DIGICEL CAYMAN LIMITED
[INSERT NAME OF CUSTOMER]
STANDALONE Services Agreement
PRODUCT: DIGICEL BUSINESS ESSENTIALS
THIS AGREEMENT is made between:
1. Digicel ( ) Limited a company incorporated in the [ ] with registration number , whose registered office is at , in the island of (“Digicel”); and
2. [insert full name of company], a company incorporated in [add country] with registration number [add number], whose registered office is at [address] (“Customer”).
together referred to as the “Parties” and each individually as a “Party”.
(A) Digicel is a provider of telecommunications, broadcasting and information and communications technology (“ICT”) Managed Service services.
(B) This Services Agreement sets out the terms and conditions under which Digicel will provide communication, ICT and Managed services to the Customer which hereby accepts said services.
THE PARTIES AGREE:
1.1 The Services Agreement incorporates the following terms and conditions:
(a) General Terms (Schedule 1) - for all Services.
(b) Data Protection Terms (Schedule 2) - Each of the Service Terms identifies which of the Data Protection Terms applies to those Services.
(c) Service Terms (Schedule 3) - in relation to the specific Services being provided.
(d) Service Level (Schedule 4) – for all Services
(e) Commercial Terms (Schedule 5) - for all Services.
1.2 Order process: This Services Agreement may set out any relevant order mechanism, including any requirements for order forms, statements of work or similar instruments.
1.3 This Services Agreement comes into effect on the date of the last signature that is applied to it.
for and on behalf of
Digicel ( ) Limited
Job Title: …………………………………….
for and on behalf of
[insert full name of company entity]
Job Title: ………………………………………
1.1 The duration of the Services Agreement and the Services is as specified in Schedule 3 (Service Terms) and Schedule 5 (Commercial Terms). Earlier termination may occur in accordance with clause 18 (Termination) herein.
All Digicel assets installed at the Customer’s premises remain the property of Digicel.
The term of this Agreement shall commence upon the date of activation hereof immediately after the estimated date for technical readiness as noted on the Service Order unless otherwise extended in writing or terminated pursuant to the terms herein. The contract term is for a period of [ ] years, from the date of activation.
Activation is defined as the delivery of equipment to the Customer’s premises and the facility from within the Customer environment to access the services set out on the order form. This activity is recorded within the Digicel ICT system and the Customer is advised of the service activation.
4.1 It is acknowledged and confirmed by the Parties that the Services were determined based on a review/assessment of business, environment and technical requirements to which the Customer has agreed.
4.2 Digicel agrees to provide the Services as specifically described, and under the terms and conditions as set forth in Schedule 3.
4.3 Digicel represents and warrants to the Customer that the Services will be performed in the manner described in this Schedule.
5.1 Assessment/design – Digicel will conduct a preliminary review of the Customer’s ICT environment to confirm that the Services can be deployed and operated as expected. If the environment fails to meet requirements, Digicel will provide a report of remediation activities, Service Order of required components and services which must be approved in writing by the Customer.
5.2 Deployment of the equipment and establish service - Digicel staff or Digicel contractor will install and test the agreed components.
5.3 Operate – The Digicel Service Organization will operate the environment. The Service Organization includes the capabilities of call center, help/service desk, remote infrastructure monitoring, remote management, data gathering, data analytics and reporting. The Service organization operates under a governance model aligned to ITIL (IT Service Management).
5.4 Requests & Remediation – Per the Scope of service once the environment is accepted by Digicel, updates, remediation, installation, moves, additions and changes to the environment will be delivered by Digicel as per the Customer’s request and/or to maintain any Service Level Commitments.
5.5 Manage – Digicel will manage Customer engagement including, on-boarding, reporting, contracted service commitments, billing, credits, etc.
5.6 For Sites at locations that are not easily or readily accessible, that is, remote locations where it is agreed that it is impractical for Digicel to have a 24/7 on-site presence, time to remedy any disruption in service shall commence ONLY when Digicel’s representative has physical access to the said equipment.
Customer shall provide to Digicel the following facilities and services to enable the design, implementation and support of the Service:
6.1 Remediation of the Environment –
When required, the Customer will remediate the environment and undertake civil works required to address concerns raised by Digicel during site assessment.
6.2 Connectivity –
Where connectivity is provided as part of the service, designate a point of entry to the building(s) and provide the necessary permissions other than public rights of way as set out in the Service Order.
6.3 Operating Environment –
Clean power supply and secure, clean (dust free), ICT environment where Digicel will install and connect its equipment. Electrical power is supplied at no cost to Digicel.
Other information in a specified format reasonably requested by Digicel to implement and support the Services.
7.1 Where the Parties agree to accommodate an Additional Service Recipient in the Services Agreement, the Customer shall: (i) provide the Additional Service Recipient’s full corporate details; (ii) inform the Additional Service Recipient of the contractual arrangements; (iii) be responsible for the obligations of the Additional Service Recipient (including payment) as if its own and make sure that the Additional Service Recipient uses the Services consistently with the terms of this Services Agreement; and (iv) be entitled to treat the losses of the Additional Service Recipient as if they were its own losses.
8.1 Services Orders: The Customer shall, if required by Digicel, place an order for Services in the format supplied by Digicel and Digicel shall accept, reject or respond to same with a request for further information.
8.2 Use of the Services: The Customer: (i) may allow Users to use the Services and shall make sure that Users do so consistently with the terms of this Services Agreement; (ii) shall be responsible for User’s and any third party's use of the Services, including payment obligations, whether to Digicel, Digicel Group Companies, or to third parties (such as providers of content, goods or services); (iii) shall not resell, distribute, provide or sub-licence the Services to any third party except as expressly permitted by the Service Terms set out in Schedule 3.
8.3 Assumptions/exclusions: Digicel shall not be responsible for any content, goods or services which are accessed or downloaded or transmitted by the Customer through use of the Services.
8.4 Conditions of use: The Customer shall not use the Services in any way that may reasonably be considered to be: (i) contrary to the intended conditions of use (including any unauthorized modification); (ii) a nuisance, defamatory, offensive, abusive, or obscene or in violation of any person's rights; (iii) illegal; (iv) fraudulent; or (v) contrary to good faith commercial practice.
