ICT Solutions Terms & Conditions
1 INTERPRETATION
1.1 In this Agreement:
Agreement means, in order of precedence, these Terms and Conditions, the Service Order Form, the Pricing Schedule (where applicable), the Service Level Agreement, and any other document agreed by both parties which is expressly stated to form part of this agreement and sets out the terms under which Digicel will provide the Service to the Customer.
Business Day means a day (other than a Saturday or Sunday) on which dealing commercial banks are generally open for business in. .
Customer means the individual, company, corporation or other legal entity so named and described in the Service Order Form hereto with whom Digicel contracts to provide the Service.
Customer Commit Date means the date agreed between the parties for Digicel to commence installation of the Service.
Customer Premises Equipment (CPE) means all cabling, apparatus, facilities and other equipment described in the Service Order Form hereto which is provided by or for the Customer and installed on the Customer’s Premises to enable the Customer to access the Service including but not limited to a 3rd party Router or Switch or any other equipment used or which may be used to deliver the Service.
"Customer Nominated Contact" means a person designated in the Service Order Form as appointed by the Customer who will be Digicel’s point of contact for all matters relating to the Service.
Digicel means the Digicel entity listed in Item 1 of Schedule 1 attached hereto, a company registered under the laws of the country identified in Item 2 of Schedule 1 attached hereto and specified as the Country of Service in the Service Order Form. References to “we”, “our”, “us” and “Digicel” in these Terms also include our subsidiaries and affiliates (“Affiliates”) from time to time.
Digicel Equipment means equipment described in the Service Order Form (including any IDU or ODU and associated software) owned by Digicel and placed on the Premises by Digicel for the provision of the Service.
Emergency means any crisis necessitating prompt action by Digicel.
"Helpdesk" means the helpdesk as identified by the telephone number set out in the Service Order Form and Schedule 2 hereto, responsible for receiving calls from the Customer when reporting faults, and for responding to queries about the Service, for logging such calls and pursuing them to resolution, and reporting back to the Customer. Minimum Period, means the period set out in the Service Order Form or where none is specified, a period of twelve (12) months, to commence from the Operational Service Date.
Network means the telecommunications system owned and/or operated by Digicel.
Network Connection means all Digicel cabling, interface panels, cabinets, systems, apparatus, facilities and any other equipment which may be utilised by Digicel to provide the Service.
NTP means a network terminating point at which calls exit the Service.
Normal Working Hours means
(a) for the reporting of faults and Helpdesk, the hours as stated in the table annexed as Schedule 2.
(c) for installation and repair visits by Digicel to Premises 8am to 5pm on a Business Day.
Operational Service Date means the date when the Service is actually first made available to the Customer as agreed to between Digicel and the Customer or deemed available if the Customer has not responded within 2 Business Days
Other Networks means electronic systems owned or operated by third parties.
Party means either Digicel or the Customer.
Parties mean both Digicel and the Customer.
Planned Maintenance means any work planned in advance to be carried out by Digicel or on behalf of Digicel which requires the availability of the Service to be suspended.
Pricing Schedule means the price list set out in Schedule 2 of the Service Order Form.
Premises means a place or service address at which Digicel provides the Service.
PSTN means public switched telephone network and refers to the fixed line public network.
Routing Plan means a Digicel Customer plan which contains either a preferred path through the Network, the PSTN and/or Other Networks via which a call should be delivered or other routing parameters as agreed by Digicel.
Service means the telecommunications service offered by Digicel and particularised in the Service Order Form, which may, pursuant to the request of the Customer, include all or any of the following: access to the internet via a dedicated, WSL or DWIA connection, private data VPN services, voice telephony, and VoIP (Voice over Internet Protocol) services.
Site Regulations means any restriction, condition, rule and procedure relating to the Customer’s Premises and the use of same.
Termination Charge means the monthly charges which would have been payable hereunder by the Customer for the Service for the remainder of the Minimum Period as if the agreement had not been terminated and shall include any charges which would have been due under this Agreement but were waived by Digicel.
IDU means In Door Unit, equipment with Ethernet port.
ODU means Out Door Unit, routing or other equipment on outside of building.
WSL Means Wireless Subscriber Line.
DWIA means Dedicated Wireless Internet Access
VPN mean Virtual Private Network and refers to Digicel Private Data VPN.
1.2 Interpretation Generally
In this Agreement:
1.2.1 Any reference to a person includes his servants, successors, personal representatives, agents and permitted assigns;
1.2.2 If any action or duty to be taken or performed under any of the provisions of this Agreement would fall on a day which is not a Business Day such action or duty shall be taken or performed on the next Business Day following such day.
2 DURATION
2.1 This Agreement is effective from the date of signature by the Parties as set out in the Service Order Form.
2.2 This Agreement shall continue for the Minimum Period, unless terminated in accordance with clause 20. At the end of the Minimum Period, or its renewal, this Agreement shall automatically renew for successive periods of one (1) year unless otherwise terminated by either Party by Notice given at least three (3) months prior to the expiration of the Minimum Period or any renewal.
