TERMS & CONDITIONS FOR THE SALE OF DEVICES TO FUTURE PHONES LIMITED’S CUSTOMERS ON INSTALLMENTS
The person whose names appear overleaf (“the Customer”) hereby agrees to the following terms and conditions:
Definitions & Interpretation
In this Agreement the following words and expression shall have the following meaning:
"Agreement" or “Terms and Conditions” means these terms and conditions and includes Application Form.
"Application Form" means the application form overleaf;
"Customer" means the person or entity listed as the customer in the Application Form
References to “You” or “Your” shall be construed as references to the Customer;
"Devices" means the handsets, ipads, tablets, laptops and other devices to be purchased by the Customer by way of monthly installments as listed on the Application Form;
"Party" means either Future Phones Limited or Customer and "Parties" shall mean them both;
"Payment" means the monthly installments (inclusive of VAT) payable by the Customer to Future Phones Limited for the Devices and data bundles as indicated on the Application Form;
"Person” means reference to a body corporate or other legal entity;
"Services" means Future Phones Limited’s services which the Customer is connected to as at the date of the Agreement as indicated on the Application Form.
In this Agreement, unless the context otherwise requires, any reference to:
the singular includes the plural and vice versa;
any written law includes that law as amended or re-enacted from time to time;
(c) any agreement or other document includes that agreement or other document as varied or replaced by the Parties in writing from time to time;
(d) words importing one gender shall be construed as importing the other gender; and
any Party includes that Party’s successors and assigns.
1.3 Clause headings are inserted for convenience only and shall be ignored in construing this Agreement.
(a) The device installment plan is only open to Future Phones Limited’s customers who are currently using the Services and who are in good standing and whose accounts are not in arrears on the date of making the application for the Devices.
(b) Future Phones Limited reserves the right to carry out a credit check on any Customer as a pre-condition to the approval of the Customer’s application for the Devices.
(c) Future Phones Limited reserves the right to request a Customer to deposit a specified sum of money or a bank guarantee as a security for performance of Your obligations under this Agreement. You, the Customer, hereby agrees to provide Future Phones Limited with all information that may be required to assess the application and You agree that such information may be used by Future Phones Limited for purposes of debt collection in the event that Your account is in arrears.
3. Release of Devices & Warranty Terms
(a) The Devices listed overleaf will be released to You upon approval of the Application Form.
(b) The Person who signs the Application Form shall be deemed to have authority to bind the Customer to this Agreement. Future Phones Limited shall not be under an obligation to make inquiries as to whether the person has such authority.
(c) Risk in the devices will pass to You upon collection of the Devices from Future Phones Limited or delivery of the devices to the premises indicated overleaf. For the avoidance of doubt Future Phones Limited will not be responsible for any loss or damage to the Devices upon collection or delivery of the devices to the premises. Title to the Devices will pass to You upon payment of the Devices in full.
(d) Devices are sold subject to the manufacturer’s limited warranty which is packaged together with the Devices and is also available from Future Phones Limited upon written request. If You find that the Product is faulty or defective, You should immediately, not later than two days, return it to Future Phones Limited together with the receipt for the purchase. All faults will be handled in accordance with the manufacturer’s limited warranty. For the avoidance of doubt Future Phones Limited will not be liable for any fault in the Devices outside the manufacturer’s warranty. Any logistical expense reasonably incurred by Future Phones Limited in extending such benefit shall be held to Your account. This warranty is the only warranty given by Future Phones Limited and specifies its entire liability including liability for negligence and in particular but without limitation all statutory or other express, implied or collateral terms. Conditions or warranties are excluded to the fullest extent provided by law. You are hereby advised to take note of any limitations and restrictions thereof and to examine the features of the device prior to signing the Application Form.
(e) You agree that once the Application Form has been signed and the Devices indicated on the form released there will be no replacement or repair unless the same is under the manufacturer’s limited warranty.
(f) Value of the Device is as at the date of the Customer’s application. No adjustment shall be made for promotions or price cuts offered by Future Phones Limited.
(g) The Devices to be purchased by the Customer are set out in the Application form. In the event that the Customer requires additional Devices, the Customer may place an order by completing a new Application Form.
(h) Future Phones Limited may elect to approve the Application Form but shall be under no obligation to do so.
(i) All Application Forms for the additional Devices approved by Future Phones Limited shall be governed by the terms of this Agreement.
4. Payment for the Devices
(a) You agree that you will remain liable for the Payments even where the Devices are intended for use by third parties who are not party to the Agreement.
