Retail Contract
In this Terms and Conditions, the following words will have the following meaning unless the context otherwise requires. In the event of any inconsistencies between this Terms and Conditions and specific terms and conditions of Retailer Application Form or any other document, the Retailer Application Form shall take precedence.
Emtel Limited (“Emtel”) is a company licenced by the Information and Communication Technologies Authority (the “ICTA”) to provide inter alia fixed telephony, mobile telephony, internet and international long distance services.
In relation to its business, Emtel has developed scratch cards, Epin, Sim Cards and other products and Services to allow subscribers to use Emtel’s services (including fixed telephony, mobile telephony, internet and international long distance. These Products shall collectively be referred to as “Products and Services”.
The Retailer (referred as “Retailer” and/or “You”) is in direct selling of goods and services business and is desirous of selling the Products and Services in accordance with the specifications and requirements of this Terms and Conditions.
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1. APPLICATION
The applicant shall make an application to become a Retailer to sell the Products and Service(s) offered by Emtel by filling in and remitting to Emtel the printed and/or digital Retailer Application Form and/or any document defining the Products and Services to be sold, ("the Retailer Application Form").
This Terms and Conditions will apply to any existing, actual and subsequent Products and Services ordered by the Retailer. This Terms and Conditions shall be subject to amendments exclusively by Emtel provided that the provision of services to the Subscriber is not affected. Any other amendments shall be subject to the mutual consent of both parties.
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2. RETAILER SALES
The Retailer shall purchase Products and Services as further defined in Retailer Application Form from Emtel, its Distributors and/or its préposé(s) for resale.
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3. NATURE OF THE BUSINESS RELATIONSHIP
In connection with this Terms and Conditions, each Party is an independent contractor. Nothing in this Terms and Conditions shall be deemed or construed to create a joint venture, partnership, fiduciary, employer-employee relationship between the Parties for any purpose. Accordingly, all financial obligations associated with the Retailer's business are the sole responsibility of the Retailer.
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4. TERM OF TERMS AND CONDITIONS
This Terms and Conditions shall become effective upon acceptance of the Retailer Application Form by EMTEL and shall continue for an indefinite period, unless earlier terminated in accordance with Article 12 below.
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5. APPOINTMENT
- 5.1 Emtel shall sell the Products and Services to the Retailer through Emtel, its Distributors or/and its preposeon a non-exclusive basis.
- 5.2 Due to the nature of the Products and Services, the Products and Services once sold, will only be refunded upon mutual agreement in writing between both parties.
- 5.3 The Retailer shall obtain at its own expense all necessary governmental permits, licences, approvals or similar authorisations for the sale of the Products and Services purchased from Emtel, its Distributors and/or its préposé(s). Retailer should guarantee that he holds all authorisation, consent and approval to sell the Products and Services.
- 5.4 The Retailer shall order Products and Services through a signed purchase order sent to Emtel, its Distributors and/or its préposé(s)
- 5.6 In the event of change in tariff, pricing policy, competition, regulatory intervention or otherwise, the Parties may amend the commission structure or formula upon mutual agreement. In the event the Parties do not reach an agreement within thirty (30) days, any Party may terminate this agreement forthwith by notice in writing or with such notice period as can be reasonably given in the circumstances.
- 5.7 If in Emtel’s reasonable opinion, commissions claimed are a result of business malpractice, fraud, or misrepresentation by the Retailer or by any customer or any party involved in such Terms and Conditions, Emtel shall be entitled to retain or recover from the Retailer any commissions paid or which would otherwise be payable in terms of the provisions of this Terms and Conditions.
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6. DEFECTS AND RETURNS
6.1 Emtel shall not be bound to make good any defect in the Products where:
- i) the Products and Services have been subjected to misuse, neglect or accidental damage;
- ii) the Products and Services have been modified or otherwise tampered with, without the approval of Emtel;
- iii) Emtel’s trademark have been defaced or removed from the Products and Services by acts attributable to the Retailer or its préposés.
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7. EMTEL’S RIGHT AND LIABILITIES
Emtel hereby agrees with the Retailer that it shall, during the continuance of the agreement :
- 7.1 supply, without prejudice to other terms of this Terms and Conditions to the Retailer, Products and Services at agreed prices.
- 7.2 supply the Retailer with publicity and advertisement materials in reasonable quantity for display at the retail outlets.
- 7.4 Emtel shall not take responsibility for:
- 7.4.1 Any unsold Products purchased by Retailer except where Products remain unsold through the sole fault of Emtel.
