TheService is a cloud based Content and Data storage, back up and retrieval function operated through Digicel Space accessible through a co-located cloud compute service, a web service application programming interface (API) or by applications that utilize the API, a cloud storage gateway, a Web-based content management system or such other mechanism as Digicel may from time to time determine. Where we change the method by which the Service is provided we may notify you in writing of such a change and any use of the Service by you thereafter will be deemed an acceptance of the change by you.
DIGICEL will only provide you with access when you register on DIGICELSPACE, for the DIGICEL Service (which enables storage and synchronization of your PIM Data and Rich Media Data), developer applications services, email-related services and/or publisher content services (the "Service" or "Services"). Use of the Services is limited to personal or internal business purposes and not for distribution to, or use on behalf of, others. PIM Data are your personal information manager files (which include your electronic "rolodex", contact list and calendar). Rich Media Data are your picture(s), video(s), file(s) voice notes and messages and music. Once you sign up for the use of the Services, your account will be allocated a certain level of storage capacity determined by DIGICEL. You will be required to indicate which data you will use the Services for and based on the capability of the device you are using, you will be able to access the Service. DIGICEL, at its sole discretion, can change and adjust the storage capacity and the limit at any time without notice to you. DIGICEL may also allocate a specific amount of storage capacity and limit to you without charge which it may from time to time adjust. Digicel will only provide the Service to you if you are using a Device or one or more of the following handsets:- A Basic Phone which is a mobile phone that allows only simple functionality of making and receiving calls and text messages and is not capable of data traffic and which must be specifically provisioned for this Service; a Feature phone which is mobile phone that incorporates features such as the ability to access the Internet and store and play music but lacks advanced computing functionality and is unable to download apps; and a Smartphone which is a mobile phone that performs many of the functions of a computer, typically having Internet access, and an operating system capable of running downloaded apps. A smartphone may run on Android, IOS Windows, or Blackberry Operating Systems.
Unless explicitly stated otherwise, any new online services provided by DIGICEL or features that augment or enhance the current Services, shall be subject to the Terms & Conditions.
You are responsible for obtaining access to the Services, and you are responsible to pay any third party fees (such as Internet service provider, airtime charges or mobile operator/carrier data plan fees or licence fees) associated with such access. In addition, you must provide and are responsible for all equipment necessary to access the Services which must be compatible with the Service.
PAYMENT & CHARGES
You may use either the Pre-paid or the Post Paid Service. If Pre-paid we will bill you from your credit balance maintained on your handset from the date of activation of the Service in periods of thirty (30) days. On the expiration of the thirty (30) days we will automatically bill you for a further thirty (30) days and continue the Service for successive thirty (30) days periods unless you elect to terminate the Service. If Post Paid, we will invoice you monthly in the same cycle as your standard billing cycle. Payments will be due according to the standard billing cycle applicable to your Digicel post-paid service and must be made without further demand for payment.
When you register for the Services on DIGICELSPACE, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (your "Account Data") and (b) maintain the accuracy and completeness of the Account Data. You may register on your Device using any active and charged SIM issued by or on the Digicel network or using any of the approved handsets.
3. PRIVACY STATEMENT
Digicel agrees to keep and maintain your PIM Data secret and confidential and shall not transfer any of your information to any third party without your express consent. By accepting the Service however, you expressly agree that we may engage agents and third parties by which and through whom the Services will be carried out provided that those parties are bound by agreement with us to maintain the same or greater level of care in protecting your PIM Data. We however reserve the right to operate the Service inside or outside of the Territory provided that there is no prejudice to the rights of secrecy and confidentiality to which your PIM Data are subject had the Service being provided in the Territory and that the PIM Data or any other data or Content of yours will be stored or otherwise kept by us in a territory which has and has maintained a Safe Harbour certification.. We may put in place a privacy statement to describe our data practices and notify you from time to time of the statement and any updates thereto.
4. ACCOUNT, PASSWORD AND SECURITY
You will receive (or choose) a password upon completing the registration process. You are responsible for maintaining the confidentiality of your password, and are fully responsible for all activities that occur under your account. You agree to (a) immediately notify DIGICEL of any unauthorized use of your account or any other breach of security, and (b) ensure that you fully exit from your account at the end of each session. DIGICEL will not be liable (to you or any third party) for any loss or damage arising from or related to the unauthorized use of your account or unauthorised disclosure of your PIM Data (unless such use is directly caused by DIGICEL's gross negligence).
5. MEMBER CONDUCT
All information, data (including Account Data and PIM Data, as those terms are defined in the Privacy Statement), text, software, music, sound, photographs, graphics, video, messages or other materials ("Content") that you upload, post, email, store, transmit or otherwise make available (collectively, "transmit") to or through the Services is solely your responsibility. You agree to not use the Services to:
(a) transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libellous, invasive of another's privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable;
(b) harm minors in any way;
(c) impersonate any person or entity, including, but not limited to, a DIGICEL employee, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
(e) transmit any Content (such as inside information, intellectual property, or confidential information) that you do not have a right to transmit under any law or under contractual or fiduciary relationships;
(f) transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail", "spam", "chain letters", "pyramid schemes", or any other form of solicitation, except in those areas (such as shopping rooms) that are designated for such purpose;
(g) transmit any material that contains software viruses malware or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(h) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services.
