Kuhex Business Services Terms and Conditions of Sale
By purchasing or ordering the Equipment and/or Services, you agree to be bound by the terms and conditions set out below. All orders for Equipment that are accepted by Kuhex Limited (registered in England with company no. 07660349) trading as Kuhex’ (‘we/our/us’) are subject exclusively and strictly to the following terms and conditions (‘Terms’) and no alterations proposed by you, the customer (‘you/your’) shall be binding unless we agree in writing. If you have a query regarding anything you have purchased from us, please call our business customer care on 0121 400 0001.
‘Airtime Contract’ means a contract entered into between you and your Network Operator relating to the provision of the Services;
“Kuhex Group” means Kuhex Limited, together with its subsidiary and holding companies and any subsidiaries of such holding companies whether direct or indirect from time to time;
‘Equipment’ means any equipment you purchase under these Terms;
‘GSM Gateway’ means any equipment containing a SIM card which enables the routing of incoming fixed to mobile calls or cross network calls, in such a way as to establish an on-network call on the Network;
‘Minimum Period’ means the minimum period for the provision of the Services under your Airtime Contract and/or any upgrade;
‘Mobile Phone’ means a cellular telephone, tablet or any other device which incorporates a SIM card used by you to receive the Services and any accessories included in the provision of your device supplied by us to you which forms part of the Equipment;
‘Network’ means the mobile telecommunication system operated by your Network Operator;
‘Network Operator’ means a Network provider into which you have entered any Airtime Contract;
‘Personal Information’ means the details provided by you to us; and
‘Services’ means any services you order or otherwise purchase under these Terms.
1. RIGHTS AND OBLIGATIONS
1.1. You undertake:
1.1.1. To pay any amounts due in a timely manner;
1.1.2. That the Personal Information which you provide is true, accurate, current and complete in all respects;
1.1.3. To notify us immediately of any changes to the Personal Information either in writing addressed to Customer Services, Kuhex Limited, Avebury House, 55 Newhall Street, Birmingham B3 3RB or by calling us on 0121 400 0001; and
1.1.4. Not to impersonate any other person or entity or to use a false name
1.2. We reserve the right to modify the price or the content or withdraw, temporarily or permanently, some or all of the Equipment or Services available. We also reserve the right to change or add to these Terms from time to time. Unless you have placed an order for any Equipment or Services by the time such a change takes effect, we shall not be obliged to give you notice of any such modification or withdrawal.
2. ORDERS AND SPECIFICATIONS
2.1. Each order placed by you will be treated as an offer to purchase the Equipment and/or Services to which your order relates. The contract will only be completed when we confirm in writing that it has been accepted by one of our authorised representatives or when we dispatch the Equipment/ commence the provision of the Services (as applicable), whichever is the earlier.
2.2. We may, at our own discretion, limit, restrict or reject any order you place at any time prior to the contract having been completed.
2.3. Under no circumstances shall our acceptance of your order be construed or implied to create an obligation on us to subsequently accept any additional order from you.
2.4. You shall be responsible for ensuring the Equipment you purchase is of the correct specification for its intended use and location.
2.5. From time to time we may have to make changes in the specification of the Equipment:
2.5.1. To make it conform with any applicable safety or other legal and/or statutory requirements; or
2.5.2. To make it reflect changes in the manufacturer’s specification.
2.6. We may also have to make other necessary changes in the specification of the Equipment from time to time, but these will not materially reduce the quality or performance of the Equipment.
2.7. We reserve the right to substitute goods substantially equivalent to the Equipment ordered.
2.8. Equipment that you have ordered may be subject to EU and US export control laws and laws of the country where it is delivered or used. Under these laws, such Equipment may not be sold, leased or transferred to restricted end-users (including to nationals of Cuba, Iran, North Korea, Sudan, and/or Syria) or countries or for restricted end-users (including uses related to the development, production, use, or maintenance of ‘Weapons of Mass Destruction’, including without limitation, uses related to nuclear, missile, and/or chemical/biological development). If the Equipment is supplied to you subject to any such export law, supply to you of the Equipment is all subject to you not falling into any such restricted categories.
