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Terms And Conditions For Business Mobile Services |
01/12/04 - 001
1. Term
1.1 This Contract will come into effect on the Commencement Date and continue until the expiry of the Minimum Period. This Contract will then continue unless and until terminated by either party giving the other no less than 30 days' prior written notice.
2. Supply of Mobile Phones & Accessories
2.1 We will supply You with the Mobile Phones and Accessories specified in the Order Form or ordered pursuant to clause 4.
2.2 Delivery of the Mobile Phones & Accessories will occur when;
(a) We deliver them to the address for delivery that You have specified in the Order Form: or
(b) You collect them from Us,
as appropriate.
2.3 If You:
(a) fail to give Us all of the necessary instructions for Us to make Delivery of the Mobile Phones and Accessories or otherwise cause or request a delay in Delivery; or
(b) fail to take Delivery of the Mobile Phones and Accessories when We deliver them to You, You will pay all of the reasonable expenses that We incur in storing and then re-delivering the Mobile Phones and Accessories to You.
2.4 Risk in the Mobile Phones and Accessories will pass to You upon Delivery.
2.5 We warrant that the Mobile Phones and Accessories will be of a satisfactory quality and fit for the purpose they were sold for.
2.6 Title in the Mobile Phones and Accessories will pass to You when;
(a) they are Delivered to You; or
(b) You have paid our Charges for their purchase in full,
whichever is the later. For the avoidance of doubt, if You have chosen to pay any Charges by the Instalment Option, ownership of the relevant items shall not transfer to You until You have paid all of the Charges due under the Instalment Option in full.
2.7 You must notify Us of any defects or missing items with any Mobile Phones or Accessories We Deliver to You within three days of the date on which they are Delivered to You. If You fail to notify Us of any defects or missing items within this period You will be deemed to have accepted the Mobile Phones and Accessories and will be responsible for paying all of our Charges for the same.
2.8 We will pass to You the benefit of a 12 month manufacturers warranty for any Mobile Phones and Accessories that You purchase from Us. Further details of this Warranty will be enclosed with the Mobile Phones and Accessories when they are Delivered to You. You must call Kingston Customer care on 0800 138 0136 if You would like to make a claim under this warranty
2.9 Any SIM Card supplied by Us will only enable a Mobile Phone to work on our Mobile Network, unless Roaming has been added to the Service.
2.10 If You buy a SIM Card only from Us and You wish to use that SIM Card with a Mobile Phone that is latched to another network, You may need to obtain an unlatching code from the relevant Network Operator. Any failure to enter the correct unlatching code may result in your Mobile Phone becoming permanently blocked. We will not be responsible for any Mobile Phones blocked in this way or for any costs or charges that You incur in obtaining your unlatching code.
2.11 SIM Cards provided by Us do not belong to You. You must take care of them and do everything reasonable to prevent their theft, loss or unauthorised use. We may recall a SIM Card from You at any time to improve or maintain the quality of the Service. On termination of this Contract, You must return the SIM Card(s) to Us immediately if We ask You to do so.
2.12 If a SIM Card or Mobile Phone is lost, stolen, damaged, destroyed or is likely to be used in an unauthorised way, You must inform Kingston Customer Care promptly. You will be responsible for all of the Charges incurred in the period before such notification.
2.13 You must arrange activation of any SIM Cards supplied by Us within 90 days of Delivery.
3. Provision of Mobile Services
3.1 We will use reasonable skill and care in the provision of the Service. However, the Service is not fault free and You will only be entitled to the quality of Service generally provided by a competent and experienced provider of mobile telecommunications services.
3.2 If You wish to have Mobile Extension as part of the Service, O2 will provide the Link at your request and You must enter into a separate agreement with O2 for the Link.
3.3 In order to be able to provide You with the Service, You must provide Us with all of the Information set out on the Order Form. We will not be responsible for any problems or delay with the Service caused by any inaccuracies or omissions with the information You provide to Us on the Order Form.
3.4 We will use our reasonable endeavours to provide the Service to You at all times, however, You acknowledge that:
(a) the Service is not available in parts of the United Kingdom outside the range of the Mobile Network;
(b) quality or availability of the Service may be affected by matters outside our control including, without limitation, physical obstructions, atmospheric conditions, radio interference and faults on other networks;
(c) if Roaming is provided it may not be available in certain areas or certain countries;
(d) the Mobile Network may sometimes need maintenance or upgrading and this could mean that the Service will be unavailable from time to time;
(e) for operational efficiency We may limit the number and length of any voicemail messages that You may leave on any voicemail facility;
(f) We may need to temporarily suspend provision of the Service for operational reasons, in an emergency or for your security;
(g) We may have to alter the number of a Mobile Phone, or any other name, code or number associated with the Service; and
(h) We do not warrant error free or uninterrupted use of the Service.
