accept handsets which are returned by the Buyer not in their original state and 'as new', whether there is damage to the handset, packaging or any security seal, it shall be entitled to deduct a sum from any re-purchase or credit to reasonably compensate for the reduced value of the handset and where appropriate any re-packaging costs.
10.7 Mainline shall be entitled to return any handset returned by the Buyer other than in accordance with the provisions of this Condition 10 and to apply a carriage charge.
11. FORCE MAJEURE
11.1 Mainline shall not be liable for any failure to deliver goods or services through staff shortages, delivery vehicle breakdown, acts of God or any other reason arising from circumstances outside Mainline's control.12. DEFAULT, TERMINATION AND INSOLVENCY
12.1 Mainline shall be entitled to cancel any contract or suspend any further deliveries without any liability to the Buyer and if goods and/or services have already been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary within these Conditions or any agreed additional terms and conditions in the event that:12.1.1 the Buyer fails to pay for any one delivery when the same becomes due or in the opinion of Mainline the Buyer's financial status becomes unsatisfactory;
12.1.2 the Buyer makes any voluntary arrangement with creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (other than for the purpose of amalgamation or reconstruction);
12.1.3 an encumbrancer takes possession, or a receiver is appointed, over any or all of the Buyer's property or assets;
12.1.4 if the Buyer ceases or threatens to cease to carry on business with Mainline or in its entirety; and/or
12.1.5 Mainline reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer.
13. INDEMNITY
13.1 The Buyer agrees to indemnify and keep indemnified Mainline in respect of all and any liabilities, costs, expenses, damages or losses (including any direct, indirect or consequential losses and all interests, penalties and legal costs and expenses) arising out of or in connection with any breach of these Conditions by the Buyer, its agents or licensees.14. GENERAL
14.1 Mainline is a member of a group of companies whose holding company is Mainline Communications Group PLC, and accordingly Mainline may perform any of its obligations or exercise any of its rights thereunder by itself or through any other member of its group, provided that any act or omission of any such member shall be deemed to be the act or omission of Mainline and specifically, but not so as to limit the generality of this provision, Mainline may set-off any sums due from the Buyer against any balances due to the Buyer from any company or companies within the Mainline group of companies.14.2 Where the Buyer consists of two or more persons the obligations contained within these Conditions and any additional terms and conditions shall be joint and several and the person accepting these Conditions does so with the full authority of any other such person(s) or, as appropriate, the company on whose behalf they are accepting.
14.3 No waiver by Mainline of any breach of contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
14.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the remainder of the provisions in question shall not be affected.
14.5 Each Contract shall be governed by and constructed in accordance with English Law and all disputes arising in connection with the contract shall be submitted to the exclusive jurisdiction of the English Courts.
14.6 Each Contract is personal to the Buyer who acknowledges that it has no right to assign the benefit without the prior written consent of a director of Mainline.
14.7 These Conditions are subject always to the terms and conditions and business practices from time to time of Orange in its dealings with Mainline and the Buyer accepts that Mainline shall have the right to change any or all of these Conditions to reflect a change in the terms and conditions or business practices of Orange. Where any payment due to the Buyer or clawback from the Buyer is dependent on information being provided by a third party, Mainline shall incur no liability in respect of any loss or damage resulting directly or indirectly from a delay or incorrect information from such third party.
14.8 The Buyer acknowledges that as part of its dealings with Mainline it may be provided with information of a confidential nature (including but not limited to details of commercial terms and secret or confidential financial, marketing, technical or other information, know-how, trade secrets and other information acquired in the course of negotiations) relating to the business of Mainline and/or Orange and warrants to keep all such information confidential and not to use it for any purpose other than in connection with the Contract and as expressly provided by Mainline in Writing.
14.9 If Mainline in its entire discretion agrees to consider providing credit terms to the Buyer then the Buyer agrees that Mainline may operate a credit vetting procedure which may involve holding and reviewing personal data on individuals within the Buyer's organisation. This personal data relating to individual's (including partners, company directors and shareholders) credit ratings, may be required at or prior to the commencement of trading on credit terms and continually updated for as long as a credit trading relationship continues. Mainline may retain such personal data for up to 6 years after credit trading ceases with the Buyer. The information is used by Mainline generally to monitor and record trade credit performance and may be made available to other organisations (including credit reference agencies) to assess applications for credit and to any credit circles Mainline may be a member of from time to time. If individuals within the Buyer's organisation would prefer Mainline not to hold and use their personal data in accordance with this clause 14.9 they should advise Mainline in Writing.
