General Terms and Conditions for Business Users
SCHEDULE 1: General Terms & Conditions
1. Multiple Country SIM service
1.1. The terms and conditions of this Schedule 1 apply to the Company and all its employees, agents and representatives that use the Service(s) ("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 to the Company and, by and through the Company, to its End Users, pursuant to the Agreement with Truphone for the Service, into which this Schedule 1 is incorporated by reference, for use by the Company and such End Users. The Company's and its End Users' use of the Service is subject to this Agreement including any other terms and conditions associated with any ancillary services offered by Truphone as notified to the Company in writing and which are 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 the Company in writing. The general terms of usage and updates to the roll out of the Service globally, incorporated herein by reference, will be posted on www.truphone.com (the "Website").
1.3. The Company and its End Users shall access and use the Service in accordance with this Agreement.
2. Minimum Contract Period
The Company's and its End Users' connection to and use of the Truphone Service is subject to the Company's credit status and is subject to the Company keeping the payment status of its account current at all times in accordance with this Agreement. 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, the Company agrees to make the payments due under this Agreement as they relate to the Service requested and used by the Company and its End Users for the Contract Period. Except for the Company's termination of this Agreement under Clauses 9.4(a) or 9.4(d) below, early termination of this Agreement by the Company will not relieve the Company of its payment obligations and liability for the monthly charges that apply for the duration of the Minimum Contract Period and also liability for those applicable early termination fees pursuant to Clauses 9.6.
3.1. Truphone shall provide the Company with the SIM, Devices, and related national and international telecommunications services including voice, text and where available 3G data services based on the capabilities of a multi-IMSI SIM card in accordance with the terms of this Agreement.
3.2. The Company acknowledges 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 and at all times shall be provided on an "as is" and "as available" basis. Truphone agrees to take all reasonable steps to make the Service available to the Company and its End Users at all times, contingent upon Truphone's and/or Truphone's service provider's ability to maintain necessary licenses or permissions, or Truphone's and/or Truphone's service provider's network capacity and connection availability.
3.4. Truphone does not warrant orguarantee a fault-free Service and gives 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 the Company, Truphone shall use commercially reasonable efforts to promptly correct the fault.
3.6. If an End User is in an area where their Truphone SIM card is searching for a 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.
3.7. The Company can add multiple available nominated additional country Truphone mobile numbers to the Company's SIM account that Truphone offers as part of Truphone's Service and which the Company and Truphone have contractually agreed.
3.8. The current list of countries where Truphone offers additional local mobile numbers and the process for adding additional country numbers can be found on the Website or the Company can call 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 End Users' SIM cards is subject to the relevant Agreement and conditions and any breach of an Agreement may result in suspension or termination of the Company's and/or End Users' access to and use of one or more of such numbers.
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 the Company's chosen home country and any agreed Truphone designated countries for which the Company has subscribed ("Roaming"). Roaming means that the Company and its End Users will be using foreign networks, over which Truphone has no control and, therefore, cannot provide any guarantees about any the Service, particularly its availability or quality. In addition, the Company and its End Users' access to and use of the Service whilst Roaming may be subject to different laws and regulations that apply. Truphone does not and will not accept any liability for the Company's or any End User's failure to comply with any of those laws, rules, 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 the Company have subscribed to have access to local tariffs for the SIM one or more of these other Truphone countries and provided the necessary fees have been paid, any End Users will be able to make and receive calls on the 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 any End Users may still use the Truphone SIM but this will be on a Roaming basis. The Company 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 the Company's responsibility to check the billing status (i.e. whether local tariffs are applicable for subscribing to or roaming only) of the country its End Users intend to use the Service in before its End Users 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 the Company or its End Users based on any misunderstanding of the applicable and available tariffs in a particular country.
3.14. From time to time Truphone may be required to upgrade, modify or maintain the Service, including without limitation the migration of the Company's account from one billing platform to a new or upgraded billing platform. On such occasions the Service may be temporarily unavailable, however, Truphone will use commercially reasonable efforts to keep such disruption to a minimum and notify the Company in advance when possible.
3.15. Truphone reserves the right to suspend the Service, or the Service to any End User(s), as appropriate, without giving the Company notice where:
a) Truphone has reason to believe the Company or any End User is in breach of the Service conditions of usage (Clause 5 below), any other material term of this Agreement, or any of Truphone's policies, as notified to the Company;
b) pending the outcome of an investigation following receipt of a complaint made against the Company or an End User;
c) where 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) Truphone is notified that the SIM Card licensed to the Company and/or an End User by Truphone is lost or stolen;
e) Truphone is 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 the Service or Truphone's or Truphone's contracting party's network integrity which may be caused by the Company, an End User, or any other party acting by, through, or on behalf of the Company;
g) for operational reasons or in an emergency or for security reasons.
