General Terms and Conditions for Business Users

SCHEDULE 1: SFOA General Terms & Conditions

 

1. Multiple Country SIM service

1.1. These terms and conditions apply to the Company and all its employees, agents and representatives ("End Users").

1.2. This Schedule 1 sets forth the general terms and conditions of the Agreement for the supply of the Truphone products and services ("the Service(s)") to be provided by Truphone and its Affiliates (we, us and our) to Customer and its End Users, (collectively and individually you and your as the case may be) pursuant to the Agreement with Truphone for the Service, into which its Schedule 1 is incorporated by reference, for use by You and each End User. Your use of these Services is subject to this Agreement including any other terms and conditions associated with any ancillary services offered by Truphone as notified to you in writing and which will also be incorporated into this Agreement. A copy of this Agreement should be retained for future reference and any changes or updates to this Agreement will be notified to you in writing.

1.3. You may only access and use the Services in accordance with this Agreement.

 

2. Minimum Contract Period

Connection to the Truphone Services is subject to Truphone carrying out and being satisfied with your credit status. The minimum contract period set out in the relevant Agreement ("Minimum Contract Period") shall not commence unless and until Truphone is satisfied with your credit status. By entering into an Agreement, you agree to make the payments due under this Agreement as they relate to the Services requested and used by you for the Minimum Contract Period. Save in respect of your termination of this Agreement under clause 9.4(a) or 9.4(e), early termination will not relieve you of the payment obligations and liability for the monthly charges that apply for the duration of the Minimum Contract Period.

 

3. Service

3.1. We shall provide you with national and international telecommunications services including voice, text and where available 3G data services based on the capabilities of a multi-IMSI SIM card.

 

availability

3.2. You acknowledge that mobile telephony is a form of wireless communication and operates on the basis of transmission over radio frequency spectrum. As such it can be interfered with by numerous external sources or by obstacles inherent in buildings, vegetation or terrain and as such we cannot guarantee a perfect or error free transmission, both in terms of quality or availability of the Service.

3.3. The Service is provided on an "as is" and "as available" basis. We shall take all reasonable steps to make the Service available to you at all times, contingent upon our and/or our service provider's ability to maintain necessary licenses or permissions, or our and or our service provider's network capacity and connection availability. Please note that the network operator in the country of use will be responsible for network coverage, quality and availability.

3.4. We do not warrant or guarantee a fault free Service and give no warranties or guarantees as to network coverage, quality or availability. In the event of a fault, upon becoming aware of the fault or upon receipt of notice of the existence of such a fault by you, we shall use reasonable efforts to promptly correct the fault.

3.5. We reserve the right to choose our network operators and technology partners as we deem appropriate and to provide access to the Service in any manner we deem in the best interest of our business requirements. In this regard you hereby consent to us disclosing and using any of your personal data for the provision of the Service, subject to any applicable data protection or similar legislation or regulations, including the Privacy Act 1988 (Cth) and the Australian Privacy Principles. Any such use of your personal data will be subject to the terms of our Privacy Policy, updated versions of which shall be notified to you in writing and can also be found on www.truphone.com ("our Website").

3.6. If an End User is in an area where their Truphone SIM Card is searching for a wireless signal or there is no wireless signal or wireless service, it is highly probable that an Emergency call will not go through. The End User must not rely solely on the Truphone SIM card in an emergency situation. In an emergency, the End User must locate the nearest landline phone and call for help.

 

local numbers

3.7. You can add multiple available nominated additional country Truphone mobile numbers to your SIM account that we offer as part of our Services and which have been contractually agreed with you.

3.8. The current list of countries where we offer additional local mobile numbers and the process for adding additional country numbers can be found on our Website or you can call Truphone Customer Services for an up to date list and information on how to add an additional country number. Truphone reserves the right to amend this country list from time to time.

3.9. The use of any numbers assigned to your End Users' SIM Cards is subject to this Agreement and any material breach of this Agreement may result in your use of one or more of the allocated numbers being withdrawn from your use.