8.5 Customer information: The Customer shall provide, and shall make sure that its Users provide, all information and complete all documentation (including in relation to identification, legitimation and billing details) which is required by Digicel, or a National Regulatory Authority (NRA) for the purposes of the Services.
8.6 Applicable Law: Digicel and Customer shall respectively comply with all relevant Applicable Law in relation to the provision and the receipt of the Services.
9.1 Ownership: Digicel and Customer each retain ownership of their own Intellectual Property Rights.
9.2 Licence: Digicel and Customer each respectively grant, or will procure the grant, to the other of a licence to use the Intellectual Property Rights, including software and manuals, owned by it or its Group Companies and which the other needs to use for the purpose of the Services.
9.3 Licence terms: Each licence is granted on the basis that: (i) it is not transferable, not sub-licensable and non-exclusive; (ii) the Party granted the licence shall not carry out copying, modification, reverse engineering, adaptation, translation, decompilation, disassembly or error correction, unless expressly permitted by Applicable Law; and (iii) each licence starts as necessary for the performance of the Services and ends when the applicable Services end.
9.4 Third party licence: Where Digicel or Customer makes third party licences available to each other they will: (i) notify each other of the applicable licence terms; and (ii) comply with such terms.
9.5 Indemnity for third party claim: Digicel or Customer shall defend and indemnify the non-infringing Party for amounts payable to a third party for infringement of that third party's Intellectual Property Rights resulting from use of the Services.
9.6 Indemnity process for third party claim: In relation to any such third party claim the Customer shall: (i) promptly notify Digicel and provide full written details of any actual or potential claim; (ii) not admit liability or take any action which may prejudice defence of the claim; (iii) not admit or settle the claim without Digicel's prior written consent (which Digicel may not unreasonably withhold or delay); (iv) give Digicel all reasonable assistance to contest or defend the claim (where Digicel shall meet reasonable associated costs); (v) mitigate its losses; (vi) give Digicel all reasonable assistance in allowing Digicel to make modifications to the Services to avoid potential infringement of the third party's Intellectual Property Rights; and (viii) give Digicel sole conduct of the defence of the claim.
9.7 Indemnity restrictions for third party claim: Digicel has no liability in relation to any such third party claim and the Customer is responsible for amounts payable to the third party attributable to: (i) the use of materials provided by the Customer in connection with the Services; (ii) Digicel's compliance with instructions for design requirements/instructions given by Customer to Digicel; (iii) the combination of the Services with products or services not provided by or authorised by Digicel; (iv) Customer's failure to follow Digicel's instructions in relation to the Services; (v) unauthorised Customer modifications to the Services; (vi) Customer's failure to adopt modifications made by Digicel to the Services to avoid potential infringement of the third party's Intellectual Property Rights; or (vii) Customer's breach of the indemnity process for third party claims or any other breach of the Services Agreement.
10.1 Full power and authority: Each Party warrants that it has full power and authority to enter into the Services Agreement and to perform its obligations under the Services Agreement.
10.2 No other warranties: Unless expressly set out in the Schedule 3 (Service Terms) all warranties, representations and conditions which are implied by statute or otherwise are expressly excluded to the extent permitted by Applicable Law.
11.1 Invoice: Digicel shall issue a monthly invoice(s) to the Customer (or, where relevant, make available such invoice for download) or shall issue an invoice at such other times as are specified in the Commercial Terms.
11.2 Price Adjustment: Digicel reserves the right to adjust the Charges and shall provide Customer with written notice of such price adjustments at least 30 days prior to the date any such price adjustment is to become effective.
11.3 Invoice Disputes: The Customer may dispute an invoice or any part of it, only by: (i) notifying Digicel within 21 days of invoice date; (ii) including details of why it disputes the invoice and how much it believes is payable; and (iii) paying all undisputed amounts when due. The Customer may only dispute amounts with reasonable cause and in good faith. Following resolution of an invoice dispute, Digicel shall promptly issue a credit or Customer shall promptly make payment as appropriate.
11.4 What Digicel may do if the Customer does not pay on time: Where the Customer does not pay the Charges by the due date, and has not raised a dispute in accordance with clause 11.3 above (Invoice Disputes), Digicel is entitled and WILL, until paid in full: (i) charge the Customer a late fee of Five United States Dollars (US$5.00) per month or one percent (1%) of the compounded monthly outstanding balance (whichever is greater); (ii) if a debt collection service is engaged to address arrears, charge the Customer all fees associated with such debt collection service in addition to settling the account; and (iii) withhold any sums currently owing to the Customer by Digicel by way of credit note or rebate and offset such sums against the sums owing.
11.5 Recovery Charge: The Customer shall pay any agreed Recovery Charge.
11.6 VAT: The Charges shall be exclusive of any applicable VAT and all duties, levies (including taxes levied on the supply of telecommunications services) or any similar charges which shall be paid by the Customer. If VAT is chargeable in respect of any amount payable hereunder, the Customer shall, upon receipt of an appropriate tax invoice, pay to Digicel the VAT chargeable in respect of that payment. The Customer agrees to provide its VAT registration number and such other further information as Digicel may reasonably request in relation to any supply hereunder. VAT means value added tax or any analogous tax in any relevant jurisdiction including but not limited to use, sales and local sales taxes of any kind.
11.7 Withholding tax: The Charges shall be paid without withholding or deduction unless prohibited by any Applicable Law. If withholding tax is payable by the Customer, the Customer will, at the same time as making the payment, pay to Digicel such additional amount as will result in the receipt by Digicel of the full amount which would otherwise have been receivable had no withholding or deduction been payable and will supply to Digicel evidence satisfactory to Digicel that the Customer has accounted to the relevant authority for the sum withheld or deducted. In the event that the Customer is obliged by Applicable Law to deduct withholding tax from any Charges, the Customer shall assist Digicel in making necessary filings in order to ensure the provisions of the relevant tax treaty apply to the payment.
12.1 Digicel and the Customer shall comply with Applicable Law relating to anti-bribery and anti-corruption and shall not give or receive any bribes, including in relation to any foreign or local public official.
