Cellhire PLC - CellhireConnect Conditions

Interpretation

1.1 In these conditions:-
"Additional Services" any additional services provided by Cellhire to the Customer as requested by the Customer from time to time, for example the provision of roaming facilities.

"Airtime" means time spent Connected to a Network for the purposes of making and receiving telephone calls in relation to which Charges are payable.

"Airtime Fund" means the free Airtime allocated to the Customer as set out in Appendix 3 to the Contract.

"Cellhire" means Cellhire Plc whose registered office is at Park House, Clifton Park, York YO30 5PB Company No. 02463423.

"Charges" means the sums due to Cellhire from the Customer for the Services.

"Conditions" means the conditions set out below.

"Connection" means connection to a Network and “Connect” shall be construed accordingly.

"Contract" means the contract for the provision of Services to the Customer incorporating:-

(1) Section 1: Charges
(2) Section 2: these Conditions
(3) Section 3: agreement and signature page
(4) Appendix 1: roaming call Charges
(5) Appendix 2: international call Charges
"Customer" means the person, firm, company or other organization named as the Customer in the Contract.
"Equipment" means the mobile devices, SIM Cards and any other accessories specified in the Contract provided by Cellhire for the Customer for the purposes of receiving the Services.
"Hardware Fund" means the fund allocated to the Customer to allow it to purchase Equipment as set out in Section1 of the Contract.
"Insolvency Event" each and any of the following in relation to the Customer:-
(1) any procedure is commenced with a view to the winding-up or re-organisation of the Customer and that procedure is not terminated or discharged within 30 days (save that no right to terminate will rise in respect of any procedure commenced for the purpose of a solvent amalgamation or reconstruction);
(2) any procedure is commenced with a view to the appointment of a liquidator, administrator, receiver, administrative receiver in relation to the Customer or its assets and that procedure is not terminated or discharged within 30 days;
(3) the holder of any security over the assets of the Customer takes any step to enforce that security and that enforcement is not discharged within 30 days;
(4) any procedure is commenced with the view to the making of a Bankruptcy Order against the Customer or a director of the Customer;
(5) the assets of the Customer are subject to attachment, sequestration, execution or similar process and that process is not terminated or discharged within 30 days;
(6) the Customer is unable to pay its debts as they fall due or enters into a composition or arrangement with its creditors or any class of them; or
(7) any event analogous to those described in (1)-(5) above in any jurisdiction to which the Customer is subject.

"Minimum Holding" means the number of Connections the Customer has undertaken to make within the first three months following the date of Connection as identified within the price plan under Section 1 of the Contract.

"Minimum Spend Commitment" means the minimum level of Charges the Customer has undertaken to achieve as detailed in Section 1 of the Contract.

"Network" means a telecommunications system network operator.

"Parties" means Cellhire and the Customer and "Party" means either of them.

"Services" means the provision of Airtime and data transfer facilities (such as text messaging and the internet) which may be with or without the provision of Equipment and/or Additional Services by Cellhire to the Customer (as set out in the Contract).

"Term" means the period from the date of Connection to the date of expiry as set out in the Contract. For the avoidance of doubt the minimum period during which contractual payments must be made is the agreed Term.

1.2 Words and phrases used in any section or appendix to the Contract shall have the same meaning as in these Conditions.
1.3 References in these Conditions to “includes”, “including”, “in particular” or “for example” shall be construed without limitation to the generality of the preceding words.

2. Basis of Contract

2.1 Cellhire shall sell and the Customer shall buy the Services subject to the terms of the Contract, and the Contract contains the only terms on which Cellhire is prepared to provide the Services to the Customer.
2.2 The Contract shall supersede any other terms which may govern the supply of the Services to the Customer to the exclusion of any terms and Conditions which the Customer purports to apply or which are implied by trade, custom or course of dealing.
2.3 No terms or Conditions endorsed upon, delivered with or contained in the Customer’s order or other document will form part of the Contract simply as a result of such document being delivered to Cellhire or referred to in the Contract.
2.4 Any variation to these Conditions is of no effect unless agreed in writing by a director of Cellhire.

