1            INTRODUCTION

1.1         The Contract shall be the governed by English Law. All disputes of any nature shall be settled by an English court of competent jurisdiction.

1.2         Each of these Conditions shall be treated as separate and distinct and any part held by a court to be unenforceable shall be considered removed and shall not affect the validity of the remainder. No particular Condition shall be taken as limiting, prejudicing or affecting in any way any other Condition or any right, remedy or entitlement of the Company under general law.

1.3         The Company shall be entitled at any time and from time to time to discontinue or alter the range or specification of any of the Goods it provides. The Company shall be entitled to vary the prices of the Goods it provides in accordance with these Conditions. Any such amendments to the range, specifications or prices shall either be published or be notified by the Company to the Buyer from time to time and shall be effective in respect of all orders placed by the Buyer and accepted by the Company after the earlier of the date of such publication or notification.

2            application of Conditions

2.1         A binding contact shall not come into existence between the Company and the Buyer unless and until the Company issues a written order acknowledgement to the Buyer, or the Company delivers the Goods to the Buyer (whichever occurs earlier).

2.2         These Conditions shall (a) apply to and be incorporated in the Contract; and (b) prevail over any inconsistent terms or conditions referred to in the Buyer's purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.

2.3         These Conditions will be subject to the relevant Product Specific Terms and Conditions as applicable, which will prevail over these Conditions to the extent of any conflict.

2.4         To the extent that the Goods sold by the Company are designed to be connected to a Network, these Goods will be subject to the relevant Network terms and conditions available at www.three.co.uk (3), www.o2.co.uk (O2), www.orange.co.uk (Orange), www.t-mobile.co,uk (T-Mobile), www.virginmobile.com (Virgin), http://online.vodafone.co.uk (Vodafone) as the case may be as applicable from time to time. For the avoidance of doubt these Conditions and the relevant Product Specific Terms and Conditions will prevail over those Network terms to the extent of any direct conflict.

3            PRICES

3.1         The price for the Goods shall be as set out in the Company's order acknowledgment or invoice, but the Company reserves the right at its option to charge or credit to the Buyer the amount of any error or omission in the price as so set out.

3.2         The Buyer agrees that the Company shall have the right at any time before delivery of the Goods to withdraw any discount and/or to revise any price quoted if, after the Company's acceptance of any order, (a) there is any increase or decrease in the Company's generally applicable prices for such (or similar) goods or (b) there is an increase or decrease in the cost to the Company of supplying the Goods howsoever caused.

3.3         Unless otherwise specified, prices are exclusive of VAT and any other duties or taxes payable by the Buyer.

3.4         Time for payment shall be of the essence.

4            PAYMENT TERMS

4.1         Payment is due in full in pounds sterling without any deduction whether by way of set off or otherwise within 30 days of the date of invoice.

4.2         If the Buyer fails to pay any amount payable by it under these Conditions and that payment is not the subject of a bona fide dispute between the parties, then, without prejudice to any rights or remedies available to the Company, the Company may charge interest on the overdue amount from the due date up to the date of actual payment, at the rate of four per cent per annum above Barclays Bank plc base rate from time to time and such interest shall be paid immediately on demand.

4.3         No payment shall be deemed to have been received until the Company has received cleared funds.

4.4         All payments payable to the Company under the Contract shall become immediately due upon termination.

4.5         New Trade Accounts will be initially opened as a credit/debit card payment account only until successful trade references have been received. The Company will endeavour to provide an account within seven (7) days.

4.6         In the event that a credit/debit card is declined there will be an administrative charge of £10.00. Direct Debits declined will be subject to an administrative charge of £15.00.          

4.7         Any payments due to the Company at the time of any trade account being cancelled by either party will be made via the credit/debit card detailed on the credit/debit card authorisation form.

4.8         All invoices shall be final and binding unless within 14 days of the invoice date the Buyer objects in writing to the Company stating the reasons for the objection.

5            DELIVERY AND RISK

5.1         Unless otherwise agreed in writing delivery of the Goods will take place at the Buyer's place of business.

5.2         Risk in the Goods will pass to the Buyer on delivery.

5.3         Any claims for non-delivery, damage to, or shortages of the Goods must be made in writing to the Company within 5 working days of delivery (or in the case of non-delivery within 7 days of the invoice date) giving full particulars of the alleged defect(s), otherwise the Buyer shall be considered to have accepted delivery. Any damaged packaging and contents must be held for inspection by the Company or the carrier. No Goods or parts thereof may be returned to the Company for any reason unless in accordance with the Company's Returns Authorisation Procedure (as notified from time to time to the Buyer).

5.4         The Company shall not be liable to the Buyer for any damage to or apparent defect in the Goods unless the Buyer complies with Condition 5.3.

5.5         While the Company will use reasonable endeavours to meet any given delivery date any such date is only intended to be an estimate, and time shall not be made of the essence by notice.

5.6         The Company reserves the right to make deliveries in instalments. Goods in each instalment shall be considered sold under a separate contract which may be invoiced separately. No cancellation or termination of any contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other contract or instalment.

5.7         If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions (a) risk in the Goods shall pass to the Buyer; (b) the Goods shall be deemed to have been delivered; and (c) the Company may store the Goods until delivery at the Buyer's cost.

6            PASSING OF PROPERTY

6.1         Ownership of the Goods shall not pass to the Buyer until all amounts due or owing to the Company by the Buyer, on whatever account, have been paid to the Company in full. The Buyer shall hold as bailee for the Company all Goods in respect of which title has not passed and shall store them separately so that they remain identifiable as the Company's property.