 

roaming

3.10. As with any GSM mobile service, a core feature of the Service is the inclusion of roaming on foreign networks in order to provide the Service outside your chosen home country and any agreed Truphone designated countries ("Roaming"). Roaming means that you will be using foreign networks, over which we have no control and therefore cannot provide any guarantees about the Service, particularly its availability or quality. In addition your use of the Service whilst Roaming may be subject to different laws and regulations that apply. We will not accept any liability for your failure to comply with those laws or regulations.

 

local tariffs for designated countries

3.11. The unique feature about the Truphone Service is the ability to be charged local rates for calls in certain identified countries outside your chosen home country. Where you have subscribed to have access to local tariffs for your SIM one or more of these other Truphone countries and provided the necessary fees have been paid, your End Users will be able to make and receive calls on your Truphone SIM Cards at local call rates in those chosen countries.

3.12. Where Truphone does not have an arrangement with a specific country for the purchasing of local rates and thereby the offering of local rates on the Truphone SIM, then your End Users may still use the Truphone SIM but this will be on a Roaming basis. You will incur additional charges for this Roaming ability including for the making and receiving of calls, texts and data access whilst Roaming.

3.13. It is your responsibility to check the billing status (i.e. whether local tariffs are applicable for subscribing to or roaming only) of the country you intend to use the Service in before you travel to that country and incur any charges by using the Services in that country. Truphone will not be liable for any charges incurred by you or your End Users based on your misunderstanding of the applicable and available tariffs in a particular country.

 

suspension

3.14. From time to time we may be required to upgrade, modify or maintain the Service and or equipment used to provide the Services. On such occasions the Service may be temporarily unavailable, however, we will endeavour to keep such disruption to a minimum and notify you in advance when possible.

3.15. We reserve the right to suspend the Service, or the Service to any End User(s), as appropriate, without giving you notice where:

a) we have reason to believe you or an End User are in breach of the Service conditions of usage (clause 5 below) or any of our policies as notified to you;

b) pending the outcome of an investigation following receipt of a complaint made against you or an End User;

c) there are any outstanding bills or Service charges which have not been paid when they are due for payment and Truphone has provided reasonable written notice for remedying the non payment of the outstanding bills;

d) we are notified that the SIM Card licensed to you and an End User by us is lost or stolen;

e) we are obliged to comply with an order, instruction or request of any government, regulatory, or emergency services organisation, or other competent administrative authority;

f) in order to prevent damage or degradation of our or our contracting party's network integrity which may be caused by you or anyone using your access;

g) for operational reasons or in an emergency or for security reasons.

 

monitoring

3.16. We may at our discretion bar or disconnect an End User's SIM Card if we have reasonable cause to suspect any form of fraudulent use including relating to a SIM Card or mobile phone whilst using the Service.

3.17. We may monitor the Service, including for usage, fraud and quality purposes, and disclose information gained from such monitoring in order to satisfy any law, regulation or other governmental request, to operate and administer the Service, or to protect us or our other customers.

 

4. Activation

4.1. The Service shall commence following activation of the SIM Card so that the Service is operationally available for your End Users' use (Activation).

4.2. If non-activiated SIM Card has been provided to you, you can call our customer service to activate the SIM Card.

 

5. Your obligations

use

5.1. You agree that your End Users shall use the Service lawfully and in compliance with this Agreement and that you are responsible for all use of the Service by your End Users including call costs and charges incurred to your account for using the Service (including such use, call costs and charges incurred by any third party using your account with or without your permission). You furthermore procure that you will obtain the necessary consents from your End Users for the processing and/or transfer of their personal data outside their country of residence for the provision of the Service and regulatory compliance purposes. Your use of the Service is subject to our Acceptable Use Policy, Privacy Policy and Fair Usage Policy which you and your End Users must adhere to. A copy of each of those policies is available on our Website and shall also be available on request. You agree to ensure that all End Users are provided with a copy of the Acceptable Use Policy and are made aware of the Privacy Policy and Fair Usage Policy. If we make any changes to these policies we shall notify you in writing and you agree to advise all End Users of any such changes. Any use in contravention of these policies will entitle us to terminate the Service to you and/or your End User(s) and to cancel your account, as appropriate. We will where reasonably practicable and legally possible to do so, notify you of any breaches of our policies by you or your End User(s) and allow you to remedy such breach within 7 days prior to any suspension or termination of the Service by us

