1.1 The Customer (as defined in clause 1.2 below understands that in order to receive the Equipment/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 Olive which governs the supply of the Equipment and or Services from Olive to the Customer; and
1.1.2 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 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 ordering the Equipment/Services and/or the Airtime Services whose full details are set out in 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 (“the Old Tariff”) 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 Old Tariff and the phrase “Downward Migrated shall be construed accordingly;
“Equipment” means mobile telecommunications handsets and other associated equipment;
“Minimum Terms” means the minimum period of time which the Customer has agreed to maintain (a) Connections(s) under the Airtime Agreement;
“Monthly Subsidy 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;
“Olive” means Olive Business Solutions Limited, registered in England number 04648708 with registered address Olive House, Mercury Park, Wycombe Lane, Wooburn Green,
Buckinghamshire HP10 0HH
“Order Form” means the order form that sets out the Customer’s order for Services and/or Equipment from Olive.
“Services” means any services ordered by the Customer and provided by Olive;
“Signatory” means the individual signing section 3 of the Customer Fulfillment Form;
and “Subsidy” means the sum payable by Olive to the Customer as is determined by Olive in its sole discretion, taking into consideration the number of Connections which the Customer is taking out and the applicable tariffs and the Minimum Term which the Customer is prepared to enter into.
Unless other terms and conditions are expressly accepted by Olive by means of a specific written amendment signed by a director of Olive 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 by the Customer to Olive.
3.1 In consideration of the Customer entering into the Airtime Agreement, Olive undertakes to supply to the Customer such Equipment/Services as is ordered by the Customer from time to time.
3.2 Olive shall use its reasonable endeavours to deliver the Equipment on the date agreed by 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 Olive until the earlier of either (i) the expiry of the Minimum Term or (ii) the date on which all undisputed invoices relating to the same (including VAT) have been paid in full to Olive.
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 Olive 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 Wish Communications
Limited within this period then the Customer will be deemed to have accepted the Equipment and Olive shall have no liability to the Customer whatsoever in respect of such Equipment.
4.1 Olive shall use its reasonable endeavours to provide the Services on the dates agreed by the parties.
4.2 Olive 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 to Olive for each item of Equipment and any Services ordered by and provided to the Customer within 5 days from the date of a Olive invoice.
5.2 Olive reserves the right at its absolute discretion to levy a surcharge for all credit card transactions in accordance with Olive tariff applicable from time to time, a copy of which will be available at Olive principal place of business
5.3 Interest at an annual rate of 5% above Barclays Bank plc base rate from time to time will accrue daily and be calculated on a daily basis on overdue accounts from the due date until payment.
6.1 Subject to the remaining provisions of this clause 6, Olive may acting in its sole discretion, provide the Customer with a Subsidy as a result of the Customer entering into the Airtime Agreement with the network/service provider.
6.2 In the event that Olive does provide the Customer with a Subsidy this may be provided to the Customer at the sole discretion of Olive, using the following methods set out below or any combination of them:
6.2.1 deducting this from the value of the Equipment or the Services which the Customer orders from Olive; 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;
(a) in full after the expiry of 6 months from the Connection date where the applicable Minimum Term is 12 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 Olive being provided with a copy of the relevant invoice from such network/service provider.
6.3 Any Subsidy (or installment payment of a Subsidy) payable by Olive within 30 days from the date that the Customer presents an invoice to Olive (save that no invoice shall be necessary where the Subsidy
is being deducted from the price of the Equipment/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 installment payment of the Subsidy) is due;
6.3.2 where the invoice is payable in installments 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 3 months from 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 during the Minimum Term; and or
(c) amount claimed is being deducted from the price of Equipment/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 timescales set out in clause 6.34 (a) to (c) (inclusive) then the Customer’s 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 to the Customer from time to time by Olive.
6.4.2 Olive 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 Olive 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 installment 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 Downward Migrated during the Minimum Term; or
6.5.3 the relevant network/service provider (for whatever reason) reclaims or withholds in full or in part as a direct result of the actions of the Customer from Olive any of the connection commission paid to
Olive by the network/service provider in respect of that Connection; and the proportion of the Subsidy that Olive 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 or the Downward Migration.
