terms

SCHEDULE 4 TERMS RELATING TO APPLE DEVICES

1. DEFINITIONS

1.1 Unless the context requires otherwise, terms and expressions defined in the Agreement shall have the same meanings when used in this Schedule 4 and in addition the following terms and expressions shall have the following meanings:

Apple means Apple Distribution International, an Irish Corporation with offices at Hollyhill Industrial Estate, Hollyhill, Cork, Ireland.

Apple Assets means Apple-approved images, text, and the like and includes Apple-approved point of sale materials.

Apple Device means any Apple-branded mobile cellular handset, tablet or other electronic device or accessory supplied by Plan to the Partner.

Apple Device Customer means a Customer or End User who acquires from the Partner an Apple Device, such person to be a genuine, bona fide user of the Apple Device for its own purposes (as opposed to any other third party or any re-seller).

Authorised Location means a selling location of the Partner in the United Kingdom that has been approved by Plan in writing.

Average Subsidy means the weighted average discount required by paragraph 8. The discount is calculated as the difference between the Wholesale Price of the iPhone and the suggested retail price (excluding VAT) when sold together with a post-pay Carrier Service Plan.

Covered Repairs means a repair or replacement covered by Apple’s standard end-user warranty.

Carrier Service means any wireless voice or data service of any type offered by the Partner, whether now existing or developed during the Term, including services commonly referred to as cellular, Wi-Fi, Wi-Fi Max, or Voice Over Internet Protocol.

Carrier Service Plan means a contract for Carrier Service or a prepaid or pay-as-you-go SIM card offered by the Partner to any customer, including any iPhone Plan, and any other standard or custom plan offered to any consumer, business, government, or education customer.

  • A Carrier Service Plan that requires a term commitment of longer than one month and permits payment for Carrier Service before or after such service charges are incurred is referred to as a “post-paid or post-pay Carrier Service Plan”.
  • A Carrier Service Plan that permits payment for Carrier Service before or after such service charges are incurred, but does not require a term commitment of longer than one month, is referred to as a “pre-paid or pre-pay Carrier Service Plan”.

Financing Program means a program offered by the Partner or by a third party that permits the customer to purchase an Apple Device, in whole or part, in equal monthly instalment payments over such plan’s term:

  • (i) without any Carrier Service Plan, with a pre-paid Carrier Service Plan, with a post-pay Carrier Service Plan that has no term commitment, or a post-pay Carrier Service Plan that the customer can terminate without any termination fee, penalty, or other charges connected with the early termination of the post-pay Carrier Service Plan provided that the customer has paid the full cost of the Apple Device as set out in paragraph 9; and
  • (ii) with or without an option for the customer to make an upfront payment or deposit as shall be set out in paragraph 10.

Instalment Plan means a post-pay Carrier Service Plan with a term commitment that permits the customer to pay, in whole or part, for the Apple Device purchased with such plan without any upfront payment or deposit, and in equal monthly instalment payments over such plan’s initial term.

iPhone Plan means a Carrier Service Plan specifically tailored or otherwise promoted for iPhone users.

Non-Instalment Plan means any post-pay Carrier Service Plan that is not an Instalment Plan.

Wholesale Price means the price Plan charges the Partner for the particular Apple Device.

2. Scope of this schedule

2.1 This Schedule 4 sets out the terms upon which Plan will sell Apple Devices to the Partner.

3. Relationship between Partner and Apple

3.1 Other than as expressly set out in the Agreement:

  • 3.1.1 the Partner shall not, in any correspondence or dealings, hold itself out or represent itself as being part of Apple, or any subsidiaries, holding companies or subsidiaries of those holding companies or as an employee, agent, representative, franchisee or partner of or to a joint venture with Apple.
  • 3.1.2 the Partner has no authority or power to bind, or to contract or negotiate in the name of, or to incur any debt or other obligation on behalf of, or to create any liability against, Apple in any way or for any purpose.
  • 3.1.3 the Partner is not granted any permission, consent, licence, authority, or other right under this Schedule 4 (or any other provision of the Agreement) to use any Apple Assets in connection with the marketing, promotion, or sale of any Apple Device.

