“Agreement” the contract between you and us which consists of the Purchase Order, Network Airtime Agreement, these Terms and Conditions and any further conditions relating to specific individual services.
“Customer/Or You” the person or company entering into this Agreement and the recipient of the Equipment.
“Equipment” any equipment supplied by the Supplier to the Customer which is approved for connection to the airtime network together with (if appropriate) \ a SIM card and accessories.
“Minimum Period” the period of service as provided by the Service Agreement which for the avoidance of doubt shall be from the date of the verification call until the expiration of the agreement with the Nominated Airtime Provider.
“Nominated Airtime Provider” the company or body nominated by the Supplier to provide airtime to the Customer upon the tariff agreed by the Customer prior to this Agreement.
“Service Agreement” the terms and services together with the tariff which you will be charged by the Nominated Airtime Provider and which you agreed and accepted by recorded telephone call. The effective date of the Service Agreement shall be the date of the verification call to the Customer and shall be a legally binding contract.
“Supplier/Or Us/We” Fusion Business Communications Ltd
THE AGREEMENT AND ORDER
A quotation by us does not constitute an offer and may be withdrawn or revised at any time prior to us accepting your order. Any order placed by the Customers with us whether or not in response to a quotation shall constitute or be deemed to have constituted an offer to us to acquire the Equipment or services on these terms and conditions and we shall have full discretion in accepting or rejecting any orders.
Our sales representatives are trained to check that the person who is entering into the Service Agreement on behalf of the Customer is duly authorised to do so. In accordance with accepted commercial practice, unless otherwise specifically rebutted it will be assumed that the Directors or Partners have actual authority. A Company Secretary or equivalent will be assumed to have apparent authority unless otherwise indicated. They will also ensure that the Customer fully understands the extent and nature of the Service Agreement and intends to contract with Fusion Business Communications Ltd. In addition a designated member of the Company’s staff will make a verification call to the Customer to ensure that the correct information has been given before the sales representative leaves the Company premises. This call and that which constitutes the basis of the Service Agreement may be recorded for training or monitoring purposes.
By entering into an agreement with us and providing a Purchase Order and continuing payment, the Customer confirms that they will abide by these terms.
You shall be responsible for ensuring that the Equipment you purchase is of the correct specification for its intended use and location.
It may be necessary from time to time to make changes in the specification of the Equipment to make it conform with any applicable safety or other statutory requirements or to make it reflect changes in the manufacturer’s specification but these will not materially reduce the quality or performance of the Equipment.
This Agreement shall be operative for the Minimum Period.
The Equipment (with the exception of the SIM card) shall remain the property of the Supplier unless it shall have been purchased outright and fully paid for at the time of delivery until the expiration of the Service Agreement when the Supplier will pass title of the Equipment to the Customer.
You agree that during the term of this Agreement that you will not terminate nor upgrade the Service Agreement through the agency of any outside third party and in the event that you should do so then the provisions of clauses 9 and 10 hereof shall apply.
You agree that during the term of this Agreement that you will at all times, purchase all Equipment of whatsoever kind from us at the prices set out in clause 3 hereof and to this extent we shall be deemed to be your sole Supplier of Equipment.
You will provide us with such information and/or documentation as may reasonably be required to implement this Agreement or the Service Agreement.
The prices of the Equipment shall be those in our quoted price (which we can change in case of an error) or, where no price has been quoted (or a quoted price is no longer valid) the price contained in our price list current at the time of dispatch and which price shall be accepted in writing as provided in clauses 2.1 and 2.2 hereof.
We shall have the right at any time to withdraw any discount and/or to revise prices to take into account increase in costs including, inter alia, costs of any goods, materials, carriage, labour or overheads or the increase or impositions of any tax duty or other levy and any variations in exchange rates.
Unless otherwise specified quoted prices are exclusive of the costs of transport, insurance, value added tax, customer duties and all other taxes and charges.
The cost (if any) of fitting the Equipment is only included in the price if the written quotation or invoice specifically states this to be the case.
TERMS OF PAYMENT
Subject to any special terms agreed in writing between you and us, we shall be entitled to invoice you and you shall pay for the price of the Equipment either upon collection or prior to despatch or delivery.
