Master Services Agreement ICT

 

    Digicel Cayman LIMITED

 

    AND

 

    [CUSTOMER]

 

    STANDALONE Services Agreement

 

    THIS AGREEMENT is made between:

 

    1.          Digicel Cayman Limited, a company incorporated in Cayman Islands with registration number [insert registration number], whose registered office is at [add address] (“Digicel”); and

    2.          [CUSTOMER], a company incorporated in [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”.

 

    BACKGROUND

    

    (A)        Digicel is a provider of communication services.

    (B)        This Services Agreement sets out the terms and conditions under which Digicel will provide communication services to the Customer.

 

    THE PARTIES AGREE:

 

    1.          Structure of contractual relationship

    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)        Commercial Terms (Schedule 4) - 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.

    

    2.          Effective Date

    2.1        This Services Agreement comes into effect on the date of the last signature that is applied to it.

 

Signed by        

 

for and on behalf of

 

 

 

Name: ………………………………………..

 

Job Title: …………………………………….

 

Date: ……………………………...………...

Signed by        

 

for and on behalf of

 

 

 

Name: …………………………………………

 

Job Title: ………………………………………

 

Date: ………………………………………….

   

 

 

 

    SCHEDULE 1 — general TERMS

 

These general terms apply to THE services agreement

 

    1.          Duration

 

    1.1        The duration of the Services Agreement and the Services is as specified in the relevant Service/Commercial Terms. Earlier termination may occur in accordance with clause 13 (Termination).

 

    2.          Additional Service Recipient

 

    2.1        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.

 

    3.          Services

 

    3.1        Order of Services: 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 with a request for further information.

 

    3.2        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.

 

    3.3        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.

 

    3.4        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.

 

    3.5        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 an NRA for the purposes of the Services.

 

    3.6        Applicable Law: Digicel and Customer shall respectively comply with all relevant Applicable Law in relation to the provision and the receipt of the Services.

 

    4.          Intellectual Property Rights

 

    4.1        Ownership: Digicel and Customer each retain ownership of their own Intellectual Property Rights. 

 

    4.2        Licence: Digicel and Customer each respectively grant, or will procure the grant, to the other of a licence to use the Intellectual Property Rights owned by it or its Group Companies and which the other needs to use for the purpose of the Services, including any Intellectual                 Property Rights in software.

 

    4.3        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.

 

    4.4        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.

 

    4.5        Indemnity for third party claim: Digicel shall defend and indemnify the Customer for amounts payable to a third party for infringement of that third party's Intellectual Property Rights resulting from use by the Customer of the Services.

 

    4.6        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.

 

    4.7        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.

 

    5.          Warranties

    

    5.1        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.

 

    5.2        No other warranties: Unless expressly set out in the Services Agreement all warranties, representations and conditions which are implied by statute or otherwise are expressly excluded to the extent permitted by Applicable Law.

 

    6.          Payment and tax

 

    6.1        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 are specified in the Commercial Terms.

 

    6.2        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.

 

    6.3        Paying the Charges: The Customer shall pay the Charges by direct debit within 30 days of the date on any invoice or such other period set out in the Commercial Terms.

 

    6.4        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 Customer shall promptly make payment as appropriate.

 

    6.5        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 6.3 above (Invoice Disputes), Digicel is entitled, until paid in full, to: (i) charge interest on the unpaid                 amount at the applicable statutory rate; and (ii) 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.

 

    6.6        Pricing assumptions: The pricing is based on information provided by the Customer and the assumption that the Customer will comply with its obligations. If the information is incorrect or Customer causes Digicel increased costs by not complying with its obligations, then Digicel is                 entitled to: (i) relief from its obligations for an appropriate period; and (ii) recover its increased costs from the Customer.

 

    6.7        Recovery Charge: The Customer shall pay any agreed Recovery Charge.

 

    6.8        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.

 

    6.9        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.

 

    7.          Bribery and corruption

 

    7.1        Digicel has a comprehensive anti-bribery policy and programme, and 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 public official.

 

    8.          Sanctions and export controls

 

    8.1        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.

 

    9.          Confidentiality

 

    9.1        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.

 

    9.2        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.

 

    10.        Announcements

 

    10.1     Any announcement or public statement relating to the Services Agreement must be approved by both Parties in writing prior to its release.

 

    11.        Liability

 

    11.1     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

 

    11.2     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 12.  This liability cap shall not apply to non-payment of Charges or Recovery Charges or to damages due to breach of confidentiality obligations as set out in the Services Agreement. 

 

    11.3     What Digicel will 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

    11.4     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.

 

    12.        Suspension of Services

 

    12.1     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.

 

    12.2     In addition Digicel may suspend the Services:

 

    12.2.1    where the Customer or User uses Services in violation of the conditions of use set out in the Services Agreement;

 

    12.2.2    on 14 days’ notice of failure to pay amounts due which the Customer fails to rectify;

 

    12.2.3    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

 

    12.2.4    where there is any other material breach of the Services Agreement which is not capable of rectification.

 

    12.3     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.

 

    13.       Termination

 

    13.1     Ending the Services Agreement for convenience: Either Party may end the Services Agreement: (i) on 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.

 

    13.2     Ending the Services Agreement for cause: Either Party may end the Services Agreement with immediate effect by written notice to the other Party if that other Party:

 

    13.2.1    becomes subject to sanctions and/or export control laws necessitating termination;

 

    13.2.2    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;

 

    13.2.3    commits a material breach of the Services Agreement which is not capable of remedy; or

 

    13.2.4    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).