3.2 The Partner acknowledges that it is fully responsible for its acts, omissions or defaults (including those of its employees or agents) in connection with the promotion, marketing, sale and/or support of Apple Devices and the Partner agrees to indemnify Apple and Plan against any loss suffered or liabilities or expenses incurred arising from or in connection with:

  • (a) any of the Partner’s acts, omissions or defaults in connection with the promotion, marketing, sale and/or support of Apple Devices (including any unauthorised use of any Apple Assets); or
  • (b) the Partner’s breach of its obligations under this Schedule 4.

3.3 The provisions of this Schedule 4 that confer an express right or benefit on Apple may be enforced directly by Apple subject to and in accordance with the Contracts (Rights of Third Parties) Act 1999 and:

  • 3.3.1 any variation, amendment, or modification to the terms of the Agreement or the rescission, cancellation, or termination by agreement of the Agreement which might extinguish or alter Apple’s right under this paragraph to directly enforce any or all of the provisions of the Agreement will require the prior written consent of Apple; and
  • 3.3.2 no person (other than Apple) who is not a party to this Agreement shall have any right under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of the Agreement.

3.4 The Partner has no contractual rights whatsoever against Apple under the Agreement or otherwise in respect of the subject matter of the Agreement.

4. Sales obligations

4.1 The Partner will promote and resell all Apple Devices in a professional and competent manner and in accordance with the Agreement and the reasonable instructions of Plan.

4.2 The Partner will:

  • 4.2.1 use its best endeavours to actively promote and sell the Apple Devices through all Authorised Locations throughout the Term; and
  • 4.2.2 use its best endeavours to maximise sales of Apple Devices.

4.3 The Partner shall resell Apple Devices only to Apple Device Customers and only through Authorised Locations. Plan may de-authorise any Authorised Location for any reason by giving the Partner written notice and, if it does so, the Partner shall, within seven (7) days, cease selling Apple Devices through such locations and terminate the right of such locations to sell or otherwise distribute Apple Devices.

4.4 The Partner will train and maintain a sufficient number of capable personnel, certified by Plan, who will provide knowledgeable assistance and outstanding customer support to customers and potential customers in connection with the Apple Devices. The Partner shall comply with the requirements for such training as communicated by Plan from time to time and must meet Apple’s certification requirements as notified to it from time to time. Plan will provide the Partner’s training team with product information that describes the features of the Apple Devices.

4.5 Without prejudice to the general obligation in paragraph 4.4 above:

  • 4.5.1 each Authorised Location must be staffed with a minimum of two full-time sales advisors who are registered in Apple’s online training programme currently known as Apple Sales Training Online (“ASTO”) and have completed the following training:
    ASTO: 80% score or higher on the iPhone and iPad courses required by Apple.
  • 4.5.2 additional ASTO and/or classroom-training requirements shall apply to the Partner’s sales staff (retail and telesales) who support enterprise and small and medium business (“SMB”) customers; and
  • 4.5.3 at least one full-time sales advisor that has been trained in accordance with the above must be available to:
    • (i) assist customers in each Authorised Location at any time during opening hours and provide a high-level customer experience; and
    • (ii) provide continual and consistent sales coverage.

4.6 The Partner shall, and shall ensure that each Authorised Location shall, comply with Plan’s and/or Apple’s reporting requirements and any other instructions given by Plan or Apple that relate to the promotion, marketing, sale and/or support of Apple Devices, as advised (including any modifications) from time to time.

4.7 The Partner will not make any representations, warranties, or guarantees with respect to the Apple Devices that are inconsistent with Apple’s literature or training materials or engage in other behaviour that could adversely affect the goodwill or reputation of Apple or Plan.

4.8 The Partner shall offer all customers who own or are considering an Apple Device all pre-pay and post-pay service plans it offers to its other customers at least as early as and for at least as long as it offers such plans to other customers. If the Partner provides a quote or proposal for a custom service plan to any government, education, enterprise, or other customer then the Partner shall ensure that the custom service plan is competitive with the custom service plans that the Partner offers to customers for other handsets.

4.9 If Plan or Apple elect to fund additional subsidies or other incentives in relation to an Apple Device, the Partner shall offer such additional subsidies or other incentives to customers who purchase such Apple Devices through the Partner.

4.10 The Partner agrees that it shall offer its sales staff commission payments and/or other sales incentives in relation to the Apple Devices that are the same as or better than the total commission payments and/or other sales incentives it offers its sales staff on any other devices distributed by or on behalf of the Partner, and further that it shall not discriminate against any sales staff who sell or activate an Apple Device as opposed to any other mobile device.