6.2         If the Buyer fails to pay the price when due, commits an act of bankruptcy, has a receiving order made against him or makes any arrangement with or assignment for creditors, or if distress or execution is levied or threatened upon any of the Buyer's property or any judgment against the Buyer remains unsatisfied for more than 14 days or (if the Buyer is a body corporate) if a resolution or petition for winding up is presented, the Company may recover and shall be considered to have requested the Buyer to return all Goods which have not become the Buyer's property.

6.3         For the purposes of recovery the Buyer shall permit the Company, its employees and agents to enter any place where any Goods which the Company is entitled to recover are or are believed to be situated and shall on demand pay the Company the cost of removal and transport.

6.4         The Buyer may resell Goods in the ordinary course of business on strictly first in, first out basis, although property will not be deemed to have passed unless and until the Buyer has paid in full for the Goods, unless and until the Company's right to repossess arises, or the Company directs the Buyer not to resell any of the Goods.

6.5         In any resale of the Goods before property has passed the Buyer shall, as regard the Buyers purchaser, act as principal but shall hold in trust for the Company so much of the resale proceeds as is necessary to discharge the Buyer's indebtedness to the Company. Nothing in this Condition shall affect the passing of risk or entitle the Buyer to return any Goods or refuse or delay payment.

7            DEFECTIVE PRODUCT AND RETURNS

7.1         Any discrepancy between the Goods and their description must be reported within 24 hours of receipt.

7.2         Where the Company supplies defective Goods which are covered by a warranty the Company will fulfil its obligations (where applicable) pursuant to that warranty. Where the Company supplies defective Goods which are not covered by a warranty the Company shall have no further liability with respect to the Goods, which will be returned to the Buyer at the Buyer's cost.

7.3         Notwithstanding any other of these Conditions, no credits or refunds are issued for returned Goods.

7.4         It is the Buyer's responsibility to arrange for all Goods to be returned and to pay for any costs incurred. All Goods must be returned in the original packaging with all peripherals as supplied. It is the Buyer's responsibility to ensure proof of postage is obtained in case of dispute.

7.5         A returns form must be completed in full, including a Returns Authorisation Number obtained from 01327 304 265/6, and emailed to: tradereturns@shebanguk.net or faxed to: 01327 304 272. Any form received without an Authorisation Number issued by the Company will not be accepted.

7.6         The Buyer shall indemnify the Company against costs incurred by the Company where Goods prove not to have been defective.

7.7         The Company shall not be liable for defects in Goods caused by fair wear and tear, abnormal conditions of storage by the Buyer or use or any act neglect or default of the Buyer or any third party.

7.8         General Conditions of Entitlement

7.9         The Buyer acknowledges that it is fully aware of General Condition 23 of the General Conditions of Entitlement. For the avoidance of doubt, the Buyer's failure to comply with any provision of General Condition 23 of the General Conditions of Entitlement shall be deemed a material breach of these Conditions entitling the Company to terminate any supply relationship and/or to suspend and/or claw back any Commissions.

7.10       The Buyer undertakes that in the performance of its obligations under these Conditions it shall ensure that in the sale, advertising, promotion and marketing of the Products, Services and Post-Pay Contracts, it shall:

7.10.1                 not engage in dishonest, misleading or deceptive conduct;

7.10.2                 not engage in aggressive conduct;

7.10.3                 not contact any Customer or potential Customer in an inappropriate manner; and

7.10.4                 create and keep records about the sale of the Post-Pay Contracts and/or Services for a period of not less than six months and where applicable, about a related sales incentive (as referred to in Condition 3.9) for a period of not less than ninety days after the date by which this sales incentive has to be fully redeemed, but not less than six months.

7.11       Within 15 Working Days of the Company's request to do so, the Buyer will provide to the Company any evidence reasonably requested by the Company to monitor the compliance of the Buyer with Condition 7.10, including copies of sales and marketing material and a right to access the Buyer's premises to monitor the sales activities of the Buyer. For the avoidance of doubt, such evidence shall be deemed to be Confidential Information and the Company shall only use it to ensure compliance with Conditions 7.10, 7.12 and 7.14 and General Condition 23 of the General Conditions of Entitlement.

7.12       The Buyer must use best endeavours to ensure that it checks before a Customer enters into or agrees an amendment to a Post-Pay Contract that the Customer:

7.12.1                 not engage in dishonest, misleading or deceptive conduct;

7.12.2                 not engage in dishonest, misleading or deceptive conduct;

7.12.3                 is authorised to do so;

7.12.4                 intends to enter into the Post-Pay Contract; and

7.12.5                 is provided with the information set out below in a clear, comprehensible and accurate manner in paper or another Durable Medium which is available or accessible to the Customer or, where the Customer enters into or amends the Post-Pay Contract during a sales call, by telephone:

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

(b)                      a description of the Service; the key charges (including minimum contract charges and any early termination charges, if applicable) payment terms; the existence of any termination right, including termination procedures; the likely date the Services will be provided, in case the provision of the Services is not immediate; and any minimum period of contract.

7.13       Where the Customer enters into or amends the Post-Pay Contract during a sales call, in addition to the oral provision of the information per Condition 7.12.5 the Buyer will ensure that this information is sent to the Customer in good time following the call in paper or another Durable Medium.

