1 DEFINITIONS AND INTERPRETATION

1.1 In these Conditions, the following definitions apply:

“Business Day” a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business; the person or firm who purchases the Products and/or Services from the Supplier;

“Business Partner” the person (including a natural person, corporate or unincorporated body, whether or not having a separate legal personality) who places an accepted Order with the Supplier for the purchase of Products and/or Services;

“Business Partner Claw Back” the obligation of the Business Partner to repay any Commission in accordance with clause 10;

“Commission” the Commission payments to be made by the Supplier in accordance with clause 10;

“Conditions” these terms and conditions as amended from time to time in accordance with clause 18.7;

“Confidential Information” information belonging or relating to either party (the “providing party”), its customers, affairs, or business which is not in the public domain and which is provided to the other party (the “receiving party”) which the receiving party obtains under or as a result of a Contract (including any new document including such information) and which information (i) the providing party has marked as confidential, or (ii) the providing party has advised the receiving party is of a confidential nature or (iii) due to its character or nature, a reasonable person would treat as confidential, including, without limitation, any and all Customer Data and the content of the Contract;

“Connection” the commencement of Services to a valid SIM pursuant to a Network Operator contract purchased by the Customer from the Business Partner in relation to Products supplied by the Supplier (and “Connect(s)” or “Connected” shall be construed accordingly);

“Contract” the contract or contracts between the Supplier and the Business Partner from time to time for the supply of Products and/or Services in accordance with these Conditions;

“Customer” the person or firm who purchases the Products and/or Services from the Business Partner;

“Customer Data” Personal Data pertaining to a particular Customer or prospective customer (or any individual associated with such Customer or prospective customer) obtained by, generated by or provided to either party as a result of or in connection with a Contract;

“Customer Database” Any database of the Business Partner containing Customer Data or Personal Data;

“Delivery Location” has the meaning set out in clause 4.2;

“Delivery Note” has the meaning given in clause 4.1;

“Network Operator” the applicable mobile-network operator entity who provides the Services;

“GC C8” OFCOM General Condition 8 on sales and marketing of mobile telephony services as may be amended from time to time together with any current guidance notes issued by OFCOM in respect of General Condition 8;

“GSM Gateway Apparatus” a device containing one or more SIMS for one or more mobile networks, which enable calls to mobile networks from fixed networks (whether directly or indirectly) to be routed directly via a GSM link into the relevant mobile network;

“HOLDING COMPANY” means a holding company as defined in section 1159 of the Companies Act 2006;

“OFCOM” the Office of Communications or such other replacement organisation from time to time;

“Order” the Business Partner’s order for the supply of Products and/or Services which if accepted by the Supplier shall be the basis of the Contract as per clause 2;

“Personal Data” has the meaning ascribed to it in the Data Protection Act 1998;

“Price List” a current price list for Products issued by Network Operator or the Supplier;

“Products” the mobile handsets and/or other related products set out in the Order and any other products linked to the mobile handsets including but not limited to insurance and mobile device management;

“Quarter” is one of the four three calendar month periods beginning on any 1 January, 1 April, 1 July or 1 October;

“Restricted Customer” return authorization (RA) is a part of the process of returning a product in order to receive a refund, replacement, or repair during the product’s warranty period;

“Returns Authorisation” any firm, company or person who is or has been at any time during the immediately preceding 12 months been a customer or prospective customer of the Business Partner in respect of whom a Connection has been sought or made;

“Services” the Network Operator network services as may be procured by the Supplier to the Business Partner pursuant to these Conditions for use by Customers and any other services linked to such network services including but not limited to insurance and mobile device management;

“SIM” a Network Operator subscriber identification module card programmable with a unique telephone number or numbers, which enables access to, and the use of, the Services when operated in conjunction with a compatible Product;

“Supplier” Data Select Network Solutions Limited registered in England and Wales with company number 05616365

“System” has the meaning given to it in clause 11.2.

2 BASIS OF CONTRACT

2.1 The Order constitutes an offer by the Business Partner to purchase Products and/or Services in accordance with these Conditions.

2.2 All Orders must be submitted by email from the nominated email address notified to the Supplier and each Order must identify the relevant account number. When the Supplier has introduced an online portal to facilitate the Orders it will provide the relevant details to the Business Partner and thereafter the portal may be used for any Orders.

2.3 The Order shall only be deemed to be accepted on the first to occur of:

  1. a) the Supplier issuing written acceptance of the

Order; or

  1. b) when the Supplier despatches the Products/commences provision of the Services; and on which date the Contract shall come into existence.

2.4 The Contract constitutes the entire agreement between the parties. The Business Partner acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract or separately in writing and agreed by a Director.

2.5 Under no circumstances shall the Supplier’s acceptance of the Order be construed or implied to create an obligation on the Supplier to subsequently accept any additional or subsequent Order.

2.6 These Conditions apply to the Contract to the exclusion of any other terms that the Business Partner seeks to impose or incorporate, or which are or may be implied by trade, custom, practice or course of dealing.

2.7 The Supplier does not warrant the availability of Products and the Business Partner accepts that Products listed in Price List may not be available at all times or at all.

3 PRODUCTS

3.1 The Business Partner shall be responsible for ensuring the Products ordered are of the correct specification for their intended use and location.

3.2 From time to time the Supplier may have to make changes in the specification of the Products (but these will not materially reduce the quality of performance of the Products):

3.2.1 as a result of changes made to make the Products conform with any applicable safety or other legal and/or statutory requirements;

or

3.2.2 to make the Products reflect changes in the manufacturer’s specification.

3.3 The Supplier reserves the right to substitute products substantially similar in all material respects to the Products ordered. Once the Business Partner has provided consent of such substitute.

4 DELIVERY OF PRODUCTS

4.1 The Supplier shall ensure that each delivery of the Products is accompanied by a delivery note (“Delivery Note”) which shows the date of the Order, all relevant Business Partner and Supplier reference numbers, the type and number of the Products, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Products remaining to be delivered.

4.2 The Supplier shall deliver the Products to the location set out in the Order or such other location as the parties may agree in writing (“Delivery Location”) within 48 working hours after the Supplier notifies the Business Partner that the Products are ready unless otherwise agreed.

4.3 Delivery of the Products shall be completed when they are collected by the Business Partner’s courier from the Delivery Location or, if delivered by the Supplier, on arrival at the Delivery Location.

4.4 Any dates quoted for delivery of the Products are approximate only and the time of delivery is not of the essence. The Supplier shall have no liability for any losses or other expenses sustained or incurred by the Business Partner as a result of delay. The Business Partner shall not be entitled to refuse acceptance of the Products as a consequence of such delay.

4.5 Failure by the Business Partner to take delivery of the Products or to give adequate delivery instructions will not relieve the Business Partner of its obligation to pay for the Products.

4.6 Where the Business Partner initially fails to take delivery of the Products, unless the goods are rejected due to damage, missing items or incorrect orders, the Supplier shall store the Products until delivery takes place and reserves the right to charge the Business Partner for all related costs and expenses (including insurance).

4.7 The Business Partner must, on request, pay to the Supplier any costs in supplying the Products caused by:

  1. a) any breach by the Business Partner of its obligations under these Conditions and/or any Contract;
  2. b) any factor beyond the Supplier’s reasonable control;
  3. c) any changes in the dates of delivery of the Products which the Business Partner requires; Or
  4. d) any delay caused by the Business Partner’s instructions or failure to give adequate information or instructions when the Order has been accepted or at any other time.

4.8 All Products shall be checked by the Business Partner on delivery and any shortages, or damaged Products or non-delivery must be notified within 48 hours of receipt (or nonreceipt as the case may be).

4.9 The Business Partner shall make a note on the Delivery Note referred to in clause 4.1 and give notice in writing to the Supplier within 48

working hours if it is alleged that:

  1. a) there is a surplus or shortfall of the amount of Products delivered; or
  2. b) there is any visible damage to the Products, or any indication that the Products have been otherwise tampered with.

