Standard Terms and Conditions This document will create legally binding obligations. You are recommended to take appropriate legal or other professional advice prior to signing, and will be assumed to have done so.
1. INTRODUCTION AND DEFINITIONS
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.
These are: 1.1.1 the Agreement; and 1.1.2 the Airtime Agreement with the relevant network/service provider.
1.2 The following words and expressions shall have the meanings set out below:
“Agreement” the order form setting out the agreed commercial terms between Forcemobile Ltd and the Customer which incorporates these Standard Terms and Conditions.
“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 this Agreement;
“Airtime Services” means cellular mobile telecommunications airtime and network capacity procured from a network/service provider; “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/company ordering the Equipment/Services and/or the Airtime Services whose full details are set out on the order form of this Agreement;
“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;
“End User” means a person using Equipment and/or Service who is an employee or contractor of the Customer;
“Equipment” means mobile telecommunications 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 each Connection by the number of months in the Minimum Term applicable to each Connection;
“Network Connect Commission” means commission paid to Forcemobile Ltd by the network/service provider in respect of that Connection “Services” means any services ordered by the Customer and provided by Forcemobile Ltd; and
“Subsidy” means the sum payable by Forcemobile Ltd to the Customer as is determined by Forcemobile Ltd in its sole discretion, taking into consideration the number of Connections which the Customer is taking out, any other subsidies provided by the network/service provider to the Customer during the Minimum Term, the applicable tariffs and the Minimum Term which the Customer is prepared to enter into.
2. APPLICABLE TERMS
2.1 Unless other terms and conditions are expressly accepted by Forcemobile Ltd by means of a specific written amendment signed by a director of Forcemobile Ltd 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 Forcemobile Ltd.
2.2 For the avoidance of doubt, the terms and conditions set out in this Agreement will apply to any order placed by provision of email for Equipment and/or Services by the Customer to Forcemobile Ltd.
3. SUPPLY OF CUSTOMER EQUIPMENT
3.1 In consideration of the Customer entering into the Airtime Agreement, Forcemobile Ltd undertakes (subject to the terms of this Agreement) to supply to the Customer such Equipment/Services as is ordered by the Customer from time to time.
3.2 Forcemobile Ltd 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 Forcemobile Ltd at all times.. If whatever reason this Agreement comes to an end (including for the avoidance of doubt the expiry of this Agreement) the Customer must return all Equipment to Forcemobile Ltd within 14 days of the day on which this Agreement ends. If Forcemobile Ltd has not received all of the Equipment within 14 days of the day on which this Agreement ends, it shall (at its sole discretion) be entitled to charge the Customer a sum equal to the cost of the Equipment (valued as at the date of this Agreement) which has not been received by Forcemobile Ltd.
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 Forcemobile Ltd 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 Forcemobile Ltd within this period then the Customer will be deemed to have accepted the Equipment and Forcemobile Ltd shall have no liability to the Customer whatsoever in respect of such Equipment.
4. PROVISION OF THE SERVICES
4.1 Forcemobile Ltd shall use its reasonable endeavours to provide the Services on the dates agreed by the parties.
4.2 Forcemobile Ltd shall use its reasonable endeavours to ensure that the Services are provided with reasonable skill and care.
5. CHARGES AND PAYMENT
5.1 The Customer hereby agrees to pay Forcemobile Ltd for each item of Equipment and any Services ordered by and provided to the Customer within 5 days from the date of the invoice issued by Forcemobile Ltd.
5.2 Forcemobile Ltd reserves the right at its absolute discretion to levy a surcharge for all credit card transactions in accordance with Forcemobile Ltd tariff applicable from time to time, a copy of which will be available upon request.
5.3 Interest at an annual rate of 10% 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.
5.4 A debt collection agency will be instructed to act on behalf of Forcemobile Ltd in cases of non-payment of invoices. Additional costs may be incurred.
6. PAYMENT AND RECLAMATION SUBSIDES
6.1 Subject to the remaining provisions of this clause 6, Forcemobile Ltd 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.