3. PRICE OF EQUIPMENT
3.1. The price of the Equipment shall be our quoted price (which we can change in the case of an error) or, where no price has been quoted or a quoted price is no longer valid, the price of which we inform you prior to accepting your order
3.2. If we deliver the Equipment to you, you may incur an additional charge but you shall be notified of such charge prior to us accepting your order.
4. TERMS OF PAYMENT
4.1. Subject to any special terms agreed in writing between you and us, you shall pay for the price of the Equipment prior to dispatch.
4.2. Payment on time is of the essence. If you fail to make any payment on the date it is due then, without prejudice to any other right or remedy we may have, we can:
4.2.1. terminate this agreement, including but not limited to any order. between you and us;
4.2.2. suspend any further deliveries to you; and/or
4.2.3. in any event charge you interest (before and after any judgement) on the amount unpaid, at the rate of 2% above the base lending rate of Royal Bank of Scotland Bank Plc. Interest is charged on a per annum basis, calculated daily until payment is made in full.
4.3. You confirm that, where you pay by payment card or direct debit, the payment method that is being used is yours.
4.4. All payment methods other than cash are subject to validation checks and authorisation and we will not be liable for any delay or non-delivery caused by any failure of such checks or authorisation.
4.5. In the event that you fail to make payment on the date it is due and such payment remains in arrears for more than 14 days after written demand, we shall have the right to sell to third parties the outstanding balance hereunder or under any other agreement and in any case without prejudice to any claim by us against you.
5.1. Unless otherwise specified in accordance with clause 3.2, delivery is free of charge and will be delivered by us or our nominated courier service.
5.2. Delivery occurs when the Equipment is received by you, your agent or carrier; you are considered to have given authority to accept a delivery on your behalf to any person who accepts delivery at the address supplied.
5.3. Failure by you to take delivery of Equipment or to give adequate delivery instructions will not relieve you of your obligation to pay us for the Equipment.
5.4. We reserve the right to charge delivery and/or storage in cases where you refuse to accept delivery of Equipment.
5.5. Equipment shall be signed for on receipt and shall be deemed to have been checked and accepted by you on such signature.
5.6. Delivery dates quoted are approximate only and we are not liable for any delay in the delivery of the Equipment. Time is not of the essence for delivery.
5.7. You must, on request, pay to us any costs in supplying the Equipment and/or Services caused by: (a) any breach by you of your obligations under these Terms and any order; (b) any factor beyond our reasonable control; (c) any changes in the dates of the delivery of the Equipment and/or provision of the Services which you require; or (d) any delay caused by your instructions or your failure to give adequate information or instructions when the order has been accepted or at any other time.
6. RISK AND PROPERTY
6.1. Once any Equipment you have ordered or otherwise purchased has been delivered, collected or otherwise received by you, all risk of damage to, or loss of, the Equipment shall pass to you.
6.2. Irrespective of delivery and the passing of risk in the Equipment, or any other provision of these Terms, subject to clause 6.3, the ownership of the Equipment shall not pass to you until we have received in cash or cleared funds payment in full for the price of such Equipment and all other Equipment agreed to be sold by us to you for which payment is then due.
6.3. All SIM cards supplied to you for use on the Network shall at all times remain the property of the Network Operator and in the event of termination of these Terms prior to the end of the minimum term of your Airtime Contract must be returned to us in good condition. If a replacement SIM card is required, there may be a charge for such supply.
6.4. Until such time as the ownership of the Equipment passes to you, you shall hold it on our behalf and keep it safe and identified as our property.
6.5. Until such time as the ownership of the Equipment passes to you, we shall be entitled to ask you to return the Equipment to us.