3. Use of Equipment

3.1 The Customer must:
3.1.1 only use Equipment in accordance with any applicable laws and regulations;
3.1.2 not use or allow others to use Equipment for any illegal, immoral or improper purposes or in such a way as to adversely affect the Network; and
3.1.3 comply with any reasonable instructions notified to the Customer by Cellhire concerning use of the Equipment.

4. Provision of the Services

4.1 Subject as set out in these Conditions, Cellhire will use its reasonable endeavors to Connect the Equipment to the Network immediately upon receipt of the signed Contract from the Customer.
4.2 Cellhire will use its reasonable endeavors to maintain continuity of the Services and the provision of the Additional Services throughout the Term.
4.3 If Cellhire does not Connect a particular item of Equipment or discontinues the provision of any of the Additional Services at any time, the remaining Services subject to the Contract ordered (if any) shall continue to be provided and, if applicable, the Charges shall be reduced accordingly. Failure by Cellhire to Connect a particular item of Equipment or to discontinue the provision of any of the Additional Services will not entitle the Customer to terminate the Contract as a whole.
4.4 If the Minimum Holding is not achieved then Cellhire reserves the right to review the commercial terms of this Contract and to amend them accordingly. For example Cellhire may increase the Charges and/or reduce the Hardware Fund or Airtime Fund. If the Hardware Fund is so reduced the Customer shall be accountable to Cellhire for the difference in price of any Equipment received through the Hardware Fund if this is higher than the level of the new Hardware Fund and if the Airtime Fund is so reduced the Customer shall be accountable to Cellhire for the difference between the Charges relating to the Airtime used and the new Airtime Fund if the Charges are greater.
4.5 Cellhire reserves the right at all times to charge for excessive data usage and or to restrict the bandwidth of any data connection in the event that in its sole opinion the usage is high. Furthermore Cellhire may also disconnect a user either temporarily or permanently for excessive use, and in addition Cellhire may charge the customer for any such excessive usage. Examples of excessive usage may include prolonged video streaming, multiple users connecting to a wireless router and downloading large files over an extended period, and where Cellhire has incurred additional charges or been subject to a warning about exceeding a fair usage policy from the network.

5. Payment for Services

5.1 If the Customer is purchasing Equipment it shall pay for the Equipment in full. No Equipment will be dispatched to the Customer until payment has been received.
5.2 In relation to each Connection the Customer shall pay the applicable line rentals and Charges for the Additional Services to Cellhire each month in advance from the date of Connection to the date of expiry of the Term.
5.3 Cellhire shall invoice the Customer for the Charges:-
5.3.1 monthly in advance for monthly subscription charges; and
5.3.2 monthly in arrears for the use of Airtime and any data transfer facilities provided (such as text messaging and the internet). The Customer acknowledges that Charges in respect of Services not supplied directly by Cellhire such as roaming charges may be invoiced several months in arrears.
5.4 The Customer is liable for the payment of Charges relating to Airtime use and the use of any data transfer facilities provided (such as text messaging and the internet) from the day of Connection and such Charges will cease to accrue from the date of termination of the Connection.
5.5 The Customer shall pay the Charges within 30 days of the date of Cellhire’s invoice. Receipts for payment will be issued only upon request.
5.6 The Customer must raise a query about the invoice within 30 days of the date of the invoice, otherwise it will be deemed correct.
5.7 If any Charges are overdue and not subject to a bona fide dispute, Cellhire shall be entitled to:-
5.7.1 charge interest on any overdue amounts at the rate set out from time to time in the Late Payments of Commercial Debts (Interest) Act 1998, interest to accrue on a daily basis, and
5.7.2 bar the relevant Connections.
5.8 All sums payable under a Cellhire connection are exclusive of VAT (and any other applicable sales tax or duty), which shall be added at the applicable rate.
5.9 Cellhire may vary the Charges at any time by thirty days prior written notice to the Customer and the Customer will be deemed to have accepted these new Charges unless it notifies Cellhire in writing and serves 30 days notice to terminate the Connections.
5.10 The Customer shall be liable for any Charges incurred when Equipment is lost or stolen until Cellhire has been notified of such loss or theft and up to the time that the provider/carrier contracted by Cellhire to provide the Service disables the Equipment. Such notification may be by telephone in the first instance and then must be confirmed in writing, email or by fax within 24 hours of the original notification. The Customer will not be responsible for Charges incurred after such notification provided that the initial notification is in writing or is confirmed in writing as required within 24 hours of the original notification. A police incident number must be provided if Equipment has been stolen.
5.11 Payment is by direct debit mandate for the monthly Charges.
5.12 Prior to termination of the Contract, the Customer will achieve the Minimum Spend Commitment. If the Customer fails to achieve the Minimum Spend Commitment it will either agree to an extension of the Term until the Minimum Spend Commitment is achieved, or pay Cellhire the difference between the Minimum Spend Commitment and its actual spend.
5.13 Should the Customer’s financial circumstances change during the Term then Cellhire reserves the right to request a deposit to be held against the account.