6.2 Forcemobile Ltd at its sole discretion may provide a Subsidy to the Customer using the following methods set out below or any combination of them:
6.2.1 deducting the sum equal to or part of the Subsidy from the value of the Equipment or the Services which the Customer orders from Forcemobile Ltd;
6.2.2 a payment of the sum equal to or part of the Subsidy to the Customer; and/or
6.2.3 using such amount to discharge any termination charges (applicable to line-rental only) levied upon the Customer by the relevant network/service provider for terminating their previous airtime agreement subject to the following:
184.108.40.206 within 7 days from the date which the Connection(s) commenced Forcemobile Ltd being provided with a copy of the relevant invoice from such network/service provider confirming the amount required to discharge any termination charges (applicable to line-rental only);
220.127.116.11 within 7 days from the date which Forcemobile Ltd receive confirmation of the amount required to discharge any termination charges (applicable to line-rental only) pursuant to clause 18.104.22.168 Forcemobile Ltd providing the Customer with written confirmation (on Forcemobile Ltd headed paper and signed by at least one director of Forcemobile Ltd) confirming the amount required to be paid by Forcemobile Ltd to discharge the termination charges (applicable to line-rental only);
and 22.214.171.124 Forcemobile Ltd having first received the commission in full from the network/service provider in respect of the tariff applied to a Customer in connection with the Airtime Agreement. If for whatever reason Forcemobile Ltd does not receive the commission in full from the network/service provider referred to above it reserves the right (at its sole discretion) to withhold payment of monies to discharge termination charges (for line-rental only) applicable to the Customer’s previous airtime agreement until payment of the commission referred to above has been received in full.
6.3 A Subsidy (or instalment payment of a Subsidy) shall be paid to the Customer by Forcemobile Ltd (at its sole discretion) at any time during the Minimum Term (subject to it first receiving an invoice from the Customer for the Subsidy within 7 days of the date on which the Connection(s) commenced) provided that;
6.3.1 at all times all the Connections are still active on the relevant payment date that the Subsidy (or instalment payment of the Subsidy) is due; 6.3.2 where the invoice referred to in clause 6.3 is payable in instalments or after a prescribed period of time the appropriate trigger date has passed;
6.3.3 the invoice referred to in clause 6.3 has been raised in accordance with the provisions of this Agreement;
6.5 In the event that the Customer fails to invoice for a Subsidy to Forcemobile Ltd within 7 days of the date on which the Connection(s) commenced pursuant to clause 6.3 then the Customer’s right to the Subsidy shall cease.
6.6 The Customer acknowledges that the payment of the Subsidy is conditional upon;
6.6.1 the Customer maintaining each Connection for duration of the Minimum Term;
6.6.2 the Customer not Downward Migrating any Connection at any time during the Minimum Term;
6.6.3 Forcemobile Ltd receiving an invoice for the Subsidy from the Customer within 7 days from the date on which the Connection(s) commenced pursuant to clause 6.3; and
6.6.4 such other conditions as are notified to the Customer from time to time by Forcemobile Ltd.
6.7 Forcemobile Ltd 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 instalment of a Subsidy to be paid to the Customer) in the event that;
6.7.1 a Connection is for any reason whatsoever disconnected prior to the expiry of the Minimum Term; or
6.7.2 a Connection is for any reason whatsoever Downward Migrated during the Minimum Term; or
6.7.3 the relevant network/service provider (for any reason whatsoever) reclaims or withholds in full or in part from Forcemobile Ltd any Network Connection Commission.
6.8 The proportion of the Subsidy that Forcemobile Ltd shall be entitled to reclaim from the Customer shall be the Monthly Subsidy Amount for each month (and such pro data amount for each incomplete month) of the balance of the Minimum Term which is unexpired at the date of disconnection or the Downward Migration.
6.9 In the event that for any reason howsoever (including for the avoidance of doubt a Customer failing to enter into the Airtime Agreement with the relevant network/service provider in accordance with clause 1.1.2):
6.9.1 a Customer cancels prior to the date of Connection; and/or
6.9.2 a Connection is disconnected prior to the expiry of the Minimum Term and/or
6.9.3 a Connection is Downward Migrated during the Minimum Term; and/or
6.9.4 at any time during the Minimum Term for the period of one calendar month there is (in Forcemobile Ltd’s reasonable opinion) no reasonable use/activity in resect of a Connection; then Forcemobile Ltd shall be entitled to charge the Customer the following:
6.9.5 £300 for each Connection which is cancelled, disconnected or Downward Migrated it being agreed that this is a genuine and fair estimate of the cost to Forcemobile Ltd of default on the part of the Customer; and/or
6.9.6 a sum (up to a maximum of £300) representing a genuine and fair estimate of the cost to Forcemobile Ltd of default on the part of the Customer for each Connection deemed inactive in accordance with clause 6.9.4; and/or
6.9.7 a sum equal to the cost of the Equipment (valued as at the date of this Agreement) which is subject to cancellation, disconnection or Downward Migration.