7. WARRANTIES AND REPLACEMENTS
7.1. Subject to the clauses set out below, the Equipment: (a) where new, is sold with the benefit of and subject to the terms applicable to such warranty or guarantee as is given by the manufacturer of the Equipment;(b) where refurbished, is sold with the benefit of a 12 month warranty from us, on similar terms to the relevant manufacturers’ warranty or guarantee; and (c) where a replacement device, is provided with the remainder of the term of such warranty or guarantee as was given with your original Equipment.
7.2. No liability is accepted for:
7.2.1. Any defect resulting from fair wear and tear;
7.2.2. Rain, water or other liquid damage;
7.2.3. Accidental or wilful damage;
7.2.5. Abnormal working conditions;
7.2.6. Failure to follow the manufacturer’s instructions (whether oral or in writing); or
7.2.7. Misuse or alteration or repair of the Equipment without the manufacturer’s approval.
7.3. There shall be no liability under any such warranty or guarantee if the total price for the Equipment has not been paid by the due date for payment.
7.4. If a valid warranty claim is made within the warranty period (if applicable), we will replace or repair (at our discretion) the Equipment free of charge. After the expiry of the warranty period, we may make a charge for either of these remedies. For further details on our Business Repairs Policy please call our Customer Services team on 0121 400 0001. We shall (at our or the Equipment manufacturer’s option) have the right to refund you the price you paid (or a proportionate part thereof, depending upon age and condition) for the Equipment. That will be the extent of our liability to you.
7.5. Other than as expressly provided in these Terms, we exclude all conditions, terms, representations (other than fraudulent or negligent representations) and warranties relating to the Equipment, whether imposed by statute or by operation of law or otherwise, that are not expressly stated herein, including without limitation, the implied warranties of satisfactory quality and fitness for a particular purpose and we shall be under no other obligation to exchange, repair or replace the Equipment or provide any refunds other than as set out in these Terms.
7.6. You accept that you are solely responsible for backing up any data stored on the Equipment prior to the commencement of any repairs and you hereby acknowledge that any such data may be lost during the repair and will be lost if the Equipment is exchanged.
7.7. We recommend that you insure your Equipment for its replacement value (including cover against calls made if it is lost or stolen). If your Mobile Phone is lost, stolen or damaged and you want to replace it, unless this is covered by insurance, you will have to purchase a new device at the normal retail price and arrange with your Network Operator for a replacement SIM card. In these circumstances, your existing Airtime Contract will continue and you will remain liable for all line rental, call and other charges under it.
8. RETURNS AND EXCHANGE
8.1. In certain situations, at our sole discretion we may be prepared to give you a refund or exchange in respect of Equipment. For details on our Business Returns and Exchange Policy please call our Customer Services team on 0121 400 0001. We reserve the right to amend this policy from time to time at our sole discretion.
9. DISCOUNTED LINE RENTAL AND CASHBACKS
9.1. By agreeing to these Terms you agree that any discounted line rental and/or cashback or similar applicable to your order must be claimed by you in accordance with the terms made available to you by us upon ordering, and may not automatically appear on your bill.
9.2. In order to claim any discounted line rental and/or cashback or similar, you must be able to demonstrate to our reasonable satisfaction that your Airtime Contract has not been cancelled and all payments thereunder are up-to-date when you claim.
9.3. In the event that your Network Operator makes a clawback of any commissions paid to us due to a default or termination by you under your Airtime Contract, we reserve the right to charge you for the full amount of any such clawback up to the amount of any discounted line rental or similar applied or paid by us to you or for any cashback paid to you.
10. OUR LIABILITY TO YOU
10.1. We accept liability without limit for death or personal injury arising from our own negligence or for any proven fraudulent pre-contractual misrepresentation on which you can be shown to have relied.
10.2. Subject to clauses 10.1 and 10.3, we are not liable to you whether in contract or tort (including negligence) or otherwise for:
10.2.1. direct or indirect loss of profits, anticipated profits, business interruption, goodwill or anticipated savings, or for any indirect or consequential loss or damage including, but not limited to, claims against you from third parties and loss of or damage to your data even if such loss was reasonably foreseeable or we had been advised of the possibility of you incurring the loss; or
10.2.2. any acts or omissions of you or any party other than us, including other providers of telecommunications, computers or other equipment and/or hardware or services including internet services.
