Terms and Conditions

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Terms & Conditions

What criteria does a customer have to fulfil to be able to enter a Promotion?

1. Customer must be a legal resident of Papua New Guinea.

2. Customer must be at least 18 years of age to win or claim a prize. In the instance where the winner is less than 18 years, the prize will be awarded to a legal guardian.

3. Customer must have an active Digicel prepaid or postpay account to claim their prize.

4. Customer must permit photographs to be taken for PR purposes in order to be eligible to win.

Digicel Terms and Conditions for all Mobile Games

What criteria does a customer have to fulfil to be able to participate in a Mobile game?

5. Customer must be at least 18 years of age to participate.

6. Customer must be a legal resident of Papua New Guinea.

7. Customer must be at least 18 years of age to win or claim a prize.

8. Customer must have an active Digicel prepaid or postpay account to claim their prize.

9. Customer must permit photographs to be taken for PR purposes in order to be eligible to win.

Are there any persons who are not eligible to enter a Promotion or Mobile Game?

Persons in any of the following categories are NOT eligible to participate or win prizes:

1. Any person who at any time on or after commencement date of promotion or mobile game was or is a director, officer, employee, agent of Digicel PNG or any of their respective parents, subsidiaries, divisions, or affiliated companies, franchisees or service agencies or independent contractors.

2. Individuals engaged in the development, production or distribution of materials for the Promotion or Mobile Game.

3. Persons who are or purport to be immediate family members (defined as biological parent, step-mother, step-father, sister, brother, daughter, son or dependent or spouse of any of the foregoing) of any person in any of the preceding categories, regardless of where they live, or who reside in the same household (i.e. who have lived in the same household for at least three (3) of the twelve (12) months preceding the start of the relevant Promotion or Mobile Game, whether related or not) as any person in any of the preceding categories.

1. Information on how to enter this Promotion and Prize details form part of these Terms and Conditions of entry (Terms).  These Terms apply to the Promotion and entry into the Promotion is deemed to be acceptance of these Terms.

2. Promotion entries may only be made via an SMS platform provided by Digicel (PNG) Limited) of Section 494, Lot 1 & 2, Kennedy Road, Gordons Industrial Estate, PO Box 1618, Port Moresby, NCD (Digicel).

3. The Promotion will be open from 12:00:00hrs Papua New Guinea Time (PGT) and the end at 23:59:59hrs PGT.

4. Subject to paragraph 5, entry is open to Papua New Guinean residents aged 18 years and over at the START DATE of the promotion who are Digicel subscribers only (Eligible Entrants).  By entering this Promotion you represent that you are eligible to enter.

5. Employees, directors, management and contractors of Digicel (including any suppliers of Prizes), and their immediate families, are not eligible to enter.

6. To enter the Promotion and be eligible to win, Eligible Entrants must, during the Promotion Period, send SMS to 1644.  

7. For an SMS Entry to be valid:

(a)     the Entrant must be subscribed to Digicel's services;

(b)     the entry must be sent via the Entrant's own Digicel account; and

(c)     the entry must be sent from an SMS enabled mobile handset (SMS entries sent via the internet are ineligible) that is connected to a service provider and service plan (if applicable) that permits the Eligible Entrant to send SMS to premium SMS numbers (some handsets are incompatible and some service providers and / or some service plans do not permit premium SMS.

8. The maximum cost of each SMS Entry is PGK 0.59 (GST inclusive).  This cost will be incurred regardless of whether or not the SMS Entry is valid.

9. The Eligible Entrant can only use one msisdn/number to enter and participate in the Promotion.

10. Response times may vary and are subject to network coverage and availability, the number of entries received by Digicel, the available memory of the SIM card inside the Entrant's mobile phone and / or other technical problems beyond the control of Digicel.

11. Entrants acknowledge that SMS is not a guaranteed delivery communication tool.

12. Eligible Entrants may enter the Promotion as many times as they like.

13. Digicel accepts no responsibility for any entries not received for any reason during the Promotion Period. Entries will be deemed to be received at the time of receipt by Digicel as determined by Digicel.  No responsibility will be taken for lost, late or misdirected entries. Digicel is not responsible for technical difficulties with the entry mechanism and does not warrant that the entry mechanism will be available at all times.

14. The use of a third party application such as an automated entry software or any other mechanical or electronic means that allows an entrant to automatically enter the Promotion repeatedly to gain any unfair advantage is prohibited and will result in the Entrant being disqualified from the promotion.