4.10 If the Business Partner does not give notice in accordance with clause 4.9 within 24 working hours from the date of delivery, Products delivered shall be deemed in all respects to be in accordance with the Order and the Business Partner shall be deemed to have irrevocably and unconditionally accepted the Products on delivery and, save in respect of faulty Products where the fault was not visible on delivery of the Products, shall not be entitled to raise any subsequent claim in relation thereto.

4.11 The Business Partner shall keep any Products it has reported to the Supplier under clause 4.8 and/or clause 4.9 in the state in which such Products were delivered and at the Business Partner’s risk for a period of thirty (30) days from the date of delivery and shall allow the Supplier or its authorised representative to inspect and recover the same together with all original packaging materials or, if requested by the Supplier, shall return the same to the Supplier at the Business Partner’s cost, such cost to be reimbursed in the event that the Business Partner’s complaint regarding such Products is proved to the Supplier’s reasonable satisfaction to be justified.

4.12 The Supplier may deliver the Products by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Business Partner to cancel any other instalment.

4.13 The Supplier will at its sole discretion either replace or repair free of charge any Products proved to the Supplier’s satisfaction to have been damaged prior to delivery and will complete any shortfall in the amount of Products supplied, provided the Business Partner has given written notice to the Supplier as provided above.

4.14 For Non-Network Handsets: 30 day returns policy for faulty handsets, thereafter manufacturer’s warranty applies.

4.15 For Network Handsets: 14 day returns policy for cancellation/change of mind (distance sales only). 30 day returns policy for faulty handsets and tablets (all sales), thereafter manufacturer’s warranty applies; 30 day returns policy for other faulty data devices. All returns/faulty replacements should be boxed, accompanied with an RA (returns authorisation) number, be completed and returned within 14 days of receiving an RA. If the handset or tablet was purchased from a third party please contact them directly to arrange return. If there are any missing or non-genuine items replacing the genuine items in the box returned to the Supplier then the product will be returned to the Business Partner. RA’s should be kept to a maximum of 4% of the total dispatches within each calendar month. Any returns that exceed the 4% cap per a month will be charged to the Business Partner, per device at the rates below:

£50 Per non-smartphone

£120 Per smartphone

5 QUALITY OF PRODUCTS

5.1 The Supplier purchases Products with the benefit of industry standard warranties from the manufacturers. Such warranties shall be assigned to the Business Partner to the fullest extent possible and the liability of the Supplier in respect of the Products is limited in accordance with clause 13.3.

5.2 Save as provided in clause 5.1, and to the fullest extent permitted by law, the Supplier gives no warranty, representation, undertaking or guarantee in relation to the Products and all terms, conditions and warranties that would, but for this clause, be implied into these Conditions are expressly excluded to the fullest extent permitted by law.

5.3 Except as provided in this clause 5, the Supplier shall have no liability to the Business Partner in respect of the Products’ failure to comply with the warranty set out in clause 5.1.

5.4 The terms of this clause 5 shall apply to any repaired or replacement Products supplied by the Supplier under clause 4.13.

5.5 If a valid warranty claim is made within the warranty period (if applicable), the Supplier will replace or repair (at its discretion) the Products free of charge.

6 TITLE AND RISK

6.1 The risk in the Products shall pass to the Business Partner on completion of delivery.

6.2 Title to the Products shall not pass to the Business Partner until the Supplier has received in cleared funds payment in full in respect of those specific Products and any other Products and Services that the Supplier has supplied to the Business Partner.

6.3 Until title to the Products has passed to the Business Partner, the Business Partner shall:

  1. a) store the Products (at no cost to the Supplier) separately from all other Products held by the Business Partner so that they remain readily identifiable as the Supplier’s property;
  2. b) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
  3. c) maintain the Products in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery. On request the Business Partner shall produce a policy of insurance to the Supplier;
  4. d) not allow the Products to become the subject of any encumbrance, charge, lien or other interest;
  5. e) give the Supplier such information relating to the Products as the Supplier may require from time to time.

6.4 Subject to clause 6.5, the Business Partner may resell to Customers or use the Products in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Products. However, if the Business Partner resells the Products before that time:

  1. a) it does so as principal and not as the Supplier’s agent; and
  2. b) title to the Products shall pass from the Supplier to the Business Partner immediately before the time at which resale by the Business Partner occurs.

6.5 If before title to the Products passes to the Business Partner the Business Partner becomes subject to any of the events listed in clause 14.1 c) then, without limiting any other right or remedy the Supplier may have:

  1. a) the Business Partner’s right to resell Products or use them in the ordinary course of its business ceases immediately; and
  2. b) the Supplier may at any time:

(i) require the Business Partner to deliver up all Products in its possession which have not been resold, or irrevocably incorporated into another product; and

(ii) if the Business Partner fails to do so promptly, enter any premises of the Business Partner or of any third party where the Products are stored in order to recover them.

6.6 The Supplier shall be entitled to recover payment for the Products notwithstanding that the ownership of any other Products has not passed to the Business Partner.

7 BUSINESS PARTNER’S OBLIGATIONS

7.1 The Business Partner shall at all times:

  1. a) ensure that the terms of the Order are complete and accurate;
  2. b) not advertise, promote, market, deal with sell or rent the Products other than in accordance with clause 7.1;
  3. c) not make any unauthorised, false or misleading representations relating to the Products and/or, the Services or otherwise nor shall it make any promises, representations, warranties or guarantees with reference to the Products and/or Services beyond those contained in the promotional material supplied or approved by the Network Operator or the Supplier or otherwise incur any liability on behalf of the Network Operator or the Supplier;
  4. d) comply with all legislation and regulations, guidelines or industry codes of practice as may be applicable, including, without limitation, the Distance Selling Regulations, the Privacy and the Electronic Communications (EC Directive) Regulations 2003, the Privacy and the Electronic Communications (EC Directive) (Amendment Regulations 2011 and the Bribery Act 2010 where applicable), the Payment Card Industry Data Security Standard, Data Protection Act 1998 and be responsible for obtaining all licences, permits and approvals that are necessary or advisable for the sale of any Products and for the performance of its obligations hereunder;
  5. e) comply with GC C8 and the Business Partner shall indemnify the Supplier in respect of any liability, loss, damage or expenses incurred or suffered by the Supplier as a result of any breach by the Business Partner of, or any non-conformance by the Business Partner with the obligations under GC C8;
  6. f) in respect of its promotion of the Services, clearly indicate that it is acting as a selling representative only and not as part of the Network Operator or the Supplier and not cause the public in any way to confuse it with the Network Operator or the Supplier;
  7. g) notify the Supplier in writing if any Product which has been provided to the Business Partner but not on-sold is stolen, lost, damaged or tampered with;
  8. h) immediately notify the Supplier in writing of all complaints it receives with regard to the Services and/or Products;
  9. i) not act in any way which brings the Supplier, the Network Operator or its Products, Services or trademarks (including without limitation the name of the Network Operator) into disrepute or which in any way damages the reputation of the Network Operator, its Products, Services or trademarks (including without limitation the name of the Network Operator);
  10. j) not cause any adverse publicity, public criticism or damage to the reputation of the Network Operator or the Supplier, any Network Operator group company and/or

its customers and also not cause any material disruption of the business of the Network Operator or any  Network Operator group company or the Supplier or any of their customers;

  1. k) not directly or indirectly assist or enable a Customer to cancel a contract or otherwise deactivate the Services where the Business Partner knows or ought reasonably to know that the Customer is within the minimum term of his or her contract;
  2. l) not (without the prior written consent of the Supplier) facilitate, promote, sell or otherwise use GSM Gateway Apparatus or any other device which is used to route non-mobile or third party traffic through the the Network Operator network.
  3. m) Without obtaining prior written consent from the Network Operator, the Business Partner must not operate, whether directly or through a third party
  4. a) a GSM Gateway, commonly known as a ‘SIM box’
  5. b) any device to route or re-route voice, data or other Services on, from or to the Network including but not limited to:

(i) a device used to forward or divert Services with the intention of reducing charges for that call; or

(ii) illegal repeaters (a device to boost coverage which is unlicensed and used without the Network Operator’s express prior written consent) If the Business Partner is in breach of this clause 7.1 m) or the Supplier reasonably believes that the Business Partner is in breach of this clause, the Supplier shall have the right to immediately suspend from the Network Operator network, without liability or notice to the Business Partner, any SIM card being used (or reasonably believed to be being used) with such GSM Gateway Apparatus or other device. In addition to the suspension right set out above, or any other right the Supplier may have under this Agreement, the Supplier shall be entitled to Claw Back from the Business Partner any Commission paid to the Business Partner related to use of a SIM in breach of this clause and shall be entitled to recover any losses suffered by the Supplier as a consequence of such breach;

  1. n) maintain a dedicated staff with suitable expertise in mobile communications or similar electronic products and in particular at least one employee, who is undertaking or who has undertaken such training as may be required from time to time;
  2. o) provide suitable pre and after sales support to prospective and actual customers including without limitation information relating to the acceptance process and the standard forms all in accordance with the Network Operator policies and practices from time to time;
  3. p) indemnify the Supplier against all liabilities, claims, demands, actions, costs, damages or loss arising out of any failure by the Business Partner to comply with any term of these Conditions;
  4. q) use reasonable endeavours to promote the sale of accessories for the Products;
  5. r) comply with all applicable anti-corruption and anti-bribery laws, including but not limited to the Bribery Act 2010;
  6. s) comply with the Supplier’s Anti-Corruption and Anti-Bribery as notified by the Supplier from time to time as though such policies applied to and had been adopted by the Business Partner, unless, the Business Partner has and maintains in place its own equivalent zero tolerance anti-bribery policies, procedures and training, in which case, the Business Partner shall comply with and enforce its own such policies and procedures;
  7. t) will promptly provide to the Supplier or the Network Operator on reasonable request from time to time all information the Supplier or the Network Operator may

reasonably require in respect of compliance by the Business Partner with this clause 7;

  1. u) To the maximum extent permitted by any applicable law, the Business Partner shall comply with, and undertake checks at the appropriate level of all personnel directly engaged in the performance of the Contract including those checks in the following list:

(i) proof of identification

(ii) right to work

(iii) relevant qualifications

(iv) driving licence

(v) criminal check clearance

(vi) references

(vii) enhanced security clearance

(viii) conflicts of interest

8 ACCOUNT

8.1 Upon receipt of the application form duly completed by the Business Partner, the Supplier may provide an account for the use of the Business Partner. The Supplier reserves the right to decline applications for any reason whatsoever.

8.2 In connection with the account application the Supplier will carry out credit fraud prevention checks with a licensed credit reference and fraud prevention agency and this agency will retain a copy of the search. Information from the application and payment details of the account will be recorded and may be shared with other organisations to help make credit or insurance decisions about the Business Partner and members of the Business Partner’s group and for debt collection and fraud prevention purposes.

8.3 The Supplier will only accept the application when the Business Partner passes a credit check to the Supplier’s satisfaction.

8.4 If approved an account will be opened and a credit limit inclusive of VAT will be notified to the Business Partner and this credit limit should not be exceeded. Any increase in the credit limit must be requested in writing and will be subject to approval by the Supplier, which may entail further credit checks.

8.5 Credit limits are subject to periodic review at the Supplier’s discretion.

8.6 The Supplier reserves the right to close the Business Partner’s account, and withhold any future payments if:

  1. a) there is no trading with the Business Partner for a consecutive period of three (3) months; trading defined as New & Upgrade connections
  2. b) the Network Operator issues a “do not deal” notice in respect of the Business Partner;
  3. c) the Business Partner is found to have acted fraudulently (as determined by the Network Operator or the Supplier);
  4. d) there are persistent Customer complaints about the Business Partner;
  5. e) the Business Partner fails to comply with the Network Operator’s compliance guidelines; and
  6. f) any of the grounds for termination in clause 14.1 occur.

9 CHARGES AND PAYMENT

9.1 The price for the Products shall be the price set out in the Order or, if no price is quoted, the price set out in the Price List as at the date of delivery. The price of the Products is exclusive of all costs and charges of packaging, insurance, transport of the Products which shall be payable in addition where relevant. Additional charges must be detailed on the order.

9.2 The Business Partner acknowledges that the Network Operator reserves the right to amend the Price List from time to time and the Supplier shall give the Business Partner such notice as is reasonably practicable of such changes.

9.3 The Supplier shall invoice the Business Partner on or at any time after completion of delivery.

9.4 The Business Partner shall pay each invoice submitted by the Supplier:

  1. a) within 14 days of the date of the invoice; and
  2. b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.

9.5 If the Supplier agrees that payment may be paid by cheque the Business Partner acknowledges and agrees that it will be liable to pay £10 (ten pounds) to the Supplier for any cheques which fail to clear in addition to the amount of the payment due.

9.6 All amounts payable by the Business Partner under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT) Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Business Partner, the Business Partner shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Products at the same time as payment is due for the supply of the Services or Products.

9.7 Notwithstanding clause 9.4 above, the parties agree that the Supplier shall be entitled to set off against undisputed sums due to the Business Partner (including Commission) any sums which are or become payable by the Business Partner to the Supplier whether or not such liability arises under the Contract or otherwise. Any exercise by the Supplier of its rights under this clause shall not limit or affect any other rights available to it under these Conditions.

9.8 The Business Partner will properly advise the Supplier in writing of any of the following:

  1. a) change of address;
  2. b) change of bank details;
  3. c) change in VAT status and confirmation on an annual basis (where applicable) of existing VAT status.
  4. d) change of Directors (addition and removal/resignation); or
  5. e) a change of control (being a change in shareholder(s) of the Business Partner or any holding company)

9.9 If the Business Partner fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Business Partner shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank Plc’s base rate from time to time. Such interest shall accrue daily from the due date until actual payment of the overdue amount, whether before or after judgment. The Business Partner shall pay the interest together with the overdue amount. Any exercise by the Supplier of its rights under this clause shall not limit or affect any other rights available to it under these Conditions.

9.10 If the Business Partner fails to make any payment due to the Supplier under the Contract by the due date for payment, the Supplier may engage a debt recovery specialist to recover any sums due from the Business Partner. The Business Partner shall indemnify the Supplier against its costs incurred in recovering any amounts due under the Contract including its fees payable to the debt recovery specialist.

9.11 In addition to the rights prescribed by clauses 9.4 and 9.7 above, if the Business Partner has not paid any undisputed sum(s) which are due to the Supplier, the Supplier shall have the right to, without prior notice

  1. a) suspend delivery of any Products not then delivered at that time; and/or
  2. b) require the Business Partner as a condition of further supply and delivery of Products to provide such financial security which is in the reasonable opinion of the Supplier appropriate as security against the Business Partner’s non-compliance with the payment provisions of this clause.

9.12 The Business Partner shall pay all undisputed amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law.

9.13 The Supplier may agree with the Business Partner a payment plan for repayment of any or all sums owing to the Supplier whether under the Contract or otherwise with set repayment amount(s) and specific payment date(s) (“Payment Plan”). The Supplier shall be entitled to demand immediate repayment of all sums owing to it by the Business Partner if any repayment amount under the Payment Plan is outstanding in excess of 5 Business Days.

10 COMMISSION AND CLAW BACK

10.1 Subject to these Conditions and any conditions that may be imposed by the Network Operator, the Supplier shall pay to the Business Partner the Commission.