If the cost of fitting the Equipment is included in the price then you are required to pay us the price of the Equipment when the order is accepted in writing by us.
As time is of the essence to this Agreement if you fail to make any payment on the due date then, without prejudice to any other right or remedy available to us we are entitled without recourse to the courts to require immediate payment of all outstanding sums, cancel this Agreement between you and us, delay or suspend any order or further order.
All mobile and landline orders must be paid for monthly (line rental a month in advance, calls on a month by month basis) and must be paid for by a Direct Debit. If payment is withheld or removed at any time without prior agreement from Fusion then services may be suspended until payment method is reinstated.
Any extension of credit allowed to you may be varied or withdrawn at any time and interest shall be payable on all overdue amounts accruing on a daily rate of 3% over the base lending rate from time to time of Lloyds TSB PLC, until receipt of the full amount due whether before or after judgement. You will also indemnify us and pay us on demand any out of pocket expenses that we incur in relation to the recovery of any overdue amounts.
Kit Funds (defined as the agreed financial incentive for entering this agreement and confirmed on your Purchase Order) shall be held on account with Fusion for use for the purchasing of new equipment from us at the prices we quote for kit fund purchases. We do not match prices for internet sales or none UK stock. Any unused fund can be drawn upon once the minimum term has been completed. Should you wish to draw upon the kit fund as “cash” prior to the end of the minimum term, this is solely at our discretion and an appropriate transaction fee will apply. Should you exit your agreement prior to the end of the minimum term then any unused fund will no longer be available.
DELIVERY, RISK AND PROPERTY
We shall not be under any liability to you in respect of any failure to deliver the Equipment on any particular date or dates nor shall a delay in delivery be a basis for cancellation of any order by you as all delivery dates supplied in any quotation, order, acceptance or elsewhere are approximate and not of contractual effect.
Subject to any other provision in these terms and conditions once the Equipment has been delivered to you as specified in the order, collected by you and/or fitted in your vehicle or placed with any carrier or transport provided by you then all risk of damage to, or loss of the Equipment shall pass to you.
Irrespective of delivery and the passing of risk in the Equipment, or any other provisions in these terms and conditions the ownership of the Equipment shall not pass to you until:-
- You have purchased the Equipment outright and we have received the full purchase price of the Equipment at the time of delivery.
- You have made all payments due under your agreement with your Nominated Airtime Provider for the Minimum Period in such cases where you have acquired your Mobile Phone on the basis that you enter into an agreement with the Nominated Airtime Provider.
Until such time as the ownership of the Equipment passes to you then you shall hold the same on our behalf and keep it safe and identified as our property and we shall be entitled to request its return to us at any time.
In the event that you are duly performing all your obligations under the agreement with your Nominated Airtime Provider then we agree that we will not exercise our right under clause 5.4 hereof.
In the event that you fail to pay your first two invoices issued by your Nominated Airtime Provider and we supplied to you a Mobile Phone/Smart Phone on the basis that you enter into and comply with the terms of the agreement with the Nominated Airtime Provider then we will be entitled to exercise our right to blacklist the Mobile Phone/Smart Phone on the Central Equipment Identity Database.
WARRANTIES REPLACEMENTS AND RETURNS
Subject to below the Equipment, where new, is sold with the benefit of and subject to manufacturers warranty and guarantee.
No liability will be accepted for any defect resulting from fair wear and tear, accidental or wilful damage, negligence, rain, water or other liquid damage, abnormal working conditions, failure to follow the manufacturers written or oral instructions or misuse, alteration or repairs to the Equipment without the manufacturers approval.
No liability will be accepted under any warranty or guarantee where the purchase price for the Equipment as provided in clause 5.3 hereof has not been paid and consequently ownership has not passed to you.
Subject to clause 6.5 hereof, if a valid warranty claim is made under the manufacturers warranty and guarantee then we will replace or repair (at our discretion) the Equipment free of charge. You must first contact our customer services team on 01543225877, then you must re-package your Mobile Phone ensuring that it is returned along with the original accessories. Please ensure that the package is securely wrapped and return it by Royal Mail Special Delivery to Fusion Group, Charter House, Sandford Street, Lichfield, WS13 6QA. The reason for using Royal Mail Special Delivery is that you are protected through their insurance should the Mobile Phone go missing in the post. After the expiry of the warranty period or if you fail to return the original accessories then we will make a charge for either.