(b) You agree to continue making Payments even in the event of loss or theft of the Devices or where the Devices are faulty outside the period of the manufacturer’s warranty.
(c) All Payments are due Fifteen (7) days from the invoice date and You shall pay Future Phones Limited by cash, cheque, approved credit/debit card and/or bank transfer. Invoices shall be sent to the Customer’s address specified in the Application Form.
(d) In the event that You do not pay the amounts due within the credit period of Fifteen (7) days from the invoice date then Future Phones Limited may:
(i) charge interest on the unpaid amount at a rate of 5% per month ; and/or;
(ii) If payment has still not been received thirty (30) days from date of the missed invoice payment or if You miss any other payments:
• Arrears plus the Payment for the remainder of the term of the Agreement shall immediately become due and invoiced to the Customer’s account.
• Future Phones Limited may refer the debt to a collection agent and/or institute debt recovery proceedings for the recovery of the debt; and/or pre and post judgment collection costs will be held to Your account until payment is received in full.
• Future Phones Limited may offset service credits due to the Customer under the terms and conditions for the Services against the Payment arrears.
• Future Phones Limited may offset any sums due to You under any other agreement against the Payment arrears.
5. Term & Termination of the Agreement
(a) This Agreement shall commence on the date entered in the Application Form until the debt is discharged in full.
(b) The Payments will immediately become due upon termination of this Agreement for any reason and provisions of clause 4 (d) shall apply to such Payments.
(a) No terms or conditions endorsed upon, delivered with or contained in Your documentation will form a part of this Agreement and You waive any right which You otherwise might have to rely on such terms and conditions.
(b) Any notice required to be given to Future Phones Limited shall be deemed to have been given if it is posted by registered mail or delivered by hand or courier service to the aforementioned address and marked for the Attention of: The Chief Executive Officer.
(c ) Any notice required to be given to You shall be deemed to be so given if it is addressed to You at Your last known address and posted by registered mail or delivered by hand or courier service to You
(d) Such notice shall be deemed to have been received five (5) business days after posting or if delivered by hand or courier upon receipt by the duly authorised officer.
(e) Any failure to exercise or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. No single or partial exercise of a right or remedy provided by this Agreement or by law prevents further exercise of the right or remedy or the exercise of another right or remedy.
(f) If any of the words or provisions of this Agreement shall be construed to be illegal, void or invalid, that shall not affect the legality and validity of the other words or provisions. If any restriction is held not to be valid but would be valid if part of the wording were deleted or its extent reduced or modified then such restriction shall apply with such deletion, reduction or modification as may be necessary to make it enforceable
(g) The construction, validity and performance of this Agreement shall be governed in all respects by the Laws of Kenya.
7. Dispute Resolution
7.1 Amicable Settlement
The Parties shall use their best efforts to settle amicably any dispute arising from or in connection with this Agreement or the interpretation thereof.
(a) Save as may otherwise be provided herein, all questions in dispute arising between the Parties and all claims or matters in such dispute not otherwise mutually settled between the Parties shall in the first instance be referred to the Communications Commission of Kenya.
(b) In the event that the Communications Commission of Kenya fails to settle the dispute within fourteen (14) days of the dispute being referred to it, then the matter shall be referred to arbitration by a single arbitrator to be appointed by agreement between the Parties or in default of such agreement, the arbitrator shall be appointed within fourteen (14) days upon application by either Party to the Chairman for the time being of Kenya Branch of Chartered Institute of Arbitrators of the United Kingdom. The arbitration proceeding shall take place in Nairobi.
(c ) Every award made under this clause shall be made in accordance with the provisions ofthe Arbitration Act 1995 (Act No. 4 of 1995) or other Act or Acts for the time being in forcein Kenya in relation to Arbitration. To the extent permissible by law the determination ofthe Arbitrator shall be final and binding upon the Parties.
(d) Notwithstanding these arbitration provisions, the Parties shall not be precluded from seeking urgent injunctory relief, in which case the Parties submit to the exclusive jurisdiction of the High Court of Kenya.
I/We warrant the information given in this contract form is true and complete. I/We also authorize Future Phones Limited to access/share my credit profile or of guarantors/directors for credit appraisal from licensed crbs and I/we also release CRB and Future Phones Limited and its officers, employees and agents from all claim, actions or proceedings of whatsoever nature and howsoever arising, suffered or incurred in connection with this sharing and access for the purpose as fore stated. By signing this document, I/We abide to Future Phones Limited Terms and Conditions.