6.10 Any sum which is reclaimed, withheld from or charged to the Customer pursuant to clauses 6.7- 6.9 shall be invoiced to the Customer by Forcemobile Ltd and such sum shall be payable (unless withheld) within 7 days of the date of such invoice.
The Customer acknowledges that Forcemobile Ltd is not the manufacturer of the Equipment, and accordingly, that the warranty given by Forcemobile Ltd is limited as follows.
7.1 If any Equipment is proved to the reasonable satisfaction of Forcemobile Ltd to be defective in material or workmanship then:
7.1.1 provided that the Equipment is returned to Forcemobile Ltd within 7 days of the date of its delivery Forcemobile Ltd will at its option:
126.96.36.199 repair the Equipment;
188.8.131.52 replace the Equipment;
184.108.40.206 substitute substantially equivalent goods; or
220.127.116.11 credit the Customer in respect of any such Equipment.
7.2 For the avoidance of doubt, where Forcemobile Ltd replaces Equipment or provides substitute goods, the original Equipment returned by the Customer will belong to Forcemobile Ltd, provided that these obligations on the part of Forcemobile Ltd will not apply where:-
7.2.1 the Equipment has been altered in any way whatsoever or has been subjected to misuse or unauthorised repair; or
7.2.2 the Equipment has been improperly installed or connected (unless Forcemobile Ltd carried out such installation and connection); or
7.2.3 the Customer has failed to observe any maintenance requirements relating to the Equipment; or
7.2.4 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.
7.3 Save as expressly provided in this Agreement Forcemobile Ltd 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.
8. LIMITATION OF LIABILITY
8.1 Forcemobile Ltd 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;
8.1.1 this Agreement and/or
8.1.2 any matter collateral to this Agreement and/or in respect of any representation or misrepresentation (other than a fraudulent misrepresentation made by or on behalf of Forcemobile Ltd); shall in no circumstances exceed the sum paid by the Customer to Forcemobile Ltd in respect of the Equipment and/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 Forcemobile Ltd negligence
8.2 Save as otherwise provided, Forcemobile Ltd 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 Forcemobile Ltd 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 Forcemobile Ltd’s negligence, Forcemobile Ltd 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.
9.1 This Agreement may be terminated forthwith at any time by either party on written notice to the other if:
9.1.2 the other commits a material breach, or series of breaches resulting in a material breach, of the Agreement and such breach is not remediable or is not remedied within 30 days of written notice to do so;
9.1.3 the other: (i) suspends or threatens to suspend payment of its debts, (ii) is unable to pay its debts as they fall due or (iii) is unable to pay its debts (being a company) within the meaning of s 123 of the Insolvency Act 1986 or (being an individual) within the meaning of s 268 of the Insolvency Act 1986 or (being a partnership) there is any partner to whom any of the foregoing applies;
9.1.4 the other: (i) negotiates with its creditors for rescheduling of its debts, (ii) makes a proposal to or compounds with its creditors in respect of its debts or (iii) makes an application to court for protection from its creditors generally;
9.1.5 the other passes a resolution for winding-up or for the appointment of an administrator, or a liquidator or administrator is appointed in relation to the other, or a winding-up order is made in relation to the other; 9.1.6 a receiver or administrative receiver may be or is appointed in relation to the other or any of its assets;
9.1.7 any creditor of the other attaches, takes possession of, or any distress, execution or similar process is levied or enforced against, all or any part of the other's assets, and such attachment or process is not discharged within 14 days;
9.1.8 the other takes or suffers any action similar to any of the above in any jurisdiction;
9.1.10 the other suspends trading, ceases to carry on business, or threatens to do either;
9.2 In addition to its rights under clause 9.1, Forcemobile Ltd may terminate the Agreement at any time:
9.2.1 on 30 days' written notice to the Customer; or
9.2.2 immediately on written notice to the Customer if the Customer has failed to pay any amount due under the Agreement.