3.5 We do not guarantee the continuing availability of any particular Service and You acknowledge that We may be dependant upon third parties when providing the Service (including O2). You acknowledge that as part of the Mobile Extension service, O2 provide the Link and that We are not responsible for its failure.
3.6 We can not guarantee that We can provide Service to a specific Mobile Phone numbers where these numbers have been transferred to our Mobile Network from another Network Operator or where there are national code or number changes. We will not be liable for any loss or damage You incur due to your inability to receive any incoming telephone calls in these circumstances.
3.7 The telephone numbers for Mobile Phones that We allocate to You for use with the Service do not belong to You. However, You may submit a request to Us to transfer these telephone number(s) to another network. We will use our reasonable endeavours to arrange for this upon payment of our standard Charge and provided that You owe no other outstanding Charges to Us.
3.8 If You do not want the telephone numbers for your Mobile Phones to be displayed on the receiving handset, You must call Key 141 before dialling the number You wish to call. Otherwise, You agree that the Mobile Network may allow the display of the telephone numbers for your Mobile Phone(s) on receiving handsets.
4. Sales Orders
4.1 At any time after the Commencement Date, You will be entitled to:
(a) request additional Mobile Phones and Accessories; and/or
(b) request Additional Services.
4.2 Any request should be made to Kingston Customer Care. You should give details of the Mobile Phones and Accessories required, the quantity and the dates from which You would like any Additional Services. We will inform You of any additional Charges and the likely delivery dates.
4.3 No order made under this clause 4 will be accepted until We have given notice to You confirming our acceptance. We are not obliged to process or accept any order submitted by You.
4.4 If You order additional Mobile Phones and Accessories and want to pay for them under the Instalment Option, You will need to terminate this Contract and enter into a new contract with Us. With this exception, the provision of any additional Mobile Phones and Accessories and any Additional Services will always be governed by the terms of this Contract.
5. Use of the Service
5.1 You will and will ensure that any or Your Authorised Users use the Mobile Phones and the Service in accordance with;
(a) any reasonable instructions that We give You from time to time;
(b) the User Guide;
(c) the terms of this Contract; and
(d) any relevant provisions of the Act, any licences (where applicable) and any Legislation.
5.2 You will not, and will ensure that Your Authorised Users and any third parties will not, use the Service in any way in connection with any message or communication which is offensive, abusive, indecent, obscene or menacing or which does, or is intended to, cause annoyance, inconvenience or worry or which is illegal, fraudulent, defamatory, an act of treason or intended to be a hoax call to any emergency service or which (in our reasonable opinion) brings our name into disrepute or in any way which intentionally causes damage or disruption to the Service or the Mobile Network.
5.3 You must not disclose to anyone other than Your Authorised Users any personal codes, numbers, names or passwords issued by Us to enable You and Your Authorised Users to access the Service. You must not and must ensure that Your Authorised Users do not use the Service for any criminal or other illegal activity.
5.4 Both of us will co-operate fully with the Police and any other relevant authorities (including, but not limited to, the Inland Revenue, the Trading Standards Service and/or OFTEL, or OFCOM and any of their successors from time to time) in connection with any misuse or suspected misuse of the Service and You consent to Us co-operating with any other Network Operators in connection with any fraudulent activity related to or connected with the Service and agree We will be entitled to give the name and address of You and your Authorised Users together with any relevant account information.
5.5 If You intend to install any Mobile Phones or Accessories in a vehicle it is your responsibility to ensure that the vehicle is suitable and that (where required) its owner agrees to such installation.
6. Charges
6.1 You will pay Us the Charges for the Mobile Phones, Accessories and Service, as detailed in the Order Form and the Price List. In the event of any inconsistency between the Charges set out on the Order Form and the Charges specified in the Price List, the Charges set out in the Price List shall apply.
6.2 You can obtain a full copy of the Price List at any time by contacting Kingston Customer Care or visiting our web site at www.kingstoncommunications.com
6.3 You will be responsible for all Charges for the Service whether or not You or Your Authorised Users personally used the Service.