7.14       Where the Buyer offers to any potential Customer a sales incentive from which the Customer (or potential Customer) does not benefit immediately and which the Customer (or potential Customer) is entitled to receive after entering into a Post-Pay Contract, the Buyer must ensure that it does not impose terms and conditions for such an offer that are unduly restrictive and that the Customer is provided with the following information in a clear, comprehensible and accurate manner in paper or another Durable Medium, or, where the sales incentive offer is made during a sales call, by telephone:

7.14.1                 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;

7.14.2                 a description of the sales incentive itself; and

7.14.3                 the terms and conditions of the sales incentive, including a detailed and clear explanation as to the process the Customer has to follow to obtain the sales incentive.

7.15       Where the sales incentive offer is made during a sales call, in addition to the oral provision per Condition 7.14, the Buyer must ensure that they send this information to the Customer in good time in paper or another Durable Medium.

7.16       The Buyer shall promptly provide the Company on request with all information reasonably required for the Company to meet its obligations under General Condition 23.8 of the General Conditions of Entitlement in relation to the Company.

7.17       In addition to all other rights under these Conditions or any other Agreement with the Buyer, the Company shall be entitled to withhold or recover any Commissions which would otherwise be payable by the Company to the Buyer under these conditions or any Agreement between the parties in respect of a Post-Pay Connection, Upgrade Connection, Data Connection or SIM Only Connection where, in respect of such Customer, the Buyer has failed to comply with any of its obligations pursuant to Conditions 7.8 to 7.16 (inclusive).

8            support and training

8.1         Dependent on the Goods being retailed by the Buyer, the Company may from time to time arrange a reasonable number of sales and technical training courses to which the Buyer must send their personnel. The reasonable cost of such courses shall be charged to the Buyer unless otherwise agreed.

8.2         Dependent on the Goods being retailed by the Buyer, both parties recognise the requirement under General Condition 23.7 of the General Conditions of Entitlement to ensure personnel are adequately trained to comply with General Condition 23 of the General Conditions of Entitlement. The Buyer shall ensure that all the Buyer's personnel are adequately trained to comply with General Condition 23 of the General Conditions of Entitlement where applicable.

9            GSM GATEWAYS

9.1         The Buyer shall not knowingly allow any third party to connect any GSM Gateway to any Network for illegal purposes including, without limitation, the unlawful provision of electronic communications services (as defined in the Communications Act 2003).

9.2         The Buyer shall not connect nor knowingly allow any third party to connect any GSM Gateway to the Network which is not compliant with the applicable law and with the Network's commercial policy which is available on request.

10         The Buyer shall ensure that if it becomes aware that any Customer or any other party has established, installed or is using a GSM Gateway in an illegal manner or in breach of any Network's commercial policy, it shall notify the Company immediately and shall, if within the Buyer's power, provide technical particulars of the GSM Gateway and its use to the Company's or the Network's reasonable satisfaction.

11         INTELLECTUAL PROPERTY RIGHTS

11.1       The Buyer acknowledges and agrees that all patents, copyright and related rights, moral rights, trade marks and service marks, trade names and domain names, rights to goodwill or to sue for passing off, rights in designs, database rights and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world ("Intellectual Property Rights") owned by the Company prior to the contract being entered into and in work arising from or created, produced or developed by the Company (whether alone or jointly with others) pursuant to the Contract shall immediately upon creation vest absolutely in and shall be and remain the sole and exclusive property of the Company.

11.2       In respect of such Intellectual Property Rights the Company grants a non-transferable, non-exclusive, worldwide and royalty free licence to the Buyer to use such Intellectual Property Rights solely to the extent necessary to make reasonable use of the Goods.

11.3       The Buyer shall indemnify and keep indemnified the Company against all losses, damages, costs, claims, demands, liabilities and expenses (including without limitation consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional costs and expenses) awarded against or incurred by the Company in connection with, or paid or agreed to be paid by the Company in settlement of, any claim for infringement of any third party Intellectual Property Rights which results from the Company's supply of the Goods.

12         CONFIDENTIALITY

12.1       To the extent that the Buyer receives any information from the Company which is expressly marked "confidential", which is confidential by its very nature or which the Buyer ought reasonably to have known was of a confidential nature ("Confidential information"), the Buyer shall keep the Company's Confidential Information confidential unless:

12.1.1   the Confidential Information was already lawfully known, or became lawfully known to the Buyer independently;

12.1.2   the Confidential Information is in, or comes into, the public domain other than due to wrongful use or disclosure by the Buyer;

12.1.3   disclosure is required by law providing that the Buyer shall use best endeavours to provide the Company with prompt notice that such a disclosure is being made.

12.2       The Buyer shall, upon request, return to the Company or destroy (and provide evidence of such destruction) all of the Confidential Information (whether held by it or employees, agents, sub-contractors or advisors) which is in a physical form including all copies containing Confidential Information.

12.3       The Buyer shall indemnify the Company, its officers, and agents against all losses suffered and claims, demands, actions, costs and expenses (including legal costs and disbursements) which the Company incurs directly or indirectly as a result of any breach of this Condition 12.

13         LIABILITY

13.1       Subject to the foregoing and save that nothing in these Conditions shall exclude or restrict any legal liability of the Company (a) for death or personal injury resulting from negligence, (b) under section 2(3) of the Consumer Protection Act 1987; (c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or (d) for fraud or fraudulent misrepresentation, all conditions, warranties, terms and undertakings express or implied whether statutory or otherwise in respect of the Goods are hereby excluded to the fullest extent permitted by law.

13.2       The Company shall have no liability whatsoever or howsoever arising for any loss of use, of loss of profit, interruption of business or any other indirect, special or consequential losses of any type arising out of or in connection with these Conditions.

13.3       The Company's aggregate liability to the Buyer hereunder or otherwise arising whether for negligence, breach of contract, misrepresentation or otherwise shall in no circumstances exceed the contract price.