6. Duration and termination

6.1 Subject to termination in accordance with condition 5.8, each Connection shall commence on the date of Connection and continue for the Term and shall continue thereafter unless and until it is terminated by either Party giving 30 days written notice to the other to expire on or any time after the date of expiry of the Term.

6.2 Cellhire may terminate the Contract and/or any or all Connections (at its option) immediately if:-
6.2.1 the Customer suffers an Insolvency Event;
6.2.2 the Customer commits a material breach of the Contract which is incapable of remedy;
6.2.3 the Customer commits a material breach of the Contract which is capable of remedy and which is not remedied within 30 days after Cellhire has given written notice requiring such breach to be remedied; or
6.2.4 the operation of the Network is discontinued or is no longer available to Cellhire for any reason and Cellhire fails to offer the Customer an alternative solution which is acceptable to the Customer (acting reasonably).
6.3 If the Customer terminates the Contract prior to expiry of the Term the Customer will pay to Cellhire a proportion of the Hardware Fund or Airtime Fund based on the number of months outstanding as a percentage of the Term. For example if the Hardware Fund or Airtime Fund is £4,000 for a 24-month Term, and the Customer terminates at the end of month 18, the Customer will repay £1,000 to Cellhire.
6.4 If the Customer wishes to port the telephone number it has been using on termination of the Contract it must notify Cellhire that it wishes to do so and an administration fee of £35.00 per number will be payable. Once payment is received, a PAC number will be provided.
6.5 On termination of a Connection the Charges for all Services that have been provided pursuant to that Connection shall be immediately due and payable.

7. Purchase of Equipment

7.1 Each piece of Equipment shall be delivered with a product description which sets out any additional specific terms and conditions of use relating to the purchase including any warranties.
7.2 Cellhire gives no further warranty in relation to the Equipment and/or its fitness for purpose and shall only be responsible for sourcing replacement Equipment for a Customer when Equipment is being provided as part of a rental package and not being purchased and the Equipment has not been damaged by the Customer or by a third party while it was under the Customer’s control.

8. Liability

8.1 The following provisions of this condition 8 sets out the entire liability of Cellhire (including any liability for the acts or omissions of its employees, agents or subcontractors) to the Customer in respect of any breach of the Contract, any representation or statement made or act or omission relating to or done in connection with the Contract and in respect of any contemplated performance or lack of performance including negligence and other tortious liability.
8.2 All warranties, conditions or other terms implied by statute, common law, trade usage or otherwise are excluded to the fullest extent permitted by law but this exclusion does not apply to any implied condition that Cellhire has or will have the right to sell the Equipment when the property is to pass.
8.3 Nothing in these Conditions excludes or limits Cellhire’s liability for death or personal injury caused by Cellhire’s negligence or for fraudulent misrepresentation or excludes or limits any other liability to the extent such liability may not be excluded or limited as a matter of law.
8.4 Subject to conditions 8.2 and 8.3:-
8.4.1 Cellhire shall not be liable (including in negligence) to the Customer (in any circumstances) for:-
(a) any loss of profit, loss of production, financial loss, depletion of goodwill whatsoever; and
(b) any indirect or consequential loss, damage, costs or expenses whatsoever,
in each case which arise out of or in connection with the Contract, or its contemplated performance or lack of performance, or otherwise; and
8.4.2 subject to condition 8.4.1, Cellhire’s total liability in contract, tort (including in negligence or for breach of statutory duty), misrepresentation or otherwise, arising in connection with the Contract, or the performance or contemplated performance or lack of performance of the Contract, or otherwise, shall be limited to the price paid for the Services (in aggregate).
8.5 Use of Equipment may be adversely affected by atmospheric conditions and local topography or geography and Cellhire cannot be responsible for the performance of any Equipment or the operation of the Network due to these or any other causes and all representations regarding the same by or on behalf of Cellhire shall have no effect.
8.6 Cellhire shall not be liable for any breach of its obligations under a Contract caused by circumstances beyond its reasonable control.