2.3 This Agreement shall otherwise be terminated in accordance with clause 20 of this Agreement. Service may be suspended in accordance with clause 19 of this Agreement.
3 PROVISION OF THE SERVICE
3.1 Digicel shall not be liable for failure to meet the agreed Customer Commit Date set, or any extensions thereof, as this is the estimated lead time assigned for the installation of the Service. Digicel shall have no liability for any losses or other expenses sustained or incurred by the Customer as a result of any delays. The Customer shall not be entitled to refuse acceptance of the Service as a consequence of such a delay.
3.2 Digicel shall not be obliged to provide the Service, unless and until the following is done:
(a) Digicel has successfully completed a line test and survey;
(b) if applicable, Digicel has successfully installed any Digicel Equipment needed to use the Service;
(c) Digicel has successfully activated the Service;
(d) Customer has paid any sums due hereunder for the installation of the Digicel Equipment and the provision of the Service; {and/or}
(e) Access to the Premises has been satisfactorily provided.
If the Service cannot be provided because any of the above cannot be successfully completed Digicel will notify the Customer within the period set out in the Service Order Form hereto.
3.3 Digicel will provide the Service with the reasonable skill and care of a competent telecommunications service provider. Digicel however, does not warrant that the Service will be fault free.
3.4 Digicel reserves the right, due to technical expediency, to change any e-mail addresses or domain names allocated to the Customer, or vary the technical specification or interrupt the Service without reference or prior notification to the Customer. Digicel will restore the interrupted Service as quickly as is practicable and shall not be liable to the Customer for any loss of use or any damages arising from the interruption of Service so occasioned.
3.5 Digicel reserves the right, from time to time, to:
3.5.1 Change the technical specification or any other aspect of the Service provided that the change does not materially and adversely affect the Service; or
3.5.2 Give the Customer instructions which are necessary to maintain the safety or the quality of the Service.
4 ACCESS TO AND PREPARING THE PREMISES
4.1 The Customer shall, at its own expense, modify, alter and otherwise prepare the Premises according to any reasonable instructions provided by Digicel and shall provide Digicel with reasonable access to all parts of the Premises for the purpose of line testing and surveys as well as the installation, maintenance and where necessary removal of the Digicel Equipment.
4.2 On completion of any modifications or alterations to the Premises reasonably required by Digicel to prepare the Premises for the provision of the Service, the Customer will also be responsible for making good any damage to the Customer or other premises reasonably arising from Digicel’s modifications and/or alterations.
4.3 Where it is necessary to lay, install, maintain or remove cables, lines, equipment or to otherwise acquire access, wayleave, or permission to traverse premises not owned or in the possession and control of the Customer, the Customer shall be obliged to secure all necessary approvals from the relevant persons, including owner, landlord, or their agents to enable from Digicel to carry out its installation and provision of Service to the Customer’s Premises.
4.4 The Customer will, at its own expense, obtain all necessary building or planning consents, permissions and approvals for any modifications required to any premises including Customer’s Premises.
4.5 The Customer agrees to meet Digicel’s reasonable safety and security requirements in relation to the use of Digicel Equipment and the Service.
4.6 The Customer agrees to provide, at its expense, a suitable place, conditions and support for Digicel Equipment and Service including all necessary trunking, conduits and cable trays in accordance with relevant installation and use standards and where required a continuous mains electricity supply and connection points.
4.7 Digicel will not be liable for any delays in activating the Service where the delay is due to acts outside its reasonable control or by way of the Customer’s default.
5 DIGICEL EQUIPMENT
5.1 To enable the installation and use of Digicel Equipment on Site, the Customer will, at its own expense, where necessary provide Digicel with a detailed site map marking the location of Digicel Equipment on the Premises and by provision of this detailed site map shall be deemed to have confirmed that Digicel Equipment does not damage or interfere with either the equipment or services of the Customer or any third party;
5.2 Title to any equipment which Digicel installs on the Premises or provides to the Customer remains with and belongs to Digicel unless the Customer has paid in full to Digicel a reasonable sum determined in Digicel’s sole discretion as representative of the value of any such equipment to Digicel at the time, in which case title to any such equipment passes to the Customer on Digicel’s receipt of such payment.
5.3 The Customer must not add to, modify or in any way interfere with Digicel Equipment and will be liable to Digicel for any loss of or damage to the Digicel Equipment on site (save where title has passed to the Customer under Clause 5.2 above), except where such loss or damage is due to fair wear and tear, Acts of God, or is caused by the negligent or willful act or omission of Digicel its agents, employees or subcontractors.
5.4 The Customershall not be authorised to carry out maintenance and repair of Digicel Equipment, which shall be carried out exclusively by Digicel and/or its servants and/or agents.
