Terms of use and agreement for hire-purchase of a mobile phone

The terms and conditions contained hereinafter ("TERMS OF USE") shall apply to the use of the mobile phone sold with

The Owner and the Hirer shall be individually referred to as a 'Party' and together as the 'Parties', where the context so requires.

WHEREAS the Owner is the owner of a mobile phone and the Hirer has approached the Owner to let the said mobile phone on hire to him (hereinafter the "Mobile Phone"), to which the Owner has agreed and has assured the Hirer that he shall have and enjoy quiet possession of the said Mobile Phone until payment is complete towards the Mobile Phone.

AND WHEREAS the Hirer has inspected the said Mobile Phone and is satisfied about the same and considers it fit for the purposes for which he requires the same.

NOW BASIS THE CONSIDERATION AND MUTUAL REPRESENTATIONS AND WARRANTIES IT IS AGREED BETWEEN THE PARTIES AS FOLLOWS:

• The Owner will let and the Hirer will take on hire the Mobile Phone.
• The Owner has delivered the said Mobile Phone to the Hirer and has allowed the Hirer to use the said Mobile Phone for all legal purposes.
• The Hirer hereby acknowledges and agrees that as part of this Agreement, the Owner may license from any person ("Software Provider") and  install requisite software on the Mobile Phone that is reasonably necessary to protect the Owner’s rights under this Agreement. Such software may include, but is not limited to, tracking, locking or disabling functionalities to prevent unauthorised use, tampering of the Mobile Phone or pursuant to non-payment of dues accruing to the Hirer under this Agreement. 
• The Hirer further acknowledges that the installed software is the property of the third-party Software Provider, and the Hirer shall have no ownership or proprietary rights in the software. The Hirer shall not inter alia make any copies of, modifications to, or distribute the software. The Hirer acknowledges that the software may be subject to additional terms and conditions, including end-user license agreements, provided by the Software Provider which the Hirer shall be deemed to have accepted and must comply with.
• The Hirer further agrees and acknowledges that the software shall be used by the Owner for the purposes that are provided in this Agreement and that by executing this Agreement, the Hirer consents to such use of the software and any data collected therein. The Hirer agrees to not interfere with or disable such software during the term of this Agreement.
• During the continuance of hiring, the Hirer shall:
• Pay the agreed instalment amounts to the Owner on or before the dates under the payment schedule mutually agreed by the parties pursuant to this Agreement.
• Not sell, assign, pledge, mortgage, underlet, lend or part with the possession of the said Mobile Phone and not allow the said Mobile Phone to be used by anybody else or kept or detained or run for the use of any other person, unless required by law.
• At the discretion of the Owner, keep the said Mobile Phone insured so long as the hiring shall continue in the joint names of the Owner and the Hirer against all risks and the Hirer shall pay all the premiums payable to the insurance company. On the Hirer becoming the owner of the said Mobile Phone under the terms of this Agreement, the Owner will transfer to the Hirer the benefit of any insurance policy then current relating to the said Mobile Phone.
• Take reasonable care of the Mobile Phone to avoid any damages and pay to the Owner the full value of the said Mobile Phone in the event of its total loss.
• Not use or permit the Mobile Phone to be used in contravention of any law for the time being in force.

• NOTIFICATIONS

• The Hirer agrees and acknowledges that during the period in which the requisite software is installed in the Mobile Phone, the Hirer grants permission to the Software Provider and its employees, and agents to contact the Hirer via electronic communications including, but not limited to, e-mail, text message/SMS, telephone calls and other means of electronic messaging for purposes relating to inter alia reminders for payment of mandates/monthly instalments, etc., and for any other purposes including but not limited to the Software Provider's marketing efforts.
• The Hirer hereby consents to such communications and agrees that the same do not amount to unsolicited commercial communications, and shall not hinder or prevent the delivery of these notifications. By accepting this clause, the Hirer understands and acknowledges that notifications from the Owner or Software Provider are an essential medium of communication and may contain important updates and information.
• Upon the Hirer performing all its obligations under this Agreement and paying the Owner the entire sum agreed between the parties to the Owner as per the payment schedule mutually agreed between the parties , the hiring shall come to an end and the ownership of the said Mobile Phone shall stand transferred to the erstwhile Hirer. The Owner, which has the requisite title to the Mobile Phone and has the right to sell it, will, subject to this Agreement and applicable law, do all acts necessary to effectuate such transfer of ownership in the same to the Hirer. No neglect, delay or indulgence on the part of the Owner in enforcing any terms or conditions of this Agreement shall prejudice the rights of the Owner hereunder.
• The Hirer may also purchase the said Mobile Phone at any time during the initially agreed period of hiring by paying in one lump sum the balance of all outstanding payments due to the Owner. Until all such payments as aforesaid have been made, the said Mobile Phone shall remain the property of the Owner.
• The date of such sale and transfer of ownership will be the date of full and final payment towards the Mobile Phone or a date as may be agreed by the parties, in writing. Upon the transfer of ownership of the Mobile Phone, the Owner shall ensure that any software installed to safeguard its rights is promptly disabled or uninstalled. The Owner shall perform this action promptly, subject to cooperation from the Hirer, and at no additional cost to the Hirer, to enable the Hirer to fully exercise and enjoy all rights and privileges associated with their ownership of the Mobile Phone without any restriction or interference.