14         FORCE MAJEURE

14.1       The Company shall not be liable to the Buyer for any loss or damage which may be suffered by the Buyer as a direct or indirect result of the supply of Goods by the Company being prevented, hindered, delayed or rendered uneconomic by reason of circumstances or events beyond the Company's reasonable control.

14.2       If due to such circumstances or events the Company has insufficient stocks to meet all its commitments the Company may apportion available stocks between its customers at its sole discretion.

15         VARIATION OF TERMS

15.1       The Company reserves the right formally to vary these Conditions by serving written notice of not less than seven days to the Buyer. The Buyer shall be entitled to reject any such variation by a counter notice to be served within seven days of the Company's notice but unless the Buyer so rejects them the Buyer shall be deemed for all purposes to have accepted such variation which shall be deemed to have come into effect at the expiry of the period specified in the Company's notice. These Conditions and any subsequent variation thereof shall supersede all previous conditions of trading between the Company and the Buyer.

15.2       No change in these Conditions shall be effective unless evidenced in writing under the hand of a Director of the Company and no informal variation or relaxation thereof nor any time or indulgence given shall in any way be treated as a waiver of the Company's strict legal rights.

16         NOTICE

16.1       To give notice under these Conditions, a letter marked for the attention of the Managing Director must be delivered by hand or sent by pre-paid first class post to the Company address. A notice delivered by hand is served when delivered, a notice sent by first class post is served 48 hours after posting.

 

PRODUCT SPECIFIC TERMS AND CONDITIONS

1            commissionable product terms

1.1         The Company reserves the right to offset or deduct any monies due by the Buyer to the Company from any Commissions due to the Buyer.

1.2         All Commission queries should be addressed to the Company by email: commissions@shebanguk.net. The Buyer must provide the IMEI number and Mobile number (where applicable) and the SIM number, Network, approximate connection date and query detail. No queries will be processed without this information. Queries must be submitted within six months of the connection date.

1.3         If any of these Conditions are not complied with or the Company reasonably suspects there has been or will be a breach of these Conditions, the Company reserves the right to restrict purchases of the Goods at its sole discretion. Where purchases are so restricted the Buyer shall have no entitlement to further Commission payments in relation to the relevant product.

1.4         The Company reserves the right to claw back all Commission paid to the Buyer if the Buyer is in breach of any of these Conditions including, without limitation, any breach by the Buyer of Network terms and conditions or where the Company has Commission clawed back by any Network.

1.5         The Buyer is not permitted to make the Products available to any subordinate resellers without the prior written approval of the Company.

1.6         Notwithstanding Condition 1.5 above, it is the responsibility of the Buyer to ensure that all these Conditions and applicable Network terms and conditions are adhered to by any subordinate resellers, particularly in relation to terms that may effect Commissions.

1.7         The Company shall pay to the Buyer the Commissions (as appropriate) for each Pre-Pay Connection, Post-Pay Connection, Upgrade Connection, Data Connection and SIM Only Connection in accordance with the Price Book. In the instance of a misprint or other error in the Price Book, the Company will only pay at the corrected Commission rate and will not be liable to the Buyer in any way whatsoever.

1.8         At any time and from time to time the Company shall be entitled to change or vary the rates of any of the Commissions. Any such amendments shall be notified to the Buyer by the Company in the Price Book and shall be effective in respect of all orders from Customers accepted by the Company after the effective date of the Price Book.

1.9         The Company shall pay the Commissions (as applicable) within fourteen days of issuing a selfbill with the sellfbill produced monthly in line with the schedule advised in the Price Book.

1.10       If the Buyer was required to obtain a Deposit from a Customer and failed to do so, the Buyer shall be required to pay the Company an amount which is equal to the Deposit which was originally requested. The Company shall refund the Deposit to the Buyer when it would have been refunded to the Customer and at least at the end of 12 months following the Connection Date provided that the Customer has not been disconnected for any reason.

1.11       The Company shall be entitled to withhold, adjust or recover from the Buyer any directly related Commissions (as applicable) which would otherwise be payable or has been paid by the Company under these Conditions, in respect of a Pre-Pay Connection, Post-Pay Connection, Upgrade Connection, Data Connection or SIM Only Connection if:

1.11.1                 The Buyer was not entitled to receive such payment from the Company under these Conditions, for example due to a Cooling Off Disconnection or pursuant to Condition 7.17 of the General Conditions of Sale ; or

1.11.2                 The Buyer is in breach of these Conditions in relation to a Pre-Pay Product, Post-Pay Connection, Upgrade Connection, Data Connection, SIM Only Connection; or

1.11.3                 the Post-Pay Connection, Upgrade Connection, Data Connection, SIM Only Connection is disconnected by the Network (in accordance with the Network's Terms and Conditions) or the Network is in dispute with the Customer over whether the Customer entered into a valid contract and the Buyer fails within 20 days of the Company's written request to provide the Company with the Supporting Documents for that Post-Pay Connection, Upgrade Connection, Data Connection, SIM Only Connection;

1.11.4                 the Commissions (as applicable) relate to a connection arising from Fraud, business malpractice, misrepresentation or conduct, by the Buyer, which, in the Company's or the Network's reasonable opinion, is prejudicial to the Company's or the Network's interest; or

1.11.5                 a Customer has migrated to a lower tariff of their Post-Pay Contract (where Commissions will be adjusted accordingly); or

1.11.6                 the Buyer did not follow the credit checking procedures set out in Condition 6.1 below or could not provide the Company with evidence of compliance with the credit checking procedure set out in Condition 6.1 below within 3 Working Days of the Company's request for such evidence; or