10.2 The Supplier shall provide statements of Commission to the Business Partner either in paper written format and/or electronic format and such statements will be

provided on a weekly or such other basis as may be specified by the Supplier (the “Commission Statement”). Each statement will contain a summary of the previous period’s Connections with full details listed by IMEI, and calculated Commission due on a self-billing invoice. The Supplier will use all reasonable endeavours to issue this on the 16th of each month.

10.3 In the event that the Business Partner wishes to query the amount of the Commission contained in the Commission Statement (as provided by the Supplier in accordance with clause 10.2 above), the Business Partner agrees and confirms that it shall notify the Supplier in writing as soon as reasonably practicable following receipt of the relevant Commission Statement and in any event within 12 months of the date of the Connection and will include all relevant details and supplementary evidence (the “Commission Notice”). The Supplier will consider the Commission Notice as soon as reasonably possible, and in any event within 20 business days of receipt of the Commission Notice. The Supplier will be under no obligation to consider or adjust any Commission where the Commission Notice is received after 12 months from the date of the Connection and the parties agree to attempt in good faith to resolve any dispute. In the event that the parties are unable to resolve any dispute within 40 business days of the date of the Commission Notice, either of the parties may notify the other that it wishes to refer the matters in dispute to a member of a reputable independent firm of chartered of accountants (the “Accountant”) who shall act as an expert and not as an arbitrator. The Accountant must afford each of the parties the opportunity to make representations in writing to him, and may, at his absolute discretion, afford them the opportunity to make oral representations to him, but otherwise shall determine his own rules of procedure. The Accountant shall be appointed by agreement between the parties or, failing agreement, on the application of either party made to the president for the time being of the Institute of Chartered Accountants in England and Wales. Save in the event of manifest error or fraud, the Accountant’s determination of any matters referred to him under this clause shall be final and binding on the parties. Each party shall bear its own costs incurred in connection with the Accountant’s determination pursuant to this clause.

10.4 Commission shall not be payable for any of the following categories of Connections:

  1. a) Connections completed without adherence to the proper process or other conduct on the part of the Business Partner violates these Conditions; unless agreed in writing with the supplier;
  2. b) connections not processed correctly on the JEM portal;
  3. c) Connections using a SEC (unique sales entity code) not assigned by the Network Operator to the Supplier or the Business Partner as the case may be; and
  4. d) any commission paid to the Business Partner that the Business Partner is not entitled to pursuant to this clause shall be subject to Claw Back.

10.5 The Supplier reserves the right to withhold Commission for a period of up to 120 days for any Connection that the Business Partner does not provide satisfactory proofs for or where the Supplier determines the Connection may be subject to Claw Back.

10.6 In the event that a Customer does not reach the end of the term of their contract with the Network Operator and/or leaves the Network Operator early, then the Supplier shall be entitled to recover any relevant part of any Commission advanced to the Business Partner, including where any such Commission was advanced to allow the Business Partner to purchase handsets.

10.7 All new Business Partners will be required to provide Customer information forms and proofs in a form reasonably acceptable to the Supplier for all Connections secured during the first two months of a trading relationship with the Supplier, or such other time as the Supplier may request. Copies of this documentation should be attached to the relevant self-billing invoice to which any claim for Commission relates and returned to the Supplier in order to generate a Commission payment. The Supplier reserves the right to review any proof supplied and to require further information in connection therewith. Failure to supply the relevant documentation will delay the payment of Commission as no payments will be made without it. If after the expiry of the aforementioned two month period the Supplier is satisfied with the provision of supporting documentation by the Business Partner it may waive the requirement for Customer information forms and proofs provided that the Supplier reserves the right to reintroduce the requirement at any time by giving written notice to the Business Partner. The Supplier may also on a monthly or such other basis as it sees fit issue a proof audit requesting a random selection of copies of proofs taken at the point of registration of the Customer, and any such request must be returned to the Supplier within thirty (30) days of receipt by the Business Partner. Failure to supply the relevant documentation will delay the payment of Commission and may lead to a suspension or closure of the Business Partner’s account.

10.8 The Supplier may attend any visit (including follow up visits that may occur) that the Network Operator makes to the Business Partner for the purpose of reviewing the matter referred to in clause 10.5 and general compliance with the Network Operator’s rules and guidelines.

10.9 Claw Back will be applied to any Commission paid to the Business Partner where:

  1. a) a Connection has been identified as fraudulent (as determined by the Network Operator);
  2. b) no payment due on the Business Partner’s account has been received in cleared funds or where there are any outstanding payments due;
  3. c) any value added services are sold and subsequently disconnected within 120 days;
  4. d) loyalty promotions are sold and subsequently disconnected within 120 days;
  5. e) a Customer is disconnected within 120 days check of the Connection, having paid their first bill;
  6. f) the Customer breaches its contract with the Network Operator and the Network Operator suspends or terminates the Services for that Customer;
  7. g) the number of Connections in any month that becomes inactive is above 10%. A Connection shall be considered inactive if the Customer does not make an average of at least 10 minutes per month of outbound calls (or equivalent value data usage) over a rolling three month period, and the inactivity percentage is calculated by dividing the number of Connections which are inactive per month with the number of Connections made by the Business Partner in that same month.

10.10 Subject to clause 10.5 any Commission due will be paid twice monthly in arrears by BACS.

11 CONFIDENTIALITY

11.1 The Supplier and the Business Partner undertake and agree with each other that they shall not, either during the continuance of their trading relationship or at any time thereafter, (and shall procure that their employees, servants, or agents do not) disclose to any third party any Confidential Information without the prior written consent of the other party.

11.2 The Business Partner shall procure that all Personal Data disclosed to it by the Supplier or the Network Operator which may at any time come into the Business Partner’s knowledge, possession or control, shall be kept secret and confidential and shall not be used for any purposes other than those required or permitted by these Conditions and shall not be disclosed to any third party.

11.3 The provisions of clause 11.1 above shall not apply in respect of Confidential Information if:

  1. a) the receiving party is required to disclose such information by law or a Court, by a taxation authority or other authority of competent jurisdiction;
  2. b) the receiving party needs to disclose such information to its employees or professional advisers or subsidiary or parent companies in connection with the Contract, provided that the receiving party shall procure that such employees or professional advisers or subsidiary or parent companies are made aware of the confidential nature of such information and are bound by obligations of confidence no less strict than those set out in this clause 11 in respect of the same;
  3. c) the receiving party develops such information independently;
  4. d) the providing party has provided the receiving party with written authorisation for the disclosure of such information; or
  5. e) such information is or becomes publicly known through no fault of the receiving party.

11.4 The Business Partner is responsible for the security of any usernames or passwords it uses to access and use any system maintained or used by the Network Operator and the Supplier in relation to the Contract (the “System”) and such usernames and passwords shall be deemed to be the Confidential Information of the Network Operator or the Supplier. In particular, but without limiting the generality of the foregoing, the Business Partner shall ensure that:

  1. a) such usernames and passwords are not disclosed to any person, or for any purpose, other than to its own employees or agents for the purpose of accessing and using the System; and
  2. b) best practice security and technical measures are put into place and maintained by the Business Partner to ensure that the Business Partner’s employees or agents cannot:
  3. have access to, or use, the System; or
  4. inform a third party how to access or use the System, once such employee or agent ceases to be employed or engaged by the Business Partner.

11.5 The obligations of confidentiality in this clause 11 shall survive termination of the trading relationship between the Supplier and the Business Partner.