 

    13.3     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 90 days. 

 

    13.4     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.

 

    13.5     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, any equipment owned by Digicel in accordance with Digicel's reasonable             instructions; and (iii) pay any applicable Recovery Charge.

 

    14.        Changing the Terms

 

    14.1     Changes in writing: With the exception of changes made in accordance with clause 14.2 (Changes required by Applicable Law) and any Service Terms, any amendment to the Services Agreement must be in writing and signed by the Parties.

 

    14.2     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.

 

    15.        Assignment

 

    15.1     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.

 

    15.2     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.

 

    16.        General provisions

 

    16.1     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.

 

    16.2     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.

 

    16.3     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.

 

    16.4     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.

 

    16.5     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.

 

    16.6     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.

 

    16.7     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.

 

    16.8     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 the Contracts (Rights of Third Parties) Act 1999 or otherwise.

 

    16.9     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):

 

    16.9.1    the Commercial Terms (Schedule 4);

 

    16.9.2    the Service Terms (Schedule 3);

 

    16.9.3    the Data Protection Terms (Schedule 2);

 

    16.9.4    the General Terms (Schedule 1);

 

    16.9.5    the main body of the Services Agreement itself;

 

    16.9.6    other documents referenced in the Services Agreement.

 

    16.10  Governing law: The Services Agreement is governed by, and construed in accordance with the laws of Cayman Islands  

 

    16.11  Jurisdiction: The Parties irrevocably submit to the exclusive jurisdiction of the courts of Cayman Islands. This does not prevent either Party from making an application to any court of competent jurisdiction to obtain an interim remedy (including any injunction) at law or in equity in relation             to the dispute.

    

    16.12  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.

 

    17.        Definitions

 

    17.1     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.

 

    17.2     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.

 

    17.3     Charges means the charges or fees set out in the Commercial Terms.

 

    17.4     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.

 

    17.5     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).

 

    17.6     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.

 

    17.7     Group means either the Digicel Group or the Customer Group as applicable (and "Group Company/Group Companies" has a corresponding meaning).

    

    17.8     Initial Term         means the term of an individual Service, as specified in the Commercial Terms.

 

    17.9     Intellectual Property Rights means (i) rights in, and in relation to, any patents, registered designs, design rights, trade marks, trade and business names (including all goodwill associated with any trade marks 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.

 

    17.10  Network means the communications network used by Digicel or a Digicel Group Company.

 

    17.11  NRA means the national regulatory authority for electronic communications or telecommunications services in the relevant country.

 

    17.12  Party or Parties means the parties to the Services Agreement.

 

    17.13  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.

 

    17.14  Service(s) means the services provided by Digicel through the Services Agreement and which are specified in the Service/Commercial Terms.

 

    17.15  User       means an individual end user of the Services who must be a permanent or temporary employee or sub-contractor of the Customer (unless otherwise permitted in the Service Terms).

 

    17.16  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.

 

    SCHEDULE 2 — DATA PROTECTION TERMS

 

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.

 

 

scenario 1: where Digicel is data controller

 

    1.          Processing of data

 

    1.1        Digicel may Process User Personal Data for the following purposes: (i) account relationship management; (ii) sending bills; (iii) order fulfillment / 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. Such Processing will not include providing Data to third parties or making it publicly available.

 

    2.          Disclosure of data

 

    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.

  

scenario 2: where Digicel is data processor of User Personal DatA

 

    3.          Processing of User Personal Data

 

    3.1        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.          Use of anonymous data

 

    4.1        Digicel may use User Personal Data to create anonymous, aggregated, statistical data and information about service usage and devices that does not, and cannot be, used to identify a User.

 

    5.          Disclosure of User Personal Data

 

    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.          Retention of User Personal Data

 

    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.          Access to User Personal Data

 

    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.          Security of User Personal Data

 

    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 Digicel Information Security policies based on 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.          Transfer of User Personal Data out of the EEA

 

    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.        Law enforcement authorities

 

    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 prohibited11.        Enquiries from Users

 

    11.1     Digicel shall promptly, and in any event not later than required in order to enable each member of the Customer Group to fulfill 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.

 

scenario 3: where Transfer of TRAFFIC Data between Digicel Group Companies is required

 

    12.        Authorisation for transfer of Traffic Data

 

    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.        Objections to transfer or Processing of Traffic Data

 

    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.        No User Personal Data:

 

    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.

Definitions and Interpretation

 

    15.        Definitions

 

    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.        Interpretation

 

    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). 

 

    Requirements under The Data Protection Law 2017 (Act) shall take precedence over any terms contained in this Agreement relating to privacy law, collection of your personal data or use of your personal information, which are in conflict with the Act.

    Further to the terms as contained in this Agreement relating to Data Privacy, collection and use of your personal information, please also refer to Digicel’s Cayman Data Protection notice on its website, which may be amended from time to time as required.

 

    SCHEDULE 3 — SERVICE TERMS

 

these service terms shall apply to the SPECIFIC SERVICES in addition to the general terms (schedule 1).

    1)     Data center services

    2)     FIXED VOICE ( SIP & FWA)

    3)     Fiber Services

    4)     internet access and wide area netwrok services

    5)     microwave connectivity services

    6)     indoor and outdoor wifi services

    7)     unified communication system services

    8)     managed service desk services

    9)     network operations center

    10)  security operations center

 

 

 

    SCHEDULE 4 — COMMERCIAL TERMS

 

these COMMERCIAL terms shall apply to the SPECIFIC SERVICES in addition to the general terms (schedule 1).