10.3. Subject to clause 10.1, our liability to you in contract or in tort (including negligence) or otherwise in relation to or arising out of these Terms is limited to the price paid for the Equipment.
10.4. You are responsible for the security of your Equipment and use of the Services including, but not limited to, protecting all passwords, backing-up all data, employing appropriate security devices, including virus checking software, and having disaster recovery processes in place.
10.5. Where you are or become aware of any matters which you know or ought reasonably be expected to know constitute a threat to the security of the Services you will immediately advise us and your Network Operator of such matters.
11. DEFAULT UNDER AND TERMINATION OF YOUR AIRTIME CONTRACT
11.1. We may terminate these Terms with immediate effect by notice in writing if:
11.1.1. you fail to pay any sums due to us within 14 days of receiving written notice from us;
11.1.2. you fail to comply with your obligations under this clause 11;
you do or you allow to be done, anything which in our reasonable opinion will or may have the effect of impairing the operation of a particular Service(s);
11.1.3. if you use or operate a GSM Gateway;
11.1.4. if information supplied to us by you is false or misleading; or
11.1.5. we are prohibited or cease to be authorised or if our authorisation is revoked or modified in any way which has an impact on our ability to provide or procure the Services in whole or in part.
11.2. If: (a) within 7 working days of receipt of your Equipment, you have failed to arrange connection of the Equipment to the Network, if not already connected; (b) you move onto a tariff which offers a lower rate monthly subscription during the Minimum Period; (c) your Network Operator ends the Airtime Contract in accordance with its terms (including not limited to where you have failed to fulfill your payment obligations during the Minimum Period); (d) you end the Airtime Contract for any reason within 9 months (if your Minimum Period is 12 months or more) or within your Minimum Period (if your Minimum Period is less than 12 months); or (e) you have been issued with new Equipment to use in conjunction with your Airtime Contract for a new Minimum Period and you have not used the new Equipment within 30 days of receipt, and the relevant tariff includes discounted Equipment, you must in addition to paying any other charges under the Airtime Contract either:
11.2.1. return the Equipment to us by sending it special delivery to: Kuhex Limited, Avebury House, 55 Newhall Street, Birmingham B3 3RB; or
11.2.2. keep the Equipment, in which case you agree to pay us the amount of the discount being the retail price (which in the case of a Mobile Phone is the standalone purchase price) of the Equipment less the amount paid by you at the time of purchase for the Equipment.
11.3. Termination of these Terms howsoever arising shall be without prejudice to the rights, duties and liabilities of the parties accrued prior to termination. Those clauses in these Terms which are intended (expressly or by implication) to have effect after termination shall remain binding on the parties notwithstanding termination.
11.4. On termination of these Terms all outstanding charges and other sums due to us shall be paid by you immediately.
12. COPYRIGHT, PATENT, TRADE MARK, INTELLECTUAL PROPERTY RIGHTS
12.1. You acknowledge that any and all of the trademarks, copyright, patents, mask rights, semiconductor topography rights and other intellectual property rights (including present and future intellectual property rights) (‘Intellectual Property Rights’) used or subsisting in or in connection with the Equipment (including software, hardware and other parts thereof in which we or the respective manufacturer, developer or third party has an interest) are and shall remain the sole property of us or such manufacturer, developer or third party. You shall not during or at any time after the completion, expiry or termination of the order in any way question or dispute the ownership thereof.
12.2. You shall indemnify us fully against all liabilities, costs, expenses, and lost profits which we may incur as a result of infringement of any such Intellectual Property Rights.
13. YOUR PERSONAL INFORMATION
13.1. We need to collect certain Personal Information to provide you with the Equipment and/or Services. This Personal Information will form part of a record of your dealings with us.