12 CUSTOMER DATA

12.1 In clauses 12 and 12A the following terms will have the following meanings: “Adequate Country or Sector” means (i) a country within the EEA, or (ii) a country, territory or sector (the latter, from the date the GDPR takes effect) within a country which has been subject to a finding, and continues to be subject to a finding for the duration of the Agreement (including any further period during which payments are due to the Distributor under this Agreement), of an adequate level of protection by the European Commission, excluding the United States of America; “Authorised Stockist Customer Data” means any Personal Data which an Authorised Stockist may collect or have collected (including indirectly via a third party) for its own purposes and be processing at the time of, or at a separate time to, the sale or promotion of Products and Services and excluding any the Network Operator Customer Data. “Contract Personnel” means all employees, agents and other third parties who may process the Network Operator Customer Data from time to time; “Controller”, “Data Subject”, “Personal Data”, “Process/Processing/Processed”, “Processor”, “Recipient” and “Supervisory Authority” will have the meanings ascribed to them in the Directive, and when applicable in the GDPR, and “Binding Corporate Rules” and “Personal Data Breach” will have the meanings ascribed to them in the GDPR (from the date the GDPR takes effect); “Controller to Processor Model Clauses” (Model Clauses) means the standard contractual clauses for the transfer of personal data to processors established in third countries, as adopted by the European Commission by its Decision C(2010) 593 of 5 February 2010 (as amended or replaced from time to time) and as set out in the European Commission’s relevant website (as amended or replaced from time to time): http://ec.europa.eu/justice/data-protection/ international-transfers/transfer/index_en.htm; “Data Protection Legislation” means collectively (i) the Directive, (ii) other applicable legislation of the European Union (including, but not limited to, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Privacy and Electronic Communications (EC Directive)(Amendment) Regulations 2011), (iii) applicable local legislation relating to the Processing of Personal Data including, but not limited to, the DPA pending its repeal by GDPR, and (iv) when applicable, the GDPR, and any successor legislation or regulation; “Customer Data” means any Personal Data which the partner may collect or have been collected (including indirectly via a third party) for its own purposes and be Processing at the time of, or at a separate time to, the sale or promotion of Products and Services and excluding any  Network Operator Customer Data. “Directive” means Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 (as implemented in the UK by the Data Protection Act 1998 (“DPA”)on the protection of individuals with regard to the processing of personal data and on the free movement of such data; “Network Operator Customer Data” means any Personal Data pertaining to a particular Customer or prospective customer (or any individual associated with such Customer or prospective customer) provided by the Network Operator to the Authorised Stockist and Processed by the Authorised Stockist on behalf of the Network Operator as part of the sale or promotion of the Products and Services pursuant to this Agreement; “GDPR” means General Data Protection Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/ EC, and any amendment or replacement to it; “Processing Appendix” means each appendix containing the details of the Processing of the Network Operator Customer Data under the Agreement as agreed by the Parties and incorporated into Appendix A, and subject to the terms of the Agreement as of the effective date specified in each Processing Appendix; “Sub-Processor” means any third party engaged to Process the Network Operator Customer Data for the purposes of this Agreement, including Authorised Stockists appointed in accordance with the Agreement; and “Transfer” or “Transferred” means the provision of access to and/or the transfer of Personal Data by or to a Recipient.

12.2 The Network Operator, Data Select Network Solutions Limited and the Authorised Stockist acknowledge and agree, for the purposes of this Agreement, that:

12.2.1 the Network Operator is the Controller of the Network Operator Customer Data and the Distributor is the Processor of the Network Operator Customer Data;

12.2.2 the Distributor is the Controller of the Distributor Customer Data; and

12.2.3 the relevant Authorised Stockist is the Controller of the Authorised Stockist Customer Data.

12.3 The Authorised Stockist acknowledges, warrants and undertakes that it is permitted to use the Network Operator Customer Data solely for the purposes, and duration, and in accordance with the terms, of this Agreement and solely as Processor for the Network Operator.

12.4 The Authorised Stockist, warrants and undertakes that it will (and will procure that its Contract Personnel and any Sub-Processors will):

12.4.1 process the Network Operator Customer Data as a Processor for the purposes described in this Agreement and in the Processing Appendix and in accordance with the Network Operator’s documented instructions (the “Permitted Purposes”), unless the and Authorised Stockist is required by laws of the EU or a member state of the EU (from time to time) to Process the Network Operator Customer Data otherwise, in which case the and Authorised Stockist will inform The Distributor of that legal requirement before the Processing of the Network Operator Customer Data, unless applicable law prohibits the Authorised Stockist from doing so on important grounds of public interest;

12.4.2 not disclose the Network Operator Customer Data in any circumstances except as permitted by the Agreement, including Clause 11.1 (Confidentiality), or required by applicable law or with the Network Operator’s prior written consent or at the specific written request of the Network Operator;

12.4.3 not use the Network Operator Customer Data for any purposes which may be inconsistent with those notified to Data Subjects in the Network Operator Privacy Policy (as amended from time to time);

12.4.4 implement appropriate technical and organisational measures (including the minimum security requirements set out in the Procedures Manual) to protect the Network Operator Customer Data against any unauthorised and unlawful Processing, including, but not limited to, against a Personal Data Breach. The Authorised Stockist will keep such measures under review and update them where necessary so that they remain appropriate and, at the Network Operator’s request, the Authorised Stockist will provide the Distributor with a written description of them. Such measures will include:

12.4.4.1 encryption and pseudonymisation of the Network Operator Customer Data, as appropriate, or as may be required by the Network Operator’s minimum security requirements set out in the Procedures Manual from time to time,

12.4.4.2 the ability to ensure the ongoing confidentiality, integrity, availability and resilience of relevant systems and Services that Process the Network Operator Customer Data,

12.4.4.3 the ability to restore the availability and access to the Network Operator Customer Data in a timely manner in the event of a physical or technical incident, including, but not limited to, a Personal Data Breach, and

12.4.4.4 a process for regularly testing, assessing and evaluating the effectiveness of the Authorised Stockist’s technical and organisational measures for ensuring the security of the Processing of the Network Operator Customer Data under this Agreement;

12.4.5 ensure that all Contract Personnel that Processes the Network Operator Customer Data are bound by duties of confidentiality. The Authorised Stockist will also ensure that all such Contract Personnel will Process the Network Operator Customer Data only as necessary for the Permitted Purposes and have undertaken training appropriate to their roles;

12.4.6 notify the Distributor without undue delay, and in any event, no later than 12 hours from the time the Authorised Stockist became aware that any Personal Data has been the subject of a Personal Data Breach and without prejudice to the Network Operator’s right to seek any other legal remedy under the Agreement, promptly and in any event within the timeframe reasonably required by the Network Operator:

12.4.6.1 investigate the Personal Data Breach and provide the Distributor with a detailed description of it and any other information that may reasonably requested relating to it, including, but not limited to, any information required by the Distributor and the Network Operator to fulfil its data breach reporting obligations under the Data Protection Legislation;

12.4.6.2 take appropriate actions to identify and mitigate the effects of any such Personal Data Breach and to prevent the recurrence of it, and notify the Distributor of those actions;

12.4.6.3 provide the Distributor with co-operation and assistance in relation to the Personal Data Breach and carry out any recovery or other action that may be reasonably requested to remedy the Personal Data Breach; and the Authorised Stockist may not engage or communicate with any third party (including a Supervisory Authority) in relation to any Personal Data Breach without the Distributor’s prior written approval provided that nothing in this sub-clause 12.5.6 shall prevent the Authorised Stockist from communicating with a Supervisory Authority to the extent necessary to comply with the Data Protection Legislation;

12.5.7 promptly notify and assist the Distributor if it becomes aware of:

12.5.7.1 any request from a Data Subject to exercise any of its rights under Data Protection Legislation (including providing the Distributor with a copy of the Personal Data in the format and media specified by the Network Operator); and