5.2. You shall be responsible for all use of the Service including but not limited to Devices its proper configuration and installation, compliance with any regulations and applicable instructions issued either by us or the supplier of the Device.

5.3. You must comply with all reasonable directions of Truphone including relating to any security procedures and standards with respect to the Service. We may communicate security issues to you from time to time when abuse or misuse is observed or reported by others along with any and all general information related to the provision by us of the Service by any means, including via the Website.

 

SIM card

5.4. You must inform us immediately if any SIM Card provided to you under this Agreement is lost or stolen. You will remain fully liable for all call costs and charges incurred with respect to that SIM Card and Services until you do so. If any phone or SIM Card is lost or stolen please call our Customer Services immediately or e-mail us at business.help@truphone.com. The cost of replacing a lost or stolen SIM Card is subject to the payment of an administration charge of AUD$20. We are not responsible for any service fees, call costs or other charges incurred due to a lost or stolen SIM Card, all such service fees, call costs and other applicable charges incurred prior to your notification for a lost or stolen phone or SIM Card shall be for your sole account.

 

device

5.5. You shall be responsible for ensuring that your End Users' Devices are compatible with the Service that you purchase from us. This may include ensuring that these Devices are 'unlocked' and are compatible with the network in the country where you wish to use them.

The quality of the Service is also dependent on the quality of the Device model you use and we have no control or influence over the quality of such Device. The choice of Device is solely yours.

 

content

5.6. You are solely responsible for any and all content, information and communications transmitted by an End User using the Service and you agree that we have no responsibility for the deletion, corruption or failure to store any content transmitted using the Service.

 

regulatory compliance

5.7. Certain countries have additional regulatory requirements that need to be fulfilled prior to Truphone being permitted to provide certain elements of the Services to customers. These include the obtaining, verification and retention of End User personal data. If an End User intends to travel to a country where Truphone is required to satisfy these additional regulatory requirements, then it is a condition of Truphone providing the Service that you co-operate and provide the required information and/or documentation prior to obtaining the Services.

5.8. Truphone shall have no liability to you for any costs or charges incurred by you or End Users for failing to comply and satisfy any regulatory requirement of a country prior to using the Services in that country.

5.9. A list of countries requiring additional regulatory compliance can be found on our Website from time to time where applicable.

 

6. Charges and Payment

6.1. You shall be invoiced on a monthly basis for the Services utilised by the End Users. You must pay the full amount of all invoices issued within 30 days of the date of invoice.

6.2. The recurring monthly fees shall be invoiced and payable in advance of each month and the monthly usage charges incurred during a corresponding monthly period will be invoiced and paid in arrears.

6.3. In the event that any sums have not been paid when due, Truphone reserves the right to charge interest on overdue sums at a rate of 3 percent over the prevailing standard variable rate of National Australia Bank from time to time, or to suspend the provision of the Services.

6.4. You are not entitled by reason of any set-off, counter-claim, abatement, or other similar deduction to withhold payment of any amount due to Truphone under this Agreement. Any such deduction or withholding of any invoiced amount may result in suspension of the Services.

6.5. The rates and charges of the Services shall be exclusive of VAT and any other applicable taxes, unless indicated otherwise. All collection, remittance and payment of any taxes, charges, levies, assessments and other fees of any kind imposed by governmental or other authority in respect of the Services shall be for your account and the appropriate amount shall be included on your invoice.

