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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.
1.1.1 This Agreement with Berry Consultants UK Ltd which governs the supply of the Equipment and/or services from Berry Consultants UK 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 following 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 the Agreement;
Airtime Services means Cellular Mobile Telecommunications airtime and network capacity procured from a network/service provider;
Berry Consultants UK means Berry Consultants UK Limited a company registered in England and Wales (Co. Registration Number 07286036) whose registered office is at SOAR Works, 14 Knutton Road, Parson Cross, Sheffield, S. Yorkshire, S5 9NU;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 Airtime Services whose full details are set out on the form overleaf;
Downward Migration means in respect of a Connection, the transfer (at the request of the Customer) from one tariff provided by the network/service provider (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 Telecommunication handsets and other associated Equipment;
Minimum Term means the minimum period of time which the Customer has agreed to maintain Connection(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;
Service means any Services ordered by the Customer and provided by Berry Consultants UK; and
Subsidy means the sum payable by Berry Consultants UK to the Customer as is determined by Berry Consultants UK 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.CLOSE
Unless other terms and conditions are expressly accepted by Berry Consultants UK by means of a specific written amendment signed by a Director of Berry Consultants UK, 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 Berry Consultants UK.CLOSE
3.1 In consideration of the Customer entering into the Airtime Agreement, Berry Consultants UK undertakes to supply to the Customer such Equipment/Services as is ordered from time to time by the Customer.
3.2 Berry Consultants UK 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 Berry Consultants UK) 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 Berry Consultants UK.
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 Berry Consultants UK 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 Berry Consultants UK within this period then the Customer will be deemed to have accepted the Equipment and Berry Consultants UK shall have no liability to the Customer whatsoever in respect of such Equipment.
3.6 All equipment to remain the property of Berry Consultants UK until the full contract term is served. Berry Consultants UK reserves the right to invoice the original purchase price of any equipment that is damaged, faulty or not returned, if the customer does not serve the minimum term as dictated upon the contract.CLOSE
4.1 Berry Consultants UK shall use its reasonable endeavours to provide the Services on the dates agreed by the parties.CLOSE
5.1 The Customer hereby agrees to pay Berry Consultants UK for each item of Equipment and any Services ordered by and provided to the Customer within 5 days from the date of a Berry Consultants invoice.
5.2 Berry Consultants UK reserves the right at its absolute discretion to levy a surcharge for all credit card transactions in accordance with Berry Consultants UK tariff applicable from time to time, a copy of which will be available at Berry Consultants's UK 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.CLOSE
6.1 Subject to the remaining provisions of this Clause 6, Berry Consultants UK 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. All subsidy payments are calculated upon a committed spend dictated on the contract.
6.2 In the event that Berry Consultants UK does provide the Customer with a Subsidy, this may be provided to the Customer, at the sole discretion of Berry Consultants, 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 Berry Consultants; or
6.2.2 the payment of monies (representing the amount of the Subsidy) to the Customer and such monies shall be paid to the Customer in full after the expiry of 3 months from the Connection date.
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 Berry Consultants UK 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 Berry Consultants UK pursuant to the clause 6.2 shall be payable by Berry Consultants UK within 30 days from the date that the Customer presents an invoice to Berry Consultants UK (save that no invoice shall be necessary where the Subsidy is being deducted from price of Equipment/Services ordered by the Customer pursuant to clause 6.2.1) provided that:
6.3.2 at all times the Connection is still active on the relevant payment date that the Subsidy (or installment payment of the Subsidy) is due;
6.3.3 where the invoice is payable in installments or after a prescribed period of time the appropriate trigger date has passed;
6.3.4 the invoice has been raised in accordance with the provisions of this Agreement; and
6.3.5 Where the:
(a) invoice 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 invoiced by the Customer in the period within 6 months of the Connection Date. ; 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 by the Customer in the period within 6 months of Connection; and in the event that the Customer fails to invoice/claim the Subsidy within the timescales set out in clause 6.3.5 (a) to (c) (inclusive) then the Customer's right to the Subsidy shall cease. For the avoidance of doubt, the Date Payable for all subsidies shall be assumed to be 3 months from date of Connection, unless stated otherwise on the Purchase Order Form.