15. Incomplete or incorrect entries, or which breach any law or infringe any third party rights (including intellectual property rights) are invalid.  Any entrant who, in the opinion of Digicel, tampers or interferes with the entry mechanism in any way, or who does not properly comply with the entry process, will be ineligible to win.  

16. Digicel accepts no responsibility for any variation in the value of a Prize, or for any tax liabilities that may arise from winning the Prize.

17. Prizes are not transferable and non- cash prizes cannot be exchanged for cash unless it is provided for in the Terms and Conditions of the Promotion.  All other costs associated with the Prize are the responsibility of the Winner.

18. If a customer has won a grand prize under a previous promotion, than the customer is disqualified from any further SMS Games or draws for a period of 6 months even if the customer continues to accumulate points under this promotion. If the customer’s number is drawn again or the customer accumulates the highest points after winning a prize within the last 6 months any further prizes will be forfeited.

19. The Winners will be notified by SMS within 5 days from the promotion close date.

20. The Winner's details will be published on Facebook and on our Website within 10 days from promotion close date.

21. Digicel reserves the right to request that a Winner provides proof of his / her identity, residency, Digicel subscription and / or age prior to awarding a Prize.  Proof of identification, residency, Digicel subscription and / or age considered suitable for verification is at the discretion Digicel.  In the event that the Winner cannot provide suitable proof, the Winner will forfeit the Prize and no substitute will be offered.

22. The prize will be forfeited if the winner fails to claim within 3 months from the date of notification.

23. Digicel shall not be liable for any Prize that may be lost, stolen, forged, damaged or tampered with in any way before it reaches, or is collected by, the Winner.

24. In the event that Digicel is unable to supply the Prize, Digicel reserves the right to supply an alternative prize of similar monetary value, subject to any written directions given by the Government Regulators.

25. Digicel’s decision is final on all matters and no correspondence will be entered into.

26. Winners must, at Digicel’s request, participate in all promotional activity (such as publicity and photography) surrounding the winning of the Prize, free of charge, and they consent to Digicel using their name and image in promotional material for an unlimited time and without remuneration.

27. Digicel may collect or use personal information in order to conduct the Promotion and may, for this purpose, disclose such information to third parties, including but not limited to agents, contractors, service providers, Prize suppliers and, as required, to PNG regulatory authorities.  Entry is conditional on providing this information.  By entering, Eligible Entrants consent to Digicel, for an indefinite period, unless otherwise advised, using the information for promotional, marketing, publicity, research and profiling purposes, including sending electronic messages or telephoning the entrant.

28. Should an Entrant's contact details change after submission of a Valid Entry, Digicel cannot guarantee that the Entrant will be notified that the Entrant is a Winner of a Draw.

29. If, for any reason, the Promotion is not capable of running as planned, including due to infection by computer virus, bugs, tampering, unauthorised intervention, fraud, technical failure or any other causes beyond the control of Digicel, which corrupt or affect the administration security, fairness or integrity or proper conduct of this Promotion, Digicel reserves the right in its sole discretion to modify, suspend, or cancel the Promotion, or take any other action that may be available, subject to applicable regulations. Digicel will only be liable to refund a maximum of 20% of the total Entrant’s spend for the promotion.

 

These SMS Service Terms and Conditions constitute a legal agreement ("Agreement"); please read them carefully.

By downloading mobile content, entering a mobile phone competition or subscribing to a mobile SMS service such as a subscription service or once off information service (“Service”) you agree to be bound by the terms and conditions of this Agreement. In this Agreement, "you" and "your" refer to each customer (including the subscriber of a participating mobile communications carrier on whose behalf you are entering into this Agreement) and his or her agents, and "we", "us" and "our" refer collectively to Digicel (PNG) Limited, ("Digicel"). This Agreement explains our obligations to you, and your obligations to us in relation to the Service.

1.     By accessing the Service you agree to pay the Service Charges applicable to the particular Service.

2.     If you are accessing a Service for which:

(a)        a prize is to be provided by a third party other than Digicel (such as radio promotion by Radio Station, company promotion, etc);

(b)        the Promotion, Competition or Game promotes a third party; or

(c)        a third party retains some revenue share from the Promotion, Competition or Game,

Then that third party shall be liable to provide prizes as promised and liable for any claims, issues or damages which may occur as a result of the Promotion, Competition or Game run by that third party, regardless as to whether this is run over the Digicel Network. You acknowledge that Digicel is not liable to provide the prizes and is not liable for any claims, issues or damages which may occur in connection with the Promotion, Competition or Game.