4.11 Except as expressly described in this Agreement, the Partner shall treat Apple Device Customers like other customers of the Partner in all respects, including providing them the same level of service.

4.12 If required by Plan, the Partner shall pay any copyright levies, recycling fees or other fees imposed on all or any part of the Apple Devices or their packaging by any central authority, collecting society or other institution. Apple may also require that the Partner take one or more of the following actions with respect to such levies or fees:

  • (i) reflect them separately on their own invoices;
  • (ii) inform their customers about them;
  • (iii) pass them on to their customers in a visible manner; and
  • (iv) provide Apple such information as Apple may reasonably request regarding any exports which would permit Apple to reclaim the amounts paid.

4.13 Each Authorised Location must provide excellent pre-sales support and demonstrate Apple Devices to potential customers in accordance with Apple’s training specifications.

4.14 Where applicable, the Partner or the Authorised Location shall bear the cost of in-store display fixtures used to promote Apple Devices. The Partner or the Authorised Location shall, at its expense, ensure that each Authorised Location:

  • 4.14.1 carries and prominently displays Apple Devices in a “premier area”. A premier area, at a minimum, is:
    • (a) visible from the entrance and anywhere within the store;
    • (b) easily accessible by customers; and
    • (c) in the main traffic path of the store.
  • 4.14.2 carries and prominently displays the recommended Apple Device accessories.
  • 4.14.3 has adequate inventory at all times.
  • 4.14.4 has iPhone and iPad demo units that are all continually usable by customers and preloaded with Plan-supplied demonstration content.
  • 4.14.5 updates all iPhone and iPad demo units with the latest available software within one (1) day after such software is released to the Authorised Location.
  • 4.14.6 provides complimentary cellular data and Wi-Fi for all iPhone and iPad demo units on display.
  • 4.14.7 always has the latest available version of Apple iTunes software for iPhone and iPad activation.

5. Sales outside UK

5.1 To the extent permitted by applicable law, the Partner shall use best endeavours to ensure that it does not sell Apple Devices to any purchaser who intends to export them for sale outside of the UK. Because the UK is in the European Economic Area (“EEA”), Plan and the Partner acknowledge that the restrictions imposed on sales of Apple Devices within the EEA shall not prevent the Partner from making “active” or “passive” sales of Apple Devices to any other carrier, reseller, or end customer located within the EEA.

6. Forecasts, orders and adjustments

6.1 Periodically and upon Plan’s request, the Partner will provide Plan a forecast (in such format reasonably requested by Plan) showing the Partner’s estimate of the number of Apple Devices the Partner will order from Plan during the forecasted period of time specified by Plan.

Orders

6.2 All purchase orders for Apple Devices placed by the Partner during the term of this Agreement will be governed by the terms of this Agreement (whether or not they reference this Agreement), and any different or additional terms on any purchase order or other document submitted by the Partner will be of no effect. Purchase orders must specify the purchase order number, the ship-to location, the bill-to location, requested shipment dates, the Apple Device part numbers, and the quantity of each part number ordered. All purchase orders for Apple Devices must be placed at least ninety (90) days before the requested shipment date. All purchase orders are subject to Plan’s acceptance and Plan may decline any purchase order for any reason. If Plan does not accept or decline a purchase order within seven (7) calendar days, such purchase order will be deemed rejected.

6.3 The contract of sale for Apple Devices purchased under this Agreement will be between the Partner and Plan. Any such order shall be binding on the Partner.

6.4 The Partner will implement a process for ordering, sell-through reporting, inventory reporting and invoicing that is in a format recognised by and compliant with EU and national tax law and meets Plan’s and Apple’s process requirements.

Modifications/Cancellations

6.5 If Apple cancels any order with Plan, Plan may cancel any order placed by the Partner with Plan without any liability to the Partner at any time prior to dispatch. Plan shall determine, at its discretion but acting reasonably, the allocation of any fulfilled order delivered by Apple.

7. Terms applying to the purchase of equipment

7.1 The Partner agrees that it will not and will ensure that each Authorised Location shall not modify any Apple Device in any way, including any way that alters its appearance or functionality, without Plan’s prior written approval. The Partner will and will ensure that each Authorised Location will include all packaging, labels, and in-box materials intact, as shipped from Plan, with each Apple Device sold and will not remove, obfuscate, or add any mark to any Apple Device or related material. The Partner will and will ensure that each Authorised Location will distribute software that is incorporated in or packaged with an Apple Device solely in connection with the authorised sale of such product and will have no other rights with respect to such software.