6 ACCESS AND SITE REGULATIONS
6.1 The Customer hereby indemnifies and agrees to keep Digicel indemnified against all costs, damages, losses, proceedings, claims and other liabilities incurred by Digicel howsoever arising from any installation without permission of the owner(s), its servants and/or agents, and the relevant planning authorities and/or any damages to the Premises arising from the installation thereon save where such costs, damages, losses, proceedings, claims, and other liabilities shall have arisen by reason of the negligence and/or willful default of Digicel, its servants and/or agents.
6.2 The Customer will, where necessary, and at all reasonable times, permit access or secure access to the Premises to Digicel and anyone acting on Digicel’s behalf, on production of a valid identity card, to enable Digicel to carry out its obligations under this Agreement. Digicel will normally only require such access during the Customer’s usual working hours, however, Digicel may, on reasonable notice, require the Customer to provide it with access at other times, such access not to be unreasonably denied.
6.3 The Customer warrants that there are no Site Regulations pertaining to the Customer’s Premises which would restrict or interfere with Digicel’s use of the Customer’s Premises to install, operate, maintain and remove the Digicel Equipment to provide the Service, save any Site Regulation notified to Digicel in writing prior to execution of this Agreement and as amended from time to time. Digicel will observe all reasonable Site Regulations of the Customer, copies of which should have been previously advised in writing to Digicel. In the event of any conflict between the Site Regulations and these Terms and Conditions, Digicel shall proceed with the installation only upon receipt of the Customer’s written authorisation to do the installation in accordance with these Terms and Conditions and waiving adherence to the Site Regulations.
6.4 During the installation, maintenance and removal of the Digicel Equipment on the Premises, the Customer will provide a suitable and safe working environment for Digicel, its servants and agents in accordance with the relevant Occupational Safety and Health Laws in the applicable jurisdiction.
7 DIGICEL’S RESPONSIBILITIES
7.1 Prior to the Operational Service Date, Digicel shall perform a survey of the Premises and shall, if it considers it necessary, inspect the Customer Equipment.
7.2 Where the Customer chooses to avail of the Service via wireless broadband channelsprovided by Digicel these shall be at a capacity determined in Digicel’s sole discretion from time to time based on current industry standards.
7.3 Unless Digicel notifies the Customer otherwise, Digicel will be responsible for obtaining and providing any Direct Access Line needed to provide the Service between the several Premises specified on the Service Order Form hereto. Unless Digicel notifies the Customer otherwise, Digicel will also provide any equipment necessary to remotely monitor and maintain each Access Line.
7.4 Digicel will manage traffic flows within the Network and any failure of Digicel Equipment, Customer equipment managed by Digicel, and all hardware, software or leased lines within the Network. Digicel will endeavor to remedy any such failure as soon as reasonably practicable. Digicel hereby undertakes to manage the Network 24 hours a day, 365 days per year.
7.5 Digicel will respond to reported faults without undue delay by taking such network management measures as it deems appropriate. Digicel will notify the Customer if the fault does not relate to either the Network or Digicel Equipment.
7.6 For the purposes of providing new connections, changing routing tables, updating facilities and general inspection, repair and maintenance, Service downtime may be required from time to time. Digicel will use all reasonable endeavours to carry out Planned Maintenance in accordance with the Customer’s requirements. Except in the case of an Emergency, Digicel shall give forty eight (48) hours’ notice to the Customer of any Planned Maintenance.
7.7 Digicel will provide a Help Desk facility, for the reporting of faults within the Network by the Customer and to advise on the day to day use of the Service.
7.8 Digicel shall be responsible for the maintenance and repair of Digicel Equipment on the Premises and will repair each fault for which it is responsible within a reasonable time.
7.9 Digicel shall not be responsible for calls routed over the PSTN or Other Networks once those calls have been handed over to those networks.
7.10 Digicel shall not be responsible for any component of the Services provided to or by third parties e.g. onward transmission from the Digicel network.
8 CUSTOMER’S RESPONSIBILITIES
8.1 The Customer undertakes:
8.1.1 To inform Digicel prior to the execution of a Service Order Form of any existing facilities which run the risk of being damaged during the installation, connection, operation and removal of Digicel Equipment on the Premises and provision of the Service;
8.1.2 To make available to Digicel, at no charge, access to the Customer Premises Equipment as well as space and other resources as are reasonably required by Digicel to enable Digicel to provide the Service;
8.1.3 To use the Service strictly in accordance with instructions provided by Digicel;
8.1.4 Not to use the Service in a manner that would jeopardise the operation of the Network, the network of any Digicel customer, or other third party;
8.1.5 Not to interfere with any labels or warnings affixed to the Digicel Equipment;
8.1.6 To permit Digicel to examine, test or repair the Digicel Equipment on the Premises at all reasonable times;
8.1.7 Not to create or permit any charges, pledges, liens or encumbrances of any kind to be created in respect of Digicel Equipment on the Premises;
8.1.8 To be responsible for the maintenance of all Customer Premises Equipment and not to alter, modify or remove same without first obtaining the approval of Digicel;
8.1.9 To promptly report faults in the Service to the help desk facility provided by Digicel;
8.1.10 To inform Digicel of any change of name, civic or electronic mail addresses and/or telephone number of the Customer; and
8.1.11 To bear all costs relating to the provision of commercial power to the Customer’s Premises and the Equipment, the provision of additional infrastructure such as pole mounts, bases, grounding equipment required to facilitate the installation of the Equipment.