1.11.7                 it is found that a tariff connection has no minutes or data usage since the Connection Date; or

1.11.8                 a Customer cancels the Post-Pay Contract within at any time within their contracted period after the Connection Date for an Upgrade Connection; or

1.11.9                 there is cancellation of any additional services (including, but not limited to extra packs and content packs) within the first six months of connection and the Commission relates to such additional services; or

1.11.10               there is a breach of any other requirement under the Network's Terms and Conditions; or

1.11.11               a SIM Card from a Pre-Pay Product has formed a Pre-Pay Connection and is then either:

(a)                      identified by the Company as being part of a multiple activation by an IMEI; (i.e. more than two) or

(b)                      identified by the Company as being part of multiple activation on a cell site;

(c)                      the Device IMEI and associated SIM Card from a Pre-Pay Product are not seen on the Network's infrastructure within 9 months of shipment to the Company and the Buyer is, within 20 days of the Company's request to do so, unable to clearly demonstrate that the Device and SIM Card are still within the supply chain and can be accounted for; or

(d)                      a SIM Card has formed a Pre-Pay Connection, but the Device IMEI of the Device that that SIM Card was supplied with as part of a Pre-Pay Product is not seen or is only seen once on the Network's infrastructure within 95 days of shipment from the Company.

1.12       The above rights shall survive termination of any Agreement between the parties. The Buyer shall issue the Compnay with credit notes or the Company shall issue the Buyer with invoices as the Company shall decide in respect of any Commission or Deposit which has previously been billed to the Company by the Buyer or has previously been paid by the Company to the Buyer and which has been withheld or is to be recovered by the Company pursuant to Condition 1.11 above.

2            ACCESSORY PRODUCT terms

2.1         Batteries hold a 6 month warranty from the date of purchase.

3            payg (Pre-pay) sim terms

3.1         "Standard Serialised SIM" cards are purchased by the Buyer at the agreed trade price and will attract Commission payments as advertised by the relevant Network subject to all applicable Network terms and a minimum connection rate of 15%. Commissions will not be released until the minimum 15% connection rate is achieved.

3.2         "FOC SIM" cards are supplied free of charge by the Company and will attract Commission payments as advertised subject to all applicable Network terms and a minimum connection rate of 15%. Commissions will not be released until the minimum 15% connection rate is achieved.

3.3         "Net-priced SIM" cards are purchased by the Buyer at the agreed trade price and do not attract any Commission. Resale of these cards is limited to a maximum of 2 per household at the end user level.

3.4         The default price plan (or tariff) available from the relevant Network on SIM activation may vary from that advertised, which may affect any claimed call rates, text rates or other offer components. Shebang accepts no responsibility for such changes to the Network's default price plan (or tariff). The Network may need to be contacted directly to change price plan.

3.5         The Buyer may purchase a maximum quantity of 500 serialised SIM cards per month, 100 FOC SIM cards of each Network per month and 1000 Net-priced SIM cards per month.

3.6         Notwithstanding any other Conditions PAYG SIM Commissions will only be eligible for payment after the first top up credit has been registered.

3.7         The Company reserves the right to clawback all Commission paid to the Buyer if, over any six month period, the cumulative connection rate of the Commissionable Product by Customers is less than 15% of Commissionable Product purchased by the Buyer over the same period.

3.8         Products must be activated by the end consumer and should not be 'pre activated' prior to despatch.

3.9         Where the Buyer has self billing invoices, these will be generated on or around the 15^th day of each month, with any payment due by the Company to the Buyer paid by cheque on the 25^th day of the same month.

4            PAYG (PRE-PAY) HANDSET & MOBILE BROADBAND terms

4.1         All PAYG handsets / mobile broadband dongles / sticks are to be connected with the included SIM cards only.

4.2         No Commissions are payable if the hardware is sold separately from the SIM card.

4.3         Products must be activated by the end consumer and should not be 'pre activated' prior to despatch.

4.4         Returns of these products are only possible if made within 28 days of invoice. Qualifying returns will be exchanged for the same make and model (subject to availability).

4.5         The Company may (where reasonably practicable on thirty (30) days prior written notice):

4.5.1      make changes to (i) the Products and/or their packaging, and/or (iii) any Pre-Pay Products and/or their packaging, and/or

4.5.2      introduce any reasonable new practices,

(each a "New Initiative") from time to time in order to prevent or detect or monitor any improper or unlawful activity involving:

(a)                      Pre-Pay Services, the Products and/or the Pre-Pay Products (including their respective packaging); and/or

(b)                      in relation to the subject matter of these Conditions any activities of the Company or the Buyer.

For the avoidance of doubt it is agreed that an improper activity includes the following:

(c)                      doing something or allowing something to be done whereby Customers are not using (or are not able to use) the Pre-Pay Products and/or the Pre-Pay Services in the manner required under these Conditions;

(d)                      making changes or allowing changes to be made to the Pre-Pay Services or the Pre-Pay Products in breach of Condition 4.6.1.

Any improper or unlawful activities may be regarded by the Company as a material breach of these Conditions. The Buyer agrees to comply with all the Company's Initiatives and New Initiatives in a timely manner.