6.4 Unless You have chosen to pay by the Instalment Option, all of the Charges for the purchase of any Mobile Phones and Accessories must be paid in full prior to Delivery. If You have chosen to pay any Charges for Mobile Phone and Accessories by the Instalment Option, You must pay these Charges to Us in accordance with the details shown on the Order Form.
6.5 We will be entitled to vary the Charges at any time after the end of the Minimum Period by giving You thirty days notice.
6.6 We will be entitled to vary the Charges at any time if O2 varies its charges to Us. Any variations to the Charges that We make in these circumstances will take effect as soon as We give You notice of them.
6.7 Unless We have agreed to provide itemised billing, all call Charges will appear as a single item on your bill.
6.8 All Charges must be paid in full without any set-off, deduction or withholding of any kind.
6.9 You must pay our Charges within 14 days of the day on which We bill You for them. We reserve the right to charge daily interest on any outstanding amounts until payment is received in full from You at a rate of 2% per annum above the base rate of National Westminster Bank plc as current from time to time whether before or after judgement.
6.10 We may request a security deposit against non-payment of our Charges. If You fail to pay this security deposit within 10 Working Days then We reserve the right to terminate this Contract with immediate effect by giving notice.
6.11 All Charges are exclusive of Value Added Tax and any other applicable taxes that may be levied from time to time.
6.12 If You use your Mobile Phone abroad You will be charged for incoming calls. Roaming calls may also take longer to be billed.
7. Content
7.1 If You or Your Authorised Users use the Service to access any Content, the additional conditions set out in this clause 7 will apply.
7.2 We or our service providers will use reasonable endeavours to manage the Content made available using the Service. However, You and Your Authorised Users must note that this Content may be incomplete, out of date or inaccurate and is provided on an "as is" basis. You accept that We will not be liable for any action You or your Authorised End Users take and reliance on any Content.
7.3 You must not, and must ensure that Your Authorised Users do not, use the Content in a way that infringes the rights of others. You and Your Authorised Users must comply with any instructions issued by Us regarding use of the Content. You and Your Authorised Users must not store, modify, transmit, distribute, broadcast or publish any part of any Content other than for the purposes for which are expressly authorised. The reselling, copying or incorporation into other work of any part of the Content in any form is prohibited. You and Your Authorised Users may print or download extracts of Content for your personal use only.
8. Internet Access
8.1 If your Mobile Phone enables You and Your Authorised Users to access the Internet using the Service, the additional terms set out in this clause 8 will apply.
8.2 You may need to register with a third party Internet service provider to enable You and Your Authorised Users to access the Internet using the Service. Where this is the case, the terms and conditions of that third party Internet service provider will also apply to your and Your Authorised Users' access to and use of the Internet using the Service.
8.3 We may provide links to websites and other resources as part of the Service. We do not accept any responsibility for the material displayed on third party websites nor do We endorse their Content.
8.4 You and Your Authorised Users are solely responsible for evaluating the value and integrity of any goods or services offered by third parties over the Internet. We will not be a party to or in any way responsible for any transaction concerning third party goods and services that you enter into using the Service and/or any Content.
8.5 You understand that all of the visual, text or other material published or otherwise made available on the Internet using the Service is the sole responsibility of the person from which such material originated and not Us.
9. Suspension of Service
9.1 We may at our sole discretion bar Mobile Phone(s) from receiving or making calls (other than to the emergency services) or otherwise suspend the Service:
(a) if We are, or become entitled to terminate this Contract;
(b) If any of our Charges are overdue for payment by You;
(c) in the event of loss or theft or suspected fraudulent use of a SIM Card or Mobile Phone by You or by one of Your Authorised Users; or
(d) if a complaint is made to Us alleging any improper use of the Service.
9.2 You will remain liable for all Charges that accrue during the period of any suspension. We may charge You a reconnection Charge at the end of any period of suspension.
10. Data and Records
10.1 By signing this Contract, You agree to Us using any personal or other information We obtain from the Order Form or your use of the Service for the purpose of managing and providing the Service to You.
10.2 Unless You have signed the opt out box in the Order Form, You also agree to Us using this information for the purpose of sending You information about any other goods and services provided by;
(a) Us;
(b) any service or Content provider offering services that can be accessed using the Service
(c) any other member of the Kingston Group;
(d) any other party.
We may also disclose the information We hold about You to these third parties so that they can contact You directly about the services they may be able to offer to You.
10.3 You can withdraw your consent to us using information about you in this way at any time by contacting Kingston Customer Care.