You acknowledge and agree that DIGICEL may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the Agreement; (c) respond to claims that any Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of DIGICEL, its users or the public.
You understand that the Services may involve (a) transmissions of your Content over various networks; (b) changes to your Content to conform and adapt to technical requirements of connecting networks or devices and (c) storage of your Data within or without your jurisdiction or country of residency or domicile. You further understand that the cancellation policy, as described below, will not apply in the circumstances described in this section 5. Therefore you will not be able to recover any fee and/or data from DIGICEL. All these you expressly authorise and consent to without any liability or exposure to DIGICEL where any of these scenarios occur in the normal course of operation by DIGICEL and provision of the Services.
6. COMPLIANCE WITH LAW
You may use the Services only as permitted by law. You further agree to comply with (a) all applicable laws regarding online conduct and acceptable Content, and (b) all applicable export and re-export control laws and regulations, including, without limitation to, the United States export laws and regulations. You acknowledge that DIGICEL can remove infringing Content and can close the account without notice of repeat infringers in order to comply with the Digital Millennium Copyright Act of the United States or any law or regulation governing our transmission or storage of data.
You agree to indemnify and hold DIGICEL, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party arising out of or related to any Content you transmit through the Services, your use of the Services, your connection to the Services, your violation of the Terms & Conditions, or your violation of any rights of another.
8. NO RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the Services, use of the Services, or access to the Services.
9. GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that DIGICEL may establish general practices and limits concerning use of the Services, including without limitation the maximum number of days that your Content will be retained by the Services, the maximum amount of data synchronization that may executed by an account on the Services over a given time, the maximum amount of data that may be stored by an account on the Services, and the maximum number of times (and the maximum duration for which) you may access the Services in a given period of time. You acknowledge that DIGICEL reserves the right to log off accounts that are inactive or in arrears for a specified period of time. You further acknowledge that DIGICEL reserves the right to limit the number of sign-ups at any time without notice to you.
10. TECHNICAL SUPPORT
You understand that DIGICEL does not provide any technical support as part of the Services. However, you may refer to Digicel’s local standard customer care facilities and to the Site for FAQ.
11. MODIFICATIONS TO SERVICES
DIGICEL reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that DIGICEL shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
You further agree that DIGICEL shall not be liable to you or to any third party for any temporary or permanent loss of data.
You agree that DIGICEL, in its sole discretion, may terminate your password, account (or any part thereof) or use of the Services, and remove and discard any Content or Data within the Services, where you are in arrears of payment for any specified period of time. Where Digicel exercises this right we will always provide you with written notice of at least thirty days (30) at the addresses provided in your Account Data before any Content is removed and or discarded. If you fail to make the due payments we reserve the right to firstly suspend the service to you and to prevent your access to or retrieval of any PIM Data or other Data stored by us on your behalf. For services used on any Feature or Basic phone we will allow you emergency back up to retrieve your Data on payment of an additional charge in place from time to time. We will terminate the service and delete your data if your failure to pay continues for 360 straight days. Where you use the service on a Smartphone, we will terminate the service and delete your Data if your failure to pay continues for 90 straight days.
You may without any cause but prior to the commencement of a new billing cycle, notify us in writing that you will terminate the service and cancel your account with us. To do so you must access our web portal and follow our instructions set out therein. Upon termination of your account and the service with us, you have a further fifteen (15) days to remove all your Data and Content failing which we may do so without further reference and liability to you.
Subject to the restrictions in this clause you agree that any termination of your access to the Services under any provision of this Terms & Conditions may be on prior written notice, which shall include SMS to you using the contact details in the Account Data provided by you and acknowledge and agree that DIGICEL may on expiration of such notice immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Services. Further, you agree that DIGICEL shall not be liable to you or any third party for any termination of your access to the Services.
13. ADVERTISERS AND THIRD PARTY LINKS
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that DIGICEL shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Services.
Because DIGICEL has no control over third-party sites and resources to which DIGICEL may provide links (including advertiser sites), you acknowledge and agree that DIGICEL is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources .You further acknowledge and agree that DIGICEL shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
14. PROPRIETARY RIGHTS
Using our Services does not give you ownership of any intellectual property rights in our Services or the Content you access. You may not use content from our Services unless you obtain permission from its owner or are otherwise permitted by law. These Terms & Conditions do not grant you the right to use any branding or logos used in our Services. You are not allowed to remove, obscure, or alter any legal notices displayed in or along with our Services.