13.1 Each Party shall, in the context of the Services: (i) comply with all Applicable Law relating to export control and economic/financial sanctions in the European Union, the United States of America and other countries relevant to the dealings of the Parties; (ii) not knowingly do anything which may cause the other Party or members of its Group to breach this Applicable Law; (iii) provide such assistance, documentation and information to the other Party as that Party may reasonably request, (iv) notify the other Party of loss of licence/authorisation or actual/potential investigations/breach in relation to this Applicable Law; (v) not carry out activities in restricted list countries such as (at time of publication) Cuba, Iran, North Korea, Sudan and Syria or with restricted list individuals; and (vi) not sub-contract or assign the benefit of the Services or re-export, re-sell or otherwise transfer any Services to restricted list countries or restricted list individuals.
14.1 Each Party shall handle the other Party’s Confidential Information received by it in connection with the Services Agreement on the following basis: (i) keep it confidential for 3 years after date of disclosure; (ii) use it solely for the purpose of performing its obligations or exercising its rights in respect of the Services Agreement; (iii) not disclose it to any person save to its own directors, officers, employees or professional advisors (or those of its Group Companies) who need it to perform obligations, exercise rights or conduct audits in connection with the Services Agreement, or as required by Applicable Law; (iv) ensure that such persons keep it confidential; and (v) return or destroy it on termination of the Services Agreement save where it is necessary to keep it for regulatory reasons in secure archives.
14.2 These provisions do not apply where the Confidential Information received: (i) is or becomes public knowledge without breach of the Services Agreement; (ii) was already in a Party's possession free of obligations of confidentiality; or (iii) is received from a third party free of obligations of confidentiality.
15.1 Any announcement or public statement relating to the Services Agreement must be approved by both Parties in writing prior to its release.
16.1 Liability principles: Neither Party is liable under the Services Agreement (whether in contract, tort (including negligence), breach of statutory duty, indemnity or otherwise) for: (i) any loss (whether direct or indirect) of profit, revenue, anticipated savings or goodwill; (ii) any loss of or corruption to data; or (iii) any indirect or consequential losses, regardless of whether they were contemplated by either of the Parties when the Services Agreement was entered into or when the relevant order was placed under it. The Customer retains responsibility for compliance with the regulatory regime in which it operates and Digicel is not liable for any regulatory fines or penalties imposed on or third party claims made against the Customer in this respect. Digicel retains responsibility for compliance with the regulatory regime in which it operates and the Customer is not liable for any regulatory fines or penalties imposed on or third party claims made against Digicel in this respect. Neither Party excludes any liability which cannot be excluded by Applicable Law.
16.2 Liability cap: A Party’s aggregate liability under or in connection with the Services Agreement (whether in contract, tort (including negligence), breach of statutory duty, indemnity or otherwise) during each consecutive 12 month period starting on the date of last signature of the Services Agreement (Liability Period) shall not exceed the amount of the Charges paid or payable in respect of that Liability Period. Where the Charges have been paid or payable for less than 12 months in any Liability Period, a Party's liability shall not exceed the average monthly charge paid or payable for that Liability Period multiplied by twelve (12). This liability cap shall not apply to non-payment of Charges or Recovery Charges or to damages due to breach of confidentiality obligations or license infringement as set out in the Services Agreement.
In this Clause the following terms shall mean:
“Cyber Security Incident” is the loss or unauthorised destruction, alteration, disclosure of, access to, or control of a Digital Environment.
“Cyber Security” is technologies, processes, procedures and controls that are designed to protect Digital Environments from Cyber Security Incidents.
“Digital Environment” is information technology systems, operational technology systems, networks, internet-enabled applications or devices and the data contained within such systems.
a) Each Party shall:
(i) implement appropriate Cyber Security measures and systems and otherwise use reasonable endeavours to maintain its Cyber Security;
(ii) have in place appropriate plans and procedures to allow it to respond efficiently and effectively to a Cyber Security Incident; and
(iii) regularly review its Cyber Security arrangements to verify its application in practice and maintain and keep records evidencing the same.
(b) Each Party shall use reasonable endeavours to ensure that any third party providing services on its behalf in connection with this Contract complies with the terms of subclause (a)(i)-(iii).
(c) If a Party becomes aware of a Cyber Security Incident which affects or is likely to affect either Party’s Cyber Security, it shall promptly notify the other Party.
(i) If the Cyber Security Incident is within the Digital Environment of one of the Parties, that Party shall:
(1) promptly take all steps reasonably necessary to mitigate and/or resolve the Cyber Security Incident; and
(2) as soon as reasonably practicable, but no later than 12 hours after the original notification, provide the other Party with details of how it may be contacted and any information it may have which may assist the other Party in mitigating and/or preventing any effects of the Cyber Security Incident.
Notwithstanding any provision of this Agreement to the contrary, Digicel shall not in any event be liable for indirect, punitive or consequential loss or special damages or other damage of any kind whatsoever (including but not limited to lost profits), whether or not foreseeable, even if Digicel has been advised of the likelihood of such loss or damage and regardless of whether the claim for loss or damage is made in negligence, for breach of contract or otherwise.
18.1 Digicel may suspend the Services (keeping the suspension to a minimum): (i) in order to comply with Applicable Law (including in relation to sanctions and export control); and (ii) during maintenance, modification, repair and testing of the Network where necessary to safeguard the functionality, security and integrity of the Network.
18.2 In addition Digicel may suspend the Services:
18.2.1 where the Customer or User uses Services in violation of the conditions of use set out in the Services Agreement;
18.2.2 on 14 days’ notice of failure to pay amounts due which the Customer fails to rectify;
18.2.3 on 30 days' notice where there is any other material breach of the Services Agreement which is capable of rectification and which the Customer fails to rectify; and
18.2.4 where there is any other material breach of the Services Agreement which is not capable of rectification.
18.3 Digicel may suspend individual Services (in whole or in part, as opposed to the whole of the Services) on the same basis as set out above, except as specifically prohibited in the Service or Commercial Terms, without suspending all of the Services.
