Mobile Service General Terms

 

THIS AGREEMENT is made between:

 

    1.              Digicel trading as Digicel (Cayman Islands) Limited a company incorporated in Cayman Islands, whose registered office is at Cayman Technology Centre, 115 Printer Way, George Town, Cayman Islands, PO Box 700, KY1-1107 (“Digicel”); and

    2.              Company  incorporated in Cayman Islands, with registration number                                                                                                                          , whose registered office is at (……………………), , Cayman Islands (“Customer”), together referred to as the “Parties” and each individually as a “Party”.

 

    BACKGROUND

    (A)          The Digicel Group is a provider of communication services on a national and global scale.

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

 

    THE PARTIES AGREE:

 

    1.             Structure of contractual relationship

    1.1         Master Services Agreement: The purpose of this Master Services Agreement is to provide a structure through which Digicel Group Companies may provide communication services to Customer Group Companies under Services Agreements. It will govern the provision and supply of these services and a procedure under which either party and/or its associated companies may join in the overall solution to a     Customer, and the terms and conditions of this Master Services Agreement shall govern the supply of the services referred to herein.

    1.2         Services Agreements:

    1.2.1         Services Agreements govern the provision of the Services. Each Services Agreement shall include specific Services being provided which may include a description of the Services, service standard and conditions of use for the Service (the “Service Terms”) and the commercial terms relevant to the Service (the “Commercial Terms”) and the associated service level agreements (the “Service Level                 Agreement”).

    1.2.2         Each Services Agreement is a contract between the parties to it and is separate and distinct from this Master Services Agreement and any other Services Agreement.

    1.2.3         Any reference to a Services Agreement is to one of the arrangements entered into by a Digicel Market and a Customer Affiliate including a Purchase Order issued and accepted in accordance with Service Terms. Services Agreements shall stay in force despite any termination of this Master Services Agreement.

    1.2.4         Each Services Agreement incorporates the following provisions from this Master Services Agreement:

    (a)          General Terms (Schedule 1) - for all Services; and

    (b)          Data Protection Terms (Schedule 2) - for all Services. Each of the Service Terms identifies which of the Data Protection Terms apply to those Services.

    1.2.5         Country terms: Services Agreements may include terms which are specific to certain countries and supplement and take precedence over any terms set out in the Master Services Agreement and made part of a Services Agreement by reference.

    1.2.6         No other terms: Other than as set out in this Master Services Agreement, or as specifically provided in a Services Agreement, no other terms and conditions apply to any Services Agreement entered into pursuant to this Master Services Agreement.

    1.3         Order process: The Services Agreements may set out any relevant order mechanism, including any requirements for order forms, statement of works or similar documents.

 

    1.             Duration

    1.1         This Master Services Agreement shall be for an initial term of months and shall: (i) come into effect on the date of the last signature that is applied to it; and (ii) automatically terminates one year after the expiry of the last of the Services Agreement that is entered into under it.

   

     2.             Performance

 

    2.1         Performance of Services Agreements: Digicel shall, to the best of its ability, establish that each Digicel Market and Customer ensures that each Customer Affiliate performs each Services Agreement in accordance with its terms provided that, if such Services Agreements are amended, each of Digicel and Customer have been duly notified of such amendments and have not objected to them.

    2.2         Liability principles: Neither Party is liable under this Master 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 Master Services Agreement was entered into or when the relevant order was placed under a Services Agreement. 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.

    2.3         Liability cap: A Party's liability under this Master Services Agreement in connection with a Services Agreement does not exceed the liability of its Group Company under that Services Agreement.

 

    3.             Interpretation

 

    3.1         Definitions: Words and expressions defined in General Terms (Schedule 1) have the same meaning in this Master Services Agreement.

    3.2         Confidentiality: The confidentiality and announcements clauses of the General Terms (Schedule 1) apply equally to this Master Services Agreement.

    3.3         Counterparts: The counterparts clause of the General Terms (Schedule 1) applies equally to this Master Services Agreement.

