1. In addition to the definitions set out in the General Terms and in the Mobile Service Terms, the following definitions shall apply in these Service Terms:
General Terms: Our General Terms and Conditions, a copy of which has been provided to you and/or is available on our Website.
Liability: any liability whether arising in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise.
Mobile Equipment: the mobile electronic communications equipment set out in the Order but excluding any SIM Card.
Mobile Service Terms: our Mobile Service Terms, a copy of which has been provided to you and/or is available on our Website.
2.1 Any sales literature, price lists, websites, and other documents and promotional material issued by us or a manufacturer of any Mobile Equipment in relation to any Mobile Equipment are subject to alteration without notice and do not constitute offers to sell (or a specification/description of) any Mobile Equipment which are capable of acceptance.
2.2 Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by us shall be subject to correction without any liability on our part.
3.1 Delivery of the Mobile Equipment shall be made to your address as set out in the Order.
3.2 The Mobile Equipment may be delivered by us in advance of the quoted delivery date upon giving reasonable notice to you. Delivery shall be deemed to have taken place once the Mobile Equipment has been left at the delivery location.
3.3 Where you order an item of Mobile Equipment from us then a SIM will be provided with such Mobile Equipment and the item of Mobile Equipment will be delivered within 2 – 5 Business Days of your entering into the contract with us for the provision of the Mobile Equipment.
3.4 We may deliver Mobile Equipment in instalments. Where the mobile Equipment is to be delivered in instalments, each delivery shall constitute a separate contract and failure by us to deliver any one or more of the instalments in accordance with this Agreement or any claim by you in respect of any one or more instalments shall not entitle you to terminate the Agreement as a whole.
3.5 If you do not take delivery of the Mobile Equipment or fail to give us adequate delivery instructions or access to your premises at the time stated for delivery (otherwise than by reason of any cause beyond your reasonable control or due to our default) that are required to enable the Mobile Equipment to be delivered then we may:
3.5.1 store the Mobile Equipment until actual delivery and charge you for the reasonable costs (including insurance) of storage and re-delivery; or
3.5.2 terminate the Agreement in respect of the Mobile Equipment and any associated Mobile Services.
3.6 We may decline to deliver Mobile Equipment if we believe, acting reasonably, that it would be unsafe, unlawful or unreasonably difficult to deliver the Mobile Equipment; and/or the premises at which the Mobile Equipment are to be delivered (or the access to them) is unsuitable for the relevant delivery vehicle. In such circumstances the provisions of clause 3.5 shall apply.
3.7 If we fail to deliver the Mobile Equipment or any of it within the delivery timescale specified in the Order, other than for reasons outside your reasonable control or due to our default then without prejudice to your rights under Applicable Law, we shall have no liability in respect of such late delivery, provided that if you give written notice to us of the failed delivery within 7 days after such delivery date, and we fail to deliver the Mobile Equipment within 30 days after receiving such notice you may terminate the Agreement and we and you shall have no liability in respect of that Agreement.
4. Risk and Title
4.1 Risk in the Mobile Equipment shall pass to you at the time of delivery to you or, if you fail to take delivery of the Mobile Equipment in accordance with the Agreement, the time when us has attempted delivery of the Mobile Equipment.
4.2 Title in the Mobile Equipment shall pass to you upon delivery to you of the Mobile Equipment.
5.1 You must inspect the Mobile Equipment at the time of delivery or collection (as the case may be). Any claim for non-delivery (including, short shipment, transit damage, or dead on arrival) of any Mobile Equipment shall be notified in writing by you to us within 24 hours of the date of the delivery. We shall have no Liability for any damage or shortages that would be apparent on reasonable careful inspection if the provisions of this clause 5 are not complied with and, if a written notice is not delivered to us within 24 hours of delivery detailing the alleged damage or shortage.