• CONSEQUENCES OF NON-PAYMENT

• The Hirer agrees and acknowledges that in the event the Hirer defaults in payments of any mandates/ instalments payable hereunder or is in breach of this Agreement, then the Owner shall have the right to completely block usage of the Mobile Phone. The Hirer further agrees that the Mobile Phone may only be unlocked upon payment of mandates/ instalments payable to the Owner.
• Further, in the event the Hirer fails to make payments of mandates/ instalments for 30 (thirty) days after the day on which the Mobile Phone was blocked, then the Owner has the right to immediately terminate this Agreement and immediately take physical possession of the Mobile Phone. The Hirer is obligated to immediately return the Mobile Phone to Owner at its own cost.
• Any payment pending from the Hirer shall become payable immediately to the Owner and the Hirer must also make any requisite payments towards damages identified to the Mobile Phone, if any, by the Owner.

• DEVICE LOCATION AND SIM CARD DETAILS

• The Hirer is deemed to have provided its explicit consent for any collection and processing of Hirer’s data by the Owner and its agents under this Agreement.
• The Hirer agrees and acknowledges that the Owner shall at all times during the term of this Agreement, have access to the Mobile Phone's GPS location. The Hirer shall ensure to continue providing necessary permissions and consents to location being recorded at regular intervals.
• The Hirer agrees and acknowledges that subscriber identity module ("SIM") details and related information shall also be collected through the software installed by the Owner to safeguard its rights and the Hirer shall have no objection to the same.
• The Owner agrees that personal information collected under the Agreement shall not be misused, and the usage of the same shall be subject to applicable law.
• The Hirer represents, warrants and/or covenants (as applicable) that: he/she has inspected the said Mobile Phone and is fully satisfied with the condition of the said Mobile Phone and has found the same in good order and working condition.
•  He/she understands that the Owner provides no warranty to the Mobile Phone and the terms of any warranty.
• He/she shall during the continuance of the hiring, unconditionally and irrevocably pay to the Owner, all sums as agreed to between the Parties. The Hirer shall regularly pay to the Owner such amounts even if the said Mobile Phone or part thereof has not been used for any reason whatsoever, including due to actions that may be necessitated pursuant to this Agreement.
• He/she shall neither create any kind of third-party rights in respect of the said Mobile Phone nor part with the possession of the same to any third party. The Hirer acknowledges that the rights of the Hirer on the said Mobile Phone are limited to the extent of personal usage only and the Hirer shall not claim any higher rights to the same. The ownership of the said Mobile Phone shall continue to be of the Owner except as specifically provided under this Agreement.
• He/she shall not directly or indirectly do any acts to cover and/or deface the said Mobile Phone and ensure that there is no damage to the Mobile Phone during the subsistence of this Agreement.
• He/she shall not interfere with the mechanism and/or working of the said Mobile Phone (whether to its hardware or software) and/or make any alterations in the same. Upon any fault arising, the Hirer shall forthwith intimate the Owner and at the discretion of the Owner return the Mobile Phone, if such issue is incapable of being rectified.

• TERM AND TERMINATION

• This Agreement shall commence on the date the Mobile Phone is delivered to the Hirer and shall remain in full force and effect until:
  • all payments due from the Hirer are made to the Owner and the Mobile Phone is transferred to the Hirer; or
  • The Owner shall have the right to terminate this Agreement
  • After providing one month’s notice to the Hirer to rectify the breach and the Hirer failing to rectify the breach if the Hirer: (1) defaults on any payment due under this Agreement; or (2) commits breach of any of the other terms and conditions recorded herein; or (3) commits any act which endangers the rights of Owner of the Mobile Phone; or 

• the Hirer defaults on his/her payments and the Mobile Phone is returned to the Owner in accordance with Clause 10(b) of this Agreement as the case may be, unless terminated earlier as per the provisions of this Agreement. 
• If the Hirer goes into liquidation.
• Termination shall not affect the Owner's right to receive and recover from the Hirer any amounts already due and/or to recover damages from the Hirer on account of any breach of this Agreement.
• In case of termination of this Agreement due to any reason other than under Clause 13(a)(i) above, the Hirer shall at its own cost and efforts re-deliver the said Mobile Phone to the Owner in good and working condition, subject to reasonable wear and tear in such place and subject to such reasonable conditions as may be specified by the Owner.