4.6         The Buyer shall:

4.6.1                   not use the Pre-Pay Services or Pre-Pay Products for any improper, immoral or unlawful or defamatory purpose or fraudulent purpose;

4.6.2                   not, without the prior written consent of the Company, change (or attempt to change) or otherwise corrupt any pre-set configurations within any of the Pre-Pay Products or Pre-Pay Services or any other configurations or location devices or other matters which the Company or the Network requires to be included in relation to the use of the Pre-Pay Services or which the Company has previously authorised to be included or available;

4.6.3                   use in relation to the Pre-Pay Products and the Pre-Pay Services only such advertising and promotional materials as are in accordance with the Company's or the Network's (as communicated via the Company) branding guidelines, applicable to dealers generally, as notified in writing from time to time or are otherwise approved or supplied by the Company;

4.6.4                   not permit or cause or suffer any of the numbers or logos or identifiers (1) included on or within any of the Products or (2) authorised for use with the Pre-Pay Services by the Network, to be used for any purpose other than in connection with the sale to a Customer in connection with the Pre-Pay Services;

4.6.5                   not sell or offer for sale or market or otherwise deal with any Pre-Pay Products or Pre-Pay Services in a manner which the Company or the Network, acting reasonably, does not approve of from time to time and has so notified the Buyer in writing.

4.7         The Buyer shall not, without the Company's prior written consent, by any act or omission do anything or suffer anything to be done whereby any of the Products and/or the Pre-Pay Products are (1) changed or corrupted (for example cloned or chipped) or (2) made capable of use for telecommunications services (for example through pre-activation) other than for use by a Customer. The Buyer shall not be under any restriction from including materials offering any additional services (for example insurance) or products with the sale of any Pre-Pay Products and/or Pre-Pay Services provided that:

4.7.1                   the Pre-Pay Products themselves; are not changed or corrupted and

4.7.2                   such additional materials do not refer to services that might reasonably be considered to bring the Company or the Network or either's branding into disrepute; and

4.7.3                   such additional materials do not advertise the mobile telecommunications services of any other Network or provider of mobile telecommunications services.

4.8         The Company may from time to time on not less than 14 days' written notice inform the Buyer of the manner in which Pre-Pay Products are configured so that the default portal is that operated by a third party approved by the Network. The Buyer shall make best endeavours to comply with this requirement including where necessary the Buyer changing its own working practices.

4.9         The Buyer agrees that the terms and conditions applicable to the Pre-Pay Services shall be contained in the Pre-Pay Products in such form as the Company or the Network shall from time to time decide. The Buyer shall not amend any of the standard terms and conditions or any terms and conditions or logos or strap lines relating to the promotion of the Pre-Pay Services. The Buyer shall not promote or offer for sale the Pre-Pay Services or any Pre-Pay Products in such a manner which does not include the standard terms and conditions which are stipulated or approved by the Company or the Network, from time to time.

4.10       The Buyer will not sell or otherwise supply the contents of a Pre-Pay Product separately i.e. "box-breaking".

4.11       The Buyer shall not make any modifications to the Pre-Pay Services or Pre-Pay Products as are offered for sale (or intended to be offered for sale) to Customers by the Company or the Network, unless the Company otherwise expressly agrees, in writing.

4.12       The Buyer agrees that the Company or the Network are entitled to make such alterations to the packaging and/or content of any Pre-Pay Products as the Company or the Network may decide from time to time.

4.13       The Buyer shall comply at the Company's cost and expense with the product recall policies of the Network from time to time.

5            FULLY LOADED ® terms

5.1         PAYG handset terms as above apply to all Fully Loaded ® products.

5.2         Top up credit will be delivered over the period and in the denominations advertised.

5.3         Top up credit is only valid with the phone (IMEI) provided as part of the Fully Loaded® offer.

5.4         The first Fully Loaded® top up is redeemable at point of first activation via www.simregister.co.uk or calling 0845 8801234. The IMEI and mobile number will need to be provided at this stage.

5.5         Subsequent Fully Loaded® top up credits will be available from the same day of each calendar month as the official Network connection. A reminder text message will be sent each month when top up is available for redemption with a unique authorisation code.

5.6         Authorisation code and mobile number are required for subsequent Fully Loaded® top ups, redeemed via the website.

5.7         Fully Loaded® top up credit will be applied on verification of the authorisation code. This will usually be completed within one hour but may take up to 24 hours.

5.8         Authorisation codes must be redeemed within 28 days of issue. Date and time of code expiry will be included in the text alert.

5.9         Calls to 0845 numbers are charged at the local rate. Call charges from mobiles or other Networks may vary.

5.10       The default price plan (or tariff) on handset activation may vary from that advertised, which may affect any claimed call rates, text rates or other offer components. Shebang accepts no responsibility for such changes to the Network's default price plan (or tariff). The Network may need to be contacted directly to change price plan.

6            PAYM (post-pay) HANDSET & MOBILE BROADBAND terms

6.1         In order to obtain the Company's and/or the Network's approval for a Post-Pay Contract under Condition 6.2, the Buyer shall, before concluding the Post-Pay Contract with the potential Customer:

6.1.1                   carry out an identity check on the potential Customer using a "full match" CV2/AVS check (or such other method of identity checking as the Company may reasonably require and notify to the Buyer from time to time);

6.1.2                   submit to the Company and/or the Network, via the System, adequate data to perform a full credit check to include, without limitation, name, residential address, date of birth, email address and direct debit banking details (if applicable) to enable the Company and/or the Network to fulfil the Post-Pay Contract and register the potential Customer as appropriate; and

6.1.3                   provide adequate details to allow the Network to connect the Customer, including without limitation the CTN, tariff code and any applicable sales order code of the Post-Pay Contract to be entered into by the potential Customer, and any other information agreed between the Buyer and the Company from time to time.