- 7.4.2 The loss of Products purchased by Retailer due to negligence or otherwise.
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8. RETAILER ’S UNDERTAKING
The Retailer hereby agrees with Emtel that it shall, during the entire duration of this Terms and Conditions:
- 8.1 purchase and re-sell the Products and Services at agreed and recommended prices.
- 8.2 act as the Retailer for the Products and Services on the terms of this Terms and Conditions with all due diligence, observe all reasonable suggestions given by Emtel as to its activities under this Terms and Conditions and use its best endeavours to promote the sale of the Products and Services to its maximum potential.
- 8.3 comply with all laws and regulations in force in the Republic of Mauritius, (including Regulations for the Registration of Prepaid subscribers, as well as for the SIM card registration according to the applicable laws, regulations, rules or such other regulation that may be applicable to Emtel from time to time.
- 8.4 hold harmless, defend and indemnify Emtel in full and against any and all costs, claims, expenses, demands and proceedings incurred by or levied against Emtel resulting from any contraventions by the Retailer of such laws and regulations under section
- 8. 8.5 market and promote the sale of the Products and Services upon the terms established in this Terms and Conditions and as notified from time to time by Emtel to the Retailer.
- 8.6 not deface or tamper with any Emtel’s Products and Services and their packing in any manner whatsoever.
- 8.7 shall immediately provide Emtel with subscribers details in relation to SIM card. Such list shall also include the corresponding number of sales in relation to SIM card and all information required as per the applicable legislations.
- 8.8 on a monthly basis, provide Emtel with the number of sales of the Products and Services.
- 8.9 behave in a professional manner at all times in such a way that no direct or indirect prejudice is caused or potentially caused to Emtel and/or Emtel customers.
- 8.10 shall be bound to operate only in its respective retailer’s outlet(s) as assigned to by Emtel. Failure by Retailer to abide to this requirement may entail a breach of the present Terms and Conditions entitling Emtel to terminate this Terms and Conditions forthwith without undergoing any judicial or extra-judicial formality and without prejudice to Emtel’s other rights.
- 8.11 must ensure that it issues a receipt to the subscriber for every sale he makes in relation to the Products and Services.
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9. DELIVERY, TITLE AND RISK
- 9.1 Upon receipt of Purchase Order for the Products and Services, Emtel, its Distributors and/or its préposé(s) shall deliver same at Retailer’s premises. Emtel may exceptionally request Retailer to take delivery at Emtel’s premises. All risks related to the Products shall pass on delivery. Title to the Products shall only pass upon corresponding payment received by Emtel.
- 9.2 The Retailer shall inspect the Products delivered by Emtel, its Distributors and/or its préposé(s) ; using reasonable business practices and report without delay on the same day any patent defects. Any such notice must be communicated in writing and specify any alleged defects in sufficient details. Failure to inspect the Products or to report any patent defects as aforesaid shall result in the Products and Services being deemed accepted at the sole risk of the Retailer.
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10. WARRANTY CONDITIONS
- 10.1 Warranty does not cover any physical damage, liquid damage and/ or misuse and is not applicable if warranty seal is broken or removed or the original SIM card is removed or replaced. This is applicable for accessories as well.
- 10.2 The use of non original accessories will also invalidate the manufacturer’s warranty. So, if anything other than original accessories is used, the warranty of the handset/apparatus becomes null and void.
- 10.3 The Retailer has the responsibility to inform the end-user customers of the Warranty and that a claim for warranty will only be entertained upon presentation of the end-user of his warranty card and/or his stamped invoice which shall hold information like the date of purchase, the item description and their related IMEI and serial numbers.
- 10.4 The Retailer shall defend and hold Emtel, its Distributors and/or its préposé(s) harmless from any claim or liability as a result of representations to end-user customers of warranties not specifically covered under the Warranty spelt out herein.
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12. TRANSFER / TERMINATION
- 12.1 Retailer Performance In order to adhere to this Terms and Conditions and retain the Retailer status, the Retailer shall endeavour to promote the Products and Services of Emtel. Emtel reserves the right to terminate this Terms and Conditions should the Retailer fail to achieve this due to its own fault, provided any such fault is notified to the Retailer and the Retailer is given the opportunity to remedy, and that such fault remains un-remedied.
