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1.1 The Customer (as defined in clause 1.2 below) understands that in order to receive the Equipment and/or Services (as defined in clause 1.2 below) and the Airtime Services (as defined in clause 1.2 below) it is required to enter into two separate agreements. These are:
1.1.1 This agreement with Associated Telecom Limited which governs the supply of the Equipment and/or Services from Associated Telecom Limited to the Customer and the Airtime Agreement (as defined in clause 1.2 below) with the relevant Network/Service Provider.
1.2 In this agreement, the following words and expressions shall have the meanings set out below:
“Airtime Agreement” means the agreement which governs the provision of Airtime Services from the relevant network/service provider, a copy of which will be provided with this agreement;
“Airtime Services” means cellular mobile telecommunications airtime and network capacity procured from a network/service provider;
“Connection” means the Connection of an end user to a network or service provider such that the end user is capable of accessing and utilising the Airtime Services;
“Customer” means the person or business entity ordering the Equipment and/or Services and/or the Airtime Services whose details are set out on the form overleaf;
“Downward Migration” means in respect of a Connection, the transfer (at the request of the Customer) from one tariff provided by the network/service provider to another tariff provided by that same network/service provider ( “the new tariff”) which results in the Customer being charged a lower monthly line rental under the new tariff than it was being charged under the original tariff and the phrase downward migrated shall be constructed accordingly;
“Equipment” means mobile telecommunications handsets and other associated goods or software;
“Minimum Term” means the minimum period of time which the Customer has agreed to maintain (a) Connection(s) under the airtime agreement;
“Monthly subsidiary amount” means the amount which is derived by dividing the Subsidy payable for a Connection by the number of months in the Minimum Term applicable to that Connection;
“Services” means any Services ordered by the Customer and provided by Associated Telecom Limited; and
“Subsidy” means the sum payable by Associated Telecom Limited to the Customer as is determined by Associated Telecom Limited in its sole discretion, taking into consideration the number of Connections which the Customer is taking out, the applicable tariff and the Minimum Term which the Customer is prepared to enter into.
Unless other terms and conditions are expressly accepted by Associated Telecom Limited in writing by a Director of Associated Telecom Limited, the supply of Equipment and/or the provision of Services will be on the terms and conditions set out in this agreement to the exclusion of any other terms and conditions whether or not the same are endorsed upon, delivered with or referred to in any purchase order or other document delivered or sent to the Customer by Associated Telecom Limited.
3.1 In consideration of the Customer entering into the airtime agreement, Associated Telecom Limited undertakes to supply to the Customer such Equipment and/or Services as is ordered by the Customer from time to time.
3.2 Associated Telecom Limited shall use its reasonable endeavours to deliver the Equipment on the date that is agreed by all the parties, but the Customer acknowledges that time shall not be of the essence.
3.3 Notwithstanding delivery and acceptance of the Equipment to the Customer. Title to the same will not pass to the Customer but will be retained by Associated Telecom Limited until (1) the expiry of the Minimum Term (assuming all payments owed for the Equipment under this Agreement by the Customer have been paid up until that point) or (2) the date on which all invoices relating to the same (including VAT) have been paid in full to Associated Telecom Limited.
3.4 The risk in the Equipment will pass to the Customer upon delivery and the Customer will be liable for any loss or damage of the same as and from the time when the Equipment is delivered to the address notified by the Customer.
3.5 The Customer undertakes to notify Associated Telecom Limited in writing as to any alleged defect, shortage, or discrepancy in any Equipment within 3 days of delivery of the Equipment to the Customer. In the event that the Customer fails to notify Associated Telecom Limited in writing within this period then the Customer will be deemed to have accepted the Equipment and Associated Telecom Limited shall have no liability to the Customer whatsoever in respect of the Equipment.
3.6 Should the Customer for whatever reason cancel their agreement during the Minimum Term of the agreement, and the Equipment has not been paid for in full by the Customer, then the Customer must return all Equipment supplied to them by Associated Telecom Limited in the same condition that they arrived. If the Equipment is not returned or is returned in a non-saleable condition, then the charge of the full cost of the Equipment plus a £10 admin fee per item will be invoiced to the Customer and shall be payable within 7 days.