    3.4         Third parties: This Master Services Agreement is made only for the benefit of the parties and is not enforceable by any other person under the law or otherwise. This Master Services Agreement may be amended by the Parties without the consent of any third party.

 

 

    4.             Governing law

    4.1         Governing law: The validity, construction and performance of this Master Services Agreement is governed by and construed in accordance with the laws of Cayman Islands.

 

    4.2         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 any dispute that arises in relation to this Master Services Agreement.

 

 

    1.  SUCCESSORS AND ASSIGNS

    The covenants and agreements contained herein shall apply to and inure to the benefit of and be binding upon the parties hereto and upon their respective assigns and successors in interest.

 

    2.  LAWFUL AUTHORITY

    Each of the parties warrants that it as the requisite corporate power and lawful authority to enter into this Agreement and to carry out the transactions and obligations contemplated hereby.

 

                    Signed by:                                                                                  Signed by

 

 

        for and on behalf of: Digicel (Cayman Islands) Limited

 

    Name:

    Job Title:

    Date:

 

                        for and on behalf of:

 

    Name:

    Job Title:

    Date:

 

 

 

    By electronically signing this document, I acknowledge that this is a legal representation of my signature.

 

    DIGICEL (Cayman) LIMITED: CORPORATE TERMS AND CONDITIONS

 

    1.      INTERPRETATION

 

    In these terms and conditions, these words shall have the following meaning ascribed to them:

 

    a.   Agreement means these Terms and Conditions, the Application for Corporate Customers and the Schedule attached thereto and any other document agreed by the Parties expressly stated to form part of this agreement and sets out the terms under which Digicel will provide the Service to the Customer.

    b.  Application for Corporate Customers means the form used by the Customer to sign up for the Service and to which these Terms and Conditions and the Schedule are attached.

    c.  Authorised Signatory means the person designated in the Schedule and appointed by the Customer to be Digicel’s point of contact for all matters relating to the Service and authorized to issue instructions to Digicel in relation to this Agreement.

    d.  Customer means the company, corporation, business or other legal entity so named and described in the Schedule to whom Digicel provides the Service.

    e.  Digicel means Digicel (Cayman) Limited, a company duly incorporated under the laws of the Cayman Islands and having its registered address as Printer Way, George Town, Cayman Islands.

    f.   Monthly Service Fee means the monthly rates for the Services as set out in the Schedule and as agreed to in writing by the Parties.

    g.  Minimum Service Period means the period as set out in the Schedule during which Digicel agrees to provide and the Customer agrees to retain and pay for the use of the Service.

    h.  Network means the telecommunications system owned and/or operated by Digicel.

    i.   Parties mean both Digicel and the Customer.

    j.   Party means either Digicel or the Customer.

    k.  Schedule means the document attached to the Application for Corporate Customers itemizing the specific details of the Agreement between the Parties.

    l.  Service means the telecommunications service offered by Digicel and particularized in the Schedule.

    m. Service Period means thirty days.

    n.  Terms and Conditions means these terms and conditions as set out herein to which the provision of the Service is subject.

 

    2.AGREEMENT

 

    This Agreement shall govern the relationship between Digicel and the Customer and shall constitute legal and binding obligations on the Parties upon the signing of the Application for Corporate Customers by the Authorised Signatory. By using the Service, the Customer agrees to be bound by these Terms and Conditions

    Subject to the provisions set out herein in relation to rate reduction, Digicel reserves the right to amend or unilaterally change the Service and/or the Terms and Conditions of this Agreement subject to giving the Customer fourteen (14) days written notice of such amendments. The notice shall be sent to the attention of the Authorised Signatory If the Customer continues to use the Service after notice of amendment,     then it shall be deemed unconditionally accepted by the Customer.

    This Agreement supersedes all prior representations, arrangements, understanding and agreements between the Parties (whether written or oral) relating to the subject matter hereof and sets forth the entire and complete understanding between the Parties relating to the subject matter hereof. The Customer warrants that it has not relied on any representation, arrangements, understanding and agreements between the     Parties (whether written or oral) not expressly set out or referred to in this Agreement.