• INDEMNITY

The Hirer shall indemnify and hold harmless the Owner and any of its agents, employees, officers, directors, and service providers, inter alia from any and all claims, damages, liabilities, losses, costs, and expenses, including but not limited to legal fees arising out of or in connection with (a)  the use, possession, or operation of the Mobile Phone and software by the Hirer; (b) fraud or negligence by the Hirer; (c) breach of this Agreement or applicable law by the Hirer due to the Hirer’s breach or negligent performance or non-performance of this Agreement.

• LIMITATION OF LIABILITY

• In no event shall either Party be liable to the other for any remote or indirect loss or damages, arising out of or in connection with this Agreement.
• Notwithstanding anything contained herein, the Parties agree and acknowledge that in no event shall the Owner’s total liability under this Agreement exceed the amount of one monthly instalment towards the Mobile Phone purchase price collected by the Owner from the Hirer. The provision of this Clause shall survive termination and expiry of this Agreement.

• DISPUTE RESOLUTION

• Any issue, dispute and/or differences arising out of and/ or in relation to this Agreement raised by any of the Parties hereto shall be resolved amicably at the first instance. In the event such issue, dispute and/or reference is not resolved amicably within 30 (thirty) days from the date of written notice of dispute by a Party, then it shall be resolved by arbitration by a sole arbitrator in accordance with (Indian) Arbitration and Conciliation Act, 1996 and rules made thereunder as amended from time to time.
• Such arbitration shall be conducted in English and with the seat and venue of arbitration in Bangalore, India.
• The award rendered by the arbitrator shall be final, conclusive and binding, and shall be subject to forced execution in any court of competent jurisdiction. The award rendered by the arbitrator shall, in addition to dealing with the merits of the case, fix the costs of the arbitration and the Party who shall bear the same.
• Subject to the aforementioned, the courts in Bangalore shall have exclusive jurisdiction over all matters arising pursuant to this Agreement.
• Nothing shall preclude any Party from seeking interim or permanent equitable or injunctive relief, or both, from the competent courts, having jurisdiction to grant relief on any disputes or differences arising from this Agreement. The pursuit of equitable or injunctive relief shall not be a waiver of the duty of the Parties to pursue any remedy (including for monetary damages) through the arbitration described in this Agreement herein.

• MISCELLANEOUS

• Amendment: No amendment or variation of this Agreement shall be binding or have any effect unless in writing and signed by or on behalf of the Parties to this Agreement.
• Entire Agreement: This Agreement, any exhibits and amendments thereto, constitute the entire agreement between the Parties and supersede all previous agreements, oral or written, with respect to the subject matter of this Agreement. This Agreement shall not be amended without the prior written consent of both Parties.
• Relationship of the Parties: That it is understood and has been agreed between the Parties that this Agreement is entered into by and between the Parties to this Agreement on 'principal-to-principal' basis and nothing in this Agreement shall create, or be deemed to create, a partnership, joint venture or the relationship of principal and agent, between the Parties or any of them.
• Waiver: That failure of either Party to this Agreement to enforce at any time or for any period of time, all or any provision(s) of this Agreement shall not be construed to be waiver of such provision(s) or of the right thereafter, to enforce all or any such provision(s) of this Agreement.
• Severability: In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable or becomes void or illegal or unenforceable due to any change in law, rules, regulations, by-laws or any such similar change, the remaining portions hereof shall remain in full force and effect. The Parties agree to substitute for any such invalid or unenforceable provision a valid provision which shall approximate as closely as possible the intent and economic effect of the invalid provision.
• Survival: The terms and conditions of this Agreement, which by implication or by express stipulation of the Parties, survive the termination or expiry of this Agreement (as the case may be) shall be adhered to and complied with by the Parties even after the termination or expiration of this Agreement.
• Cost: That all costs, charges and expenses payable on or in respect of this Agreement and on all other instruments and deeds to be executed, if any, pursuant to this Agreement, including stamp duty and registration charges of this Agreement, if any, shall be borne and paid by the Hirer.
• Force Majeure: If the said Mobile Phone or any part thereof is lost or destroyed or damaged beyond repair by fire, floods, earthquake or for any other reason, the Hirer shall compensate the Owner the loss equivalent to the consideration payable towards the mobile phone, as agreed herein and the insurance claim, if received, will be adjusted against such price.
• The Parties hereby admit that this Agreement has been fully explained to them and they have understood the meaning of all the clauses of this Agreement and they have signed this Agreement with full understanding of the obligations herein.