6.6. Truphone will use reasonable endeavours to ensure that all traffic is invoiced in the following month. However, Truphone reserves the right to invoice up to six months after any traffic event due to delayed roaming charges being levied by third party operators.

 

disputed invoices

6.7. Billing queries with respect to any invoice must be made in writing within (1) month of the date of receipt of the applicable invoice after which time the invoice will be deemed to be accepted and you waive any remedies which you would otherwise have to query such invoices. Such written queries shall set out in detail the issue in dispute, the grounds for the dispute and supporting evidence.

6.8. If you challenge the accuracy of any invoice, or a dispute arises between you and us as to the accuracy of a sum due under this Agreement then, at the written election of either party, the procedures set out in Clauses 6.9 to 6.14 (inclusive) shall be used to resolve such dispute.

6.9. If the amount in dispute represents less than five percent (5%) of the total amount of the invoice (excluding GST), the invoiced amount shall be payable in full pending the resolution of the dispute. If the amount in dispute represents five percent (5%) or more, the disputed amount may be withheld pending resolution of the dispute and any undisputed balance shall remain payable in full.

6.10. On receipt of any written query in accordance with Clause 6.7, we shall provide you with:

i) a definitive re-calculation of the relevant sum due to you under the terms of this Agreement. You shall have fifteen (15) Business Days to review such sum and calculation or if you do not so agree, to state the matters which you do not accept as being an accurate calculation of the sum due to or from you. If you fail to respond to our notification of the re-calculation within fifteen (15) Business Days then our re-calculation shall be deemed final and binding on you; and

ii) reasonable access to information and relevant extracts of records or other of our working papers to review the re-calculation.

6.11. If you accept such re-calculation, where any over-payment or under-payment is disclosed we shall promptly refund (by means of issuing a credit note applied against the next invoice), or amend and reissue the invoice, or you will pay (as appropriate) the amount of such over-payment or under-payment.

6.12. If you notify us that you do not accept such re-calculation and provide as much detail as is reasonably practicable of the matters it does not accept as being correct, the parties shall meet and attempt to resolve any dispute or difference relating to the amount due. If they are unable to resolve the matters in dispute within the period of ten (10) Business Days following the date of your notification to us, the matters in dispute shall be referred for settlement to a firm of independent chartered accountants agreed by the parties or in default of agreement within five (5) Business Days at the request of either party to a firm of internationally recognised chartered accountants selected by the president for the time being of the Institute of Chartered Accountants in Australia. The certificate of such independent firm as to the amount payable shall be final and binding and the costs of such exercise shall be borne as such firm shall determine.

6.13. The paying party shall pay such sum as is determined in accordance with Clauses 6.9 to 6.12 inclusive to the receiving party within five (5) Business Days of the date of exhaustion of the relevant procedure in each case.

6.14. For the purposes of this clause 6 Business Days shall mean Monday to Friday excluding any public holiday in New South Wales.

 

7. SIM Card

7.1. The SIM card and all technology, intellectual property and documentation relating to it and the Service shall remain our property or the property of any licensor. We grant you a revocable, conditional, non-exclusive, non-assignable, non-sub-licensable license for you and your End Users to use the SIM card and Service and reserve our rights to recall any SIM card from you.

7.2 We warrant that our intellectual property rights are subject to protection by means of patents and design rights (registered and unregistered). We further warrant that we are authorised to provide the Services in the countries where the Services are made available to the public.

 

8. Telephone Numbers

8.1. We reserve all rights attached to the telephone numbers attributed to you and attached to the Service provided by us. Subject to available number portability obligations, we may change, withdraw or otherwise alter such telephone numbers or any other address-element at our discretion, without damages payable to you, should any technical reason or any applicable regulations so require.

 

9. Termination of the Service

 

by us

9.1. We reserve the right to terminate this Agreement and cease supplying the Services in the event that you materially breach any of this Agreement's terms and conditions.