Subject to the above we shall (at our or the manufacturers option) have the right to fulfil our obligations hereof by refunding the price you paid for the Mobile Phone (if it was an outright purchase) or a proportionate part depending upon age and condition. This will be the extent of our liability to you.
Other than set out above we shall not be under any obligation to exchange, repair or replace the Equipment or provide any refunds. You accept that you are solely responsible for ensuring the back up of any important data stored on the Equipment prior to its return for repairs and you acknowledge that we will not be liable if any such data (including logos or ringtones) are lost during repairs or if the Equipment is exchanged.
These provisions in this clause 6 do not affect your statutory rights.
EXCHANGE AND REFUND
It is not our policy to exchange Equipment or provide a refund in respect of Equipment with which you are not satisfied unless we are required to do so. In certain circumstances (and in our absolute discretion) however we may be prepared to consider an exchange or refund.
Nothing in these Terms and Conditions shall exclude or limit our liability for death or personal injury resulting from our negligence or that of our servants, agents or employees.
Except as provided by clause 8.1 above we shall not be liable to you in contract, tort, negligence, pre-contract or other representations or otherwise arising out of our obligations under these terms and conditions including loss or damage (including) loss of business, contracts, costs, expenses, profits or anticipated savings or for any indirect or consequential economic loss whatsoever suffered by you as a direct or indirect result of the supply of the Equipment by us being prevented, hindered, delayed or tendered uneconomic by reason of circumstances or events beyond our reasonable control which shall include but not be limited to Act of God, war, riot, strike, lock-out, trade dispute or labour disturbance, accident, breakdown of plant or machinery, fire, flood, storm, difficulty or increased expense in obtaining workmen, materials or transport or other circumstances affecting the supply of the Equipment or accessories from our normal source of supply or the manufacture of the goods by our normal means or the delivery of goods by our normal means of delivery.
Each provision of this clause excluding or limiting liability shall be construed separately, applying and surviving even if for any reason one or other of these provisions is held to be inapplicable or unenforceable in any circumstances and shall remain in force notwithstanding the expiry or termination of this Agreement.
EARLY TERMINATION CHARGE
In the event that as part of the Agreement between us we agree to discharge the Early Termination Charge payable by you to your previous Nominated Airtime Provider then we shall only be liable to discharge the actual Early Termination Charge of your previous Nominated Airtime Provider and shall be under no liability whatsoever to discharge any other costs or charges incurred by you in respect of the early termination of your previous agreement to provide airtime services including (but not limited to) those of any other third party with whom you may have previously contracted to supply you with mobile phone services and/or Equipment or line rental payments unless verified by us in the telephone call between us confirming your acceptance of the Agreement.
TERMINATION OF YOUR AGREEMENT WITH YOUR NOMINATED AIRTIME PROVIDER.
You have entered into a legally binding contract with us but if for any reason whatsoever:-
- Your Nominated Airtime Provider ends its agreement with you in accordance with its terms (including but not limited to your failure to make your payment obligations during the Minimum Period) or
- You terminate the agreement with your Nominated Airtime Provider for any reason within the Minimum Period.
Then in addition to discharging all your liability to your Nominated Airtime Provider you must return the Mobile Phone/Smart Phone (unless purchased outright by you) to us at the address and in the manner set out in clause 6.4 hereof or retain the Mobile Phone/Smart Phone in which case you agree to pay us the purchase price of the same or a proportionate part depending upon age and condition.
TERMINATION OF YOUR AGREEMENT WITH US
Once a Purchase Order is supplied, there is no option to cancel the agreement with us without charge equivalent to the charges for the minimum period.
Either party may terminate this Agreement at the end of the Minimum Period by giving to the other party not less than thirty (30) days notice in writing to take effect on or at anytime after the end of the Minimum Period.
If you terminate this Agreement or that with the Nominated Airtime Provider before the end of the Minimum Period then in addition to the previous provisions here of you agree to pay to us a cancellation charge calculated by reference to the number of months remaining of the Minimum Period multiplied by the monthly rental which you had been paying to the Nominated Airtime Provider immediately prior to the termination.