12.5.7.2 any other correspondence, enquiry, claim or complaint received from a Data Subject (or other person acting on their behalf) or Supervisory Authority in connection with the Processing of the Personal Data or either party’s compliance with the Data Protection Legislation under this Agreement, and will assist the Distributor, including by appropriate technical and organisational measures, and provide the Distributor with details of any such request, correspondence, enquiry, claim or complaint in writing to enable the Distributor to respond to the same within the timescales set out in any such request or notice, or as otherwise reasonably required by the Distributor and the Authorised Stockist will not respond to the same directly without the Distributor’s written approval;

12.5.8 immediately notify the Distributor in writing if it is of the opinion that compliance with an instruction of the Network Operator would infringe Data Protection Legislation;

12.5.9 keep complete and accurate written records of all Processing of the Network Operator Customer Data by it under the Agreement, including (without limitation) as a minimum a record of all Network Operator Customer Data held by the Authorised Stockist and any information to enable the Network Operator to verify and/or procure that the Authorised Stockist is in full compliance with its data processing obligations under this Agreement;

12.5.10 taking into account the nature of the Processing and the information available to the Authorised Stockist and within the timeframe reasonably required by the Distributor, assist Distributor to enable it to comply with its obligations under Data Protection Legislation;

12.5.11 upon expiry or termination of the Agreement, at the Distributor’s option, securely delete or return to the Distributor all copies of the Network Operator Customer Data in its possession or control, and promptly certify in writing to the Distributor that it has done so. Where the Authorised Stockist is required by EU law or EU member state law and/or other applicable local legislation to retain a copy of the Network Operator Customer Data, the Authorised Stockist will (i) promptly give written notice to the Distributor of that requirement and (ii) store that Personal Data in accordance with Data Protection Legislation;

12.5.12 comply with Data Protection Legislation at all times, and have due regard to any relevant guidance and codes of practice on the Processing of Personal Data, and not perform its obligations under the Agreement in such a way as to cause the Distributor or the Network Operator to breach any of its obligations under Data Protection Legislation.

12.6 Sub-Processors:

12.6.1 Subject to clauses 12.6.3 and 12.6.4 below, by entering into the Agreement, the Network Operator gives its specific written authorisation to the Distributor to use persons listed in Appendix A as Sub- Processors (Processing Appendix), if any.

12.6.2 The Distributor will seek the Network Operator’s prior written authorisation at least 30 days before the Distributor intends to engage any other Sub-Processor, remove an existing Sub-Processor or change the details of the Processing a Sub-Processor performs or will perform. If the Network Operator (acting reasonably) does not give its authorisation to the Distributor to use any such Sub- Processor, the Distributor will not use that Sub-Processor and will seek the Network Operator’s prior written authorisation to engage a replacement Sub-Processor within a reasonable time period.

12.7 No transfer to a non-Adequate Country or Sector:

12.7.1 The Authorised Stockist will not Transfer the Network Operator Customer Data from the UK or a country within the EEA to a non-Adequate Country or

Sector.

12.7.2 In the event that the Authorised Stockist proposes to Transfer the Network Operator Customer Data to a non-Adequate Country or Sector, the Authorised Stockist undertakes to do so only with the Distributor’s prior express written consent and acknowledges and agrees that such consent shall only be granted subject to

(i) the Authorised Stockist entering into the Controller to Processor Model Clauses on behalf of the Distributor or the Network Operator, or (ii) in the case of Transfers to the USA only, by reliance on the EU-US Privacy Shield program (adopted by the EC’s Decision (EU) 2016/1250 of 12 July 2016), provided that the Authorised Stockist warrants that the Recipient has self-certified its compliance with the US Department of Commerce and that the Authorised Stockist will notify the Distributor if such compliance is not maintained for any reason. If the Model Clauses or Privacy Shield are replaced, amended or no longer recognised as legally valid under Data Protection Legislation, the Authorised Stockist will promptly take such steps as may be mandated by the Distributor and the Network Operator to ensure that the Authorised Stockist’s Processing complies with Data Protection Legislation.

12.8 Within the timeframe reasonably required by the Distributor and the Network Operator, the Authorised Stockist will make available to the Distributor all information necessary to demonstrate its compliance with this clause 12 and/or the Data Protection Legislation and/or Schedule 8 and, upon the Distributor giving reasonable notice, allow the Distributor and the Network Operator (including third parties appointed by the Network Operator) and regulatory authorities (including a Supervisory Authority), (each an “Auditing Party” and together the “Auditing Parties”) to conduct an audit (including inspections) to enable the Auditing Parties to verify such compliance, and the Authorised Stockist shall provide all necessary co-operation in relation to any such audit. The reasonable cost and expense of any audit under this clause will be borne by the Network Operator, unless the audit identifies that the Authorised Stockist is not complying with its obligations under this clause 12 in which case the Authorised Stockist will be responsible for the full cost and expense of the audit (including professional fees and any Auditing Party’s fees or expenses).

12.9 Any breach of this clause 12 and/or Schedule 8 by the Authorised Stockist will be deemed to be a material breach of the Agreement. The Authorised Stockist will indemnify the Distributor and the Network Operator and each member of the Network Operator Group from and against any costs, losses, damages, proceedings, claims, expenses, demands, penalties or fines incurred or suffered by the Distributor and the Network Operator which arise as a result of (a) any breach of this clause 12 by the Authorised Stockist and/or (b) any breach of Schedule 8 and/or (c) Personal Data Breach that affected any Personal Data in the possession or under the supervision of the Authorised Stockist, its Contract Personnel, its agents or its Sub-Processors.

12.10 Unless required to do so by the Supervisory Authority (or any other competent authority) or by applicable law, the Authorised Stockist will not make any payment or any offer of payment to any Data Subject in response to any complaint or any claim for compensation arising from or relating to the Processing of the Network Operator Customer Data, without the Distributor’s and the Network Operator’s prior written approval.

12.11 In the event of any change in the Data Protection Legislation subsequent to the date of signature of the Amendment Agreement, the Network Operator, the Distributor and Authorised Stockist will work together to agree on such amendments to the Agreement as may be reasonably requested to ensure that the Processing of Customer Data under the Agreement continues to comply with the Data Protection Legislation.

12.12 This clause 12 will survive termination of the Agreement.

12A INTELLECTUAL PROPERTY IN THE AUTHORISED STOCKIST CUSTOMER DATA AND THE NETWORK OPERATOR CUSTOMER DATA

12A.1 the Network Operator shall own all Intellectual Property rights, title and interest in the Network Operator Customer Data and all databases in relation thereto.

12A.2 The Distributor shall own all Intellectual Property rights, title and interest in the Distributor Customer Data and all databases in relation thereto (other than the  Network Operator Customer Data).

13 LIABILITY

13.1 Subject to clause 13.4, the Supplier shall not be liable in any circumstances whether under the law of contract, tort (including without limitation negligence), breach of statutory duty or otherwise for any indirect or consequential loss howsoever caused arising under or in connection with the Contract or arising out of the purchase, possession, sale, rental, advertising or use by the Business Partner of any Product or Service.

13.2 Subject to clause 13.4, the Supplier shall not be liable in any circumstances for any:

  1. a) loss of profits, revenue, business, contracts, anticipated savings, or any other financial loss; or
  2. b) loss of profits; or
  3. c) loss of goodwill, however arising and whether such loss is direct or indirect.

13.3 In the event that any Product is in breach of the warranty set out in clause 5.1, the sole and exclusive remedy of the Business Partner shall be such credit as the Supplier is entitled to receive from the manufacturer (less any depreciation and/or price protection that the Business Partner has benefitted from, and provided the Product in question has been returned to the Supplier in accordance with its instructions).

13.4 Nothing in these Conditions limits or excludes the Supplier’s liability for death or personal injury caused by its negligence and/or the Supplier’s liability for fraudulent misrepresentation.

13.5 The limitations set out in this clause have been agreed in recognition of the parties’ respective roles, benefits and obligations and both parties acknowledge that they are reasonable.