9.3 On termination of the Agreement for any reason:
9.3.1 the Customer will immediately pay all invoices of Forcemobile Ltd then outstanding and not disputed in good faith;
9.3.2 Forcemobile Ltd will, within 7 days, invoice the Customer for all Equipment and/or Services provided but not yet invoiced and the Customer will pay such invoice within a further 7 days (unless the invoice is disputed in good faith);
9.3.4 the accrued rights and liabilities of the parties will not be affected; and
9.3.5 clauses which expressly or by implication are to survive termination will do so.
10.1 Forcemobile Ltd will be entitled to assign, sub-contract or sub-let this Agreement or any part thereof. The Customer shall not be permitted to assign or sub-let this Agreement or any part thereof without the written consent of Forcemobile Ltd.
10.2 Failure by Forcemobile Ltd to enforce any of the provisions of this Agreement will not be construed as a waiver of any of its rights hereunder.
10.3 Forcemobile Ltd shall be entitled to amend any of the terms of this Agreement upon the giving of 7 days written notice to the Customer.
10.4 In relation to all obligations of the Customer under this Agreement, the time or performance is of the essence.
10.5 The illegality, invalidity or unenforceability of any clause or part of the Agreement will not affect the legality, validity or enforceability of the remainder. If any such clause or part is found by any competent court or authority to be legal, invalid or unenforceable the parties agree that they will substitute provisions in a form as similar to the offending provisions as is possible without thereby rendering them illegal, invalid or unenforceable.
10.6 Each of the parties hereto is an independent contractor and nothing contained in this Agreement shall be construed to imply that there is any relationship between the parties of partnership or of principal/agent or of employer/employee.
10.7 The legal construction of these clauses shall not be affected by their headings which are for convenience of reference only.
10.8 Any demand, notice or communication shall be deemed to have been duly served.
10.8.1 If delivered by hand, when left at the proper address for service
10.8.2 if given or made by prepaid first class post, 48 hours after being posted (excluding Saturdays, Sundays and public holidays)
10.8.3 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 4.00 p.m. on a Business Day or on a day other than a Business Day service shall be deemed to occur at 10.00 a.m. 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).
10.9 For the avoidance of doubt, notice given under this Agreement shall be validly served if sent by e-mail.
10.10 No variation to this Agreement may be made unless set out in writing and signed by a director of Forcemobile Ltd.
10.11 This Agreement shall be governed by English law and the parties submit to the exclusive jurisdiction of the English Courts.
Safeguarding your privacy & data
At Forcemobile Ltd we respect your privacy. We have provided this statement so that you can understand how we collect and use any information that you provide to us from visiting this website. You can visit our website without disclosing any personally identifiable information about yourself. Any information that is collected about you will be used lawfully, in accordance with the Data Protection Act 1998. If you do submit personal information by emailing us you can be assured that this will be used only to support your continuing relationship with Forcemobile Ltd. Any personal information collected is done so with your knowledge and consent. We do not sell or in any manner pass on your details to any third party companies.
What we collect
We may collect the following information:
•name and job title
•contact information including email address
•demographic information such as postcode, preferences and interests
•other information relevant to customer surveys and/or offers
What we do with the information we gather
We require this information to understand your needs and provide you with a better service, and in particular for the following reasons: •Internal record keeping. •We may use the information to improve our products and services. •We may periodically send promotional email about new products, special offers or other information which we think you may find interesting using the email address which you have provided. •From time to time, we may also use your information to contact you for market research purposes. We may contact you by email, phone, fax or mail. We may use the information to customise the website according to your interests. Security We are committed to ensuring that your information is secure. In order to prevent unauthorised access or disclosure we have put in place suitable physical, electronic and managerial procedures to safeguard and secure the information we collect online.
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Controlling your personal information
You may choose to restrict the collection or use of your personal information in the following ways: •whenever you are asked to fill in a form on the website, look for the box that you can click to indicate that you do not want the information to be used by anybody for direct marketing purposes •if you have previously agreed to us using your personal information for direct marketing purposes, you may change your mind at any time by writing to us. We may disclose your personal information to third parties if we are under a duty to disclose or share your personal information in order to comply with any legal or regulatory obligation, or in order to enforce or apply our terms and conditions and other agreements; or to protect the rights, property, or safety of our customers, or others. This includes exchanging information with other companies and organisations for the purposes of fraud protection and credit risk reduction.
You have a right of access to personal information which we may hold about you (we may charge a small administrative fee for this). To have inaccurate information about you corrected or to request we stop using your personal information for marketing purposes, access requests should be put in writing and addressed to email@example.com .