9.2. In the event that you do not use the SIM Card for any continuous period of 180 days, we reserve the right to invalidate the SIM Card and/or call balance components and cancel your account and Services without prior notice and without any refund, repayment or compensation. For the avoidance of doubt, this sub-Clause does not apply to Company or its End User who is paying for the use of the SIM card.

9.3. We reserve the right to terminate the Agreement at any time in our sole discretion without any liability on thirty (30) days' notice during the applicable Minimum Contract Period.

 

by you (the Company)

9.4. You may terminate this Agreement with us in the following circumstances:

a) if we vary these terms and conditions which result in an excessive increase in charges or alter your rights to your detriment, unless such variations are imposed on us as a direct result of new legislation, statutory instrument, government regulation or licence;

b) at any time during the first 90days of the applicable Minimum Contract Period on ten (10) days written notice;

c) at any time after the applicable Minimum Contract Period on thirty (30) days written notice;

d) on sixty (60) days written notice during the Minimum Contract Period of this Agreement provided the cancellation charges applicable to such termination are paid in full; and

e) we are no longer able to provide the Services.

9.5. On termination of this Agreement the SIM card and any associated products must be returned to us before the end of the notice period and shall be at your own cost and risk.

 

Early Termination Fees

9.6. Where, during the Minimum Contract period, the Company terminates the Agreement without cause or where the Agreement is terminated by Truphone due to a breach by the Company of these Truphone terms and conditions then, in addition to any other fees, charges and losses due to Truphone and without prejudice to any other rights and liabilities accruing to Truphone, the following early termination fees shall be due and payable by the Company:

a) The early termination fees becoming payable will depend on the Device and Service plan purchased from Truphone.

b) The early termination fee for terminating the Agreement where Truphone has provided the Company with Devices is calculated as the monthly minimum recurring fee multiplied by the remaining month's left in the Minimum Contract Period. The early termination fee will be reduced on a monthly basis for the remaining duration of the Minimum Contract Period.

c) There is no early termination fee applicable for the termination of the Agreement after the Minimum Contract Period where the Agreement is extended beyond the Minimum Contract Period.

d) The early termination fee is calculated on a per End User basis.

e) The early termination fee for terminating the Agreement where Truphone has not provided the Company with any Devices will be AUD$75 ex GST per End User.

 

10. Liability

10.1. This clause 10 sets out the entire financial liability of us to you (including any liability for the acts or omissions of our employees, agents, consultants and subcontractors) in respect of:

a) the provision of the Services

b) any breach of the Agreement

c) any use made by your End Users of the Services; and

d) any representation, statement, or tortious act or omission (including negligence) arising under or in connection with any Agreement.

10.2. All warranties, conditions and other terms implied by statute or common law are to the fullest extent permitted by law excluded from all Agreements.

10.3. Nothing in this Agreement shall limit or exclude a Party's liability to the other Party:

a) for death or personal injury caused by negligence;

b) for fraudulent misrepresentation; or

c) for any other liability that may not, under Australian law, be limited or excluded,

and nothing in this Agreement shall limit or exclude your liability under clause 10.9(a);

d) in the case of your liability, to pay fees or charges when due to us under an Agreement.

10.4. Subject to clause 10.3, in no event shall a Party be liable to the other Party whether in contract, tort (including for negligence or breach of statutory duty) or otherwise, arising out of or in connection with the performance or contemplated performance of any Agreement for any indirect or consequential losses incurred, or for any loss of profit, revenue, contracts, data, goodwill or other similar losses or for any loss or corruption of data or information or any special or pure economic loss, costs, damages, charges or expenses.

10.5. Subject to clauses 10.3 and 10.4, each Party's total aggregate liability in contract, tort (including negligence or breach of statutory duty) or otherwise, arising out of or in connection with the performance or contemplated performance of any Agreement, including the provision of the SIM and Device, shall be strictly limited to the charges paid by you in respect of the first year of the term (commencing on the date of the relevant Agreement with us) for the relevant Services.