If you terminate any agreement with Fusion before the minimum period, then we have the right to bill for any investment in hardware, credit, kit fund or other financial investment will be immediately clawed back OR £250 per connection (whichever is greater) and due for full payment within 7 days. Note this is in addition to your network contractual charges. Once the minimum period is completed, then the title of such will pass to the Customer.
All information that we hold concerning you as an individual, firm or company (“data”) will be held and processed by us strictly in accordance with the provisions of the Data Protection Act 1998. Such data will be used by us to provide you with the services that are the subject of this Agreement and the agreement with your Nominated Airtime Provider, for related purposes and for the purposes set out in clause 12.2. We will not, without your consent, supply any data to any third party except where (1) such transfer is a necessary part of the services that we undertake, (2) we are required to do so by operation of law, or (3) we share information for the purpose of managing and administering our relationship with Nominated Airtime Providers.
We would like to use the information that we have about you and your use of the agreement with your Nominated Airtime Provider (this includes information about your bill size, the numbers you call and the times you call) to inform you by automated means or otherwise, including by writing, email, fax, mobile text message, telephone, post and via world wide web, WAP and similar sites, subject to any preferences indicated by you at the time you apply to enter into this Agreement or subsequently, about the products, services, pricing packages and special offers which we and those of carefully selected third parties provide and which we believe may be of particular interest to you. By accepting these terms and conditions you consent to our and the above thirds parties contacting you with that information. However, if you do not wish to receive that information then please contact us by writing at Charter House, Sandford Street, Lichfield, WS13 6QA stating your full name, address, account number or agreement number and mobile telephone number.
An individual has the right under the Data Protection Act 1998 to obtain information, including a description of the data that we hold on you. Should you have any queries concerning that right then please contact us at the address shown in clause 12.2 above.
You should be aware that if we are requested by the police or any regulatory government authority investigating suspected illegal activities to provide your user information or information concerning your activities whilst using the Mobile Phones/Smart Phone then we must do so. We also reserve the right to disclose individually identifiable information to third parties where a complaint arises concerning your use that is deemed by either ourselves to your Nominated airtime Provider to be inconsistent with these terms and conditions.
In the event that you wish to make a complaint about the service that we offer to you then we have a complaints procedure that will be implemented upon receipt of written notice of such complaint via email addressed to “The Legal Department” at email@example.com.
PHONE REPLACEMENT SCHEME
As agreed with you when you entered into the Agreement it is a condition precedent that you enter into a Phone Replacement Scheme with Fusion upon its standard terms and conditions for the cost of repairs or replacement of the Equipment in the event that it is stolen or damaged. This is subject to you not having opted out of this scheme during the telephone call which verified the Agreement with us.
Failure by us to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at anytime or times thereafter.
Any notice required to be sent to us shall be in writing and may be delivered by hand or sent by first class post to our address as stated in clause 6.4hereof. Should we need to send notices to you then these must be in writing and may be delivered by hand or sent by first class post to your address as shown in your order or given to us during the application process or sent by e-mail to the address shown in your order or any other e-mail address that you have supplied to us for this purpose. Notices sent by first class post shall be deemed to have been given 24 hours after posting and notices delivered by hand or given by email shall be deemed to have been delivered the day after the notice is sent.
These terms and conditions shall be construed in such fashion as to be effective and valid under applicable law and shall be construed separately and independently of each other. If any provision is declared void, illegal or unenforceable by a court of competent jurisdiction with respect to particular circumstances then such provision shall remain in full force and effect in all other circumstances. If any provision is declared entirely void, illegal or unenforceable by a court of competent jurisdiction then all other provisions of these terms and conditions shall remain in full force and effect.
Third parties may not benefit from this Agreement under the Contracts (Rights of Third Parties) Act 1999 and you may not assign all or any of your rights under this Agreement or any variations or amendment thereto.
Any complaints regarding this Agreement or any of the services provided by us may be made in writing to Customer Services, Fusion, Charter House, Sandford Street, Lichfield, WS13 6QA
This Agreement shall be governed by and construed in accordance with the laws of England.
Version 1.2. Effective Date 1st November 2014.