8.2 The Customer shall not, nor permit any other person to:
8.2.1 Attach anything directly or indirectly to any Digicel Equipment;
8.2.2 Place anything in electrical connection with any Digicel Equipment; or
8.2.3 Use anything on or in close proximity to the Customer’s Premises in such a way that it is capable of causing interference with any Digicel Equipment or with any transmission, message, signal or communication to or therefrom.
8.3 The Customer acknowledges that:
8.3.1 They are ultimately responsible for any and all activity that originates from its Internet circuit regardless of its knowledge of and consent to such activity, including but not limited to activity by employees;
8.3.2 They are liable and accountable for any activity originating from any of its account services that are deemed to be in violation of Clause 9.3 and shall therefore take proper precautions to ensure the security of its equipment;
8.3.3 In the event of activity which could be considered deliberately or otherwise abusive or in violation of Clause 9 hereof, Digicel shall be entitled to suspend and/or terminate their account and all Digicel-Services on the expiration of reasonable notice of not less than twenty-four (24) hours, to cease all such activity where the Customer has failed or neglected to cease the activity notified. Digicel reserves the right, acting reasonably, at its sole discretion, to make a determination of what constitutes abuse and the Customer agrees that Digicel's determination is final and binding on it.
8.4 Connection of equipment or Other Networks to the Network can only be made with the prior written approval of Digicel. It is the Customer’s responsibility (unless otherwise agreed by Digicel) to arrange for the connection of equipment or Other Networks to the Network.
9 USE OF THE SERVICE
9.1 The Customer agrees not to use the Service for any purpose or in any manner that:
9.1.1 Does not comply with the terms of any legislation, regulation or subsidiary legislation or any concession, license or authorisation applicable to the Customer or Digicel;
9.1.2 Does not comply with this Clause 8 herein or any instructions given by Digicel;
9.1.3 Does not comply with any instructions given to Digicel by any other telecommunications operator or any competent regulatory authority and which has been notified in writing by Digicel to the Customer;
9.1.4 Would result in Digicel being in breach of any agreement between Digicel and any public telecommunications operator which has been notified in writing by Digicel to the Customer; or
9.1.5 In the sole opinion of Digicel is improper or constitutes an abuse of the Service or is intended to defraud Digicel or poses any threat to the operation of the Network.
9.2 The Customer hereby indemnifies and agrees to keep Digicel indemnified against all costs, damages, losses and other liabilities which it incurs howsoever arising out of any and all claims by any third party in connection with the Service, because:
9.2.1 The Service is used by the Customer in breach of the provisions of Clause either 9.1 or 9.3; and/or
9.2.2 The Service is faulty and/or cannot be used by that third party.
9.3 The Customer is prohibitedfrom violating system or network security including but not limited to:
9.3.1 Gaining or seeking to gain unauthorised access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system and / or network or to breach security or authentication measures without express authorisation of the owner of the system or that network.
9.3.2 Interfering with service to any internet user, host or network including, but not limited to:
o Mail-bombing;
o Packet flooding;
o Deliberate attempts to overload a system; and/or
o Broadcast attacks.
9.3.3 Forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting.
9.3.4 Monitoring of data and / or traffic on any network or system without the express authorisation of the owner of the system or network.
9.3.5 Transmitting, distributing or storing any material in violation of any applicable law or regulation.
9.3.6 Sending unsolicited mail messages (SPAM), including, without limitation, commercial advertising and informational announcements.
9.4 Digicel reserves the right to restrict, suspend or terminate Service without notice to the Customer if it is found that the Customer has made unreasonable or excessive demands on the Network or has made improper or abusive use of the Network.
10 INTELLECTUAL PROPERTY RIGHTS
10.1 In the event that Digicel provides the Customer with software to enable the Customer to use the Service:
10.1.1 Digicel hereby grants the Customer a non-exclusive non-transferable license to use the software for that purpose,
10.1.2 The Customer shall not copy nor, except as permitted by law, decompile or modify the software in any way or copy any accompanying related manuals or documentation without Digicel’s prior written consent.
10.1.3 The Customer agrees to sign any agreement required by the owner of the copyright in the software to protect the owner’s interest in that software.
11 INTELLECTUAL PROPERTY RIGHT INFRINGEMENT
11.1 Digicel hereby agrees to indemnify the Customer against all fees, losses, liabilities and damages incurred by the Customer arising from all and any claims that the provision of the Service has infringed the intellectual property rights of a third party provided that the Customer:
11.1.1 Notifies Digicel promptly in writing of any allegation of infringement;
11.1.2 Makes no admission relating to the alleged infringement;
11.1.3 Permits Digicel to conduct and settle, if appropriate, all negotiations and proceedings in respect of any such claims; and
11.1.4 Provides Digicel with all reasonable assistance in investigating, defending and settling the claim (Digicel will reimburse the Customer’s reasonable expenses in respect of any assistance specifically requested by Digicel).