19.1 Ending the Services Agreement for convenience: Either Party may end the Services Agreement: (i) on three (3) months' written notice to the other, provided that the Services Agreement ends on or after the expiry of the Initial Term of the Service; or (ii) where there are multiple Services each with its own Initial Term, then on or after the expiry of the last of the Initial Terms.
19.2.1 becomes subject to sanctions and/or export control laws necessitating termination;
19.2.2 commits a material breach of the Services Agreement which is capable of remedy and is not remedied within 30 days of written notice from the first Party;
19.2.3 commits a material breach of the Services Agreement which is not capable of remedy; or
19.2.4 makes an arrangement with or assignment in favour of a creditor, goes into liquidation or administration or a receiver or manager is appointed to manage its business or assets, or any analogous insolvency event occurs in the territory where it is located (where such termination is permitted by Applicable Law).
19.3 Ending the Services Agreement for Force Majeure: Either Party may end the Services Agreement with immediate effect by written notice to the other Party if that other Party is the subject of a Force Majeure event for a continuous period exceeding ninety (90) days and does not provide an acceptable remediation plan within a further ninety days thereafter
19.4 Termination of individual Services: Either Party may terminate individual Services (in whole or in part, as opposed to the whole Services Agreement) on the same basis as set out above without terminating the Services Agreement, except as specifically prohibited in any specific Service or Commercial Terms. Termination of any subscriptions is addressed in the relevant Service or Commercial Terms.
19.5 Effect of termination: On termination of the Services Agreement or an individual Service, the Customer and its Users shall: (i) stop using the relevant Services; and (ii) return, or make available for collection (at the Customer’s cost), any equipment owned by Digicel in accordance with Digicel's reasonable instructions; and (iii) pay any applicable Recovery Charge.
20.1 Changes in writing: With the exception of changes made in accordance with clause 19.2 (Changes required by Applicable Law) and any Service Terms, any amendment to the Services Agreement must be in writing and signed by the Parties.
20.2 Changes required by Applicable Law: Digicel may vary the Services Agreement (including changing or introducing new charges or changing or withdrawing Services) where required to comply with Applicable Law. Digicel shall provide Customer notice of such change as is reasonably practicable.
21.1 Assignment: Neither Party may assign or otherwise transfer any of its rights and obligations under the Services Agreement without the prior written consent of the other Party which shall not be unreasonably withheld or delayed. However, Digicel may assign, or otherwise transfer any of its rights under the Services Agreement to any company within the Digicel Group without the consent of the Customer.
21.2 Sub-contract: Digicel may sub-contract any of its obligations under the Services Agreement but shall be responsible to the Customer for the acts or omissions of its sub-contractors.
22.1 Survival of clauses: Any provision of the Services Agreement which expressly or by implication is intended to come into or continue in force on or after termination of the Services Agreement (in whole or part) will continue in force.
22.2 Notices: All notices shall be sent to the Parties’ respective registered office as set out in the Services Agreement by pre-paid recorded delivery or prepaid courier.
22.3 Inclusive wording: Any phrases introduced by the terms "including", "include", "in particular" or any similar expression are deemed to have the words “without limitation” following them and are construed as illustrative and do not limit the sense of the words preceding those terms.
22.4 Performance at own cost: Where the Customer is obliged to do something in the Services Agreement the obligation is to do so at its own cost unless otherwise expressly stated.
22.5 Force Majeure: If a Force Majeure event occurs which prevents either Digicel or the Customer from performing any of its obligations under the Services Agreement, the affected Party is not liable to the other and will be released from its affected obligations for the period of the Force Majeure event.
Cable cuts and cable failures: Though cable cuts and failures are in no way foreseeable and are outside the direct or indirect control of DIGICEL, DIGICEL will, should such an event occur and negatively impact the Services provided to the Customer exercise all reasonable commercial steps to implement a remediation plan to restore Service availability to the Customer’s sites. Service failure arising from such an event is not grounds for termination and does not give rise to a service credit.
22.6 Illegality: Any provision of the Services Agreement found to be illegal or unenforceable does not form part of the Services Agreement but the remaining provisions will continue in full force and effect.
22.7 Entire agreement: Except for fraudulent misrepresentation, the Services Agreement represents the entire agreement between the Parties relating to its subject matter and supersedes any previous agreements between the Parties relating to the same. The Parties acknowledge that, in entering into the Services Agreement, neither Party has relied upon any statement or warranty made, or agreed to, by any person, except those expressly provided for by the Services Agreement.
22.8 Third party rights: The Services Agreement is made only for the benefit of the Parties thereto and is not enforceable by any other person under law or otherwise.
22.9 Conflicts in a Services Agreement: In the event of any conflict between the provisions of the Services Agreement, the following order of precedence applies (highest level of precedence first):
22.9.1 the Commercial Terms (Schedule 4);
22.9.2 the Service Terms (Schedule 3);
22.9.3 the Data Protection Terms (Schedule 2);
22.9.4 the General Terms (Schedule 1);
22.9.5 the main body of the Services Agreement itself;
22.9.6 other documents referenced in the Services Agreement.
22.10 Governing law: The Services Agreement is governed by, and construed in accordance with the laws of ( ).
22.11 Jurisdiction: The Parties irrevocably submit to the exclusive jurisdiction of the courts of ( ).
22.12 Counterparts: The Services Agreement may be executed in any number of counterparts, and by the Parties on separate counterparts, but will not be effective until each Party has executed at least one counterpart. Each counterpart constitutes an original of the Services Agreement, but all the counterparts together constitute one and the same agreement.
23.1 Additional Service Recipient means a Customer Group Company which will receive Services under the Services Agreement but which is not a direct party to the Services Agreement.
23.2 Applicable Law means law, regulation, binding code of practice, rule or requirement of any relevant government or governmental agency, professional or regulatory authority, each as relevant to (i) Digicel in the provision of the Services and/or (ii) the Customer in the receipt of the Services or the carrying out of its business.
23.3 Charges means the charges or fees set out in the Commercial Terms.
23.4 Confidential Information means confidential information: (i) concerning the business and affairs of a Party, a Digicel Group Company or a Customer Group Company that a Party obtains or receives from the other Party; or (ii) which arises out of the performance of any Services.