9. Delivery and Title of Equipment

9.1 No Equipment will be provided to the Customer until a Contract has been signed.
9.2 Cellhire will deliver the Equipment at its own risk to the Customer as soon as practicable following receipt of the Contract but shall not incur any liability to the Customer in the event of any delay in delivery. Equipment returned to Cellhire is at the Customer’s own risk.
9.3 If the Customer does not purchase the Equipment at the date of commencement of the Contract, ownership of the Equipment provided under the Contract will pass to the Customer upon expiry of the Term. If the Contract is terminated early then the Customer shall (at Cellhire’s option) either return the Equipment to the Cellhire or pay to Cellhire the cost of that Equipment as at the date of delivery of the Equipment to the Customer.
9.4 The Mobile Number or the SIM Card Number shall at all times during the Term remain the property of Cellhire.
9.5 On expiry of the Term, if the Customer re-signs a new contract or signs a Contract extension with Cellhire, Cellhire reserves the right to reclaim any old Equipment that is replaced by new Equipment as part of the new Contract or Contract extension.

10. Applicable Law

10.1 This Contract and schedules shall be governed by and construed in accordance with the Laws of England and the Parties accept the non-exclusive jurisdiction of the English courts.

11. Change of Control

11.1 Cellhire may assign, transfer or subcontract the Contract or any part of it and may dispose of or deal in any manner with any of its rights or beneficial interests under it.
11.2 Without prejudice to condition 11.1, if Cellhire sells all or part of its business then it may transfer the Contract to the purchaser.

12. General

12.1 Each Cellhire connection is personal to the Customer and may not be assigned to any third party.
12.2 Only Directors of Cellhire are authorized to sign a Contract and Contracts signed by an account manager or other person who is not a Director of Cellhire shall not bind Cellhire.
12.3 No waiver by Cellhire of any breach of any condition within a Cellhire connection shall be considered as a waiver of any subsequent breach of the same or any other provisions in that or any other Cellhire connection.
12.4 The Contract does not create, confer or purport to confer any benefit or right enforceable by any person not a Party to it by virtue of the Contracts (Rights of Third Parties) Act 1999.
12.5 Failure or delay by Cellhire in enforcing or partially enforcing any provision of the Contract is not a waiver of any of its rights under the Contract.
12.6 Any waiver by Cellhire of any breach by the Customer is not a waiver of any subsequent breach.
12.7 Any notice to be given by either Party to the other under these Conditions must be in writing addressed to that other Party at its registered office or principal place of business or such other address as may have been notified for these purposes.
12.8 Notices shall be delivered personally or sent by first class post or sent by facsimile transmission.
12.9 A notice is deemed to have been received:-
12.9.1 if delivered personally on a working day at the time of delivery and otherwise on the next working day;
12.9.2 if sent by prepaid first class post, on the second working day after posting (exclusive of the day of posting); and
12.9.3 if sent by facsimile transmission, on a working day prior to 4.00pm at the time of completed transmission and otherwise on the next working day.
12.10 Cellhire will store and use any information provided to it by the Customer in accordance with its privacy policy which can be found on the Cellhire website by following the following link: http://www.cellhire.co.uk/privacy. A copy of the privacy policy will be provided to you on request.