11.2 The indemnity in this clause does not apply to alleged infringements occasioned by use of the Service in conjunction with apparatus or software not supplied by Digicel or to infringements occasioned by the Customer in which case the Customer hereby indemnifies and agrees to keep Digicel indemnified against all fees, losses, damages and liabilities incurred by Digicel howsoever arising from all such alleged infringements.
12 ALLOCATIONS AND USE OF TELEPHONE NUMBERS AND CODES
12.1 The Customer shall, at no time, acquire any rights or title in the numbers and/or codes allocated to it by Digicel. Digicel reserves the right to withdraw or replace any numbers or codes allocated to the Customer for operational or technical reasons or where any such withdrawal is required by the telecommunications regulatory authority. Where numbers or codes are to be withdrawn or replaced, Digicel will endeavor to provide the Customer with the maximum notice practicable having regard to the circumstances of the withdrawal or replacement and in these circumstances Digicel shall not be liable to the Customer for any losses, claims, damages, costs and attorneys costs arising from the withdrawals or replacements.
13 CONFIDENTIALITY
13.1 The Parties hereby agree to treat as confidential all information which they obtain or receive in the negotiation and performance of this Agreement (“Confidential Information”). The Parties agree not to disclose any Confidential Information without the prior written consent of the other Party.
13.2 Clause 13.1 does not apply in respect of:
13.2.1 Any information which is in the public domain otherwise than by means of a breach of this Agreement or any other confidentiality obligation;
13.2.2 Information lawfully already in the possession of the recipient;
13.2.3 Information lawfully obtained from a third party; and
13.2.4 Information which a Party is required by law to disclose.
13.3 The Parties agree to use Confidential Information only for the purposes of this Agreement.
13.4 If a Party is required by law to disclose Confidential Information, it shall so far as reasonably practicable if provided by law consult with the other Party and provide it with an opportunity to oppose the disclosure and/or otherwise agree the timing and content of any such disclosure.
14 CHARGES, PAYMENT TERMS AND DEPOSITS
14.1 The Customer agrees to pay all charges for the Service set out in Digicel’s Pricing Schedule.
14.2 Unless otherwise specified, all charges set out in Digicel’s Pricing Schedule are exclusive of any connection charges.
14.3 The Customer is liable for all outbound calls made and any other voice or data service, message, signal or other communication transmitted via the Service. This applies irrespective of whether the Customer knows or consents to such use.
14.4 Charges are payable as and from the Operational Service Date.
14.5 Charges for the provision of the Service, are payable on a monthly basis unless otherwise revised by
Digicel and notified to the Customer.
14.6 Rental charges for Access Lines are payable on a monthly basis unless revised by Digicel and notified
to the Customer.
14.7 Charges for installation of Access Lines are payable seven (7) days prior to the proposed Operational Service Date.
14.8 Where Digicel carries out an investigation of faults on its Equipment which are reported by the Customer, and no faults are identified, or if identified, are attributed to the Customer’s acts or omission, Digicel reserves the right to invoice the Customer for the reasonable costs of carrying out the investigations and repairs and the Customer shall pay the costs within thirty (30) days of the date of the invoice.
14.9 All charges shall be paid within thirty (30) days from the date of Digicel’s invoice.
14.10 Digicel reserves the right and will charge interest on overdue amounts at a rate of 5% per annum over the prime lending rate as instructed by the Central Bank of the Country of Service as specified in the Service Order Form. Digicel shall not be held liable for any loss or damages suffered because of the use of, or failure in any bill payments services. We are in no way obligated to provide the Service to you if you have defaulted in payment of any sums due by you. In this event, we reserve the right to charge a reconnection fee and/or revise your payments terms and/or restrict your service/feature types, prior to restoration of the service.
14.11 Digicel may, at any time, require the Customer to pay a deposit or provide or procure a guarantee as security for payment of future bills.
14.12 Digicel reserves the right to adjust the Charges and shall provide Customer with written notice of such price adjustments at least thirty (30) days prior to the date any such price adjustment is to become effective.
15 LIMITATION OF LIABILITY
15.1 Digicel makes no warranties with respect to the Network and/or Service and explicitly disclaims any and all other warranties, express or implied, including any implied warranty of merchantability and fitness for a specific purpose. To the extent permitted by law, Digicel does not warrant that the Network and/or Service is uninterrupted or nor does Digicel warrant error-free operation of the Network and/or Service. Digicel shall not be liable to the Customer in contract, tort (including negligence) or otherwise for direct or indirect loss of profits, business or anticipated savings or for any indirect or consequential loss or damage whatsoever or for any failure of interruption of the Service for whatever reason.