13.2. When you contact us, we may ask for certain Personal Information to be able to check your identity and we may make a note of this. We will keep Personal Information given to us by you or others during your relationship with us and other companies in the Kuhex Group. This includes:
13.2.1. details you give us on order forms or during communications with you; and
13.2.2. details we receive from credit reference and fraud detection agencies.
13.3. You agree that we may use and update your Personal Information:
13.3.1. for credit and credit related services and to manage your accounts;
13.3.2. when applicable in relation to the Equipment and/or Services ordered, to make credit, fraud and identity checks on you (a) prior to accepting your order; and (b) subsequently for the purpose of risk assessment, debt collection and fraud prevention whilst you retain a financial obligation to us;
13.3.3. to provide you with Equipment and/or Services that you have ordered;
13.3.4. to trace and recover debts;
13.3.5. to prevent and detect fraud, crime and money laundering;
13.3.6. to update our records about you; and
13.3.7. to check your identity.
13.4. If you give us false or inaccurate information or we identify fraud, we may record this.
13.5. Any credit checks that we undertake will be recorded by the credit reference agencies in the form of a search ‘footprint’ on you credit file. This ‘footprint’ may then be seen by other people conducting similar searches of your credit file.
13.6. We may use and disclose information about you and how you run your accounts to credit reference, law enforcement and fraud prevention agencies
13.7. Credit Agencies may pass the Personal Information that they received from us to other organisations in the performance of credit and/or fraud checks. Your Personal Information together with any additional information held by credit reference agencies and fraud prevention agencies may also be used to trace your whereabouts and recover debts that you owe.
13.8. Information held about you by credit reference agencies may be linked to records of people who are financially linked to you. We and other organisations may use credit reference agency and fraud prevention agency records that we receive about you, and people financially linked to you to help make decisions about you and them.
13.9. You agree that we may use your Personal Information for operating a publicly accessible directory service.
13.10. We may use your Personal Information for research and statistical analysis, to develop and improve our products and services.
13.11. When assessing an application, we may use automated decision-making systems.
13.12. Your Personal Information is confidential and, although we may freely disclose it to other companies within the Kuhex Group, we will only disclose it outside the Kuhex Group when:
13.12.1. you give us your consent;
13.12.2. it is needed by certain reputable third parties involved in running accounts and/or providing services for us (for example, credit reference agencies or companies that we use in the provision of the Services);
13.12.3. it is needed in order to obtain professional advice;
13.12.4. it is needed to investigate or prevent crime (e.g. to fraud prevention agencies);
13.12.5. the law permits or requires it, or any regulatory or governmental body requires it, even without your consent;
13.12.6. you purchase a television from us, in which case your Personal Information will be provided to TV Licensing to comply with our legal obligation under the Wireless Telegraphy Act 1967 (as amended);or
13.12.7. there is a duty to the public to reveal the Personal Information.
13.13. We may administer your account and provide services from countries outside Europe that may not have the same data protection laws as the UK. However, we will have contracts or other legal mechanisms in place to ensure your Personal Information is adequately protected, and we remain bound by our obligations under the Data Protection Act even when your Personal Information is processed outside Europe.
13.14. We may monitor, record, store and use any telephone, email or other electronic communications with you for training purposes, to check any instructions given to us and to improve the quality of our customer service.
13.15. Where we process sensitive Personal Information, we will employ appropriate security measures.
13.16. If you would like us to tell you what information we hold about you, or if you wish to have details of the credit reference or the fraud prevention agencies from whom we obtain and with whom we record information about you, please write to: The Data Protection Office, Kuhex Limited, Avebury House, 55 Newhall Street, Birmingham B3 3RB. We may charge a £10.00 administration fee – Please include your full name, address, account number and a copy ID with each request.
13.17. You will have the opportunity to consent to us and/or the Kuhex Group contacting you by e-mail, phone, SMS or MMS from time to time occasionally about products and services which the Kuhex Group and carefully selected third parties believe may be of interest to you.