23.5 Customer Group means the Customer and any company in which the Customer has the beneficial ownership of more than 50% of the issued share capital, or the legal power to direct the general management of the company in question, either at or after the date of the Services Agreement (and "Customer Group Company/Customer Group Companies" has a corresponding meaning).
23.6 "Digicel Affiliate" means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Digicel, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise. For the avoidance of doubt, each Digicel Affiliate shall enter into any assigned Agreement on the express terms of this Agreement and acknowledge in writing such terms at the time of assignment.
23.7 Force Majeure means any cause preventing a Party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the control of the affected Party. For the avoidance of doubt, it is any circumstance whatsoever which is not within either party’s immediate control including but not limited to acts of God, epidemics, pandemics, riot, insurrection, fires, strikes, lockouts, labour disputes of any kind partial or general, stoppages or labour refusals, war, hostilities or any local or national emergency (or the threat or apprehension of any of the foregoing events), compliance with any order of any national government or other public authority or of any person purporting to act for such authority, provided that in all such cases such party exercises due diligence in promptly notifying the other party hereto in writing of any known or anticipated delay and recommences the performance of its obligations under this Agreement immediately on cessation of such delay.
23.8 Group means either the Digicel Group or the Customer Group as applicable (and "Group Company/Group Companies" has a corresponding meaning).
23.9 Initial Term means the term from commencement of an individual Service, as specified in the Commercial Terms.
23.10 Intellectual Property Rights means (i) rights in, and in relation to, any patents, registered designs, design rights, trademarks, trade and business names (including all goodwill associated with any trademarks or trade and business names), copyright, moral rights, databases, domain names, topography rights and utility models, and includes the benefit of all registrations of, applications to register and the right to apply for registration of any of the foregoing items and all rights in the nature of any of the foregoing items, each for their full term (including any extensions or renewals thereof) and wherever in the world enforceable; (ii) rights in the nature of unfair competition rights and rights to sue for passing off; and (iii) trade secrets, confidentiality and other proprietary rights, including rights to know how and other technical information.
23.11 Network means the communications network used by Digicel or a Digicel Group Company or communications network services contracted by Digicel or a Digicel Group Company.
23.12 NRA means the national regulatory authority for electronic communications or telecommunications services in the relevant country.
23.13 Party or Parties means the parties to the Services Agreement.
23.14 Recovery Charge means any amount payable by the Customer for early termination or failure to meet commercial commitments as set out in the Commercial Terms.
23.15 Service(s) means the services provided by Digicel through the Services Agreement and which are specified in the Service/Commercial Terms.
23.16 User means an individual end user of the Services so authorized by the Customer (unless otherwise permitted in the Service Terms).
23.17 Digicel Group means: (i) Digicel Group Limited and any company in which Digicel Group Limited owns (directly or indirectly) 25% or more of the issued share capital.
These Data Protection Terms apply to the Services Agreement. There are 4 different scenarios: (i) where Digicel is data controller; (ii) where Digicel is data processor; (iii) WHERE TRANSFER OF traffic DATA between DIGICEL COMPANIES IS REQUIRED (iV) where NONE OF THE ABOVE SCENARIOS APPLY. Each set of service terms indicates which scenario applies.
1.1 Digicel may Process User Personal Data for the following purposes: (i) account relationship management; (ii) sending bills; (iii) order fulfilment / delivery; or (iv) customer service.
1.2 Digicel may Process Traffic Data for the following purposes: (i) delivering User communications; (ii) calculating Charges pertaining to the User; (iii) identifying threats to the Network/Services and protecting against the same; (iv) understanding communication flow through the network/services in order to inform network and service development and roll-out plans; or (v) internal use for development and improvement of Network/Services. In the event that Data has to be transferred by Digicel to third parties, whether within or outside of the jurisdiction, engaged by Digicel to assist with the specific purposes identified in this clause for specific services including digital forensics, Digicel will notify the Client in the Service Order. Digicel will use all reasonable efforts to ensure secure Data transfers using well-known security technologies and practices to secure Data from unauthorized access or interception. Digicel will further endeavour to ensure adequate commercial arrangements are established with such third parties with respect to exporting of data in accordance with applicable legislation, in that third parties will be required to sign a confidentiality agreement which places on them a strict duty to keep all Data confidential and to use said Data only for the purpose for which it was obtained. Digicel will not be responsible for any unauthorized access or loss of personal information that is beyond its control.
2.1 Digicel may disclose User Personal Data and/or Traffic Data: (i) if required by Applicable Law, court order or Privacy Authority or any other statutory body or agency; or (ii) to Digicel Group Companies or third parties lawfully sub-processing for Digicel to deliver the Services.
1.4 Digicel may only Process User Personal Data for the purposes of providing and monitoring the provision of the relevant Service. Customer’s prior written consent is required for any other purpose.
4.1 Digicel may use User Personal Data to create anonymous, aggregated, statistical data and information about service usage and devices that do not, and cannot be, used to identify a User.
5.1 Digicel may only disclose User Personal Data to third parties or other members of the Digicel Group: (i) for the purposes of providing the relevant Service; (ii) if required by Applicable Privacy Law, court order, Privacy Authority or any other statutory body or agency; or (iii) to third parties lawfully sub-processing for Digicel to deliver the Service.
6.1 Digicel may retain the User Personal Data for as long as is required to deliver the Service.
6.2 Upon termination of the relevant Services, Digicel shall (except where required otherwise by Applicable Privacy Law) destroy or return (at Customer’s option) User Personal Data in its possession.
6.3 In the event that Customer opts for Digicel to retain User Personal Data post termination, the Parties shall enter in a Service Agreement for hosting.
7.1 Digicel shall limit access to User Personal Data to those Authorised Persons as necessary to meet Digicel's obligations in relation to the Service and to such part or parts of the User Personal Data as are strictly necessary for the performance of that Authorised Person’s duties.
7.2 Digicel shall take reasonable steps to ensure the reliability of any of its Authorised Persons who have access to the User Personal Data and will make sure that all Authorised Persons are: (i) informed of the confidential nature of the User Personal Data; (ii) trained in Digicel’s policies relating to handling User Personal Data; and (iii) aware of Digicel’s and their own obligations in this respect.