15.2 Notwithstanding anything else herein Digicel’s liability to the Customer in contract, tort (including negligence) or otherwise in relation to this Agreement or the provision by it, of the Service to the Customer for any one incident or series of related incidents in any calendar year shall be limited to the money paid to Digicel by the Customer for the Service in the twelve (12) months immediately preceding the event or circumstances giving rise to such liability.
15.3 Digicel does not accept liability to the Customer for the acts or omissions of other telecommunication operators.
15.4 Digicel shall implement reasonable measures to prevent any unauthorised access by third parties to any part of the Network under its control; however, Digicel shall not be liable for any such unauthorised access.
15.5 The Customer hereby indemnifies and agrees to keep Digicel indemnified in respect of any costs, damages, losses or other liabilities incurred by Digicel in respect of any damage or interference caused to the services or equipment of the Customer or any third party by Digicel equipment on the Premises save where such costs, damages, claims, losses or other liabilities shall have arisen by reason of the negligence and/or willful default of Digicel, its servants and/or agents.
16 INDEMNITY
16.1 The Customer hereby indemnifies and agrees to keep Digicel indemnified against any costs, damages or losses or other liabilities incurred by it arising from or in connection with any claims for loss, damage, costs, expenses, injury or death to third parties howsoever arising (whether directly or indirectly) out of or in connection with any act of the Customer in relation to its use of the Service and or the breach of any of the Customer’s obligations hereunder save where such costs, damages, claims, losses or other liabilities shall have arisen by reason of the gross negligence and/or willful default of Digicel, its servants and/or agents.
17 FORCE MAJEURE
17.1 If a Party (the “Affected Party”) is prevented, hindered or delayed from or in performing any of its obligations under this Agreement by a Force Majeure Event:
17.1.1 The Affected Party’s obligations under this Agreement will be suspended while the Force Majeure Event continues to the extent that it is so prevented, hindered or delayed;
17.1.2 As soon as reasonably possible after the start of the Force Majeure Event, the Affected Party shall notify the other Party of the Force Majeure Event, the date the Force Majeure Event started and the effects of the Force Majeure Event on its ability to perform its obligations under this Agreement;
17.1.3 The Affected Party shall make all reasonable efforts to mitigate the effects of the Force Majeure Event on the performance of its obligations under this Agreement; and
17.1.4 As soon as reasonably possible after the end of the Force Majeure Event, the Affected Party shall notify the other Party that the Force Majeure Event has ended and resume performance of its obligations under this Agreement.
17.2 For the purposes of this Agreement, a Force Majeure Event means: fire; flood; lightning; explosion; war; strike; embargo; labour dispute; government requirement; civil or military authority; act of God or nature; epidemic, pandemic; inability to secure materials or transportation facilities; act or omission of carriers or suppliers; acts or failures to act of any governmental or competent authority, or any other causes beyond a Party’s reasonable control, whether or not similar to the foregoing.
17.3 Nothing in clause 18.1 shall relieve the Customer of its payment obligations hereunder.
17.4 If the Force Majeure Event continues for more than three (3) months a Party may terminate this Agreement by giving not less than fourteen (14) days written notice to the other Party.
18 ESCALATION AND DISPUTE RESOLUTION
18.1 If any dispute or difference of any kind whatsoever arises between the Parties in relation to this Agreement or the provision of the Service, the Parties will use their reasonable endeavors to settle the dispute as soon as possible in accordance with the Service Level Agreement set out in Schedule 3 of the Order Form hereto as amended by agreement from time to time.
18.2 In the event that a dispute between the Parties is not settled under the Escalation Matrix within sixty (60) days of the event giving rise to the dispute occurring, then the matter may be referred by either Party to arbitration pursuant to the laws of .
19 SUSPENSIONS
19.1 Digicel reserves the right to suspend the provision of the Service with immediate effect:
19.1.1 In the event of an Emergency;
19.1.2 In the event that the Customer fails to comply with the provisions of this Agreement; or
19.1.3 In the event that Digicel is unable to obtain or continue to use a telecommunications service necessary to provide the Service on terms satisfactory to it.
19.2 In relation to non-payment by the Customer of any amount due to Digicel prior to suspension of the
Service, Digicel may remind the Customer that the amount outstanding is due prior to suspension. For removal of all doubt, Digicel has no obligation to remind the Customer of the amount due and is entitled to proceed with the proposed suspension without further notice beyond the monthly invoice for charges sent to the Customer.
19.3 Digicel reserves the right to suspend the provision of the Service in order to:
19.3.1 Prevent damage to or degradation of the Network which may be caused by the Customer or anyone using the Customer’s access;
19.3.2 Comply with any law, regulation, court order or other governmental request or order;
19.3.3 Comply with any request of an emergency service organisation, national security services or other body of the protective services; or
19.3.4 Prevent use of the Service which in the sole opinion of Digicel is fraudulent, illegal or improper.
19.4 Without prejudice to its right to terminate this Agreement, Digicel may suspend the provision of the
Service in the event that any of the circumstances listed in clause 19.3 occurs.