 

    3.ACTIVATION

 

    Connection and activation of the Service is subject to a satisfactory risk assessment by Digicel, the credit rating of the Customer and/or receipt of a security deposit by the Customer. The size of the security deposit will be determined at the sole discretion of Digicel. The security deposit is refundable without interest after this Agreement is terminated and all outstanding monies due to Digicel are collected. The security     deposit may be used, at Digicel’s sole discretion, to settle any outstanding debts owed to Digicel by the Customer at any time.

 

    4. INFORMATION DISCLOSURE

 

    Digicel reserves the right to refuse any request for account information where we are unable to verify that the person requesting the account information is in fact the account holder, the Authorized Signatory under this Agreement or user of the account.

    Digicel may disclose any information about its Customer and its Customer’s accounts pursuant to legal process or subpoena or as otherwise required by law. By using the Service the Customer consents to and authorises any such disclosure. Digicel shall not become liable by reason of the giving of such information or of it being inaccurate or incomplete. In addition the Customer agrees that Digicel may contact any     person or reference provided by the Customer to verify accuracy of account or subscriber details.

 

    5. PROVISION OF SERVICE

 

 

    Our Services are provided by radio transmission and are therefore available only within the range of our Network’s base stations. Both quality and availability of our Services are affected by radio interference due to physical obstruction, atmospheric conditions and by technical faults or other defects in the Network.

 

 

    6. DIGICEL TELEPHONE NUMBERS

 

    Digicel reserves the right:

    1.    upon written notification, at any time to alter or replace a telephone number allocated to the Customer or any other name, code or number whatsoever associated with our Service.

    2.    without prior notification, to re-assign a telephone number that has been assigned to the Customer to another subscriber, if such telephone number has been suspended, at the request of the Customer, and remains suspended for more than three (3) months.

 

    7. CALLER ID

 

    Our Network shall allow the display of your telephone number on our receiving handset.

 

 

    8.INVOICING

 

    Digicel will on the 1st of each month, issue monthly invoices to the Customer reflecting the relevant Monthly Service Fees together with other additional charges incurred by the Customer during the preceding month (“Invoice”). The payment of an Invoice shall become payable from the 1st of each month and shall become due on the 26th of each month (“the Due Date”). Each Invoice will be deemed as conclusive     evidence against you of the accuracy, completeness and truth of all matters stated in it unless you dispute the Invoice. Any disputes regarding Invoices must be communicated to Digicel in writing within three (3) months from the date of your Invoice, failing which the Invoice will be deemed to be accurate and you will have to pay the amount as invoiced. We will review the dispute and make any amendments on the     Invoice if necessary. However, if the Invoice is found to be accurate and complete, then you will have to pay the disputed amount immediately.

    We reserve the right to reject and/or disallow cheque payments made otherwise than by certified or company cheque. If payment is made by cheque or any other instrument, a return fee may be charged by the Company, should this method of payment be dishonoured or otherwise returned to us. We reserve the right to reject and/or disallow cheque payments from you once dishonoured cheques have been     processed through your account or your cheque has been otherwise returned to us.

 

    Will charge interest on overdue amounts at a rate of 5% per annum over the prime lending rate as instructed by the Cayman Island Monetary Association. We are not liable for any loss or damages suffered because of the use of, or failure in any bill payments services. We are in no way obligated to provide the Service to you if you     have defaulted in payment of any sums due by you. In this event, we reserve the right to charge a reconnection fee and/or revise your payments terms and/or restrict your service/feature types, prior to restoration of the service

 

    9. MONTHLY SERVICE FEE

 

    Digicel shall charge the Customer the Monthly Service Fee together with any additional usage by the Customer. Any reduction in Digicel’s standard corporate/commercial rates which occur during the term of Agreement will be applied to the rates herein. The Monthly Service Fee shall be reviewed within thirty (30) days of any rate reduction and application of the new rate will commence beginning with the     subsequent billing period. 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.