3.7 During the period of this Agreement the Customer might be provided with Equipment that has been loaned to the Customer with Associated Telecom Limited. It is the Customer’s responsibility to return the loaned Equipment to the same location at the end of the loan period. The Customer agrees to return the loaned Equipment to Associated Telecom Limited in the same condition that it was on the day it was received, with the exception of normal wear and tear. There is no charge for the loan of the Equipment. However, in the event that the loaned Equipment is lost or destroyed during the period in which it is in the Customer’s possession (including whilst in transit being returned to Associated Telecom Limited) the Customer will be charged for the cost of replacing the loaned Equipment. If the loaned Equipment is damaged during the loan period (including whilst in transit being returned to Associated Telecom Limited) the Customer will be charged for the cost of fixing or replacing the loaned Equipment. The Customer will be charged for the cost of replacing the loan Equipment if it is not returned at the end of the agreed loan period.
4.1 Associated Telecom Limited shall use its reasonable endeavours to provide the Services on the dates agreed by the parties.
4.2 Associated Telecom Limited shall use its reasonable endeavours to ensure that the Services are provided with reasonable skill and care.
5.1 The Customer hereby agrees to pay Associated Telecom Limited for the Equipment and any Services ordered by and provided to the Customer within 14 days from the date of an Associated Telecom Limited invoice. Any amounts due to Associated Telecom Limited are not subject to set-off and/or counterclaim.
5.2 Associated Telecom Limited reserves the right at its absolute discretion to levy a surcharge for all credit card transactions in accordance with Associated Telecom Limited’s tariff applicable from time to time. A copy of the applicable tariff of which will be available upon request.
5.3 Interest shall be chargeable at the statutory rate under the Late Payment of Commercial Debts (Interest) Act 1998 and accrue daily from the due date to the date of actual payment, whether before or after a court judgment.
6.1 Subject to the remaining provisions of this clause 6, Associated Telecom Limited may, acting in its sole discretion, provide the Customer with a Subsidy as a result of the Customer entering into the airtime agreement with a network/service provider.
6.2 In the event that Associated Telecom Limited does provide the Customer with a Subsidy this may be provided at the sole discretion of Associated Telecom Limited, using the following methods set out below or any combination of them;
6.2.1 Deducting this form the value of the Equipment or Services which the Customer orders from Associated Telecom Limited, or
6.2.2 The payment of monies (representing the amount of the Subsidy) to the Customer and such monies shall be paid to the Customer, in full after the expiry of 1 month from the Connection date where the applicable Minimum Term is at least 24 months.
6.2.3 Using such amount to discharge any termination charges levied upon the Customer by the relevant network/service provider for terminating their previous airtime agreement subject to Associated Telecom Limited being provided with a copy of the relevant invoice from such network/service provider.
6.3 Any Subsidy (or instalment payment of a Subsidy) is payable by Associated Telecom Limited within 30 days from the date the Customer presents an invoice to Associated Telecom Limited (save that no invoice shall be necessary where the Subsidy is being deducted from the price of the Equipment and/or Services ordered by the Customer pursuant to clause 6.2.1) provided that;
6.3.1 At all times the Connection is still active on the relevant payment date that the Subsidy (or instalment payment of the Subsidy) is due;
6.3.2 Where the invoice is payable in instalments or after a prescribed period of time the appropriate trigger date has passed.
6.3.3 The invoice has been raised in accordance with the provisions of this agreement, and
6.3.4 Where the;
(a) Invoice is for termination charges pursuant to clause 6.2.3, this amount is invoiced within 180 days of the Connection date; and or
(b) Invoice is for the payment of monies pursuant to clause 6.2.2. This amount is for the payment of monies pursuant to clause 6.2.2 This amount is invoiced within 180 days of the Connection date; and or
(c) Amount claimed is being deducted from the price of Equipment and/or Services ordered by the Customer pursuant to clause 6.2.1, this amount is claimed during the Minimum Term; and in the event that the Customer fails to invoice/claim the Subsidy within the timescale set out in clause 6.3.4 (a) to (c) (inclusive) then the Customers right to the Subsidy shall cease.