You and your licensors will retain ownership of all right, title, and interest in and to the Content you transmit to or through the Services and DIGICEL makes no representation of any kind in relation to the intellectual property rights of the Contents. The use of the Contents with or by the Services shall not be considered an endorsement by DIGICEL of the Contents or of any person’s right to or interest therein. Subject to the terms and conditions of this Terms & Conditions, you hereby grant to DIGICEL a worldwide, perpetual, and irrevocable license to reproduce, distribute, create derivative works of, display, and perform any and all Content you transmit to or through the Service as contemplated under this Agreement and for the purpose of DIGICEL fulfilling its obligations or exercising its rights under this Terms & Conditions.
You acknowledge and agree that the Services and any necessary software used in connection with the Services or the Site ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that content contained in sponsor advertisements or information presented to you through the Services or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by DIGICEL or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services or the Software, in whole or in part.
DIGICEL grants you a personal, non-transferable and non-exclusive right and license to use the Software and Customer App incidental to your use of the Services; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software/Customer App. Furthermore, you agree that you may not make the Software/Customer App available to any third party as part of any rental, time-sharing, service bureau, or ASP arrangement and that the use of the Software is limited to your personal access. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Services. You agree not to access the Services by any means other than through the interface that is provided by DIGICEL for use in accessing the Services. Unless you have agreed otherwise in writing with DIGICEL, nothing in the Terms & Conditions gives you a right to use any DIGICEL's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features. Where your device is not provisioned to provide access to the Site you must procure a SIM Applet from DIGICEL or its authorised distributors and have same installed on your device in order to retro-fit your device for the Service. DIGICEL will not be liable for any information or data lost or destroyed in the process of installing the SIM Applet and retro-fitting your device and you agree to indemnify or keep DIGICEL harmless from all costs, expense, liabilities, damages arising from any DIGICEL process reasonably required to retro-fit your device for the Services.
15. SHARING YOUR CONTENT AND INFORMATION
We do not own any of the Content and Data you post on the DIGICEL Site or store using the Services and you can control how it's shared through your settings. In addition:
(a) When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).
When you share Content and/or other information with other sites other than the DIGICEL Site, you acknowledge that DIGICEL and the other sites are independent from one another. You further acknowledge and agree that once you decide to share Content and/or other information with other sites, you must also comply with the terms and conditions of those other site(s).
16. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SITE AND THE SERVICES IS AT YOUR SOLE RISK.THE SITE AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. DIGICEL EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, ACCURACY, AND QUIET ENJOYMENT.
(b) DIGICEL MAKES NO WARRANTY (AND ASSUMES NO OBLIGATION) THAT (i) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (ii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (iii) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED, (iv) ANY SOFTWARE DOWNLOADED TO A MOBILE DEVICE, OR ANY INFORMATION READ FROM OR WRITTEN TO A MOBILE DEVICE, WILL NOT ADVERSELY AFFECT THE PERFORMANCE, OPERATION, WARRANTY OR ANY OTHER ASPECT OF THE DEVICE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM DIGICEL OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS&CONDITIONS.
(c)DIGICEL MAKES NO WARRANTY OR REPRESENTATION THAT THE PIM DATA, RICH MEDIA DATA OR ACCOUNT DATA WILL BE KEPT IN ANY SPECIFIC TERRITORY AND YOU EXPRESSLY AGREE AND CONSENT TO THE TERRITORY SELECTED OR USED BY US IN OUR ABSOLUTE DISCRETION SUBJECT TO THE SAFE HARBOUR RESTRICTION SET OUT IN CLAUSE 3.
17. LIMITATION OF LIABILITY
WHEN PERMITTED BY LAW, IN NO EVENT SHALL DIGICEL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF DIGICEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iii) LOSS OR DELETION OF ANY OF YOUR DATA OR CONTENT (iv) STATEMENTS, CONDUCT, OR CONTENT OF ANY THIRD PARTY ON THE SERVICE OR THE SITE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF DIGICEL FOR ANY CLAIM UNDER THESE TERMS&CONDITIONS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT PAID BY YOU TO US TO USE THE SERVICES.
IN ALL CASES, DIGICEL WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
18. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 16 AND 17 MAY NOT APPLY TO YOU.
DIGICEL respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, provide the following information to DIGICEL:
· an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
· a description of the copyrighted work or other intellectual property that you claim has been infringed;
· a description of where the material that you claim is infringing is located on the site;
· your address, telephone number, and email address;
· a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
· a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Intellectual property infringement claim can be sent to the contact details set out herein for us.
You further acknowledge and agree not to use in connection with the Services any copyrighted material without the written consent of the owner of such material.
The Terms & Conditions and the relationship between you and DIGICEL shall be governed by the laws of the Territory (without giving effect to any principles that may provide for the application of the law of another jurisdiction). You agree to submit to the exclusive jurisdiction of the courts located within the Territory. The failure of DIGICEL to exercise or enforce any right or provision of the Terms & Conditions shall not constitute a waiver of such right or provision. If any provision of the Terms & Conditions is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms & Conditions remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the Terms & Conditions are for convenience only and have no legal or contractual effect. Any notices intended to have legal effect: (a) to you may be made via email, regular mail or through the Services, and (b) to DIGICEL must be made by delivery receipt-requested mail at main DIGICEL office or headquarters, in the Territory ATTN: Legal Department.