7.2 The Partner understands that Apple will extend its standard one-year warranty to customers who purchase an unmodified Apple Device from the Partner. Apple will be solely responsible for defining its end-user warranty and how it fulfils its warranty obligations. The Partner must provide a copy of Apple’s standard limited warranty and end-user software licence to any customer or potential customer who requests one.

7.3 If any additional end-user warranties are required by applicable law in connection with Apple Devices (in addition to those offered by Apple as set out in paragraph 7.2 above), the Partner shall offer such additional end-user warranties to customers who purchase an unmodified Apple Device. Such warranties must be the same as or better than Apple’s standard one-year warranty and be fulfilled in a consistent manner. The Partner shall offer such additional warranties at no additional charge and bear all associated costs. The Partner shall indemnify Apple and Plan against any loss suffered, or liabilities or expenses incurred as a result of such additional warranties.

7.4 If Apple cancels any order with Plan, Plan may cancel any order placed by the Partner with Plan prior to shipment without any liability to the Partner at any time. Plan shall determine, at its discretion, the allocation of any fulfilled order delivered by Apple.

8. Average subsidy

8.1 The Average Subsidy for each Apple Device with a Wholesale Price of less than or equal to £350 sold with a Non-Instalment Plan shall be equal to 80% of the Wholesale Price of the Apple Device.

8.2 The Average Subsidy for each Apple Device with a Wholesale Price of more than £350, but less than or equal to £540, sold with a Non-Instalment Plan shall be equal to 75% of the Wholesale Price of the Apple Device.

8.3 The Average Subsidy for each Apple Device with a Wholesale Price of more than £540 sold with a Non-Instalment Plan shall be equal to 65% of the Wholesale Price of the Apple Device.

9. Maximum retail price mark-up

9.1 The Partner shall not sell any Apple Device at a price in excess of the maximum retail price stated in Plan’s Wholesale Price price list (as updated from time to time by Plan).

10. Maximum upfront for Apple Devices sold through a Financing Programme

10.1 For any Apple Device sold through a Financing Programme and with a post-pay Carrier Service Plan with a monthly fee for the Carrier Services that is less than or equal to £22 (VAT included).

10.2 For Apple Devices with a Wholesale Price that is less than or equal to £350, the Partner shall offer:

  • 10.2.1 at least one Financing Programme per Apple Device without any upfront payment or deposit; and
  • 10.2.2 at least one Financing Programme per Apple Device with a maximum upfront payment of 20% (VAT included) of the Wholesale Price.
  • Example: if the Wholesale Price of the Apple Device was £245, then the maximum upfront payment that the Partner can charge any customer wishing to purchase the Apple Device will be £49 (VAT included) (£245 × 20%).

10.3 For Apple Devices with a Wholesale Price that is more than £350 but less than £450, the Partner shall offer at least one Financing Programme per Apple Device with a maximum upfront payment of 15% (VAT included) of the Wholesale Price.

  • Example: if the Wholesale Price of an Apple Device was £410, then the maximum upfront payment that the Partner can charge any customer wishing to purchase the Apple Device will be £61.50 (VAT included) (£410 × 15%).

10.4 For Apple Devices with a Wholesale Price that is more than £450 but less than £600, the Partner shall offer at least one Financing Programme per Apple Device with a maximum upfront payment of 25% (VAT included) of the Wholesale Price.

  • Example: if the Wholesale Price of an Apple Device is £470, then the maximum upfront payment that the Partner can charge any customer wishing to purchase the Apple Device will be £117.50 (VAT included) (£470 × 25%).

10.5 For Apple Devices with a Wholesale Price that is more than £600, Apple and the Partner will agree the maximum upfront that a customer shall pay when purchasing such Apple Devices through a Financing Programme.

10.6 If the Partner wishes to offer an Apple Device through a Financing Programme and any post-pay Carrier Service Plan having a monthly fee for the Carrier Services that is more than £22 (VAT included), then Apple and the Partner will agree the maximum upfront payments that shall apply.