6.4 The Customer acknowledges that;
6.4.1 The payment of the Subsidy is conditional upon;
(a) The Customer maintaining each Connection for the Minimum Term, and
(b) The Customer not downward migrating any Connection during the Minimum Term, and
(c) Such other conditions as are notified from time to time by Associated Telecom Limited.
6.4.2 Associated Telecom Limited will provide the Subsidy prior to the satisfaction of the conditions set out in clause 6.4.1 and hence the need for clause 6.5.
6.5 Associated Telecom Limited shall be entitled to reclaim from the Customer the Subsidy (or such proportion of the Subsidy) already paid to the Customer (or withhold such amount from any Subsidy or instalment of a Subsidy to be paid to the Customer) in the event that;
6.5.1 A Connection is for whatever reason disconnected prior to the expiry of the Minimum Term; or
6.5.2 A Connection is for whatever reason upgraded/resigned without the relevant written permission from a Director of Associated Telecom Limited prior to the expiry of the Minimum Term; or
6.5.3 A Connection or care of a Connection is transferred to another network/service provider/dealership/broker prior to the expiry of the Minimum Term, or
6.5.4 A Connection is for whatever reason downward migrated during the Minimum Term; or
6.5.5 The relevant network/service provider (for whatever reason) reclaims or withholds in any part from Associated Telecom Limited any of the Connection commission paid to Associated Telecom Limited by the network/service provider in respect of that Connection; and the proportion of the Subsidy that Associated Telecom Limited shall be entitled to reclaim from the Customer shall be the monthly Subsidy amount for each month (and such pro rata amount for each incomplete month) of the balance of the Minimum Term which is unexpired at the date of disconnection, downward migration, upgrade/resign or transfer.
6.6 Any such sum reclaimed (or withheld) pursuant to clause 6.5 shall be invoiced to the Customer and such sum shall be payable (unless withheld) within 14 days of the date of the Associated Telecom Limited invoice.
6.7 In the event that a Customer cancels prior to the Connection, disconnects a Connection prior to the expiry of the Minimum Term, upgrades/resigns a Connection for whatever reason without the relevant written permission from a Director of Associated Telecom Limited prior to the expiry of the Minimum Term, transfers a Connection or care of a Connection to another network/service provider/dealership/broker prior to the expiry of the Minimum Term, or a Connection is downward migrated during the Minimum Term then Associated Telecom Limited shall be entitled to charge the Customer an administration fee of £250.00 plus VAT per Connection. The Customer agrees that this amount is a pre estimate of the loss incurred by Associated Telecom Limited and not an attempt by Associated Telecom Limited to penalise the Customer for ending their agreement with Associated Telecom Limited.
7.1 The Customer acknowledges that Associated Telecom Limited is not the manufacturer of the Equipment, and accordingly, that the warranty given by Associated Telecom Limited is limited as follows. If any Equipment is proven to the reasonable satisfaction of Associated Telecom Limited to be defective in material or workmanship, then;
7.1.1 If the Equipment is returned to Associated Telecom Limited within 14 days of the date of their delivery then Associated Telecom Limited will at its option (a) repair the Equipment, (b) replace the Equipment, (c) substitute substantially equivalent goods, or (d) credit the Customer in respect of any such Equipment for the avoidance of doubt, where Associated Telecom Limited replaces Equipment or provides substitute goods, the original Equipment returned by the Customer will belong to Associated Telecom Limited provided that these obligations on the part of Associated Telecom Limited will not apply where;
(a) The Equipment has been altered in any way whatsoever or has been subjected to misuse, damage, or unauthorised repair; or
(b) The Customer has failed to observe any maintenance requirements relating to the Equipment; or
(c) The Equipment has been improperly installed or connected (unless Associated Telecom Limited carried out such installation and Connection); or
(d) The Equipment has been expressly sold on a “No Warranty” basis or in respect of any promotional items supplied from time to time with or in Connection with the Equipment.