8.1 Digicel shall:
8.1.1 taking into account the state of technological development and to the cost of implementing any measures: (i) provide a level of security (including appropriate technical and organisational measures) appropriate to the harm that might result from unauthorised or unlawful Processing, or the accidental loss, destruction or damage, of any User Personal Data pursuant to the relevant Service and the nature of the User Personal Data; and (ii) comply with the security requirements contained in the ISO 27001;
8.1.2 provide the Customer with such information, assistance and co-operation as the Customer may reasonably require to establish compliance with the security measures contained in these Data Protection Terms and inform the Customer as soon as reasonably practicable of any particular risk of which it becomes aware to the security of any User Personal Data; and
8.1.3 promptly notify the Customer of any unauthorised access to User Personal Data of which Digicel becomes aware.
9.1 Digicel may transfer User Personal Data to countries outside the European Economic Area only to the extent that:
9.1.1 User Personal Data is transferred to a territory outside the European Economic Area on terms substantially in accordance with the European Union standard contractual clauses for the transfer of Personal Data to processors established in third countries under Directive 95/46/EC; or
9.1.2 that the transfer of User Personal Data does not put any member of the Customer Group in breach of its obligations under Applicable Privacy Law.
10.1 Digicel: (i) may receive legally binding demands from a law enforcement authority for the disclosure of, or other assistance in respect of, User Personal Data, or be required by law, including court order, warrant or subpoena to disclose User Personal Data to persons other than the Customer; (ii) will not be in breach of its obligation to Customer in complying with such obligations to the extent legally bound; and (iii) shall notify the Customer as soon as reasonably possible of any such demand unless otherwise prohibited
11.1 Digicel shall promptly, and in any event not later than required in order to enable each member of the Customer Group to fulfil its duties under Applicable Privacy Law, pass on to the Customer any enquiries or communications (including subject access requests) from Users relating to their User Personal Data or its Processing, provide such information as may be required to enable the Customer to respond to those enquiries or communications and otherwise to comply with its duties under Applicable Privacy Law.
12.1 The Customer: (i) authorises the transfer of Traffic Data between Digicel Group Companies to the extent necessary for the provision of the Services; and (ii) shall ensure that it has all authorisations and consents necessary for such transfer.
12.2 Where a Digicel Group Company requires Customer's written authorisation for Traffic Data to be transferred, the Customer will provide such authorisation promptly in the form of the template provided by the Digicel Group Company and acknowledges that the Digicel Group Company will be unable to transfer the required Traffic Data until such authorisation is provided.
13.1 If any Customer Group Company or User objects to the transfer of Traffic Data between Digicel Group Companies or its subsequent Processing by a Digicel Group Company, the Digicel Group Company shall, as soon as reasonably practicable, suspend or cease the transfer or Processing until the objection is resolved.
13.2 If a Privacy Authority objects to the transfer of Traffic Data or its subsequent Processing by a Digicel Group Company, the Digicel Group Company shall, as soon as reasonably practicable suspend or cease the transfer or Processing, and take such other steps as the Privacy Authority may direct.
scenario 4: where NONE OF THE ABOVE SCENARIOS 1 - 3 Apply
14.1 No provisions relating to this are required as there is no User Personal Data involved in any transfer and so Digicel is not the Data Controller or Data Processor.
15.1 Applicable Privacy Law means the relevant local data protection and privacy law to which the data controller is subject.
15.2 Authorised Person means any director, officer, employee, sub-contractor or adviser of a Party or of any company within such Party’s group being either the Digicel Group or the Customer Group.
15.3 Data Controller means the person that determines the purposes and means for which data is processed.
15.4 Privacy Authority means the relevant statutory or supervisory authority with responsibility for the Applicable Privacy Law in the jurisdiction of the Data Controller.
15.5 Process/Processed/Processing means obtaining, recording or holding information or data or carrying out any operation or set of operations on it.
15.6 Data Processor means the person that Processes data on behalf of the Data Controller.
15.7 Traffic Data means any data processed for the purpose of the conveyance of a communication on an electronic communications network and for billing.
15.8 User Personal Data means any information that relates to an identified or identifiable User.
16.1 Any reference to “Digicel may” in these Data Protection Terms is deemed to constitute: (i) a specific acknowledgement and authorisation on the part of Customer where required by Applicable Privacy law; and (ii) permission for Digicel’s lawfully appointed sub-processors to do likewise (for whose acts and omissions Digicel remains responsible).
Digicel will provide to the Customer the “Services” as set out below, delivered as an integrated, managed, subscription based service.
1.1Fiber Connectivity A fiber connection linking the point of entry at the client premise to the Digicel network,
1.2Clean Internet The Customer selects to be enrolled in pre-defined controls that are intended to block access to known malicious, hacked, or inappropriate websites; filtering inappropriate content and enabling Antivirus scanning based on the service category(ies) selected in the Service Order. The Clean Internet service does not enable the Customer to customize it.
1.3Local Area Network (“LAN”) An appropriately sized and configured network switch is delivered as part of the DBE service. This enables Digicel to provide connectivity between Digicel’s network and Customer devices as well as other approved network components (e.g. Access Points, Phones). Local cabling of network drops is not included, but is available as a onetime cost chargeable to the Customer.
1.4 Monitoring: Unless otherwise specified in a Service Order, Digicel’s Managed Service Desk will monitor the availability of its switches but not the end points such as Access Points, CCTV cameras and Phones.
1.5 A Wireless Access Point (“WAP”) is delivered and supported as part of the Local Area Network (“LAN”) Service. It is fully integrated and managed as part of the solution. Additional WAPs can be added at the onset of the agreement or as an additional item as the Customer’s needs change. This additional recurrent cost is chargeable to the Customer.
1.6 Cloud PBX Service, also referred to as a Hosted Private Branch Exchange (“PBX”) is delivered as an enterprise class service from the Digicel Unified Communications Cloud. This can deliver a multiline telephone system typically used in business environments as opposed to several standalone lines. The service provides levels of resilience and redundancy from the Digicel cloud for IP telephony and the features and functions set out in the Service Order.