10.6. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations or provision of the Services where such delay or performance failure is due to (i) any of your acts or omissions; (ii) where you have provided incorrect data or information; or (iii) network failure, network outage, network congestion, power failures; or (iv) that is caused by events outside our reasonable control including but not limited to strikes, lock-outs or other industrial disputes (whether involving our workforce or any other party) Act of God, war, terrorist activity, malicious damage, compliance with any law or governmental order or default of suppliers or subcontractors.

10.7. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. If it is established that you are in breach of this warranty then we shall have the right to immediately terminate the Services and you shall forfeit any credit remaining on your account.

10.8. You agree that any liability arising under this Agreement relating to the Services shall be solely against us and that you will not have, nor attempt to initiate, any right of recourse against any third party supplier of ours.

10.9. Your liability:

a) you shall be liable for all charges or fees incurred in using the Services. In the event of loss or theft of any SIM Card it is your responsibility to inform us immediately so that we can prevent any further use of the Services by another unauthorised person. We provide no guarantees or warranties in relation to the prevention of the use of the Services on a lost or stolen SIM Card and accept no liability for any unauthorised use of your account. You will be solely responsible for the SIM Card and its use to obtain the Services and will not be entitled to obtain any compensation from us for its loss or theft or any use after its loss or theft; and

b) you shall be liable for the full retail cost of the replacement of any Device that has been provided to you. In the event that any such Device is lost, stolen or damaged, your liability to us under this clause 10.9(b) shall not limit your liability to us under clause 10.9(a).

 

11. Changes to these terms and conditions and the Services

11.1. We reserve the right to change the terms and conditions of this Agreement from time to time and make changes to the Service or any promotion or charges relating to the Services at any time.

11.2. We shall give you notice of any such changes. In relation to our Acceptable Use Policy and Privacy Policy we may make changes to these policies and will notify you in writing of the same. For the avoidance of doubt, publication on our Website is considered meeting the obligations under this clause.

12. Governing Law and Legal Compliance

12.1. This Agreement shall be governed by the laws of the State of New South Wales and shall be subject to the jurisdiction of the Courts in that State.

12.2. Despite the governing law provided above, you may be subject to various rules, regulations and laws which may also apply to you in the country in which you use the Services, in particular where you choose your home country to be a country other than Australia.

12.3. Subject to the terms of our Privacy Policy we may be required to collect further personal information from you in order to satisfy our compliance with any legal or regulatory compliance requirement. If we request such information from you and indicate that this is for legal or regulatory compliance then you agree that you shall provide us with the requested information and not provide us with false or misleading information.

 

13. Complaints

13.1. If you have any complaints or feedback about the Service you should send them in the first instance to business.help@truphone.com. Our complaints policy and procedure can be found at our Website www.truphone.com.

 

14. Privacy

14.1. Our Privacy Policy forms part of the Agreement. Full details of the Privacy Policy can be found at our Website www.truphone.com. Whilst we respect the privacy of our customers, the Service may be subject to interception by law enforcement agencies and bodies. In addition, we may be compelled to disclose your personal data where we are required to do so by a valid order of an authorised governmental representative or court order.

14.2. We may transfer Company and End User personal data outside Australia where we deem it necessary for the provision of the Services. In the event Truphone transfers such Personal Data outside of Australia we will use all reasonable endeavours to ensure that such transfer is such to adequate safeguards and those safeguards shall be no less stringent than those provided for under the applicable data protection law in Australia. You hereby consent and shall procure the consent of the End Users to us transferring your personal data outside of Australia under the above conditions.

14.3. We will always use and process your personal data in compliance with applicable data protection law and regulations, as amended from time to time.

14.4. We will provide you with a copy of the personal data of yours that we hold where you request access to such information in writing and provided you pay us an administration fee of AUD$20 ex GST.

 

15. Miscellaneous

15.1. We may compile and release information regarding you and your use of the Service on an anonymous basis as part of a customer profile or similar report or analysis.