3.     No refunds will be offered in connection with any SMS that is not received by us or not sent correctly in accordance with the Service requirements. Should you believe a refund is warranted or should you have any issues or complaints regarding the Services please contact our Customer Care Service.

4.     By using the Service, you warrant that:

(a)        all information submitted by you is true, current and complete;

(b)        you have legal capacity to access the service and agree to the Rules (i.e. that you are of sufficient age and mental capacity and are entitled to be legally bound in contract).

5.     Digicel accepts no responsibility in connection with any error, omission, interruption, deletion, defect, delay in operation or transmission or communications line failure, relating to the Service.

6.     Digicel’s liability for any claim, damage, costs or any loss in connection with the Service or with a Game, Competition or Promotion, is limited to refunding to you any amounts received by Digicel from you in connection with the Service or with the Game, Competition or Promotion (as the case may be).

7.     By subscribing to the Service you warrant that the information which you submit does not infringe the intellectual property, privacy or any other rights of any third party, and will not contain anything which is libelous, defamatory, obscene, indecent, harassing or threatening.  If relevant, Digicel reserves the right, but not the obligation, to screen, filter and/or monitor information provided by you and to edit, refuse to distribute or remove the same. 

8.     You may at any time opt-out of a Subscription Service by texting in specified opt-out codes to a specified number depending on the Game/Promotion/Subscription service used. This shall be clarified in the Specific SMS Game / Promotion terms and conditions.

9.     Promotions, Competitions and Games are not open to Employees of the Company or Companies providing the Promotion, Competition or Game nor is it open to the nuclear families of those Employees.

10. The Promotion, Competition or Game, and the terms and conditions of this Agreement are governed by the laws of Papua New Guinea and any litigation which may occur shall be adjudicated by the courts of Papua New Guinea. 

11. For specific Services relating to Games, Competitions or Promotions please see specific competition advertising Terms and Conditions for:-

a.     commencement and closing date for the Promotion;

b.    prize description;

c.     where you may redeem your prize.

d.    how and when prize-winners will be informed; the manner in which the prizes will be awarded;

e.     when the prizes will be awarded;

f.     how prize-winner information may be obtained;

g.    the identity of the party running the competition and responsible for the prizes.

h.     for national awards, any applicable Free Alternative Mode of Entry which may be applicable;

i.      any alternative prize that is available (if applicable);

j.      any supplementary rules which may apply (if any);

k.     limitations on entries or specific terms and conditions to the particular Game or Promotion (if any);

l.      age, location or other eligibility restrictions (if any);

m.   costs to be paid by you should you win the prize (if any); or

n.     criteria for judging entries (if any).

12. By participating in the Game, Competition or Promotion, you acknowledged that:

(a) the advertised Terms and Conditions apply to you; and

(b) to the extent you rely on the Service to participate in the Game, Competition and Promotion, these SMS Service Terms and Conditions apply to you.

If there is a conflict between these SMS Service Terms and Conditions and any advertised Terms and Conditions, these SMS Service Terms and Conditions shall prevail.

13. Competitions, Games and Promotions may be extended due to a disruption caused by unforeseeable events such as power outages and technical problems encountered. Events and extensions may only be extended to the extent of the unforeseen event and any disruption or extension must be made known to the public.

14. Winners will be disclosed and prizes collected by a maximum of 28 days from the closing date unless a lesser period is defined in promotional material.

15. Privacy: We may collect personal information about you for the purpose of providing the Service to you. You acknowledge that we may use your personal information for the purpose of the Game, Competition or Promotion, including announcing the identity of the winner of a Game.

 

TRIPLE & DOUBLE BUBBLE

Get two times or three times the value of the mobile Top Up received. This offer is available for the following countries:

Triple Up Double Up
Country Qualifying Amount Country Qualifying Amount Expiry Bonus Credit Users To Check Bonus
Triple Up
Country
Qualifying Amount
Double Up
Country
Qualifying Amount
Expiry Bonus Credit Users
To Check Bonus
PNG 25 PGK PNG 20 PGK 3 days - Digi to Digi Calls & SMS *130#
Triple Up
PNG
25 PGK
Double Up
PNG
20 PGK
3 days - Digi to Digi Calls & SMS
*130#
Nauru 15 AUD Nauru 15 AUD 3 days - Digi to Digi Calls & SMS *130#
Triple Up
Nauru
15 AUD
Double Up
Nauru
15 AUD
3 days - Digi to Digi Calls & SMS
*130#
Vanuatu 1300 VT N/A N/A 3 days - Digi to Digi Calls & SMS *130#
Triple Up
Vanuatu
1300 VT
Double Up
N/A
N/A
3 days - Digi to Digi Calls & SMS
*130#
Samoa 30 WST Samoa 10 WST 3 days - Digi to Digi Calls & 100MB Data *130#
Triple Up
Samoa
30 WST
Double Up
Samoa
10 WST
3 days - Digi to Digi Calls & 100MB Data
*130#

 Triple Up Bonus/Promotion is applicable only on Friday

• Double Up Bonus/Promotion is applicable only on Monday – Thursday and Saturday andSunday 24/7. This Promotion is NOT Applicable on Fridays.