6.4 The Customer acknowledges that;
6.4.1 The payment of 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 Berry Consultants UK.
(d) All subsidies/monetary offers made to you (the customer) are subject to a committed minimum spend level indicated on the contract The minimum spend level will be calculated to include fixed charges (line rental) plus any estimated regular non inclusive charges, this may include (but is not limited to) out of bundle charges, international calls, roamed calls and data. Failure to achieve this minimum spend level over the full duration of the contract will render you (the customer) liable for repayment in full of any subsidies paid or offered.
6.4.2 Berry Consultants UK 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 Berry Consultants UK 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 Downwardly 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 from Berry Consultants any of the Connection commission paid to Berry Consultants UK by the network/service provider in respect of that Connection; and the proportion of the Subsidy that Berry Consultants UK 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 Any such sum reclaimed (or withheld) pursuant to clause 6 shall be invoiced to the Customer and such sum shall be payable (unless withheld) within 5 days of the date Berry Consultants's UK invoice.
6.7 Early termination of the contract will incur a £225 termination charge per connection and such sum shall be payable within 5 days of the date Berry Consultants's UK invoice. This clause is enforced if for whatsoever reason the network termination charges are not piad in full.
6.8 Berry Consultants UK reserves the right to charge an administration charge of £25 per connection. This is over and above the £225 early disconnection penalty.CLOSE
7.1 The Customer acknowledges that Berry Consultants UK is not the manufacturer of the Equipment, and accordingly, that the warranty given by Berry Consultants UK is limited as follows. If any Equipment is proved to the reasonable satisfaction of Berry Consultants UK to be defective in material or workmanship then;
7.1.1if the Equipment is returned to Berry Consultants within 14 days of the date of their delivery, then Berry Consultants 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 Berry Consultants UK replaces Equipment or provides substitute goods, the original Equipment returned by the Customer will belong to Berry Consultants UK;
(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 Berry Consultants UK carried out such installation and Connection); or
(c) the Customer 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, Berry Consultants UK 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.CLOSE
8.1 Berry Consultants's UK 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
(c) in respect of any representation or misrepresentations (other than a fraudulent misrepresentation) made by or on behalf of Berry Consultants UK; shall in no circumstances exceed the sum paid by the Customer to Berry Consultants UK 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 Berry Consultants's UK negligence.
8.2 Save as otherwise provided, Berry Consultants UK 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 Berry Consultants's UK 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 Berry Consultants UK negligence, Berry Consultants UK 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.CLOSE
9.1 Berry Consultants UK will be entitled to assign, sub-contract or sublet this Agreement or any part thereof. The Customer shall not be permitted to assign or sublet this Agreement or any part thereof without the written consent of Berry Consultants UK.
9.7 Any demand, notice or communication shall be deemed to have been duly served:-
9.7.1 if delivered by hand, when left at the proper address for service
9.7.2 if given or made by prepaid first class post, 48 hours after being posted (excluding Saturdays, Sundays and Public Holidays)
9.7.3 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 4.00pm on a Business day or on a day other than a Business day service shall be deemed to occur at 10.00am on the next following Business day (such times being local time at the address 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).
9.8 No variation to this Agreement may be made unless set out in writing and signed by a director of Berry Consultants UK.
9.9 This Agreement shall be governed by English law and the parties submit to the exclusive jurisdiction of the English Courts.CLOSE
10.1 The parties agree to attempt to resolve any dispute, claim or controversy arising out of or relating to this Agreement by mediation, which shall be conducted under the then current mediation procedures of The CPR Institute for Conflict Prevention & Resolution or any other procedure upon which the parties may agree. The parties further agree that their respective good faith participation in mediation is a condition precedent to pursuing any other available legal or equitable remedy, including litigation, arbitration or other dispute resolution procedures.
10.2 Either party may commence the mediation process by providing to the other party written notice, setting forth the subject of the dispute, claim or controversy and the relief requested. Within ten (10) days after the receipt of the foregoing notice, the other party shall deliver a written response to the initiating party's notice.
10.3 The parties further acknowledge and agree that mediation proceedings are settlement negotiations, and that, to the extent allowed by applicable law, all offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties or their agents shall be confidential and inadmissible in any arbitration or other legal proceeding involving the parties; provided, however, that evidence which is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.
10.4 The provisions of this section may be enforced by any Court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including reasonable attorneys' fees, to be paid by the party against whom enforcement is ordered.CLOSE