3.16. Truphone may at Truphone's discretion bar or disconnect an End User's SIM if Truphone has reasonable cause to suspect any form of fraudulent use including relating to a SIM card or mobile phone whilst accessing or using the Service.
3.17. Truphone may monitor the Service and disclose information gained from such monitoring in order (i) to satisfy any law, rule, regulation or other governmental request, (ii) to operate and administer the Service, or (iii) to protect Truphone or Truphone's other customers.
The Service shall commence following activation of the SIM card so that the Service is operationally available for use by the Company and its End Users ("Activation").
5. The Company's obligations
5.2. The Company 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 Truphone or the third party supplier(s) of the Devices.
5.3. The Company must comply, and shall ensure its End Users to comply, with all reasonable directions of Truphone, including without limitation relating to any security procedures and standards with respect to the Service. Truphone may communicate security issues to the Company from time to time when abuse or misuse is observed or reported by others along with any and all general information related to Truphone's provision of the Service by any means, including via the Website.
5.4. The Company must inform Truphone immediately (at the applicable telephone number shown below) if any SIM Card provided to the Company or its End User under this Agreement is lost or stolen. The Company will remain fully liable for all call costs and charges incurred unless and until the Company does so. If any phone or SIM card is lost or stolen please call Truphone's Customer Service immediately on HK +852 5149 1707 or UK +44 20 3318 0733 or e-mail Truphone at email@example.com. The cost of replacing a lost or stolen SIM card is subject to the payment of an administration charge of HK$100. Truphone is not responsible for any service fees, call costs or other charges incurred due to a lost or stolen SIM card, and all such service fees, call costs and other applicable charges for a lost or stolen phone or SIM card shall be the Company's sole responsibility.
5.5. The Company is solely responsible for ensuring that its End Users' Devices are compatible with the Service that the Company purchases from Truphone. This may include ensuring that these Devices are 'unlocked' and are compatible with the network in the country where the Company or such End Users wish to use them.
The quality of the Device model is also dependent on the quality of the Device model that the Company chooses to use and Truphone has no control or influence over the quality of such Device. The choice of Device is the Company's or its End User's sole responsibility.
5.6. The Company is solely responsible for any and all content, information and communications transmitted by an End User using the Service, and the Company agrees that Truphone has no responsibility for the deletion, corruption or failure to store any content transmitted using the Service.
5.7. Certain countries have additional regulatory requirements that need to be fulfilled prior to Truphone being permitted to provide certain elements of the Service to customers. These include the obtaining, verification and retention of End User personal data. If the Company or 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 the Company co-operate and provide the required information and/or documentation prior to obtaining the Service.
5.8. Truphone shall have no liability to the Company for any costs or charges incurred by the Company or End Users for failing to comply and satisfy any regulatory requirement of a country prior to using the Service in that country.
5.9. A list of countries requiring additional regulatory compliance will be published on the Website from time to time where applicable.
6. Charges and Payment
6.1. The Company shall be invoiced on a monthly basis for the Service utilized by the Company and its End Users. The Company 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 the lesser of (i) 3 percent (3%) over the prevailing standard variable rate of HSBC from time to time or (ii) the maximum rate allowed under applicable law, or to suspend the provision of the Service.
6.4. The Company is 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 Service.
6.5. The rates and charges of the Service 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 Service 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 or other charges being levied by third party operators.
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 the Company will be deemed to have irrevocably waived any remedies which the Company would otherwise have to query such invoices. Such written query shall set out in detail the issue in dispute, the grounds for the dispute and supporting evidence.
6.8 If the Company challenges the accuracy of any invoice, or a dispute arises between the Company and Truphone 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) below shall be used to resolve such dispute.
6.9 If the invoiced amount in dispute represents less than five percent (5%) of the total amount of the invoice (excluding tax), 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 hereof, Truphone shall provide the Company with:
i) a definitive re-calculation of the relevant sum due to the Company under the terms of this Agreement. The Company shall have fifteen (15) Business Days to review such sum and calculation and to state whether the Company agrees with such calculation or, if the Company does not so agree, to state the matters which the Company does not accept as being an accurate calculation of the sum due to or from the Company. If the Company fails to respond to Truphone's notification of the re-calculation within fifteen (15) Business Days then Truphone's re-calculation shall be deemed final and binding on the Company; and
ii) reasonable access to information and relevant extracts of records or other of Truphone's working papers to review the re-calculation.
6.11 If the Company accepts such re-calculation, where any over-payment or under-payment is disclosed, Truphone shall promptly refund (by means of issuing a credit note applied against the next invoice), or amend and reissue the invoice, or the Company promptly will pay (as appropriate), the amount of such over-payment or under-payment.