• Credit cannot be transferred to another number.

• Applies to prepaid customers only.

• Bonus amount will be used before standard credit.

• Top Up bonus does not extend on the expiry period for prepaid accounts.

• Triple bubble bonus is not applicable for all Ezetop transactions in Tonga

• Promotion applies to Online Top Up via Ezetop sites and Top Up via Australia and New Zealand retail distributors

• Bonus value applies only to on net transactions.  This does not include any premiumvoice, GPRS or Premium SMS services.

2. RETAIL PROMOTION

DOUBLE BUBBLE (only)

Get two times the value of the mobile Top Up received when you purchase Top Up voucher from participating retail outlets across AU,NZ & USA. This offer is available for the following countries.

 

Double UP
Country Qualifying Amount Expiry Bonus Credit Users To Check Bonus
PNG 20 PGK 3 days - Digi to Digi Calls & SMS *130#
Country
PNG
Qualifying Amount
20 PGK
Expiry Bonus Credit Users
3 days - Digi to Digi Calls & SMS
To Check Bonus
*130#
Nauru 15 AUD 3 days - Digi to Digi Calls & SMS *130#
Country
Nauru
Qualifying Amount
15 AUD
Expiry Bonus Credit Users
3 days - Digi to Digi Calls & SMS
To Check Bonus
*130#
Tonga 22 TOP 3 days - Digi to Digi Calls only *130#
Country
Tonga
Qualifying Amount
22 TOP
Expiry Bonus Credit Users
3 days - Digi to Digi Calls only
To Check Bonus
*130#
Samoa 10 WST 3 days - Digi to Digi Calls only *130#
Country
Samoa
Qualifying Amount
10 WST
Expiry Bonus Credit Users
3 days - Digi to Digi Calls only
To Check Bonus
*130#

• The doubled value of your Top Up ‘bonus’ credit is separate to your actual credit.

• Bonus value applies only to on net transactions. This does not include any premium voice, GPRS or Premium SMS services.

• Promotion applies to any transaction from: Australia or New Zealand Diaspora vouchers.

• Double Bonus promotion is only applicable on Tuesday, Wednesdays & Thursdays. This Promotion is NOT Applicable on Fridays..

• Credit cannot be transferred to other number.

• Applies to prepaid customers only.

• Bonus amount will be used before standard credit.

• Top Up bonus does not extend on the expiry period for prepaid accounts.

• If the customer receives Top Up more than once, he/she will still receive the free credit, which is added to the previous free credit amount, however will expire after3 days.

• Only available through participating retail outlets across Australia, New Zealand and the US.

In Australia: 7Eleven, Australia Post, BP Service Stations, Caltex Service Station, Australia News Agents.

In New Zealand: Countdown Supermarket, PAKnSAVE Supermarket, Supervalue Supermarket, The Warehouse

In the US: Boost Mobile, Metro PCS

3. FIJI ONLY PROMOTION: 10UP

Get ten times the value of the mobile Top Up received. This offer is available for Fiji online and via participating retail stores in Australia, New Zealand and the US.

• Bonus credit for all Top Up of $25 FJD and over sent via www.Digicelrecharge.com,www.Klickpacific.com and www.Digicelpaciifc.com plus any participating retail outlet in Australia, New Zealand or USA.

• The 10 Up value of your Top Up ‘bonus’ credit is separate to your actual credit.

• Bonus value applies only to on net transactions. This does not include any premium voice, GPRS or Premium SMS services.

• Promotion applies to any transaction from: Australia or New Zealand Diaspora vouchers.

• 10 Up Bonus promotion is only applicable on Monday, Tuesday, Wednesdays,Thursdays, Friday, Saturday & Sunday.

• Free credit cannot be transferred to other number.

• Applies to prepaid customers only.

• Bonus amount will be used before standard credit.

• Top Up bonus does not extend on the expiry period for prepaid accounts.

• If the customer receives Top Up more than once, he/she will still receive the free credit, which is added to the previous free credit amount, however will expire after 10 days.