13.18. You can make changes to your marketing preferences and/or correct or update any inaccurate or incomplete information at any time by calling us on 0121 400 0001 or alternatively, you can write to: Customer Services, Kuhex Limited, Avebury House, 55 Newhall Street, Birmingham B3 3RB. Please note that it may take up to 28 days for such changes to take effect.
13.19. We may pass your information to the Mobile Equipment National Database (‘MEND’) and the Stolen Equipment National Database (‘SEND’) (organisations operated by Recipero Limited, a company registered in England and Wales under Company No. 3794898 and with its registered office at Lawrence House, Lower Bristol Road, Bath BA2 9ET) to enable MEND or SEND to contact you in the event that you lose your Mobile Phone/Smart Phone or it is stolen from you. Please contact us on 0121 400 0001 if you do not want your information to be passed to MEND and/or SEND. PLEASE NOTE: Once you have been registered with MEND and SEND, it is your responsibility to ensure that you notify any change of mobile phone to MEND and SEND to ensure that there is no interruption of their service to you.
13.20. If you give us information about another person, you confirm they have given you permission to provide it to us and for us to be able to process their personal information. You must also confirm that you have told them who we are and the basis on which we will use their information.
14.1. Any third party which is not a party to this Contract can not benefit from these Terms under the Contracts (Rights of Third Parties) Act 1999.
14.2. We may assign, sub-contract or otherwise transfer these Terms or any part of it to any third party in our absolute discretion. You may not assign, sub-licence or otherwise transfer these Terms or any order or any of your rights or obligations arising under them without our express written consent.
14.3. These Terms (and any order accepted by us) sets out the whole agreement between you and us for the provision of the Equipment and supersedes all prior arrangements, understandings and agreements between you and us.
14.4. If you need to send notices to us these must be in writing and can be delivered by hand or sent by first class recorded delivery to our address as stated in clause 14.10. If we need to send notices to you these must be in writing and can be (a) delivered by hand or sent by first class post to your address as stated on your application form or given to us during the application process, in the UK (b) sent by SMS, which must be sent to your mobile phone number, or (c) sent by e-mail, which must be sent to you at the address stated in your application form or given to us during the application process or any other e-mail address that you supply to us for the purpose.
14.5. Any such notice shall be deemed to have been received:
14.5.1. if delivered by hand, the day after the day the notice is sent;
14.5.2. is sent by first class; two days from the date of posting;
14.5.3. if sent by first class recorded delivery, when receipt upon delivery is signed; or
14.5.4. in the case of SMS or e-mail, the day after the day the notice is sent.
14.6. The failure or delay by us in exercising any of our rights, powers or remedies under these Terms shall not in any circumstances impair such right, power or remedy nor operate as a waiver of it. The single or partial exercise by us of any right, power or remedy under these Terms shall not in any circumstances preclude any other or further exercise of it or the exercise of any other right, power or remedy. Any waiver of a breach of, or default under, any of the terms of these Terms shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of these Terms.
14.7. If any particular clause of these Terms shall be or be held to be invalid or unenforceable by any court or other competent body or authority, the enforceability of any other clauses in these Terms shall not be affected and they shall continue in full force and effect.
14.8. If either of us cannot do what we have promised in these Terms (or any order accepted by us) because of something beyond our reasonable control such as lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes, acts or omissions of persons for whom we are not responsible (including other telecommunication providers), or acts of local or central Government or other competent authorities, such party will not be liable for this.
14.9. These Terms (and any order accepted by us) will be construed in accordance with and governed by the laws of England. In the event of any dispute relating to or arising from these Terms or any order accepted by us the parties agree to submit to the-exclusive jurisdiction of the English Courts.
14.10. Calls to our telephone numbers will be charged at standard rates and may be monitored and/or recorded. You may address any complaints or notices in writing to: Customer Services, Kuhex Limited, Avebury House, 55 Newhall Street, Birmingham B3 3RB. Please include your Mobile Phone details and account number in any correspondence.