15.2. All licenses not expressly granted in this Agreement are reserved and no other licenses, immunity or rights, express or implied are granted by us, by implication, estoppel, or otherwise. This Agreement does not grant you any rights to use any trademarks, logos or service marks belonging to us whatsoever.

15.3. You may not transfer or assign any or all of your rights or obligations under these terms and conditions without our prior consent. We reserves the right to assign this Agreement and its rights and obligations hereunder by giving you written notice of such assignment, which assignment shall fully release us from any further obligations or liability under the terms of this Agreement commencing upon the effective date of the assignment.

15.4. All notices given by you to us must be in writing (email, and letter) to one of the following addresses: (i) Legal Department, PO BOX 2413 Mansfield, Queensland 4122; or (ii) legal@truphone.com; or as otherwise notified to you by us.

15.5. Failure to enforce any of our rights under these terms and conditions does not result in a waiver of that right.

15.6. If any provision of these terms and conditions is found to be unenforceable, all other conditions shall remain unaffected.

15.7. Truphone is a trading name and registered trade mark of Truphone Limited. Neither you nor any End User may use the name or logo of Truphone in any publication without the prior written consent of Truphone.

15.8. This Agreement, together with any documents referred to in it, constitutes the entire terms and conditions of the agreement and supersedes and extinguishes any prior drafts, agreements, undertakings, warranties and arrangements of any nature, whether in writing or oral, regarding such subject matter. Unless provided for elsewhere in this Agreement, this Agreement may only be modified or otherwise amended by written agreement of the Parties. This shall not exclude any liability that a Party would otherwise have to the other Party in respect of any statement made fraudulently by that Party prior to the date of this Agreement.

15.9. If there is a conflict between any main terms of this Agreement the order of precedence of interpreting this Agreement shall be as follows:

1. Agreement cover page (Additional Terms);

2. The general terms and conditions (Schedule 1);

3. Policy documents (Acceptable Use Policy, Privacy Policy and Fair Usage Policy)

 

BlackBerry Terms & Conditions

16. BlackBerry Terms & Conditions

16.1. This Clause 16 only applies if the Company has a BlackBerry product the Company or any of its End Users are using with a Truphone SIM, where such BlackBerry product has been provided by Truphone.

16.2. For the purposes of this Clause 16 the following definitions apply:

i. BES means Blackberry Enterprise Server, including related Software, for accessing certain support services;

ii. BIS means BlackBerry Internet Service which is RIM's standard professional consumer service allowing the Company to set up an email account on the Company BlackBerry Handheld and to access certain internet sites from the Company BlackBerry Handset;

iii. RIM means Research in Motion UK Limited.

16.3. The provision of the BlackBerry Hardware (comprising the BlackBerry Handset and the BlackBerry accessories), the BIS and/or the BES is subject to the preceding terms and conditions set out in this document, together with the BlackBerry Terms & Conditions set out in this Clause 16.

16.4. If applicable, the Company must activate the BIS and/or BES by going to http://www.truphone.blackberry.com (or such other website as Truphone may notify from time to time) or via the Company's BlackBerry Handset.

16.5. In order to activate the BES the Company must do this in conjunction with the BES Administrator and using the Enterprise Activation software on the Company's BlackBerry Handheld.

1.6. The BES support terms and conditions are subject to a separate agreement between the Company and Truphone.

16.7. The BIS and/or BES may be available while roaming abroad. The BlackBerry Handset may synchronise with the Company's email accounts automatically resulting in GPRS charges. If the Company does not wish to receive email while abroad the Company can turn off the BlackBerry internet service (refer to the Company's user manual).

16.8. The Company's and its End Users' use of the BIS and/or BES is subject to the Company's acceptance of the Agreement and the BlackBerry terms and conditions of RIM as may be amended from time to time and which can be found at http://uk.blackberry.com/legal.html

16.9. If the Company is only taking the SIM and is using an existing BlackBerry Handset, then the original Blackberry terms and conditions made available to the Company when the Company purchased the BlackBerry Handset will continue to apply to the Company for the BlackBerry usage, and the Service terms and conditions will be as set out in this Agreement. If the Company is purchasing a BlackBerry Handset with a SIM from Truphone, then RIM's BlackBerry terms and conditions shall be made available to the Company on request when the Company first activates the BIS and/or BES. A copy of such terms and conditions is available in the BlackBerry Handset package and is available from Truphone upon request.