6.6 In the event of cancellation prior to connection or the termination disconnection or transfer away from Olive prior to the expiry of the minimum term the Customer shall either:
6.6.1 pay the early termination fee equal to the fee detailed on the signed Order Form; or
6.6.2 in the absence of such a predefined termination fee it shall be calculated as: Average Spend per Connection (calculated as the charges as invoiced under the Airtime Agreement during the Term divided by the number of Connections connected at the time of termination) multiplied by the number of months remaining in the Term for each terminated Connection.
6.7 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 Olive invoice.
7.1 The Customer acknowledges that Olive is not the manufacturer of the Equipment, and accordingly, that the warranty given by Olive is limited as follows. If any Equipment is proved to the reasonable satisfaction of Olive to be defective in material or workmanship then:
7.1.1 if the Equipment is returned to Olive within 14 days of the date of their delivery then Olive 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 Olive replaces Equipment or provides substitute goods, the original Equipment returned by the Customer will belong to Olive, provided that these obligations on the part of Olive will not apply where:-
(a) the Equipment has been altered in any way whatsoever or has been subjected to misuse or unauthorised repair; or
(b) the Equipment has been improperly installed or connected (unless Olive carried out such installation and connection); or
(c) the Customer has failed to observe any maintenance requirements relating to the Equipment 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 Olive hereby excludes all conditions, warranties and stipulations express or implied, statutory, customary or otherwise which but for such exclusion would or might subsist in favour of the Customer.
8.1 Olive liability for loss or damage of any kind whatsoever (however such liability arises and whether in contract, tort, for 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 Olive; shall in no circumstances exceed the sum paid by the
Customer to Olive in respect of the Equipment or services with which such liability arises provided that nothing in this clause shall limit or exclude liability for death or personal injury arising from Olive negligence.
8.2 Save as otherwise provided, Olive 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 Olive negligence) whether consequential or otherwise including but not limited to loss of profits, pure economic loss, loss of business and depletion or goodwill.
8.3 Save for death or personal injury resulting from Olive negligence, Olive shall not be liable to the Customer for any loss as a result of electro magnetic frequencies or any similar result from use of the Equipment.
9.1 Olive will be entitled to assign, sub-contract or sub-let this Agreement or any part thereof. The Customer shall not be permitted to assign or sub-let this
Agreement or any part thereof without the written consent of Olive.
9.2 Failure by Olive to enforce any of the provisions of this Agreement will not be construed as a waiver of any of its rights hereunder.
9.3 Olive shall be entitled to amend any of the terms of this Agreement upon the giving of 7 days written notice to the Customer.
9.4 In relation to all obligations of the Customer under this Agreement, the time of performance is of the essence.
9.5 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 or part is found by any competent court or authority to be legal, 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.
9.6 Each of the parties hereto is an independent contractor and nothing contained in this Agreement shall be construed to imply that there is any relationship between the parties of partnership or of principal/agent or of employer/employee.
9.7 The legal construction of these clauses shall not be affected by their headings which are for convenience of reference only.
9.8 Any demand, notice or communication shall be deemed to have been duly served.
9.8.1 If delivered by hand, when left at the proper address for service
9.8.2 if given or made by prepaid first class post, 48 hours after being posted (excluding Saturdays, Sundays and public holidays)
9.8.3 if given or made by fax at the time of transmission subject to receipt of the appropriate “clear” transmission report provided that where in the case of delivery by hand or transmission by fax such delivery or transmission occurs either after 4.00 p.m. on a Business Day or on a day other than a Business Day service shall be deemed to occur at 10.00 a.m. on the next following Business Day (such times being local time at the address of the 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 fax addressed to the recipient at its registered office or its address stated in this Agreement (or such other address or fax number as may be notified in writing from time to time)
9.9 No variation to this Agreement may be made unless set out in writing and signed by a director of Olive.
9.10 If contrary to the declaration in section 3 of the customer fulfillment form the signatory does not have the actual authority of the customer to sign the form then the signatory shall be personally responsible for any liability which the customer would have been liable but for the lack of authority of the signatory.
9.11 Any such personal liability shall be joint and several with such liability the customer may have as a result of the signatory acting with the apparent authority of the customer.
9.12 In the event that the customer was not entitled to enter into this agreement for whatever reason then the signatory shall be liable as if the agreement had been entered into personally by the signatory.
9.13 This Agreement shall be governed by English law and the parties submit to the exclusive jurisdiction of the English Courts.
Version 1.3 November 2014