6.2         The Network shall either approve or decline the customer within a timescale that is in line with Network's policies with the Company. Where the Network declines any request for a Post-Pay Contract in such circumstances, neither the Network nor the Company shall not (i) incur any obligation to the Buyer or any other parties in so declining and (ii) be liable to pay any Commissions (as applicable) in connection with any request for a Post-Pay Contract which is so declined. The Buyer will only permit Customers who have gone through the process set out in Condition 6.1 and have not been rejected by the Network in accordance with this Condition 6.2 to enter into a Post-Pay Contract.

6.3         The Buyer shall ensure that all Post-Pay Contracts shall be on the Network's Terms and Conditions (including tariff details and charges information ("the Price Plan Information")) in force at the date the Customer contract is concluded under Condition 6.1 and provided to the Buyer by the Company from time to time. The Company will make reasonable endeavours to provide the Buyer with reasonable notice in advance of any changes to the Network's Terms and Conditions and will make reasonable endeavours to provide reasonable notice of changes to the Price Plan Information. The Buyer shall ensure that a printed form of the Price Plan Information is provided to the Customer. The Company shall be under no obligation to share or contribute any funds towards the printing costs incurred by the Buyer in producing the printed form of a Network's Terms and Conditions.

6.4         The Buyer shall ensure that it shall retain in a safe and secure environment either in hard copy or electronically (as applicable) for a period of at least 6 years from the date the Post-Pay Contract entered into:

6.4.1                   all Post-Pay Contracts signed by the Customer via a store channel including direct debit mandates (where applicable and where in hard copy);

6.4.2                   evidence that each of the Customers who enter into Post-Pay Contracts over the Internet have accepted the applicable terms and conditions, copies of each confirmatory correspondence sent to the Customer, direct debit mandates (where applicable and where in hard copy) and proof of delivery;

6.4.3                   evidence that each of the Customers who enter into Post-Pay Contracts over the telephone have accepted the applicable terms and conditions, copies of each confirmatory correspondence sent to the Customer, direct debit mandates (where applicable and where in hard copy) and proof of delivery;

6.4.4                   the unique reference and results of the CV2/AVS check on the Customer as provided by the bank (i.e. Full Match) (or such other identity checking results as may be agreed by the Company or the Network in accordance with Condition 6.1 or Condition 2.4 of the General Conditions of Sale;

6.4.5                   Direct debit mandates (where applicable and where in hard copy);

6.4.6                   proof of delivery (where applicable); and

6.4.7                   copies of the proofs of identity provided by the Customer (where permitted by Law),

(together "Supporting Documents").

6.5         The Buyer acknowledges and agrees that the definition of the Supporting Documents may vary for Each Network and is subject to change from time to time. The Company will make all reasonable endeavours to provide reasonable notification of such changes notwithstanding that the Buyer will at all times be obliged to comply with Condition 2.4 of the General Conditions of Sale.

6.6         The Buyer shall ensure that it shall keep separate all Post-Pay Contracts and Supporting Documents described in Condition 6.4 from any documents not relating solely to the Products supplied by the Company and Services and be open on no less than 10 Working Day's written notice to the Buyer and no more than once every 6 months to inspection and audit by the Company or the Network (or their duly authorised agents or representatives under the same duties of confidentiality as the Company), who shall be entitled to take copies of or extracts from the same. In addition, the Company shall have a right to request any Post-Pay Contract and Supporting Documents in respect of any Customer who has disconnected from the Network or with whom the Network is in dispute at any time and the Buyer shall provide such Post-Pay Contract and Supporting Documents to the Company within 10 Working Days.

6.7         The Company and the Network shall be entitled to amend, replace, suspend or discontinue any of the Services at any time and from time to time provided it is not in breach of the Network's Terms and Conditions.

6.8         The parties acknowledge and agree that in relation to PAYM products special conditions and limitations on returns exist due to the Customer entering a separate agreement with a Network, accordingly the following conditions will apply as amended from time to time on notice by the Company and will prevail over any inconsistency with the Company's general returns policy as detailed in these Conditions or elsewhere:

6.8.1                   Other than as provided for under statutory distance selling regulations, no Network allows for disconnection or cancellation by a customer once a Network Service is provisioned and the Company will accept no liability for any costs incurred directly or indirectly by the Buyer or the Customer as a consequence of defective Goods.

6.8.2                   The Buyer will be subject to the same procedures and restrictions imposed on the Company by the relevant Network supplier as in force from time to time by the Network and as available to the Buyer on request.

6.8.3                   At all times subject to condition 6.8.1 and condition 6.8.2, where the Company supplies defective Goods which are covered by a warranty the Company will fulfil its obligations (where applicable) pursuant to that warranty and with the Buyer acting in accordance with condition 7 of the General Conditions of Sale.

7            NON-SOLICITATION OF CONNECTED CUSTOMERS

7.1         The Buyer undertakes to the Company that, in relation to Customers that have been connected to a Network service, it will not engage (either directly or indirectly through any other Person) in any pro-active activity specifically targeted at Customers which is designed to procure the disconnection of Customers from the Network including, but not limited to, giving Customers pre-prepared disconnection/termination letters but excluding any General Marketing Activity.

7.2         The Buyer shall reactively endeavour to retain and save any Customer (i.e. keep them with the same Network) who enters their premises or other sales environment as a result of any General Marketing Activity. The Buyer agrees it will continue with the retention activities set out in this Condition 7.2 without material change unless otherwise agreed by the parties in writing.