 

    10.ROAMING

 

    Digicel’s roaming rates, as amended from time to time, will apply when the Customer is roaming. For avoidance of all doubt, the monthly rates of the voice or data plans only include usage within the Cayman Islands.

 

 

    11. CREDIT LIMITS

 

    The Customer account will have an overall credit limit assigned to its account by Digicel. Users may also elect to have individual credit limits assigned for each SIM Card provided to the Customer pursuant to this Agreement. The Customer agrees that its overall monthly charges shall not exceed the overall monthly credit limit and where applicable that its users’ credit limit shall not exceed its individual credit limit.     Digicel reserves the right to suspend the account if the usage exceeds the credit limit. The Customer shall remain liable for any charges exceeding the credit limit.

    If the credit limit and the total Monthly Service Fees are the same value, users will not be able to roam outside of the Cayman Islands.

    Users will automatically be notified when he/she has reached 60%, 80% and 100% of his/her assigned credit limit. Credit limits do not necessarily reflect all roaming charges, as these charges may be delayed and notification of these charges only take effect when the charges have been received from Digicel’s roaming partners.

 

    12. DATA PLANS

 

•     Customers may change an existing Data Plan by subscribing to a Data Plan that is of a different bundle size and monthly rate from their existing Data Plan. Customers must request such changes in writing. Once approved such plan changes shall take effect on the expiration of the Service Period of their existing Data Plan.

•     Any data not used within the Service Period shall not roll over or accumulate for usage after expiry of the relevant Service Period.

 

    ·Customers using the Data Plan via handsets and/or devices who exceed the allotted bundle size of the 4G Plan to which he/she is subscribed, will be charged the default overage rate of 10 cents per Mbits.

 

    13.  FAIR USAGE OF DATA PLANS

 

    The Company reserves the right to terminate any Data Plan forthwith if in its sole opinion the Data Plan is being misused, such misuse to include but not be limited to the following:-

    a.      peer to peer file sharing;

    b.      restricting or inhibiting any other Customer from using the Service;

    c.      any use that infringes upon others’ intellectual property rights;

    d.    posting, publishing, reproducing, distributing or transmitting any unlawful, threatening, abusive, libellous, defamatory, vulgar, obscene, indecent, pornographic, profane, hateful, bigoted or otherwise objectionable information of any kind, including without limitation any transmissions, constituting, or encouraging conduct that would constitute, a criminal offence, give rise to civil liability

    e.      posting or transmitting any information or software that contains a trojan, worm, virus or other harmful component;

    f.      avoiding, bypassing, removing, deactivating or circumventing by any means, any process or system such as copy protection systems that are intended to protect the rights of a copyright owner;

    g.    sending large quantities of unwanted or unsolicited e-mail to individual e-mail accounts (also known as "spamming" or "mailbombing');

    h.    making any unauthorized attempt to gain access to any account or computer resource not belonging to that Customer (also known as 'spoofing', ‘phishing’)

    i.      subscribing or attempting to subscribe to a Data Plan with intent to avoid payment;

    j.      making any unauthorized access, alteration, destruction, or any attempt, of any information of any Digicel Customers or end- Customers by any means or device;

    k.    running programs or servers that provide network services to others through the BB Plan ("web hosting"), which includes, but is not limited to, operating a web/mail/ftp server to serve external connections;

    l.      reselling or providing access to the Service or to any other Digicel service to any third party, without the prior express written consent of Digicel. Breach of this provision may result in immediate suspension of the Data Plan until the problem is corrected; and

    m.    any use deemed by Digicel to interfere with Digicel’s ability to fairly allocate capacity among other Customers or that otherwise degrades service quality on the network. Digicel further reserves the right to take measures to protect its network and its Customers from harm, compromised capacity or degradation in performance. These measures may impact your Service, and we reserve the right to deny, modify         or terminate the Service, with or without notice, to any Customer we believe to be using the Data Plans or features thereof in a manner that adversely impacts on the Digicel network.