• Only available through participating retail outlets across Australia, New Zealand and the US.

4. PROVISION OF SERVICES

The provision of Services to you through Digicel Top Up is subject to your acceptance of the Agreement. By completing a transaction on www.digicelrecharge.com or through the phone service, you agree to be bound by the terms and conditions below, the DigicelTop

Up Privacy Policy, and any other terms and conditions of this Agreement. The DigicelTop Up voucher is not refundable, once the voucher has been redeemed, thetransaction cannot be reversed. It is the responsibility of the customer to ensure that theyprovide the correct mobile number to send the Top Up to.  Once a transaction has beenprocessed it cannot be reversed.

Digicel maintains a fair deal policy on exchange rates and will ensure that the exchangerate offered is competitive to current bank exchange rates. The foreign exchange rates are subject to change without notice.

Digicel Top Up can only be sent to Digicel mobile numbers from the following Digicelmarkets: -  Tonga, Samoa, Vanuatu, Nauru and PNG.

5. DIGICEL PRIVACY POLICY

Digicel is committed to safe guarding customers personal and private information and will comply with applicable data protection and privacy laws. You can choose to visit www.digicelrecharge.com without disclosing any personal and identifiable information about yourself. 

We have provided this Privacy Policy Statement to help you understand how we collect, useand protect your information when you visit the Site. We wish to help you make informeddecisions, so please take a few moments to read the sections below and learn how wemay use your personal information.

6. PERSONAL INFORMATION COLLECTION 

We endeavor to collect and use your personal information only with your knowledge andconsent and typically when you use services, make customer enquiries, register forinformation or other services, or when you respond to communications from us (such asquestionnaires or surveys).

The type of personal information we may collect could include, for example, your name and postal address, date of birth, gender, telephone and fax numbers, email address, lifestyle and any other information collected on registration or through surveys.

If you choose to provide us with personal information it will be used in support of theintended purposes stated at the time at which it was collected, and subject to anypreferences indicated to you.

You acknowledge that by providing data to us, you consent to the processing of your data in accordance with this Privacy Policy Statement.

7. INFORMATION SECURITY

Please be aware that communications over the Internet, such as email/webmail, are not secure unless they have been encrypted. Your communications may route through anumber of countries before being delivered - this is the nature of the World WideWeb/Intranet. Digicel cannot accept responsibility for any unauthorized access or loss ofpersonal information that is beyond our control.

8. PRIVACY SUPPORT 

Digicel reserves the right to amend or modify this Privacy Policy Statement at any time andin response to changes in applicable data protection and privacy legislation or ceasepromotion immediately in case of unforeseen circumstances.

1.         Interpretation

“Account” means our record of your credit and charges and, where applicable, personal details.

 “Agreement” means the agreement between us and you consisting of the terms and conditions in this document, the terms and conditions of any applicable product, service, promotion and competition, the applicable tariffs and charges and the application form.

“Average Upfront Cost” means the upfront cost specified in Digicel’s application form, which you have agreed to, or in the absence of such agreement, the upfront cost that Digicel certifies it has incurred in respect of your Service, divided by the number of months in the Minimum Service Period.

“Bar” means a block placed by us on some or all the Services you use, with the exception of access to emergency services such as the police and fire departments. “Barred” has a corresponding meaning.

“Call” means a transmission made over our Network for the purpose of communicating a voice or data message, which includes without limitation short text messages and messages.

“Chargeable Event” means the sending of Calls from the Equipment to the Digicel Network and/or outside the Digicel Network and/or receiving Calls on the Equipment from the Digicel Network and/or outside the Digicel Network.

“Customer Care Centre” means our customer care centre which contact details are listed on our Website.

“Data Service” means a transmission to access a data network, including the Internet, over Digicel’s network, including but not limited to its EDGE/GPRS network.

“Digicel SIM Card” means the Digicel subscriber identity module card which is connected by us to the Network.

“Early Termination Fee” or “ETF” is an amount calculated as follows:

ETF = 90% of the Total Contract Value x (‘A’ / ‘B’)

where:

Total Contract Value is the sum of all monthly recurring charges or minimum monthly spend that you agreed to pay over the Minimum Service Period;

‘A’ is the number of months remaining of the Minimum Service Period when the Agreement is terminated;

‘B’ is the total number of months in the Minimum Service Period.

You agree that the ETF is a genuine pre-estimate of any loss that we will suffer, including in the recovery of any Handset subsidy provided by us, reliance loss and loss of expectations.

“Equipment” means the Handset together with the Digicel SIM Card.