11. Warranty repairs

11.1 The Partner acknowledges that Apple will provide iPhone users complimentary Covered Repairs during the standard Apple one-year warranty period at Apple’s expense.

11.2 The Partner (and not Plan) shall facilitate Covered Repairs for customers who purchased an Apple Device at the Partner’s expense, including:

  • 11.2.1 receiving warranty returns from such customers;
  • 11.2.2 screening such warranty returns using Apple-defined test procedures and diagnostics to identify those ineligible for Covered Repairs as defined by Apple, including units with no trouble found or customer abuse, and returning such ineligible warranty returns to the customers who returned them;
  • 11.2.3 shipping Apple Device returns to an Apple-designated return centre in accordance with Apple’s specifications; and
  • 11.2.4 receiving repaired or replacement units from Apple and distributing them to the Apple Device user.

11.3 The Partner shall comply with specifications provided by Apple and/or Plan in facilitating Covered Repairs and bear all freight and packaging costs (including applicable import fees and duties) when returning Apple Devices to an Apple-designated returns centre for repair or replacement, and for shipping and receiving repaired or replacement units.

11.4 If Apple or an Apple authorised service provider facilitates Covered Repairs, the Partner shall reimburse Apple for such facilitation of Covered Repairs.

11.5 The Partner accepts that Apple may, but will have no obligation to, screen the Apple Devices the Partner returns to an Apple return centre. However, if Apple elects to do so and determines that any Apple Device returned by the Partner is not eligible for Covered Repair or has not been returned in accordance with Apple’s specifications, Apple will invoice the Partner and the Partner shall pay Apple the full price of the replacement unit Apple shipped to the Partner.

11.6 The Partner shall provide a replacement Apple Device or loaner handset (as specified by Apple) to each customer who returns an Apple Device to the Partner for Covered Repairs. The Partner shall purchase and maintain a sufficient stock of replacement Apple Devices or loaner handsets, as the case may be, at appropriate locations, all at the Partner’s expense, so that the Partner is able to provide such a unit to the customers who request such Covered Repairs. The Partner may charge such customers a fee for a loaner handset only if such fee is the same as or less than the fee the Partner charges customers using any other manufacturer’s cellular handset for a loaner handset. The Partner shall ensure that all the features of that customer’s carrier service work on the loaner unit.

12. Branding, advertising and promotion

12.1 Plan shall not provide the Partner with, nor grant to the Partner any licence to use, any Apple Assets for the Partner’s use in connection with the Partner’s exercise of its rights or performance of its obligations under this Schedule 4 or any other provision of the Agreement.

12.2 If the Partner uses an Apple Asset without the requisite permission or licence from Apple, Plan or Apple may require that the Partner immediately removes the Apple Asset from the offending marketing material.

12.3 Apple retains all rights, title, and interest in and to such Apple Assets and the Partner acquires no rights, title, or interest in or to such Apple Assets or the goodwill associated with them. The Partner agrees not to use any Apple Assets, trade dress, design, “look and feel” (for example, the design and layout of Apple’s retail stores or websites, or the name under which Apple does business), in any manner whatsoever, or act in any manner that implies an endorsement of the Partner by Apple.

13. Termination

13.1 Notwithstanding anything to the contrary elsewhere in this Agreement, Plan may terminate the Partner’s ability to purchase Apple Devices from Plan without liability:

  • 13.2 at any time on not less than one month’s notice in writing to the Partner; or
  • 13.3 immediately on notice if:
    • 13.3.1 Apple terminates Plan’s authorisation to sell Apple Devices to the Partner for any reason; or
    • 13.3.2 Apple terminates its agreement with Plan for any reason.

(In which case the remainder of the Agreement other than this Schedule 4 shall continue in accordance with its terms.)

14. Confidentiality

14.1 Plan shall be entitled to disclose the terms of this Agreement to Apple at any time without breaching any obligations of confidentiality.

15. Audit

15.1 The Partner shall maintain all appropriate books and records reasonably required to verify compliance with the terms of this Schedule 4 for a period of three (3) years after the end of the relevant calendar month. The Partner accepts that Plan and/or Apple may appoint an independent auditor to inspect any Partner locations and/or records no more than once per quarter. Plan will give the Partner written notice of the date, time, scope, and purpose of the audit at least 24 hours before beginning the audit. The Partner shall ensure that an employee who is knowledgeable with relevant records and business practices is available to facilitate any audit.