10.4 We may sometimes monitor or record telephone calls, e-mails and any other correspondence made to the Kingston Customer Care for training and quality control purposes. These recordings will not be made available to any third party or used for any other purpose.
10.5 The provisions of this clause 9 do not affect any of your rights under the Data Protection Act 1998, or any subordinate legislation.
11. Termination
11.1 Either of us may terminate this Contract with immediate effect if the other is:
(a) in breach of any of the provisions of this Contract and fails to remedy such breach within 14 days of written notice to do so; or
(b) the subject of a bankruptcy order, or becomes insolvent, or makes any arrangements for the benefit of its creditors or, being a company, goes into either voluntary or compulsory liquidation or has a receiver appointed over and of its assets.
11.2 We may terminate this Contract or any part of this Contract with immediate effect if:
(a) You are in breach (or We reasonably believe You are in breach) of clauses 5.2, 5.3 or 5.4 as such breach may be a criminal offence and/or cause serious harm to our reputation;
(b) Our authorisations to provide the Service are altered in a way that is material to the Service.
11.3 Upon termination of this Contract, You will cease to use the Service and will pay to Us all outstanding Charges due up to and including the date of termination.
11.4 The expiry or termination of this Contract will be without prejudice to any other rights either party may be entitled to and will not affect any accrued rights or liabilities of either party.
11.5 If this Contract terminates for any reason at a time when further payments are still due from You under the Instalment Option, You must continue to pay the outstanding payments due under the Instalment Option and this Contract shall be deemed to continue for such purposes.
11.6 If We terminate this Contract under clause 10.1 or 10.2 (a) prior to the end of the Minimum Period, You must make immediate payment of all of the line rental Charges that would have fallen due up to the end of the Minimum Period, less a discount for accelerated payment of 10%.
12. Limitation of Liability
12.1 Nothing in this Contract shall limit either parties' liability for fraud, death or personal injury resulting from its own negligence or that of its employees, sub-Contractors or agents.
12.2 Except as expressly set out in this Contract, all conditions, warranties, terms, undertakings and obligations express or implied by statute (including without limitation those of satisfactory quality or of fitness for a particular purpose (even if that purpose is made known expressly or by implication to Us), common law, custom, trade usage or otherwise and all liabilities in respect of the same (if any) are excluded.
12.3 Notwithstanding any other provision of this Contract, but subject to Clause 11.1, We will not be liable to You in contract, tort (including negligence) or otherwise for the actions of any third party (including, without limitation, acts or omissions of any Network Operators) that affect or impact upon the provision of the Service. We will in no circumstances be liable to You in contract, tort (including negligence) or otherwise for any loss of business; loss of data; loss of profits; loss of goodwill; loss of anticipated savings, loss of revenue or; any indirect or consequential losses, liabilities or costs.
12.4 Both parties accept liability in respect of damage to the others tangible property resulting from its or its employees' negligence up to an aggregate of £10,000 (ten thousand pounds).
12.5 Other than in respect of clause 11.1 and 11.4 and subject to clause11.3, our maximum aggregate liability to You in contract, tort, negligence or otherwise arising out of, or in connection with, this Contract will, in respect of any and all acts, omissions, defaults or events be limited in aggregate to:
(a) the amount of the Charges paid by You to Us during the preceding 12 month period; or
(b) £2,000 (two thousand pounds), whichever is the greater.
13. Force Majeure
13.1 We will not be liable to You for any loss or damage caused to or suffered by You as a direct or indirect result of the supply of the Mobile Phones, Accessories or Service being prevented, restricted, hindered or delayed by reason of any circumstance outside of our control. If either party is prevented from performance of its obligations for a continuous period of 3 months either party may terminate this Contract by giving written notice.
14. General
14.1 This Contract constitutes the entire agreement and understanding between You and Us and supersedes any previous agreement between You and Us relating to the subject matter of this Contract.
14.2 Each of the parties acknowledges and agrees that in entering into this Contract it does not rely on, and will have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Contract or not) other than as set out in this Contract. Nothing will operate to limit or exclude any liability for fraud.
14.3 Should any provision of this Contract be held to be void or voidable the remaining provisions of this Contract will continue in full force and effect.
14.4 No delay by either party in enforcing the provision of this Contract will prejudice or restrict the rights of that party nor will any waiver of its rights operate as a waiver of any past or subsequent breach.