13.6 This clause 13 shall survive termination of the Contract.

14 TERMINATION

14.1 The Supplier may at any time by giving notice in writing to the Business Partner (and in reciprocation) terminate the Contract with immediate effect:

  1. a) if the Business Partner commits a material breach not capable of remedy; or
  2. b) if the Business Partner commits a material breach or persistent immaterial breach of any of these Conditions and has not complied with a notice specifying the breach and requiring its remedy within thirty (30) days;
  3. c) if the Business Partner is unable to pay its debts (within the meaning of Section 123 of the Insolvency Act 1986) or if any step is taken (by the Business Partner or by any third party in respect of the Business Partner) to: initiate a composition, scheme, or other arrangement with any of its creditors; commit any act of bankruptcy or appoint a trustee in bankruptcy; resolve or petition to wind up the Business Partner; appoint an administrator, receiver or manager over all or any part of the Business Partner’s business or assets; or if any analogous event occurs in any jurisdiction.

14.2 Without limiting its other rights or remedies, the Supplier may suspend deliveries of Products under the Contract or any other contract between the Supplier and the Business Partner:

  1. a) if the Business Partner fails to pay any undisputed amount due under the Contract on the due date for payment; or
  2. b) the Business Partner becomes subject to any of the events listed in clause 14.1 c), or the Supplier reasonably believes that the Business Partner is about to become subject to any one of them.

14.3 On termination of a Contract for any reason:

  1. a) the Business Partner shall immediately pay to the Supplier all of the Supplier’s undisputed outstanding unpaid invoices and interest and, in respect of the Products supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Business Partner immediately on receipt;
  2. b) if the Network Operator has issued a do not deal notice all Commission payments will automatically cease;
  3. c) the Supplier reserves the right to stop ongoing payments of Commission;
  4. d) the Supplier reserves the right to withhold any and all Commissions that may be due to the Business Partner for up to 12 months to make adequate provision for prospective Clawback;
  5. e) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
  6. f) clauses which expressly or by implication have effect after termination shall continue in full force and effect.

15 FORCE MAJEURE

15.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

15.2 The Supplier shall not be liable to the Business Partner as a result of any delay or failure to perform its obligations under the Contract as a result of a Force Majeure Event.

16 AUDIT

16.1 The Business Partner hereby grants the Supplier and/or its authorised agents the right of access on reasonable notice at all reasonable times during the Business Partner’s normal business hours to the premises of the Business Partner, its business records and its computer and support systems for the purposes of the Supplier monitoring and/or carrying out an audit of the Business Partner’s compliance with the Contract; and

16.2 The Business Partner shall endeavour to remedy any breaches highlighted by such audit promptly and at its sole expense.

17 PROTECTION OF GOODWILL

17.1 In order to protect the legitimate business interests of the Supplier, the Business Partner covenants with the Supplier that it shall not solicit or entice away (or attempt to solicit or entice away) from the Network Operator or any group company of the Network Operator the business or custom of any Restricted

Customer.

17.2 In order to further protect the legitimate business interests of the Supplier, and in consideration for the Supplier entering into this Agreement, the Business Partner covenants with the Supplier not to assign, sell, transfer or in any way dispose of a Customer Database except to a firm, company or person who is a business partner of the

Supplier.

17.3 The Business Partner shall be bound by the covenants set out in Clause 17.1 and Clause

17.2 during the term of this agreement, and for a period of 12 months after termination of this agreement however so arising.

17.4 The parties hereby acknowledge that covenants in Clauses 17.1 and 17.2 reflect the legitimate business interest of the Supplier, and in particular that Connections made under this agreement may become lossmaking for the Supplier in the event that the Business Partner breaches such covenants.

17.5 The covenants in clauses 17.1 to 17.2 are intended for the benefit of, and shall be enforceable to the fullest extent permitted by law, by the Supplier and each of its group companies from time to time and shall apply to actions carried out by the Business Partner (or any member of the Business Partner’s group) in any capacity (including as shareholder, partner, director, principal, consultant, officer, agent or otherwise) and whether directly or indirectly, on its own behalf or on behalf of, or jointly with, any other person.

17.6 Except as expressly provided in 17.5, a person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

17.7 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this agreement are not subject to the consent of any other person.

18 GENERAL

18.1 Assignment and other Dealings

  1. 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 under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party, with prior written notice
  2. b) The Business Partner shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

18.2 Notices

  1. a) Any notice or other communication given to a party under or in connection with 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 or sent by prepaid first class post or other next working day delivery service, or by commercial courier, fax or e-mail.
  2. 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 18.2 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; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
  3. c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

18.3 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.

18.4 Waiver

A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its 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.

18.5 No Partnership or Agency Nothing in a Contract or these Conditions is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any

way.

18.6 Third Parties

A person who is not a party to a Contract shall not have any rights to enforce its terms.

Variation

Except as set out in these Conditions, no variation of a Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Supplier and the Business Partner.

18.8 Governing Law

The Contract and these Conditions and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

18.9 Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Conditions or any Contract or its subject matter or formation (including noncontractual disputes or claims).

 

APPENDIX A

PROCESSING APPENDIX 1

This Processing Appendix describes the types of Network Operator Customer Data, the purposes for which they may be Processed by the Distributor, the Data Subjects,

the mandatory retention requirements that have to be applied to that the Network Operator Customer Data, the location of the data processing and a list of Sub-Processors.

Effective Date: the date of this Amendment Agreement

Services: are defined in Clause 1.1. of the Agreement.

Data Subjects: Customers and prospective customers

Breakdown of the Network Operator Customer Data:

Sub-Processors: Authorised Stockists appointed by the Distributor in accordance with the Agreement as at the date of this Amendment Agreement.

Location: Within the EEA

1 Name, gender, date of birth and contact details promotion and sale of services that the Distributor is authorised to sell under the Agreement for the duration of Agreement or earlier if Benefits cease to be payable in respect of the Customer

2 Bank details promotion and sale of services that the Distributor is authorised to sell under the Agreement for the duration of Agreement or earlier if Benefits cease to be payable in respect of the Customer

3 MSISDN promotion and sale of services that the Distributor is authorised to sell under the Agreement for the duration of Agreement or earlier if Benefits cease to be payable in respect of the Customer

4 Service plan and Contract’s start date and end date promotion and sale of services that the Distributor is authorised to sell under the Agreement for the duration of Agreement or earlier if Benefits cease to be payable in respect of the Customer

5 Upgrade eligibility date promotion and sale of services that the Distributor is authorised to sell under the Agreement for the duration of Agreement or earlier if Benefits cease to be payable in respect of the Customer

6 Marketing permission status promotion and sale of services that the Distributor is authorised to sell under the Agreement for the duration of Agreement or earlier if Benefits cease to be payable in respect of the Customer

 

APPENDIX B

GENERAL CONDITION C8

This document sets out the Distributor’s obligations in respect of GC C8. For the avoidance of doubt the obligations in this document apply equally to business conducted under any Trade Mark.

  1. The parties acknowledge that:

1.1. the Network Operator is a Communications Provider and Mobile Service Provider; and

1.2. Authorised Stockists are individually Mobile Service Retailers.

  1. Unless the context otherwise requires, words and expressions used in this document have the meanings set out in GC C8, which are reproduced in the notes to this document for convenience.
  2. The parties acknowledge that:

3.1. Authorised Stockists acts as agents on the Network Operator’s behalf in certain respects, as further set out in the Agreement;

3.2. Authorised Stockists shall be bound by certain matters in relation to GC C8, as further set out below; and

3.3. the Network Operator shall be entitled to Claw Back all Benefits paid or payable in respect of any Connection, Upgrade or other transaction as a result of which Benefits become payable where the Network Operator reasonably believes that such Connection, Upgrade or other transaction have been conducted in a manner in breach of GC C8.