“Fair Use Policy” means a method of network management that ensures that Digicel delivers the best possible service at all times to its Customers.

“Handset” means the type-approved mobile handset or any other device used by you to access the Network and approved at its sole discretion by Digicel for use on its Network.

“Internet” means the public international system of interconnected computer networks and systems used to provide the Service of which Digicel has no control after the point on which Digicel is connected to the internet.

“Lock” means (with reference to Equipment) Sim lock, network lock or subsidy lock built into the Handset or Handset firmware by mobile phone manufacturers.

“Minimum Service Period” is 24 months or such other period as may be indicated in Digicel’s application form which you have agreed to.

“Network” means Digicel’s telecommunications network and systems used to provide the Service.

“Registration” means our acceptance of your application for Service. “Register”, “Registering” and “Registered” have a corresponding meaning.

“Service” means the telecommunications services and related products and services that are made available to you by us or our agents from time to time.

“unlock” or “unlocking” means the removal of the Equipment Sim lock, network lock or subsidy lock built into the Handset or Handset firmware by mobile phone manufacturers by any method.

“Website” means our website at www.digicelpng.com.

“we” or “us” means Digicel (PNG) Limited and “our” has a corresponding meaning.

“you” means the customer having a billing relationship with us and “your” has a corresponding meaning.

The English text of this Agreement represents the definitive Agreement between you and us, with any translations into Pidgin or other languages being for information purposes only.

2.         Agreement

This Agreement begins once we have accepted your application for the provision of the Service and activated your connection to the Service and will remain in effect for so long you continue to use the Service. We may decline your application and refuse to activate your connection to the Service at our sole discretion.

You agree that various related services, promotions and competitions of ours and third parties may be subject to additional terms and conditions which may from time to time form part of this Agreement.

You agree that the application of any consumer legislation to this Agreement shall be excluded (or, if it cannot be excluded, limited) to the maximum extent permitted by law. To the extent that the application of any consumer legislation cannot be excluded (or limited, as the case may be), this Agreement shall not prohibit you from exercising your rights under that legislation.

You agree that we have the right to unilaterally amend a part or the whole of the Service or this Agreement (“Modification”) from time to time subject to notifying you of any material Modification, the materiality of which we shall at our sole discretion determine. Such notification may be by way of notice in writing or in any other means we choose, such as printed collateral, national media, our website, SMS, voice message or email. You agree that using the Service after our notice of amendment shall be deemed acceptance of that amendment. Please note that our partner dealers or any third parties are not authorised to amend this Agreement or to agree to any provision which is inconsistent with this Agreement.

We will give you 30 days notice of a proposed Modification unless we believe that the proposed Modification is not likely to have a material adverse effect on You, in which case we may give you a shorter notice period as we reasonably think is appropriate.

If Digicel at its sole discretion agrees that a Modification has a material adverse effect on you, you may terminate this Agreement by contacting our Customer Care Centre to arrange this and requesting Digicel to waive your obligation to pay any monthly recurring fees for the Minimum Service Period remaining under the Agreement. Digicel may waive the unpaid monthly recurring fees subject to you reimbursing us the pro-rated value of any subsidy received by you for equipment (such as Handsets) and standard provisioning charges, such subsidy to be determined as the retail value of the equipment and our standard provisioning charges less any upfront payment we received from you for the equipment and provisioning. The pro-rated value of a subsidy is proportional to the Minimum Service Period that has not yet expired. This Agreement will terminate one (1) month after we receive your notice of termination.

Any notice that you are required to send to us must be sent to our principal mailing address (currently at P.O. Box 1618, Port Moresby, NCD, Papua New Guinea). Any notice we are required to give you may be sent by mail (to your last known mailing address), SMS or a notice published in a national newspaper.

Your interests in this Agreement are personal to you. You shall not assign or otherwise transfer this Agreement in whole or in part. If you are a business and your effective management or control is changed in any way, then this will be treated by us as a transfer of this Agreement entitling us to end it. 

We may assign or otherwise transfer this Agreement in whole or in part without your consent.

This Agreement is governed by and construed in accordance with the Laws of Papua New Guinea and we and you agree to submit to the exclusive jurisdiction of the Courts of Papua New Guinea.