6.12 If the Company notifies Truphone that the Company does not accept such re-calculation and provides 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 the Company's notification to Truphone, the matters in dispute shall be referred for settlement to a firm of independent 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 recognized accountants selected by a mutually-agreeable neutral arbiter. 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 Hong Kong.
7. SIM Card
7.1. The SIM Card and all technology, intellectual property and documentation relating to it, the Devices, and the Service shall remain Truphone's property or the property of its applicable licensors. Truphone grants the Company a revocable, conditional, non-exclusive, non-assignable, non-sub-licensable license for the Company and its End Users to use the SIM card and Service in accordance with this Agreement. Truphone reserves the right to recall any SIM card from the Company or any End User at any time.
7.2. Truphone warrants that Truphone's intellectual property rights associated with the SIM Card and Service are subject to protection by means of patents and design rights (registered and unregistered). Truphone further warrants that Truphone is authorized to provide the Service in the countries where the Service is made available to the public.
8. Telephone Numbers
8.1. Truphone reserves all rights attached to the telephone numbers attributed to the Company and/or attached to the Service provided by Truphone. Subject to available number portability obligations, Truphone may change, withdraw or otherwise alter such telephone numbers or any other address-element at Truphone's discretion, without damages payable or other liability to the Company, should any technical reason, or any applicable regulations, so require.
9. Termination of the Service
9.1. Truphone reserves the right to terminate this Agreement and cease supplying the Service in the event that the Company or its End User materially breaches any terms and conditions of this Agreement.
9.2. In the event that the Company or its End User does not use the SIM card for any continuous period of one hundred eighty (180) days, Truphone reserves the right to invalidate the SIM card and/or call balance components and cancel the Company's or respective End User's account and the Service 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. Truphone reserves the right to terminate this Agreement at any time in our sole discretion without any liability on thirty (30) days' notice during the applicable Minimum Contract Period.
by the Company
9.4. The Company may terminate this Agreement with us in the following circumstances
a) if Truphone vary these terms and conditions which results in a reasonable man considers an excessive increase in charges (For the avoidance of doubt, an increase which is in line with the inflation rate as reported by the Census and Statistics Department, The Government of Hong Kong Special Administrative Region will not be considered as excessive) or alters the Company's rights herein to its detriment, unless such changes are imposed on Truphone as a direct result of new legislation, statutory instrument, court order, government regulation or license;
b) at any time during the first 90 days 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 provided that the cancellation charges applicable to such termination (as set out in the relevant Agreement) are paid in full; and
e) Truphone is no longer able to provide the Service.
9.5. On termination of this Agreement the SIM card and any associated products must be returned to Truphone before the end of the applicable notice period and shall be at the Company's sole 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) Unless otherwise stated, the early termination fee for terminating the Agreement where Truphone has not provided the Company with any Devices will be HK$500 per End User.
10.1 This Clause 10 sets out the entire financial liability of Truphone to the Company (including any liability for the acts or omissions of Truphone's employees, agents, consultants and subcontractors) in respect of:
a) The provision of the Service
b) any breach of the Agreement
c) any use made by End Users of the Service
d) any representation, statement, or tortious act or omission (including negligence) arising under or in connection with the 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 the Agreement.
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 be limited or excluded by law,
and nothing in this Agreement shall limit or exclude the Company's liability under Clause 10.9(a) of this Schedule 1;
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 of this Schedule 1, in no event shall Truphone be liable to the Company, whether 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 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 perforamnce of any Agreement, including the provision of the SIM and Device, shall be strictly limited to the charges paid by the Company in respect of the first year of the term (commencing on the date of the relevant agreement with Truphone) for the relevant service.
10.6 Truphone will not be liable or responsible for any failure to perform, or delay in performance of, any of Truphone's obligations herein or provision of the Service where such delay or performance failure is due to (i) any of acts or omissions of the Company or its End User, including without limitation where the Company or its End User has provided incorrect data or information; or (ii) network failure, network outage, network congestion, power failures; or (iii) that is caused by, or results, whether in whole or in part, from, events outside Truphone's reasonable control, including but not limited to strikes, lock-outs or other industrial disputes (whether involving Truphone's 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 The Company represents and warrants that (i) the Company is not located in a country that is subject to a US or Hong Kong Government embargo, or that has been designated by the U.S. or Hong Kong Government as a "terrorist supporting" country; and (ii) the Company is not listed on any U.S. or Hong Kong Government list of prohibited or restricted parties. If it is established that the Company is in breach of this warranty then Truphone shall have the right to immediately terminate the Service and the Company shall forfeit any credit remaining on the Company's account.