- 12.2 Emtel may at any time terminate this agreement for reasons of business continuity or Retailer performance which adversely affects the distribution of the Products, with a prior written notice of seven (7) days without the need for further judicial or extra judicial recourse.
- 12.3 The Parties may at any time terminate this agreement with or without cause upon a twenty-one (21) days prior written notice without the need for judicial or extra judicial recourse.
- 12.4 Should this Terms and Conditions be terminated by either Party prior to payment of amounts due hereunder or pursuant hereto, such amount shall be paid as and when due in accordance with the terms hereof.
- 12.5 This Terms and Conditions may also be terminated by either Party forthwith where the other Party commits an act of bankruptcy or goes into liquidation otherwise than for the purpose of re-organisation or amalgamation or goes into receivership.
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13. Emtel Equipment and Device
- 13.1 A device, handset or equipment may be provided to You on a free basis for the performance of this agreement.
- 13.2 You understand and agree that all right, title and interest in the device, handset or equipment remains, at all times, vested with Emtel. The use of the device, handset or equipment by You is authorised only as herein set forth, and shall be returned by You upon termination of this agreement or as may be requested by Emtel from time to time.
- 13.3 You shall, at all times, act in a prudent, reasonable and diligent manner when using or handling the Device. In the event the device, handset or equipment is lost, stolen, destroyed, damaged or otherwise impaired, Emtel must be notified immediately in writing. You shall be held responsible for repair or replacement costs if the Device is lost, stolen, destroyed, damaged or otherwise impaired.
- 13.4 You shall refrain from doing unlawful activities while using the device, handset or equipment and shall use it in a reasonable manner including not to remove or attempt to remove the SIM card (if any) from the device, handset or equipment.
- 13.5 You shall comply with all applicable legislation including the ICT Act 2001 (as may be amended from time to time), the Data Protection Act 2004 (as may be amended from time to time), regulations, guidelines and Directives regarding records of customers.
- 13.6 You undertake that You shall not use Emtel Confidential Information for any purpose not expressly authorised by this Agreement including but not limited to advertising or communication to the Emtel subscribers, unless express consent has been obtained from the said Emtel subscribers.
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14. LITIGATION RESOLUTION
- 14.1 Emtel shall have the right at its sole discretion, to recover any amount due by the Retailer, or to take whatever action is necessary, by legal process. In case any amount due under this Terms and Conditions is recovered through the services of an Attorney-at-Law, any charges and legal costs involved in the recovery of same as well as the attorney’s 10% commission on all amount due plus VAT thereon, shall be borne solely by the Retailer.
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15. GENERAL
- 15. 1 Entire Terms and Conditions.
This Terms and Conditions, including any Annex attached or incorporated by reference, constitutes the sole and entire Terms and Conditions between Emtel and You concerning the subject matter hereof, and supersedes all prior communications or Terms and Conditions written or oral, and is intended as a complete and exclusive statement of the terms of the Terms and Conditions between the Parties.
- 15.2 Amendment
Except as explicitly permitted herein, this Terms and Conditions may be modified only in writing, signed by authorised representatives of both Parties. No Terms and Conditions or understanding varying or extending any of the terms or provisions hereof shall be binding on either Party unless in writing and signed by duly authorised representative of both Parties.
- 15.3 Power
Both Parties represent and warrant to each other that each has the right and power to enter into this agreement.
- 15.4 Assignment/subcontracting
The transfer, delegation, subcontracting or assignment by Retailer of this Terms and Conditions, or any of its duties, obligations, or rights hereunder, without the prior written consent of Emtel shall not be valid.
- 15.5 LIABILITY
IN NO EVENT SHALL EMTEL BE LIABLE TO the RETAILER OR ANY OTHER ENTITY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES, HOWEVER CAUSED, WHETHER OR NOT EMTEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF EMTEL ARISING OUT OF THIS TERMS AND CONDITIONS AND/OR SALE OF PRODUCTS HEREUNDER. IN NO EVENT SHALL EMTEL BE MADE LIABLE TO THE RETAILER OR ANY OTHER ENTITY FOR ANY ERRONEOUS TRANSFER OF PRODUCT AND SERVICES WHETHER MADE DELIBERATELY, UNINTENTIONALLY OR NEGLIGENTLY BY DISTRIBUTOR OR ANY SUB-RETAILER AND/OR RETAILERS. IN ANY CIRCUMSTANCE, EMTEL’S LIABILITY UNDER THIS TERMS AND CONDITIONS IF ANY, SHALL BE LIMITED TO THE AVERAGE VALUE OF PURCHASE OF PRODUCTS MADE BY RETAILER IN ONE YEAR.