    •                         Digicel may monitor the Customer’s compliance with these terms and conditions but we will not monitor the content of communications except as otherwise expressly permitted or required by law.

 

    14. WARRANTY & REPAIR PROCESS

 

    The handsets supplied by Digicel are covered under a manufacturer’s warranty for a period of twelve (12) months (“the Warranty”). The warranty period for batteries is a period of six (6) months. All defective handsets pursuant to this Agreement returned to Digicel will be sent to its Authorized Repair Centre for assessment. Handsets that are determined to have a manufacturer’s defect within the warranty period will     be repaired or replaced within fourteen (14) working days. If this is not done within the specified timeframe, Digicel shall replace the relevant handset with the same model. If the same model is not available, a model of similar value will be supplied.

    The Warranty shall become void if any of the following occurs:

    i.      Defects or damage resulting from any misuse or any use that goes against the information included in the handset’s manual.

    ii.    Defects or damage from accidents or negligence.

    iii.  Defects or damage resulting from improper testing, operation, maintenance, installation and adjustment by any unauthorized persons or repair center.

    iv.     Alterations or modifications caused from repairs performed by any unauthorized persons or repair center.

    v.       Breakage or damage to antennas, screens and displays.

    vi.     Handsets with the serial number removed or made illegible.

    vii.   Batteries not charged by the specified manufacturer’s charger or are broken or show evidence of tampering.

    viii. Defects or damage caused by food, liquid or moisture.

    ix.    All plastic surfaces and all exterior parts scratched or damaged due to abuse.

    x.      A handset that shows signs of attempts to open, alter or repair.

    xi.    Damage caused by using accessories not made by the manufacturer of the phone.

 

    15. BLACKBERRY LICENCE SOFTWARE

 

    The Customer acknowledges that if it is supplied with BlackBerry products and software, this is conditional upon acceptance of the Terms and Conditions herein, the Customer’s agreement to pay any required purchase price, license fees, all applicable monthly or other periodic fees or costs, and subject to any additional Terms and Conditions the Customer agrees from time to time to be bound.

 

    16. USE OF SERVICE

 

    a.    The Customer acknowledges that it has read and agrees to be bound by the terms and conditions of the Blackberry End User License Agreement which is hereby specifically incorporated by reference.

    b.    The Customer agrees to only use the Service in accordance with this Agreement and the appropriate documentation and manuals provided by Digicel for use in conjunction with such products;

    c.     The Customer warrants that any information that is provided to Digicel pursuant to this Agreement, in particular the information set out in the Schedule is true, accurate, current and complete;

    

    d.    The Customer shall be responsible for all activities with respect to the Service undertaken by the Customer or by anyone who has access to the Service through the Customer;

    e.    The Customer represents and warrants that it has the right, legal capacity and the authority to enter into this Agreement;

    f.      The Customer shall ensure that the use of the BlackBerry Service and Software including without limitation the use thereof with any other software, application, or data and the transmission of data using the Software, does not interfere with, degrade, or adversely affect any software, system, network or data used by any person including Digicel and any other of its customers and that it will not use or allow any     person to use the Service, or Software in a way that has a detrimental effect on Digicel, its other customers or its products or services;

    g.    The Customer agrees that anyone obtaining access to the Service through the Customer will not transmit harassing, abusive, libelous, illegal or deceptive messages or information; or otherwise use the Services in violation of BlackBerry’s or Digicel’s User policy in force from time to time.

    h.    The Customer agrees that anyone obtaining access to the Services through the Customer will not use the Service to commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortious acts. The Customer shall be solely responsible for ensuring that any material or information that transmitted using the Service, including but not limited to photos, text, sound and images does     not infringe any third party's rights and is not sent, entered or retrieved without the consent of the owner of such rights;

    i.      The Customer shall not sell or transfer, or attempt to sell or transfer, the Service or any part thereof, nor allow the Services to be duplicated onto more mobile devices or computers or to be used by more persons than are covered by this Agreement; and

    j.      The Customer agrees to cooperate with Digicel and provide information requested by Digicel to assist in investigating or determining whether there has been a breach of this or any other provision of this Agreement.