14.5 We will use reasonable endeavours to meet any delivery time, date or period. However, such dates will be regarded as estimates and We will have no liability to achieve any such time, dates or periods.
14.6 No person or body who is not a party to this Contract has any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Contract (but this does not affect any rights or remedies of a third party which exist or are available apart from that Act).
14.7 You may not assign the whole or part of this Contract without our prior written consent, such consent not to be unreasonably withheld.
14.8 We may assign this Contract to any company which from time to time is our holding company or subsidiary (as defined in section 736 and 736A of the Companies Act 1985).
14.9 Subject to clause 13.8 We may not assign this Contract to any other third party without your prior written consent, such consent not to be unreasonably withheld.
14.10 We reserve the right to vary these terms and conditions to the extent necessary to take into account any changes to Industry Agreements and any relevant Legislation. Save as permitted by this Contract, any other variations must be in writing and agreed between the parties.
14.11 Any notice under or in connection with this Contract shall [be in writing] and may be delivered by hand to or sent by first class post or by facsimile (confirmed by post) to the address of the party concerned set out in this Contract or any other address notified from time to time.
14.12 Any notice addressed as provided in clause 13.11 shall be deemed to have been given or made on the second Working Day after posting if sent by first class post upon delivery if delivered by hand and if sent by fax on the next Working Day after the date of transmission provided the sender's facsimile machine produces a report showing successful transmission to the correct facsimile.
14.13 This Contract will be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
15. Definitions
15.1 Except where the context otherwise requires the following terms will have the following meanings:
"Act" the Telecommunications Act 1984 as amended by the Electronic Communication Act 2000 or any act which substantively replaces the same;
"Accessories" any equipment We provide pursuant to this Contract other than Mobile Phones;
"Additional Services" additional services including without limitation, Roaming, international calling, Internet access or premium rate services which We may agree to provide to You from time to time;
"Charges" all call charges, connection charges, line rental charges, purchase charges, delivery charges, any charges for Additional Services or other charges payable by You as detailed in the Order Form and Price List;
"Commencement Date" the date You start to use the Service;
"Content" any text based, visual or other material, software, photos, video graphics, music, or other material available through the Service, including all information supplied by third party content or service providers from time to time;
"Contract" these Terms and Conditions, the Order Form and the Price List;
"Delivery" is defined in clause 2.2;
"Industry Agreements" any standard industry agreements or third party agreements which impact upon our ability to provide the Service;
"Instalment Option" the option to pay the Charges for the purchase of Mobile Phones and Accessories in instalments, as set out on the Order Form;
"Minimum Period" the minimum period stated in the Order Form, which will run from the Commencement Date;
"Kingston Customer Care" the centre to which all faults, help queries, orders or, activation requests should be addressed to;
"Legislation" all Acts of Parliament and all applicable European Union laws and other legislation enforceable in the United Kingdom;
"Link" link between O2 and your telephone system which allows direct dialling traffic to route over between the Mobile Phones and fixed your extensions;
"Mobile Extension" mobile extension services;
"Mobile Network" the mobile telecommunications systems used by Us to provide the Service;
"Mobile Phone(s)" a cellular phone or device and a SIM Card;
"Network Operator(s)" any public telecommunications operator used by Us to deliver the Service;
"O2" O2 (UK) Limited whose registered office is at 260 Bath Road, Slough, SL1 4DX, registered number 1743099;
"OFTEL" the Office of Telecommunications and any successor body;
"Order Form" the order form to which these Terms and Conditions are attached.
"Price List" the list of Charges for the Mobile Phones, the Accessories and the Service published and updated by Us from time to time.
"Roaming" an optional enhancement permitting a Mobile Phone to be used with other networks, principally overseas;
"Service" the provision by Us of a mobile telecommunications service allowing You to make or receive calls using Mobile Phone(s) on the Mobile Network and any other Additional Services We agree to provide to You, as detailed in the Order Form;
"SIM Card" the card which identifies a Mobile Phone as belonging to You, and identifies its allocated telephone number;
"Your Authorised User(s)" any individuals authorised by You to use a Mobile Phone and the Service;
"User Guide" the instructions for Mobile Phones, Accessories and Services that We provide to You;
"We/Us" Kingston Communications (HULL) PLC (Company No 2150618) whose registered office is at 37 Carr Lane, Kingston Upon Hull, HU1 3RE;
"Working Day" Monday to Friday 9.00am to 5.00pm inclusive except for English bank and public holidays;
"You" the person, partnership or company to whom the Service is provided.