19.5 In the event that the Service is suspended due to a breach by the Customer of this Agreement, the Customer shall continue to pay to Digicel the monthly rental charges for the Service.
20 TERMINATION
20.1 The Customer may terminate this contract at any time before the Service is activated and available for use, however if Digicel has already installed the Digicel Equipment at the Premises the Customer shall only be required to pay an installation charge and the costs incurred by Digicel in preparation for installation of the Service. The Customer shall within fourteen (14) days of its request provide Digicel with reasonable access to the Premises for the purpose of removing any Digicel Equipment.
20.2 After the Operational Service Date, either Party may terminate this Agreement upon three (3) months’ notice in writing to the other Party. If the Customer terminates this Agreement within the Minimum Period, the Customer shall pay Digicel the Termination Charge.
20.3 Either Party may terminate this Agreement immediately on giving notice in writing to the other Party, if the other:
20.3.1 commits a breach of this Agreement that is capable of remedy and fails to remedy that breach within thirty (30) days of a written notice from the other Party to do so;
20.3.2 commits a breach of this Agreement which, in the opinion of the non-defaulting Party, cannot be remedied;
20.3.3 Is repeatedly in breach of this Agreement; or
20.3.4 Is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or if it goes into either voluntary (otherwise than for the purposes of a solvent reconstruction or amalgamation), or compulsory liquidation or a receiver, examiner or administrator is appointed over its assets,
PROVIDED ALWAYS that where Digicel terminates within the Minimum Period pursuant to this subclause, the Customer shall be liable to pay the Termination Charge.
20.4 In the event that any intellectual property used by Digicel for the purposes of providing the Service infringes the rights of any third party, Digicel reserves the right to modify or substitute same (provided any such modified or substituted intellectual property does not adversely affect Service quality) or in the event that Digicel is not in a position to do so on terms satisfactory to it, to terminate this Agreement by serving one (1) month’s notice on the Customer.
20.5 In the event Digicel is unable to obtain or continue to use a telecommunications service necessary to provide the Service on terms satisfactory to it, Digicel shall be entitled to terminate this Agreement by serving one (1) month’s notice on the Customer.
20.6 Any termination of this Agreement shall be without prejudice to the rights of either Party accrued before the date thereof.
20.7 Following termination of this Agreement:
20.7.1 The Customer shall forthwith make appropriate arrangements with Digicel for Digicel to remove the Digicel equipment from the Premises and permit Digicel or its agents to access any premises on which the Digicel Equipment is stored;
20.7.2 Any information which has been furnished to one Party by the other Party shall be returned to that party, deleted, destroyed or expunged, as appropriate.
20.8 In the event that this Agreement is terminated and any alteration of the Premises had taken place in order to facilitate the provision of the Service, the Customer shall be responsible for restoration of the Premises.
21 MISCELLANEOUS
21.1 Binding on successors
This Agreement shall be binding upon and ensure to the benefit of the respective Parties hereto, their respective successors, personal representatives and permitted assigns.
21.2 Waiver, release and remedies
21.2.1 A waiver by either Party of any breach by the other Party of any of the terms, provisions or conditions of this Agreement or the acquiescence of either Party in any act (whether commission or omission) which but for such acquiescence would be a breach as aforesaid shall not constitute a general waiver of such term, provision or condition or an acquiescence to any subsequent act contrary thereto.
21.2.2 Any remedy or right conferred upon either Party for breach of this Agreement shall be in addition to and without prejudice to all other rights and remedies available to it whether pursuant to this Agreement or provided for by law.
21.2.3 No failure or delay by either Party in exercising any claim, remedy, right, power or privilege under this Agreement shall operate as a waiver nor shall a single or partial exercise of any claim, remedy, right, power or privilege preclude any further exercise thereof or exercise of any other claim, remedy, right, power or privilege.
21.3 Assignment/Subcontracting
Neither Party can assign or subcontract this Agreement in whole or in part except that Digicel can transfer all or part of it to a company that is an affiliate of Digicel.
21.4 Use of Information
21.4.1 Digicel shall be at liberty to use the information supplied by the Customer under the terms of the Agreement for the purpose of introducing and offering to the Customer from time to time, additional, improved or new products and services of Digicel and other companies within the Digicel Group or any third parties which may be of interest to the Customer.
21.4.2 Digicel reserves the right to use customer information on an aggregate basis to better understand our users and to improve our services.
21.4.3 In either event Digicel will never disclose, share or sell your information to any outside company for any purpose.
21.4.4 Digicel shall comply with its obligations under any applicable data protection legislation as regards relevant data in its possession relating to the Customer.
21.5 Variation
Digicel may modify these Terms and Conditions or the Charges at any time. Any increase in charges becomes effective thirty (30) days after Digicel has notified the Customer. The means of notification used by Digicel may include, without limitation, nationwide advertising campaigns, electronic mail messages sent to the Customer by means of the Service, advertisement on the Digicel website, or by mail.