1.7 Phones, The make, model and quantify of IP based phones are listed in the Service Order
1.8 Mobile – Business Talk Packages are listed in the Service Order
1.9 Connectivity Backup Service (GSM/LTE) Where available the service provides a secondary connection via the Digicel GSM/LTE Network. It primarily facilitates survivability for the cloud PBX service in the event that the fiber connection is lost. The bandwidth is specified in the Service Order.
1.10 Additions and Options: All additional and optional components are appended to the base contract conterminously and the associated costs are applied for the Customer’s account based on the additional item scope and payment terms.
Optional items, not included in the Standard DBE bundle:
1.10.1 Video Surveillance Infrastructure (VSaaS Infrastructure Service) – Digicel will provide cameras and manage the camera infrastructure, including the delivery of a web based portal to enable Customer management and review of footage.
(a) In some cases Customer may require cabling for connection of equipment, which can be scoped and costed into final price.
(b) This is an infrastructure management solution that enables monitoring from any connected location; not a video monitoring or response service.
1.10.2 Additional phones, switches, access points, and mobile packages can be costed into the solution based on the scope
1.10.3 Optional components are listed in the DBE Service Order.
1.10.4 Post deployment, the Customer’s ICT environment is baselined and monitored for performance and uptime. It is maintained to ensure components are patched and remediation provided should a failure occur. Remotely deliverable Installations, Moves additions and changes (IMAC) are also executed as part of the service in accordance with a Service Order. DBE service, is made up of the following standard integrated components and features:
Customer shall provide to Digicel the following facilities and services to enable the design, implementation and support of the Service:
these COMMERCIAL terms shall apply to the SPECIFIC SERVICES in addition to the general terms (schedule 1).
The contract term is for a period of [ ] years from the date of activation (as defined above) and shall continue in force unless and until the earlier termination hereof in accordance with the provisions of clause 18 of the General Terms (Schedule 1).
2.1 Customer shall be responsible for all taxes, surcharges, assessments or other charges imposed upon or relating to the provision or use of the Service.
2.2 Digicel shall comply with all applicable laws, rules, regulations, ordinances and codes (collectively “Legal Requirements”) in connection with the provision of the Service.
2.3 Digicel shall provide to the Customer, equipment, connectivity, cloud application(s)/services and professional services; delivered via a monthly, managed subscription as outlined in the approved service order.
2.4 Customer understands that Digicel will not charge the Customer for the equipment during the Term of this Agreement; however, Customer acknowledges that it will be charged for the equipment if it chooses not to return same upon termination of the Service
2.5 The count of required endpoints and ports (approved equipment connecting to the managed switch) may result in additional components (Add-ons) such as switches and access points which will result in additional costs as set out in the Service Order.
2.6 From time to time Digicel may review its product and market offerings including terms and conditions. As a result components, services and support models may change. New Service level agreements may also be impacted. On renewal of this Agreement or with the addition of components or services during the life of the Agreement, the latest terms and pricing will apply unless otherwise advised by Digicel, in writing.
2.7 In the event that Digicel determines that it is necessary to interrupt the Service or that there is a potential for the Service to be interrupted for the performance of system maintenance, Digicel will use good faith efforts to notify Customer prior to the performance of such maintenance and will schedule such maintenance during non-peak hours (midnight to 6am local time) or at such other mutually agreed time. In no event shall interruption for system maintenance constitute a failure of performance by Digicel.
3.1 For the avoidance of doubt, the Customer agrees to settle all invoices for the Services notwithstanding that no formal notice of discontinuance of the Services is received by the Customer.
3.2 The Customer is required to pay an additional fee where the Customer requires add-ons to the Services during the term of this Agreement as set out in the applicable Service Order.
3.3 The Customer may be required to pay additional fees, as set out in the Appendix hereto, for site level/physical Installs, Moves, Add, Changes, and Support (IMACS) after initial deployment. In such an event, a change control process with billing will be applied for the Customer’s approval and payment.
3.4 The Customer is required to pay a reconnection penalty in the event of disconnection of the Services for non-payment by the Customer.
4.1 Invoice: Digicel shall issue a monthly invoice to the Customer (or, where relevant, make available such invoice for download) or shall issue an invoice at such other times as may be communicated by the Parties in writing.
4.2 Paying the Charges: The Customer shall pay the Charges by direct debit within 30 days of the date on any invoice.
5.1 Digicel grants the Customer a non-exclusive, non-transferrable limited license to use Digicel equipment in accordance with this Agreement.
5.2 For Customer owned equipment, Digicel will take no responsibility of ownership.
5.3 Customer authorises Digicel to provide the equipment and agrees that the equipment is the sole exclusive property of Digicel and this Agreement does not grant the Customer any rights to the equipment except as expressly set forth herein. Customer agrees to give Digicel access, during regular business hours, or at any agreed time in the case of an emergency, to service or remove the equipment at Digicel’s sole discretion. Loss, theft or physical damage to the equipment is the customer’s sole responsibility.
5.4 The Customer shall obtain the written approval of Digicel in order to effect Installs, Moves, Add, Changes, and Support (IMACS) or configure or relocate any component.
5.5 Upon termination of this Agreement by either party, the Customer agrees to return the equipment in good condition, reasonable wear and tear excepted, to Digicel within thirty (30) Calendar days of the disconnect date. If equipment is not returned within 30 days, Customer will be charged an “Equipment Non-Return Fee” calculated as the depreciated value of all hardware related to this Agreement multiplied by the remaining tenure of this Agreement. If Customer requests Digicel to remove the equipment, Customer will be charged an “Equipment Removal Fee” based on the number of pieces of hardware to be removed and Digicel’s resources required for the removal. The Equipment Non-Return and Equipment Removal Fees will appear on Customer’s next Digicel Bill.
5.6 The Customer is not permitted to downgrade the Services below the value of this Agreement.
5.7 The following additional rules also apply to the specific Add-on:
5.7.1 Hardware components cannot be reduced during the term of this Agreement.
5.7.2 Subscription services (such as internet) are dynamic and can be scaled under change order with 30 days' notice prior to the bill cycle date. Subscription service(s) cannot be reduced below the committed level of the original/renewed agreement.
5.7.3 Managed services can be added or removed under change with 30 days' notice prior to the bill cycle date. The Managed services scope cannot be reduced below the original/renewed agreement.