3.         Your Obligations

You are responsible for the acts and omissions of all persons using the Equipment, whether or not authorised by you. Without prejudice to the generality of the former obligation or to any provision of this Agreement, you agree to:

(a)   only use the Service in accordance with this Agreement or otherwise in a manner approved by us;

(b)   provide valid proof of your identity that we deem acceptable;

 (c)   ensure that information you provide to us is correct, complete and up to date, and in particular notify us in writing at least five (5) business days prior to billing if any of your customer information, contact information or financial information has changed;

(d)   not use or permit the use of the Service or the Equipment for any improper, abusive, indecent, obscene, unlawful, unauthorised, defamatory or fraudulent purpose or to cause any injury, offence or annoyance to any person, including by way of sending unsolicited commercial messages to any person;

(e)   not do anything that may harm or interfere with our, or any third party’s, property or property rights (including any intellectual property rights), including, without limitation, unlocking a Handset locked to our Network without our prior authorisation or permitting any person to do so;

(f)    not interfere with any part of our Network and/or Service;

(g)   not use or permit the use of the Service or the Equipment or introduce anything (including any virus) so as to cause the operation of the Network or the quality of the Service to be jeopardised, impaired or interrupted including using any unauthorised Voice over Internet Protocol service or to interfere with the integrity or security of any telecommunications or IT network or system;

(h)   not use or permit the use of the Service to spam, mail bomb, publish any offensive or unlawful material, harvest information about others, create a false identity, transmit or upload material which breaches any third party right, or any other similar activity;

(i)     not incite, encourage or induce members of the public to call particular numbers simultaneously where this may adversely affect the Service and/or the Network;

(j)     ensure that nothing is connected to the Network other than equipment that we have approved;

(k)   be solely responsible for the manner in which the Equipment is used, including being solely responsible for paying all tariffs and charges arising from the use of the Digicel SIM Card (whether authorised or unauthorised);

(l)     comply with all of our reasonable instructions and requests and those of authorised authorities, in particular with respect to the manner of using the Equipment and/or Service, the investigation of offences and/or the migration to newer technologies;

(m) immediately report, and confirm in writing, if your Handset and/or Digicel SIM Card has been lost, stolen, damaged or used without authorisation;

(n)   protect us against any legal action taken against us in connection with your use of the Services and any other use of the Equipment;

(o)   reimburse us for all costs and expenses, including reasonable legal fees, incurred as a result of us deeming it necessary to enforce our rights under this Agreement by way of legal or other action; and

(p)   ensure that anyone that uses the Equipment also meets the obligations of this Agreement.

(q)   only use the Service for making or receiving calls and not to refile calls or reroute calls by other parties.

If you do not comply with the obligations in this clause we may be entitled to cancel or suspend the service under clause 17.

4.         Service Period

By signing the application form you agree to a Minimum Service Period months from the date of signature on your application form.

After the Minimum Service Period, this Agreement shall remain in effect for so long you use the Service until terminated as provided for in this Agreement.

5.         Security Deposit

You may, at our sole discretion, be required to make a security deposit in order to be connected or reconnected to the Network. This security deposit is refundable without interest after this Agreement is terminated and all outstanding monies due to us have been recollected, or at any such earlier time that we may, at our sole discretion, determine. You may also be required to pay an additional security deposit, to be specified by us, for the ability to roam, use your phone on another GSM network with which we have a roaming agreement or use a specific Service. These security deposits may be used by us to settle any outstanding debts owed to us at any time. A security deposit does not absolve you from your liability to pay for the Services rendered through the Digicel SIM Card, including all costs associated with its unauthorised use. If you are required to pay a security deposit and this is not collected by us for whatever reason at any time, we reserve our rights to request this security deposit from you at any time, including after such time that we have accepted your application for the provision of the Service and activated your connection to the Service. 

6.         Credit Limit

You will be notified of your credit limit when your application is accepted by us. We reserve the right to increase or lower your credit limit at any time and from time to time, without prior notice. You agree that your debt to us for the Service we provide to you will not exceed your credit limit. Your credit limit, established at our discretion, relates to your current usage. Your use of the Service may be restricted or suspended if your debt to us exceeds your credit limit. However, you will continue to be liable for all charges in excess of any credit limit in place. Any Services that are restricted or suspended as a result of you exceeding your credit limit will be reinstated once your debt to us is reduced below the level of your credit limit.

7.         Provision of Service

Our Services are provided by radio transmission. The quality and availability of our Services and our related products and services are subject to limitations including radio interference, physical obstruction, atmospheric conditions, network congestion, maintenance, outages, the configuration or limitations of your intended recipient’s Equipment, or other operational and technical difficulties.

We will always do our best to provide a reasonable quality of service but we do not warrant that they will be continuously available or fault free. Certain Services and functions are only available if used in conjunction with a compatible mobile or other device and if in a compatible coverage area. Not all mobile devices are compatible with our Network.