7.2 Save as provided in this agreement Associated Telecom Limited hereby excludes all conditions, warranties and stipulations express or implied, statutory, customary, or otherwise which but for such exclusion would or may subsist in the favour of the Customer.
8.1 Associated Telecom Limited liability for loss of damage of any kind whatsoever (however such liability arises and whether in contract, taught, for the breach of statutory duty or otherwise) under or in Connection with;
(a) This agreement and/or
(b) Any matter collateral to this agreement and/or in respect of any representation or misrepresentation (other than a fraudulent misrepresentation made by or on behalf of Associated Telecom Limited); shall in no circumstances exceed the sum paid by the Customer to Associated Telecom Limited in respect of the Equipment of Services with which such liability arises provided that nothing in this clause shall limit or exclude liability for death or personal injury arising from Associated Telecom Limited negligence.
8.2 Save as otherwise provided, Associated Telecom Limited will be under no liability under this agreement for any personal injury, death, loss, or damage of any kind whatsoever (other than death or personal injury resulting from Associated Telecom Limited negligence) whether consequential or otherwise including but not limited to loss or profits, pure economic loss, loss of business, and depletion or goodwill.
8.3 Save for death or personal injury resulting from Associated Telecom Limited negligence, Associated Telecom Limited shall not be liable for any loss as a result of electromagnetic frequencies or any similar result from use of the Equipment.
9.1 Associated Telecom Limited will be entitled to assign, subcontract, or sublet this agreement or any part thereof. The Customer shall not be permitted to assign or sublet this agreement or any part thereof without the written consent of Associated Telecom Limited.
9.2 Any costs incurred by Associated Telecom Limited in recovering any outstanding sums from the Customer will also be added to the Customer’s liability and payable by the Customer in full in addition to any outstanding sums and those costs can be added and claimed against the Customer in court proceedings as well as claiming the costs incurred by those court proceedings.
9.3 Failure by Associated Telecom Limited to enforce any of the provisions of this agreement will not be constructed as a waiver of any of its rights hereunder.
9.4 Associated Telecom Limited shall be entitled to amend any of the terms of this agreement upon the giving of 7 days written notice to the Customer.
9.5 In relation to all obligations of the Customer under this agreement, the time of performance is of the essence.
9.6 The illegality, invalidity or unenforceability of any clause or part of the agreement will not affect the legality, validity, or enforceability of the remainder. If any such clause is found by any competent court or authority to be illegal, invalid, or unenforceable the parties agree that they will substitute provisions in a form as similar to the offending provisions as is possible without thereby rendering them illegal, invalid, or unenforceable.
9.7 Each of the parties hereto are independent and separate legally and nothing contained in this agreement shall be construed to imply that there is any relationship between the parties of partnership or of principle/agent or of employer/employee.
9.8 The legal construction of these clauses shall not be affected by their headings which are for convenience or reference only.
9.9 Any demand, notice or communication shall be deemed to of been duly served;
9.9.1 If delivered by hand, when left at the proper address for service.
9.9.2 If given or made by prepaid first-class post, 48 hours after being posted (excluding Saturdays, Sundays, and public holidays).
9.9.3 If given or made by fax at the time of transmission subject to the receipt of the appropriate “clear” transmission report provided that where in the case of delivery by hand or transmission by fax such delivery of transmission occurs either after 4.00pm on a business day or on a day other than a business day service shall be deemed to occur at 10.00am on the next following business day (such times being local time at the address recipient). For the purpose of this clause a “business day” is a day when the banks in the location of the recipient are open for a full range of banking transactions. Any demand, notice or communication shall be made in writing or by email addressed to the recipient at its registered office or its address stated in this agreement (or such other address or email address as may be notified in writing from time to time).
9.10 No variation to this agreement may be made unless set out in writing and signed by a director of Associated Telecom Limited.
9.11 This agreement shall be governed by English Law and parties submit to the exclusive jurisdiction of the English courts.