- 15.6 Force Majeure
The Parties shall be released from liability hereunder for failure to perform any obligations hereunder where such failure to perform occurs by reason of any act of God, fire, cyclone, storm, earthquake, tidal wave, sabotage, war, military operation, national emergency, insurrection, riot, civil commotion, or any other cause beyond either party’s reasonable control, whether similar or dissimilar to such causes.
- 15.7 Title and Interest
Retailer agrees that Emtel owns all right, title, and interest in the Product lines and Services that include the Products and Services now or hereafter subject to this Terms and Conditions or is a licensee thereof. The use by the Retailer of any of these property rights is authorised only for the purposes herein set forth, and upon termination of this Terms and Conditions for any reason such authorisation shall cease.
- 15.8 Confidentiality and Non-Disclosure
The Retailer acknowledges that by reason of its relationship with Emtel hereunder, it may have access to certain information and materials including Emtel business, plans, customers, technology, and products that are confidential and of substantial value to Emtel (“Emtel Confidential Information”), which value would be impaired if such information were disclosed to third parties. Retailer agrees that it will not use in any way for its own account or the account of any third party, nor disclose to any third party, any such confidential information disclosed to it by Emtel. Retailer agrees to protect the confidentiality of Emtel Confidential Information in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall Retailer exercise less than reasonable care in protecting such confidential information.
All Emtel Confidential Information, including copies of the Confidential Information, shall be returned or destroyed upon the first to occur of: (a) expiry or termination of this Terms and Conditions or (b) request by Emtel.
Notwithstanding any termination clauses under this Terms and Conditions, this clause shall survive the termination of the Terms and Conditions and remain valid for a further period of five years from the expiry date thereof.
- 15.9 Data Protection
The Retailer warrants that it shall comply with the current Mauritian data protection legislation. Moreover, the Retailer undertakes that it shall not use customer’s mobile numbers and/or any other personal data which it has received from Emtel or its end-customers for any purpose not expressly authorised by this Terms and Conditions including but not limited to advertising or communication to the Emtel subscribers, unless express consent has been obtained from the said Emtel subscribers.
The Retailer confirms having read and understood Emtel’s privacy policy, a copy of which is available on https://www.emtel.com/privacy-policy, as updated from time to time.
The Retailer shall be liable and shall defend and hold Emtel harmless against (i) from and against any loss, damage or breach of intellectual property of any third party, (ii) from and against any loss, damage or breach of personal data of Emtel subscribers (iii) and against any loss, damage or breach of from liabilities to third parties and all losses incurred in connection with claims by third parties including without limitation, all losses, claims, demands and damages resulting from the intentional or negligent acts or omissions from Retailers, its officers, agents, employees or subcontractors in connection with the performance of this Terms and Conditions.
- 15.10 Notices
All notices required to be given hereunder shall be given in writing by personal delivery or by a certified letter to the respective address as may be designated in writing by either Party and delivered to the other Party. The current addresses of the Emtel is as follows:
Emtel: Address 10, Ebene Cybercity, Ebene
Phone 5729 5400
Attention Chief Executive Officer
- 15.11 Applicable Law and Competent Jurisdiction
This Terms and Conditions shall be governed by and construed in accordance with the laws of the Republic of Mauritius.
- 15.12 Where a dispute arises out of or in connection with this Terms and Conditions, the Parties shall attempt to settle any claim or controversy amicably through consultation and negotiation in good faith and in the spirit of mutual cooperation. If the Parties are unable to resolve the matter within twenty-one (21) days after either Party notifies the other of a dispute, then the matter shall be submitted to the jurisdiction of the Court of Mauritius.
- 15.13 No waiver
No waiver of any provision of this Terms and Conditions shall be effective unless it is in writing and signed by the Party against which it is sought to be enforced. The delay or failure by either Party to exercise or enforce any of its rights under this Terms and Conditions shall not constitute or be deemed a waiver of that Party’s right to thereafter enforce those rights, nor shall any single or partial exercise of any such right preclude any other or further exercise of these rights or any other right.
- 15.14 Severability
If any term or provision of this Terms and Conditions is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such term or provision shall not affect the other terms or provisions of this Terms and Conditions or this Terms and Conditions as a whole, but such term or provision shall be deemed modified to the extent necessary, in the court’s opinion, to render such term or provision enforceable.