16.10. In the event of any inconsistency between this Clause 16 and the terms and conditions set out elsewhere in this Agreement, the latter shall prevail.

16.11. Truphone reserve the right to amend or replace the BIS and/or BES, or these BlackBerry Terms & Conditions, or to withdraw the BIS and/or BES, at any time on reasonable notice. Truphone reserve the right to withdraw the whole or part of the BIS and/or BES upon providing not less than 30 days' notice.

16.12. Each purchase by the Company from Truphone of a BlackBerry Handset is covered by the BlackBerry Handheld Limited Warranty, the terms of which can be found here or can otherwise be obtained from Truphone upon request.

16.13. Such warranty shall only apply to BlackBerry Handsets purchased from Truphone and returned to the place of purchase within twelve (12) months from the date of the Company's purchase, where it shall be repaired or replaced at Truphone's option, without charge to the Company. All repairs to such BlackBerry Handsets shall be warranted for ninety (90) days from the date of repair, or the balance of the original warranty, whichever is the longer. The ninety (90) day repair warranty is an extension of the full warranty and applies to the entire BlackBerry Handset, not just the repaired components.

16.14. The warranty referred to in Clause 16.12 above does not apply to normal wear and tear or if any component of the BlackBerry Hardware is opened or repaired by someone not authorized by RIM, and does not cover repair or replacement of any BlackBerry Hardware damaged by misuse, moisture or liquids, proximity or exposure to heat, accident, abuse, neglect, misapplication, or defects due to repairs or modifications made by anyone other than RIM or RIM's authorized service representative, nor does the warranty cover physical damage to the surface of the BlackBerry Hardware, including cracks or scratches on the LCD screen.

16.15. Repair or replacement of the BlackBerry Hardware or the affected component constitutes the exclusive remedy provided, and the sole and exclusive obligation assumed, in conjunction with the purchase and use of the BlackBerry Hardware. Truphone hereby disclaims all other warranties, conditions, representations or guarantees of any kind, either express or implied, including but not limited to implied warranties of merchantability, satisfactory quality, reliability and/or fitness for a particular purpose. The Company's statutory rights as a consumer are not affected by this Clause.

16.16. Nothing in this Agreement shall be taken as excluding or attempting to exclude or in any way restrict any liability for death or personal injury to the extent arising directly from Truphone's negligence or that of Truphone's employees or agents.

16.17. The BlackBerry Hardware, software and/or accessories may include encryption software that is subject to domestic and foreign legal restrictions that restrict export, import and use of the BlackBerry Hardware, software and/or accessories, and the Company may not be permitted to roam to certain countries with or using the BlackBerry Hardware, software and/or accessories. It is solely the Company's responsibility, and in no event shall be Truphone's responsibity, to ensure that using or enabling international roaming using the Company's BlackBerry Hardware, software and/or accessories, is permitted in the countries to which the Company is travelling. Truphone shall have no liability for the Company's usage in such prohibited countries, and Truphone shall not be liable for failing to advise the Company of any country where such usage is prohibited. The Company agrees to indemnify Truphone and its Representatives from any loss or liability Truphone or any such Representatives suffers as a result of the Company's use of the BlackBerry Hardware, software and/or accessories and the Truphone Service in any such countries where such use is prohibited.

16.18 By the Company's or any of its End User's use of the BlackBerry Hardware, software and/or accessories, the Company hereby agrees to be bound by the terms of the BlackBerry end user software license agreement, the terms of which can be found at http://uk.blackberry.com/legal.html or can otherwise be obtained from Truphone upon request.

Related