 

    17. CUSTOMER RESPONSIBILITIES FOR SERVICE MANAGEMENT

 

    The Customer agrees:

    a.    not to make, alter, or attempt to perform updates, make repairs, alterations, perform maintenance or cause repairs to be made, or have maintenance performed by third parties on any equipment covered during the period of this Agreement, except as specified herein or as may be approved in advance and in writing by Digicel;

    b.      to coordinate with Digicel on any major configuration or hardware request; and

    c.     to provide Digicel with a description of the problem, its priority and potential impact on the Customer’s operations in its fault reports.

 

    18.LIABILITY

 

        Save as provided herein, neither Party shall be liable to the other or to any third party, (whether in contract, tort, under statute or otherwise (including in each case negligence) for any loss of profits, business contracts, anticipated savings, goodwill, or revenue, special indirect or consequential loss or damage arising under or in relation to this Agreement (or any part of it), whether or not that Party was advised in     advance of the possibility of such loss or damage.

  

    19. TERMINATION BY DIGICEL

 

    Digicel reserves the right to suspend or terminate this Agreement or the provision of the Service, either in part or in whole, if :

    a.      the credit rating of the Customer is not satisfactory;

    b.      the Customer fails to make full payment in respect of undisputed sums owed to Digicel on the Due Date.

    c.     Digicel in its sole discretion believes it necessary for operational reasons or in order to prevent any breach of these Terms and Conditions or any breach of applicable laws or regulations or any applicable code of practice. The Service is made available to the Customer on the basis that it is used for reasonable business usage.

    a. in its sole discretion the Service is being abused. Such an abuse includes but is not limited to:

    i.      the Service being left on without voice conversation;

    

    ii.    The level of usage causes unreasonable congestion on our Network;

    iii.  The Customer resells or attempts to resell the Service; or

    iv.     Otherwise use the Service in a manner which Digicel believes may damage or affect the operation of its Network;

    a. in the opinion of Digicel, the Customer performs any unauthorized update, maintenance, or repair of the equipment that affect Digicel’s ability to render the Service.

 

    20. TERMINATION BY THE CUSTOMER

 

    By signing the Application for Corporate Customers, the Customer has agreed to the Minimum Service Period described in the Schedule. Should the Customer terminate this Agreement while any Minimum Service Period remains active, the Customer agrees to :

    a.      provide Digicel with a minimum of sixty (60) days prior written notice;

    b.    pay any applicable handset and/or device subsidies to offset the costs associated with the failure of the Customer to use the handsets and/or devices for the full extent of the Minimum Service Period; and

    c.     pay the total of all the Monthly Service Fees that would have been payable to Digicel for the remainder of the Minimum Service Period, to offset the loss incurred by the failure to observe the Minimum Service Period.

 

    21. TERMINATION BY AN INDIVIDUAL USER

 

    Should an individual user terminate his or her employment with the Customer during the Minimum Service Period and the Customer allows the said individual user to retain the handset and/or device for his or her personal use on an individual prepaid account, the Customer shall pay:

    a.    any applicable handset and/or device subsidies to offset the costs associated with failure of the Customer to use that specific handset and/or device for the full extent of the Minimum Service Period; and

    b.    for the remainder of the Minimum Service Period for that individual user, to offset the loss incurred by the failure to observe the Minimum Service Period, the total of all the Monthly Service Fees that would have been payable to Digicel.