 

definitions

In these Conditions the following expressions shall have the following meanings:

-            "the Buyer" means the person, firm or company offering to buy goods from the Company;

-            "Commissionable Products" means any Products or Services acquired from the Company by the Buyer which at any time attract or might attract Commissions;

-            "Commissions" means any fees which are to be paid by the Company to the Buyer in accordance with the Product Specific Terms and Conditions, separate Agreement between the parties and/or the Price Book;

-            "the Company" means Shebang Distribution Limited;

-            "the Contract" means the Buyer's order and the Company's acceptance of it in accordance with Condition 2.2;

-            "Cooling Off Disconnection" means the return of a Pre-Pay Product or disconnection of any Post-Pay Connection, Upgrade Connection, Data Connection or SIM Only Connection from the Network at a Customer's request before the expiry of the later of (i) such period as is required to be given to Customers for cancellation of their Service Contract under the Consumer Protection (Distance Selling) Regulations 2000 (as amended or superseded from time to time); (ii) the minimum period required by the Network's standard terms and conditions for cancellation of Service Contracts applicable;

-            "Customer" means any Person who enters into a Post-Pay Contract for a Post-Pay Connection, Upgrade Connection, Data Connection or SIM Only Connection or uses a Pre-Pay Product;"

-            "CV2/AVS" means Card Verification Value / Address Verification Service which is the security check that is provided by credit and debit card issuers to provide information on each transaction to reduce the risk of fraudulent transactions;"

-            "Data Connections" means where a Customer enters into a Post-Pay Contract under which the only item supplied to the Customer with a SIM Card for use on a Network is a data card, data dongle, laptop or similar data only Device (excluding any Cooling Off Disconnection);

-            "Deposit" means a deposit provided by the Customer to a Buyer to enable the Customer to pass the Network's standard practice acceptance criteria and enter into a Post-Pay Contract;

-            "Device" means any mobile phone handset or other devices or equipment capable of being connected to a Network;"

-            "Durable Medium" means a medium on which a Customer can store and retrieve unaltered information (including pdf, email, SMS) for a period of time adequate for the purposes of the information;

-            "General Conditions of Entitlement" means the general conditions of entitlement as notified from time to time under section 48(1) of the Communications Act 2003;

-            "General Marketing Activity" means all marketing activities that are not specifically targeted at Customers and that do not attempt to contact any Customers directly by phone, SMS, e-mail or direct mail and includes, without limitation, TV advertising, newspaper advertising, website advertisements, poster campaigns, bill board advertising, point of sale material and flyers;

-            "the Goods" means the goods or materials which the Buyer is buying or offering to buy;

-            "Fraud" means theft, fraud, scam (including the exploitation of an error in the System and/or deception (whether actual or attempted) in relation to any Post-Pay Contracts or Products sold by a Buyer and/or the promotion and marketing of the Services or Post-Pay Contracts;

-            "Network" means any Person from time to time who owns or operates a switched mobile public telecommunications system and is authorised to provide mobile telecommunications services in the UK pursuant to a licence, authority or permission granted from time to time by the relevant authority in the UK, and any mobile virtual network operators from time to time or the public telecommunications network owned, operated or used to provide the Services from time to time where the context so implies;

-            "Person" means any individual, firm, company, unincorporated association, partnership, government, state, or agency of state (whether or not having a separate legal personality), joint venture or other legal entity;"

-            "Post Pay Connection" means where a Customer enters into a Post-Pay Contract under which there is the supply to a Customer of a Device and a SIM Card for use on a Network platform (excluding Cooling Off Disconnections, Data Connections, Upgrade Connections and SIM Only Connections);

-            "Post-Pay Contract" means an agreement between a Network and a Customer for the provision of Post-Pay Services on the Network's Terms and Conditions; means the mobile communications services and related services (which, for the avoidance of doubt, excludes insurance services) supplied by the Network to Customers from time to time where the Customer makes a regular monthly payment for a package of mobile communications services;

-            "Pre-Pay Connection" means the occurrence of a first chargeable event on a Pre-Pay Product sold by the Buyer;

-            "Pre-Pay Product" means a Device packaged in one-box with a SIM Card and designed for use of the Pre-Pay Services by a Customer;

-            "Pre-Pay Services" means the mobile communications services and related services (which, for the avoidance of doubt, excludes insurance services) supplied by a Network to Customers on a pre-pay basis;

-            "Price Book" means the document which sets out the tariffs, Commissions and commercial arrangements relating to the Products and the Services which is provided by the Company to the Buyer from time to time;

-            "Services" means Pre-Pay Services and Post-Pay Services;

-            "SIM Card(s)" means a Network branded removable card or module which is used in the GSM authentication procedures and contains the international subscriber identity (IMSI) number and other subscriber data, any associated information and Intellectual Property Rights and is approved by the relevant Network;

-            "SIM Only Connection" means where a Customer enters into a Post-Pay Contract under which the only item supplied to the Customer for use on the a Network is a SIM Card (excluding any Cooling Off Disconnection);

-            "System" means any computer and telephone system (including communication links) utilised by the Network, the Buyer and the Company for the purpose of credit checking and/or making Post-Pay Connections, SIM Only Connections, Data Connections or Upgrade Connections;

-            "Upgrade Connection" means where an existing Customer (who has either a Post-Pay Connection, SIM Only Connection or an Upgrade Connection) enters into a new Post-Pay Contract to continue to use the Services but retains the same mobile telephone number (including a SIM Only Connection to a Post-Pay Connection but excluding SIM Only Migrations, Data Connections and Cooling Off Disconnections);

-            "Working Day" means a day other than a Saturday, Sunday or bank holiday on which banks in London are open for a full range of business transactions.