5.2 Subject to the other provisions of this clause 5 and clause 13 of the General Terms, where any valid claim in respect of any of the Mobile Equipment which is based on any shortfall in the amount of Mobile Equipment delivered or on any defect in the Mobile Equipment is notified to us in accordance with this clause 5, we shall, at our sole discretion, replace the Mobile Equipment (or the part in question) free of charge within a reasonable period replace the Mobile Equipment but this shall be your sole remedy, and we shall have no further Liability to you, in relation to the same.
5.3 Where there is any defect or shortage in any Mobile Equipment, we shall have no Liability in respect of this:
5.3.1 unless an opportunity to inspect the Mobile Equipment is provided to us or our supplier before any use is made of the Mobile Equipment;
5.3.2 if any alteration or modification is made to the Mobile Equipment by you.
5.4 Without prejudice to clause 5.1, we shall have no Liability in relation to any defect in the quality or condition of any Mobile Equipment unless you give us written notice of the same to us within 14 days from the date of delivery or deemed delivery (or as otherwise specified in our returns policy from time to time) and provided that you:
5.4.1 inform us providing full details of the fault or defect within 5 days of discovering the same; and
5.4.2 comply with the provisions of this clause 5 (and where applicable clause 6), and in so doing give us (and, if relevant, the manufacturer of the Mobile Equipment in question) a reasonable period of time to inspect and examine the Mobile Equipment to determine if they are faulty or defective in any way.
5.5 If a defect in any Mobile Equipment becomes apparent after the date that is 14 days after the date of delivery of the Mobile Equipment to you or you notify us of any defect after this date, then you must rely on the terms of any manufacturer’s warranty that applies to the Mobile Equipment and deal directly with the original equipment manufacturer of the Mobile Equipment, and we shall have no Liability in respect of any such defect.
5.6 If delivery is not refused, and you do not notify us of any claim in accordance with clauses 5.1 and/or 5.4 (as the case may be), you shall not be entitled to reject the Mobile Equipment and we shall have no Liability for such defects or failure.
5.7 We shall be under no liability in respect of:
5.7.1 any defect arising from fair wear and tear;
5.7.2 any wilful damage caused by you or any third party (or their respective agents, sub-contractors or employees);
5.7.3 your negligence and/or failure to follow our or manufacturer’s instructions (whether given orally or in writing);
5.7.4 your misuse or alteration of the Mobile Equipment without our prior written approval;
5.7.5 any other act or omission by you or your respective employees or agents; or
5.7.6 any Mobile Equipment returned by you to us which is alleged to have been faulty and/or defective in any way (“Alleged Faulty Good(s)”) but following testing and/or inspection by us or the relevant manufacturer (or their authorised agents, employees or contractors), are determined by such person(s), in their absolute discretion, not to be faulty or defective in any way (a “No Fault Found Return”).
5.8 You shall be entitled to the benefit of any warranty or guarantee as is given by the manufacturer to us, subject to the limitations on the warranties specified in this clause 5.
6.1 All returns of Mobile Equipment shall be subject to our returns policy or that of the relevant manufacturer or supplier.
6.2 You shall not be entitled to return any Mobile Equipment to us without our prior written consent. Such consent may be conditional on the payment of a handling charge (unless the Mobile Equipment was defective when delivered) and the Mobile Equipment being as fit for sale on its return as it was on delivery.
6.3 We may as a gesture of goodwill, replace an Alleged Faulty Good prior to determination as to whether or not such Alleged Faulty Good is faulty or defective in any way. If we have replaced an Alleged Faulty Good and such Alleged Faulty Good is determined to have been a No Fault Found Return, you irrevocably and unconditionally undertake to pay to us on demand the value of any replacement goods supplied pursuant to this clause 6.3.
6.4 We may recall any of the Mobile Equipment if there is a defect in the Mobile Equipment and in such circumstances you shall co-operate fully with us with respect to the recall and to ensure that the impact on the brands and reputation of the Mobile Equipment and us and our suppliers is minimised.