 

    22. TERMINATION BY EITHER PARTY:

 

    Either Party may by written notice to the other Party terminate this Agreement:

    a.    If a Party commits a material breach or has failed to perform any material obligation under this Agreement with respect to the Services and, to the extent that performance is not permanently or temporarily impossible due to Force Majeure, the breach has not been remedied within sixty (60) days after the terminating Party has given a notice of default; or

    b.    if any Force Majeure Event or matter beyond the other Party's reasonable control prevents the performance of the whole or a substantial part of the other party's obligations in relation to that Service for a continuous period of thirty

    (30) days after the date on which it should have been performed; or

    c.     with immediate effect by written notice if the other Party passes a resolution or the Court makes an order that the other Party be wound up otherwise than for the purpose of solvent reconstruction or amalgamation;

    For the purposes of this Agreement, a Force Majeure Event means: fire; flood; lightning; explosion; war; strike; embargo; labor dispute; government requirement; civil or military authority; curfews or states of emergency, act of God or nature; epidemic, pandemic; inability to secure materials or transportation facilities; act or omission of carriers or suppliers; acts or failures to act of any governmental or competent     authority, or any other causes beyond a Party’s reasonable control, whether or not similar to the foregoing.

    The termination of this Agreement shall in no way relieve the Customer from its obligations to pay Digicel any sums accrued hereunder prior to such termination including that contemplated in clauses 20 and 21 herein.

 

    23. FAULT REPORTING

 

    All faults or queries with respect to the Service are to be channeled through the Business Account Manager and/or Digicel’s Customer Care Team. Customer care can be contacted via cayman.corporatecustmercare@digicelgroup.com or 1 345 623 3444 or 100 from a Digicel phone

 

    Faults/queries can be reported on a twenty four (24) hours basis. The faults reported will be recorded under the Customer’s name. When reporting the fault or query the Customer will be required to state the mobile number to which the fault or query is related. The Client Service Agent receiving the report will attempt a first level diagnosis to expedite the clearance of the fault/query. If the fault/query is not rectified     at this stage then it will be escalated to the appropriate department or person. The Customer will be updated on the fault/query progress. All reported faults/queries will be assigned a priority and time. Once the fault/query has been cleared the Client Services Agent will contact the Customer to confirm that Service has been satisfactorily restored. All reported faults/queries will be recorded.

 

    24. PLANNED WORKS AND EMERGENCY WORKS

 

    Digicel shall provide the Customer with twenty four (24) hours’ notice of planned maintenance works expected to interrupt the Service. Planned works will be scheduled for non-business hours, but where the scheduled time of the planned works is inconvenient to the Customer then Digicel will endeavor to reschedule such work at a time that is convenient to the Customer. In cases of emergency work on the     network (which may interrupt the Service), it may not be possible to provide twenty four (24) hours’ notice of such works. In such circumstances, Digicel will schedule such emergency engineering work so as to have the least impact on the Customer’s business as possible.

 

    25.NOTICES

 

    Any notice, request or consent required or permitted to be given or made pursuant to this Agreement shall be in writing. Any such notice, request, or consent shall be deemed to have been given or made when delivered in person to an authorized representative of the Party to whom the communication is addressed, or when sent by registered mail, electronic mail or facsimile to such Party at the address for the     Party as set out in the Schedule or so notified in writing by a Party.

 

    26. GOVERNING LAW

 

    The laws of the Cayman Islands will apply to this Agreement and the Parties agree that any dispute arising from this Agreement will be settled in the courts of the Cayman Islands.

 

 
   
   

    Schedule 2 — Data Protection TERMS

 

    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.

 

 

    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 and any additional period required for law enforcement in accordance with Clause 10, financial and audit retention requirements.

    6.2  Upon termination of the relevant Services, Digicel shall subject to clause 6.1 (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 including when the Customer Affiliate is not located within the European Economic Area.

 

    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 prohibited.

 

 

    11. 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.


    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 Market 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 Market and acknowledges that the Digicel Market 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 Affiliate or User objects to the transfer of Traffic Data between Digicel Group Companies or its subsequent Processing by a Digicel Market, the Digicel Market 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 Market, the Digicel Market shall, as soon as reasonably practicable suspend or cease the transfer or Processing, and take such other steps as the Privacy Authority may direct.

 
   

 

    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.

 

    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.