21.6 Whole Agreement
21.6.1 These Terms and Conditions (including the documents and instruments referred to herein) supersede all prior representations, arrangements, understanding and agreements between the Parties (whether written or oral) relating to the subject matter hereof and sets forth the entire and complete understanding between the Parties relating to the subject matter hereof. The Customer warrants that it has not relied on any representation, arrangements, understanding and agreements between the Parties (whether written or oral) not expressly set out or referred to in these Terms and Conditions. Nothing in this clause shall have the effect of limiting or restricting any liability of either Party arising as a result of any fraud.
21.6.2 Digicel reserves the right, at its sole discretion, to change, modify, add or remove any portion of these Terms and Conditions, including the Product Addendum (if applicable), if applicable, in whole or in part at any time. Notification of such changes will be communicated via email or any other form of agreed upon communication and will be posted to the Digicel Business website. Changes to these Terms and Conditions will be effective when notice of such changes has been communicated and posted. Continued use of the Service will constitute your agreement to such changed Terms and Conditions.
21.7 Severability
If a clause in these Terms and Conditions is found to be invalid or unenforceable in whole or in part for any reason whatsoever it shall not effect the validity and enforceability of the remainder of these Terms and Conditions and shall whenever allowed by the context be deemed to be replaced by such valid and enforceable clause whose contents are as close as permissible to those of the invalid or unenforceable clause.
21.8 Governing Law and Jurisdiction
The law of the jurisdiction in which we currently provide you with Digicel Services (or the jurisdiction of your current billing address or current address of record) shall govern these Terms.
SCHEDULE 1: LIST OF DIGICEL ENTITIES
|
ITEM 1: DIGICEL ENTITIES |
ITEM 2: COUNTRIES |
|
Wireless Ventures (Anguilla) Limited |
Anguilla |
|
Antigua Wireless Ventures Limited |
Antigua & Barbuda |
|
Digicel Aruba Holdings B.V |
Aruba |
|
Digicel (Barbados) Limited |
Barbados |
|
Telecommunications (Bermuda & West Indies) Ltd. |
Bermuda |
|
Digicel (BVI) Limited |
British Virgin Islands |
|
Antilliano Por N.V. |
Bonaire |
|
Digicel Cayman Ltd |
Cayman Islands |
|
Curacao Telecom N.V. |
Curacao |
|
Digicel (Dominica) Limited |
Dominica |
|
Digicel S.A de C.V |
El Salvador |
|
Digicel Antilles Francaises Guyane |
French West Indies (FWI) |
|
U-Mobile (Cellular) Inc. |
Guyana |
|
Digicel (Grenada) Limited |
Grenada |
|
Unigestion Holdings S.A |
Haiti |
|
Digicel (Jamaica) Limited |
Jamaica |
|
Caribbean Cable Communications (Montserrat) Ltd |
Montserrat |
|
Wireless Ventures (St. Kitts & Nevis ) Ltd |
St Kitts & Nevis |
|
Digicel (St Lucia) Limited |
St Lucia |
|
Digicel (St. Vincent) Limited |
St Vincent & the Grenadines |
|
Digicel Suriname N.V. |
Suriname |
|
Digicel (Trinidad & Tobago) Limited |
Trinidad & Tobago |
|
Digicel (Turks & Caicos) Ltd |
Turks & Caicos Islands |
SCHEDULE 2: CLIENT SERVICES DEPARTMENT
|
Markets |
Operational Hours |
Contact Number |
Email Address |
|
Anguilla |
24/7 |
12645847777 |
|
|
Antigua & Barbuda |
24/7 |
12687361011 |
|
|
Barbados |
24/7 |
12465302273 |
|
|
Bermuda |
24/7 |
14415005600 |
|
|
British Virgin Islands |
24/7 |
12843004357 |
|
|
Cayman Mobile |
24/7 |
13456233444 |
|
|
Dominica |
24/7 |
17676182677 |
|
|
Grenada |
24/7 |
14734234555 |
|
|
Guyana |
24/7 |
100 / 15926692677 |
|
|
Haiti |
24/7 |
102 / 50937118477 |
|
|
Jamaica |
24/7 |
18764692677 |
|
|
St Kitts & Nevis |
24/7 |
18697624000 |
|
|
St Lucia |
24/7 |
17587314330 |
|
|
St Vincent |
24/7 |
17844308000 |
|
|
Trinidad & Tobago |
24/7 |
600 / 18682996600 |
|
|
Aruba |
8am to 5pm Mon to Fri |
12972902225 |
|
|
Bonaire |
8am to 5pm Mon to Fri |
15997174400 |
|
|
Curacao |
8am to 5pm Mon to Fri |
155 / 59997243444 |
|
|
El Salvador |
Voice - 8am to 9pm, Email - 24/7 |
453 |
|
|
French West Indies Mobile |
7am to 7pm Weekly |
596696900567 |
|
|
Monserrat |
8am to 5pm Weekdays |
16643920008 |
- |
|
Suriname |
8am to 9pm Weekly |
104 |
|
|
Turks & Caicos |
8am to 5pm Weekdays |
16493399948 |