6.1 Digicel is providing a managed infrastructure service. The Customer acknowledges that external networks and the internet, contain unedited materials that may be offensive to the Customer or its End Users. Customer acknowledges that it has actual knowledge of and can readily access many software and hardware solutions to regulate activity on its network. Customer acknowledges that Digicel has made no express or implied representation, warranty or guaranty applicable to any aspect of the Service or other services offered by Digicel, including but not limited to, the ability to preclude Customer or any patron of Customer from accessing any or all web sites and/ or news groups that any person may find to be harmful or offensive for any reason.
6.2 Customer understands that by using the Internet or networked service, Customer agrees that it is responsible for and assumes all liability associated with any material that Customer (to include End Users) makes available or transmit through the Internet Service, whether through chat rooms, messages boards or other forums, including liability for claims of infringement, libel and slander. Customer may not post, transmit through or otherwise make available on or through the Internet service any material that violates or infringes in any way upon the rights of others, that is, in Digicel’s sole discretion, unlawful, defamatory, obscene, abusive, profane, vulgar, sexually explicit, racist, threatening, hateful, or otherwise objectionable, or that encourages conduct that would constitute a criminal offense, give rise to a civil liability or otherwise violate any law.
7.1 Digicel will make every attempt to address any reported trouble in relation to failed equipment or Customer related issues with connectivity to the Internet via the installed network, as applicable. Internet service failure is not within the scope of the service and must be resolved directly with the applicable Internet service provider. Digicel will work with a designated technical resource allocated by Customer to address any reported trouble of connectivity or device considered to be malfunctioning.
7.2 Digicel makes no representations and assumes no liability for connectivity issues related to End User limitations, including but not limited to: connecting PC, Hardware (processor, RAM, hard drive), software applications running in the background on a device, web browser/browser plug-ins, website / server limitations, or Digicel network congestion.
In the event that Digicel breaches the agreed service level, the Customer may be issued a Service Credit. Service Credits shall be utilized during the life of the Agreement and within 12 months of issuance, only for approved Services.
9.1 Prior to requesting repair service from Digicel, Customer will use its best efforts, including but not limited to performing reasonable diagnostic tests, to verify whether any trouble utilizing the service is as a result of the Customer’s equipment or facilities. Customer shall be responsible for any such trouble resulting from the Customer’s equipment or facilities. Customer will cooperate with any joint testing of the Service reasonably requested by Digicel.
9.2 Customer must cooperate with reasonable requests from Digicel related to all initial or subsequent site surveys of the Customer’s location/s including, but not limited to, providing Digicel with a drawing or survey of its location/s. In the event a Customer does not cooperate with Digicel’s reasonable requests related to same, Customer agrees to release Digicel from any and all claims or liability related to the Service or the equipment,
9.3 When using Digicel provided internet access, engaging in the following activities is strictly prohibited: attempting to interfere with the Internet service, including, without limitation, by way of submitting a virus to, or overloading, “flooding”, “spamming”, “mailbombing” or “crashing” the internet service; and sending unsolicited email, including promotions and/or advertising of products or services; infringing upon any other intellectual property rights of others or on the privacy or publicity rights of others; and sending obscene, sexually explicit, defamatory, threatening, harassing, abusive, hateful, slanderous or embarrassing messages and/or postings to any other person or entity or sending messages and/or postings in violation of applicable law/s; and illegal or unauthorised access to other computers or networks; and sending viruses, trojan horses, worms, time bombs, or other computer programming routines or engines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information; and facilitating a violation of the terms and conditions of this Agreement.
10.1 In the event that the Customer is not ready for Digicel to deliver the Managed WIFI service and/or complete installation to the Digicel demarcation point on the projected installation date, Customer must reschedule and accept delivery of service within ten (10) business days from such projected installation date.
10.2 If Customer does not allow Digicel to complete installation within 10 business days from such projected installation date, Digicel will invoice Customer a fee equivalent to the monthly recurring charges for the services under the Agreement.
11.1 Customer acknowledges and agrees that (a) criminals, terrorists, or others may commit or attempt to commit unlawful, disruptive, violent, terrorist and/or warlike acts at times and places, and in manners, that cannot be predicted or prevented; (b) information technology development, configuration or implementation changes, software modifications (including routine maintenance, patches, enhancements and upgrades), human factors and other circumstances can create new, unknown and unpredictable security exposures; and (c) information technology “hackers” and other third parties continue to develop and employ increasingly sophisticated and powerful techniques and tools which result in ever-growing security risks and potential for causing damage to persons and property.
11.2 Digicel does not provide, represent or warrant that the services or products that Digicel provides will ensure Customer’s compliance with any particular law including, but not limited to, any law relating to security or privacy. Customer is solely responsible for complying with the legal obligations of all data protection legislation, in particular with the legality of transmission of data to Digicel and the legal requirements of processing data.
12.1 All networks carry an inherent risk of unauthorized access. Digicel will make reasonable efforts to secure the infrastructure; limiting the areas of exposure while enabling the business function(s) desired. Clients share responsibility in; securing their environment including networks, servers’, workstations, data stores etc. Digicel recommends that clients adopt and observe appropriate industry security practices and take proactive security steps.
13.1 The Digicel Account manager is the primary point of contact for contract renewal and changes.
13.2 If no formal notice of discontinuance is received regarding the Agreement, it is deemed as renewed with the most current/applicable Digicel terms and conditions as well as updated fees applied to the account. Customer agrees to and will continue to settle billing for the service.
Further and in addition to the provisions of clause 18 of the General Terms (Schedule 1), in the event of early termination by the Customer, the Customer shall pay to Digicel the Charges for the remainder of the term of this Agreement.
Invoice disputes: The Customer may dispute an invoice or any part of it, only by: (i) notifying Digicel within 21 days of invoice receipt; (ii) including details of why it disputes the invoice and how much it believes is payable; and (iii) paying all undisputed amounts when due. The Customer may only dispute amounts with reasonable cause and in good faith. Following resolution of an invoice dispute, Digicel shall promptly issue a credit or the Customer shall promptly make payment as appropriate.