10.8 The Company agree that any liability arising under any Agreement relating to the Service shall be solely against Truphone and that the Company will not have, nor attempt to initiate, any right of recourse against any third party supplier of Truphone.
10.9 The Company's liability:
a) The Company shall be liable for all charges or fees incurred in using the Service. In the event of loss or theft of any SIM card it is the Company's responsibility to inform Truphone immediately so that Truphone can prevent any further use of the Service by another unauthorised person. Truphone provides no guarantees or warranties in relation to the prevention of the use of the Service on a lost or stolen SIM card and accept no liability for any unauthorised use of the Company's account. The Company will be solely responsible for the SIM card and its use to obtain the Service and will not be entitled to obtain any compensation from Truphone for its loss or theft or any use after its loss or theft; and
b) The Company shall be liable for the full retail cost of the replacement of any Device that has been provided by Truphone to the Company. In the event that any such Device is lost, stolen or damaged, the Company's liability to Truphone under this clause 10.9(b) shall not limit the Company's liability to Truphone under clause 10.9(a).
11. Changes to Agreements and the Service
11.1. Truphone reserves the right to change any Agreement from time to time and make changes to the Service or any promotion or charges relating the Services at any time.
12. Governing Law and Legal Compliance
12.1. This Agreement shall be governed by Hong Kong law and shall be subject to the non-exclusive jurisdiction of the Hong Kong Courts.
12.2. Despite the governing law provided above, the Company may be subject to various rules, regulations and laws which may also apply to the Company in the country in which the Company or its End Users access and/or use the Service, in particular where the Company chooses its home country to be a country other than Hong Kong.
13.1. If the Company has any complaints or feedback about the Service, the Company should send them in the first instance to firstname.lastname@example.org. Truphone's complaints policy and procedure can be found at www.truphone.com.
14.2. The Company hereby consents to Truphone transferring the Company's personal data to countries which do not provide the same level of data protection as Hong Kong if Truphone deems it necessary for the provision of the Service. In the event Truphone transfers such Personal Data outside of Hong Kong Truphone will use all reasonable endeavours to ensure that such transfer is subject to adequate safeguards and those safeguards shall be no less stringent than those provided for applicable data protection laws. The Company hereby consent and shall procure the consent of its End Users to us transferring the personal data outside of Hong Kong under the above conditions. Company may withdraw this consent in writing at any time but any withdrawal of such consent will result in the termination of this Agreement and may result in early termination fees becoming payable.
14.3. Truphone will always use and process the Company's personal data in compliance with applicable data protection laws, as amended from time to time.
14.4. Truphone will provide the Company with a copy of the Company personal data that Truphone holds, provided that the Company requests access to such information in writing and pays Truphone an administration fee of HK$200.
15.1. Truphone may compile and release information regarding the Company and the Company's 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 Truphone, by implication, estoppel, or otherwise. This Agreement does not grant the Company any rights to use any trademarks, logos or service marks belonging to Truphone whatsoever.
15.3. The Company may not transfer or assign any or all of the Company's rights or obligations under this Agreement without Truphone's prior written consent. Truphone reserves the right to assign this Agreement and its rights and obligations hereunder by giving the Company written notice of such assignment, which assignment shall fully release Truphone 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 the Company to Truphone must be in writing (either email, or letter) to one of the following addresses: (i) Legal Department, Level 15, Langham Place, 8 Argyle Street, Mongkok, Hong Kong; or (ii) email@example.com; or as otherwise notified to the Company by Truphone.
15.5. Failure to enforce any of Truphone's rights under this Agreement does not result in a waiver of that right.
15.6. Truphone reserves the right to assign rights and duties contained in this Agreement to any Truphone group company.
15.7. If any provision of these terms and conditions is found to be unenforceable, all other conditions shall remain unaffected.
15.8. Truphone is a trading name and registered trade mark of Truphone Limited. Truphone (Hong Kong) Limited whose registered office is at 20/F, Alexandra House, 18 Chater Road, Central, Hong Kong is a wholly owned subsidiary of Truphone Limited. Truphone (Hong Kong) Limited holds a Service-Based Operator Licence of Class 3 Service for Mobile Virtual Network Operator (MVNO) Services issued by the Communications Authority.
15.9. This Agreement, together with any documents referred to in them, constitutes the entire terms and conditions of the agreement and supersedes or 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.
15.10. To the extent of any conflict or inconsistency between any of the terms or conditions of this Agreement, the order of precedence of interpreting such terms and conditions shall be as follows:
a) Agreement cover page (Additional Terms);
b) General Terms and Conditions (Schedule 1);
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;
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.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.
16.6. 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.