14.10 Where Mainline provides a Buyer with vouchers or other incentives or loyalty scheme benefits (“Incentives”) it is agreed that these are provided solely to the Buyer and the Buyer agrees to indemnify and keep indemnified Mainline in respect of all or any claims liabilities costs taxes imposts or duties (including, but not limited to, National Insurance contributions, PAYE, income tax or VAT) imposed or threatened against Mainline in connection with such Incentives including where the Buyer passes such Incentives to its employees or third parties.
14.11 Any notice and or other information required or authorised by these Conditions shall be in Writing to the respective party's principle place of business or to any other address as may be agreed in Writing between the parties from time to time and shall be deemed effectively delivered:-
14.11.1 if delivered by first class post on the second Working Day following posting; or
14.11.2 if delivered by fax or email at the date of transmission provided that the same occurs on a Working Day; or
14.11.3 if delivered personally at the time of personal service provided that the same occurs on a Working Day; or
14.11.4 if posted on the Website at the time of posting provided that the same occurs on a Working Day; and to prove service, it is sufficient to prove that the notice was transmitted by fax, to the fax number of the party, by email to the email address of the party, or in the case of post, that the envelope containing the notice was properly addressed and posted.
15. MANDATORY ORANGE TERMS
15.1 General obligations of the Buyer:15.1.1 the Buyer shall agree to use its reasonable endeavours to promote the products and services of Orange and to procure customers for the services.
15.1.2 in addition, the Buyer shall co-operate with Mainline and comply with its reasonable directions, particularly with regard to standards and quality of promotion and service.
15.1.3 any sales leads passed to the Buyer are to be used only for the purpose of obtaining customers for any of the services of Orange and any misuse of sales leads will entitle Mainline to terminate the agreement.
15.1.4 The Buyer shall not make any representations or warranties in respect of the products or services without Mainline's prior written consent nor incur any liability on behalf of Mainline or Orange.
15.1.5 The Buyer shall submit to Mainline not less than once a year a business plan in such form as Mainline shall reasonably request.
15.1.6 The Buyer shall attend and shall ensure its staff attend such training as Mainline shall deem necessary to fulfil the Buyer's obligations under this appointment.
15.2 The Buyer may use the Orange name and logo (subject to prior Written approval by Mainline in each and every instance) and title “Orange Approved Dealer” but use of any other title implying authorisation or approval for advertising and stationery is strictly prohibited and any breach will entitle Mainline to terminate the agreement.
15.3 Mainline may in its entire discretion provide materials and/or artwork for advertising and other special promotions from time to time. Such materials shall be the only means by which the Buyer may promote the products or services and any breach shall entitle Mainline to terminate the appointment unless prior written consent is given by Mainline.
15.4 The Buyer shall undertake to comply with the FCS Crime Prevention Scheme in all respects and shall comply with the requirements of the FCS Crime Prevention Scheme at all times, and failure to comply shall entitle Mainline to terminate this appointment with immediate effect.
15.5 Mainline shall be entitled to terminate this appointment immediately if required to do so by Orange for any reason, or if the Buyer is in breach of this agreement.
15.6 The Buyer will allow Mainline's representatives and/or Orange access to the Buyer's premises from time to time for the purpose of stock checking or for any other reasonable purpose in connection with this appointment.
15.7 The Buyer agrees that Mainline shall be entitled, during the term of this Appointment and for a reasonable period thereafter, to undertake or arrange for audits from time to time to inspect and make copies of the Buyer's books of account records and contracts for the purpose of verifying payments due under this appointment.
15.8 The Buyer confirms that a comprehensive insurance policy is and will be in force throughout the term of this appointment which shall cover loss or damage to any property material or things owned or supplied by Mainline while such property material or things are in the possession or under the control of the Buyer . The Buyer shall on request provide copies or satisfactory evidence of such insurances to Mainline.
15.9 Neither party shall assign, transfer, charge or make over this appointment or any of its rights or obligations without the other's prior written consent.
15.10 The Buyer shall ensure that each member of the Buyer's staff attends training that shall be run jointly by Orange and Mainline. Such training shall be carried out within 3 months from the date that the Buyer has been first appointed by Mainline.
15.11 The Buyer shall act as principal on its own account in all circumstances, and shall not hold itself out as the agent of Mainline or Orange or purport to act on Mainline's or Orange's behalf in dealings with third parties.
15.12 The Buyer shall not appoint nor purport to appoint any dealers or sub-dealers.
15.13 The Buyer shall ensure that the procedures laid down by Mainline including but not limited to credit checking and provision of customer contracts to subscribers are fully complied with.