  1. In the event of any inconsistency between this document and the rest of the Agreement, nothing in this document shall relieve the Authorised Stockist of their respective obligations as set out elsewhere in the Agreement.
  2. Section 8.3 and Sections 9 to 12 of this document do not apply to Prepaid Mobile Services and SIM Only Contracts.
  3. Obligations with regards to Mobile Service Retailers Each Authorised Stockist must:

6.1. ensure that any information it provides to Relevant Customers is accurate and not misleading;

6.2. ask Relevant Customers if they also want the information referred to in Section 8.1 above to be provided in a Durable Medium and, if they do, provide such information in that form; and

6.3. create and keep records about the sale of the Network Operator’s Relevant Mobile Services for a period of not less than six months and, where applicable, about a related sales incentive as referred to in GC C8.11, for a period of not less than ninety days after the date by which this sales incentive must be fully redeemed, but not less than six months.

  1. Relevant Mobile Services – Information at Point of Sale Each Authorised Stockist shall ensure that, before entering into or amending a contract for a Relevant Mobile Service, the Relevant Customer:

7.1. is authorised to do so;

7.2. intends to enter into this contract; and

7.3. is provided with the information set out below in a clear, comprehensible and accurate manner in a Durable Medium which is available or accessible to the Relevant Customer or, where the Relevant Customer enters into or amends the contract during a sales call, by telephone:

(a) the identity of the legal entity the Relevant Customer is contracting with; its address and telephone, fax and/or e-mail contact details; and

(b) a description of the Relevant Mobile Service; the key charges (including minimum contract charges, any early termination charges, if applicable and if the Relevant

Customer is a Consumer, the Access Charge to be applied); payment terms; the existence of any termination right, including termination procedures; the likely date the Relevant Mobile Service will be provided, in case the provision of the Relevant Mobile Service is not immediate; and any Fixed Commitment Period. Where the Relevant Customer enters into a contract during a sales call, in addition to the oral provision of this information the Authorised Stockist shall ensure that this information is sent to the Relevant Customer in good time following the call in a Durable Medium.

  1. Relevant Mobile Services – Records Retention The Authorised Stockist must create and keep records about the sale of Relevant Mobile Services for a period of not less than six months and, where applicable, about a related sales incentive as referred to in Condition 8.11, for a period of not less than ninety days after the date by which this sales incentive must be fully redeemed, but not less than six months. Such records must include the date of the sale, the means through which the contract was entered into and the place where the contract was entered into, where applicable.
  2. Mobile Service Retailers – Training The Authorised Stockists must ensure that processes are in place which assure that the Authorised Stockists its employees and agents are appropriately trained to comply with this document, including without limitation arranging at its own cost for its employees or agents to attend such training courses as directed from time to time by the Network Operator.
  3. Mobile Service Retailers – Sales Incentives – Information at Point of Sale The Authorised Stockists shall ensure that, where the Authorised Stockist offers to a Relevant Customer a sales incentive, from which the Relevant Customer does not benefit immediately and which the Relevant Customer is entitled to receive after entering into the contract for the Relevant Mobile Service, the terms and conditions of such an offer are not unduly restrictive and that a Relevant Customer is provided with the following information in a clear, comprehensible and accurate manner in a Durable Medium, or, where the sales incentive offer is made during a sales call, by telephone:

(a) the identity of the legal entity which makes the sales incentive offer and undertakes to meet the obligation(s) tied to this offer; its address; and telephone, fax and/or e-mail contact details;

(b) a description of the sales incentive itself; And

(c) the terms and conditions of the sales incentive, including a detailed and clear explanation as to the process the Relevant Customer has to follow to obtain the sales incentive. Where the sales incentive offer is made during a sales call, in addition to the oral provision of this information, the Authorised Stockists shall ensure that this information is sent to the Relevant Customer in good time following the call in a Durable Medium.

  1. GC C8 Breach. Data Select Network Solutions shall be entitled to Claw Back all Benefits paid or payable in respect of any Connection, Upgrade or other transaction as a result of which Benefits become payable where Data Select Network Solutions reasonably believes that such Connection, Upgrade or other transaction has been conducted in a manner in breach of GC C8. Notes to Schedule 4:

GC C8

(a) “the Act” means the Communications Act 2003;

(b) “Apparatus” includes any equipment, machinery or device and any wire or cable and the casing or coating for any wire or cable;

(c) “Communications Provider” means a person who (within the meaning of section 32(4) of the Act) provides an Electronic Communications Network or Premier BT Business Partner Terms and Conditions 225932.0001/6226872

(d) “Consumer” means any natural person who uses or requests a Public Electronic Communications Service for purposes which are outside his or her trade, business or profession;

(e) “Domestic or Small Business Customer” means in relation to a Communications Provider, a Customer of that Provider who is neither (i) himself a Communications Provider; nor (ii) a person who is such a Customer in respect of an undertaking carried on by him for which more than ten individuals work (whether as employees or

volunteers or otherwise);

(f) “Durable Medium” means paper or email, or any other medium that (a) allows information to be addressed personally to the recipient; (b) enables the recipient to store the information in a way accessible for future reference for a period that is long enough for the purposes of the information; and (c) allows the unchanged reproduction of the information to be stored;

(g) “End User” means in relation to a Public Electronic Communications Service means (a) a person who, otherwise than as a Communications Provider, is a Customer of the provider of that service; (b) a person who makes use of the service otherwise than as a Communications Provider; or (c) a person who may be authorised, by a person falling within paragraph (a) so to make use of the service. (h) “Fixed Commitment Period” means a period beginning on the date that contract terms agreed by a Communications Provider and a Subscriber take effect and ending on a date specified in that contract, and during which the Subscriber is required to pay for services and facilities provided under the contract and the Communications Provider is bound to provide them and in respect of which the Subscriber may be required to pay a charge to terminate the contract;

(i) “Mobile Communications Service” means a Public Electronic Communications Service consisting in the conveyance of Signals, by means of a Public Electronic Communications Network, through the agency of Wireless Telegraphy to or from Apparatus designed or adapted to be capable of being used while in motion;

(j) “Mobile Service Provider” means a Communications Provider that provides a Mobile Communications Service;

(k) “Mobile Service Retailer” means any person who sells or markets a Mobile Communications Service directly to a Domestic or Small Business Customer;

(l) “Prepaid Mobile Service” means a Mobile Communications Service for which the Relevant Customer pays charges in advance of the service being provided;

(m) “Publicly Available Telephone Service” means a service made available to the public for originating and receiving directly or indirectly, national or national and international calls through a number or numbers in a national or international telephone numbering plan;

(n) “Public Electronic Communications Network” means an Electronic Communications Network provided wholly or mainly for making Electronic Communications Services available to members of the public;

(o) “Public Electronic Communications Service” means any Electronic Communications Service that is provided so as to be available for use by members of the public;

(p) “Relevant Customer” has the meaning set out in GC C8 (as amended or replaced from time to time);

(q) “Relevant Mobile Services” has the meaning set out in C8.1(b) of GC C8 (as amended or replaced from time to time);

(r) “SIM Only Contract” means a contract for a Mobile Communications Service where the only physical equipment the Customer obtains from the Mobile Service Provider is a Subscriber Identity Module (‘SIM’) card and the notice period for cancelling this contract does not exceed one calendar month; and

(s) “Subscriber” means any End-User who is party to a contract with a provider of Public Electronic Communications Services for the supply of such services;

(t) “Wireless Telegraphy” means the emitting or receiving, over paths that are not provided by any material substance constructed or arranged for the purpose, of electromagnetic energy of a frequency not exceeding 3,000 gigahertz that: (a) serves for conveying messages, sound or visual images (whether or not the messages, sound or images are actually received by anyone), or for operating or controlling machinery or apparatus; or (b) is used in connection with determining position, bearing or distance, or for gaining information as to the presence, absence, position or motion of an object or of a class of objects.