We do not represent or warrant that the Service or our related products and services shall be available in all parts of Papua New Guinea or in any other country. We do not represent or warrant that the operation of the Service or our related products and services will be uninterrupted, timely, secure or error-free or that it will meet your or any other person’s specific requirements. In particular, we do not represent or warrant that calls will not be dropped, that GPRS connections will not be lost, that transmission of data calls shall occur at any particular speed or that all traffic can or shall be transmitted by the Network.

We do not accept responsibility for the security of any calls, including, but not limited to, GPRS connections. You use the Service at your own risk and you are solely responsible for adopting such appropriate security measures against unauthorised access to and interference with the Equipment or Service (or associated software/hardware and data) as may be necessary.

We may modify or suspend the Service and our related products and services wholly or partially, with or without notice, if we, in our sole discretion, reasonably believe it to be necessary or consider that such action is necessary or desirable for the purpose of upgrading, maintaining, modifying or otherwise the Network or other systems or if such action is required or reasonably requested of us by an authorised authority. We shall attempt to minimise such Service disruptions.

We reserve the right, without prejudice to any other provisions of this Agreement, to issue reasonable instructions concerning the use of the Service and/or the Network as may be necessary in the interests of safety, quality of service, other customers or telecommunications services as a whole, or for any other reason that we consider is necessary or desirable. As a result of such instructions or the modification or suspension of the Service, you acknowledge that you may not be able to make certain types of calls and messages using the Equipment.

We make no representation and give no warranty as to the quality, availability, suitability, authenticity or timeliness of any service provided by a third party. We reserve the right to suspend or withdraw access to all or any such services provided by a third party on a temporary or permanent basis at any time. Your use of such services provided by a third party is at your sole risk and we shall not be responsible or liable for any loss or damage suffered by you arising from the use of such services. You acknowledge that we may be required to pass on charges to you for such services.    


8.         Service Charges

Digicel shall normally offer a range of price lists with different tariffs and methods of charging. You are advised to read the relevant Digicel price lists and tariff rules, the details of which are available from us, our authorised dealers, the Customer Care Centre and from our Website and/or media. Tariff rates and tariff rules may vary depending on the type of Call sent or received. Our price lists, tariffs and tariff rules for the Service also form part of this Agreement and may, in the absolute discretion of Digicel, be amended from time to time. We reserve the right to amend such price lists, tariffs and tariff rules and will notify you of such amendment by notice in writing or by any other means we choose, such as via printed collateral, including outdoor signage, national media, our Website, SMS, voice message, post or email. You agree that using the Service after our notice of amendment shall be deemed acceptance of that amendment. Digicel reserves the right to cease offering and/or replace its price lists and rules from time to time, including due to currency devaluations.

You may be able to use the Service while located outside Papua New Guinea. However, access to networks outside of Papua New Guinea shall depend upon the arrangements between us and the operators of those other networks. Special tariffs and charges shall apply to you if you use the Service while abroad. Furthermore, the method of charging may vary from one country to another and from one network to another, including inter alia calls made from outside the Territory, , the details of which are available from our authorised dealers, local media, Customer Care Centre and Website. While Digicel shall use its reasonable endeavours to ensure the accuracy of the tariffs while abroad, you acknowledge and agree that such tariffs are constantly dependent on the other operator and are outside Digicel’s reasonable control.

9.         Payment

When you use the Digicel SIM Card and/or Services, you incur a debt to us. You agree to pay for the Service we provide to you, and related services, no matter who uses them (with or without your knowledge and/or consent), Service charges, subscription fees, VAT (which will be added on charges where applicable), regulatory fees, surcharges, administration fees and other charges or taxes incurred in relation to the Service will be added to your debt and will form part of it.

You agree to pay this debt to us at a designated collection centre or in any such other manner that is reasonably determined by us and notified to you. We reserve the right to impose conditions on payment and to set mandatory methods of payment, including 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, we may charge a return fee should the cheque or other instrument be dishonoured. We reserve the right to reject and/or disallow cheque payments from you once dishonoured cheques have been processed through your Account.

We reserve the right to charge a PGK 50 fee for each month that amounts remain overdue.

We are not liable for any loss or damage suffered as a result of the use of, or failure in, any bill payments services. You agree to pay us any reasonable costs incurred by us in pursuing the payment of amounts owed to us by you following failed deductions of debt from your Account including legal and administrative costs. We are in no way obligated to provide Service to you if you have defaulted in payment of any sums due by you. You agree that, in this event, we may charge a reconnection fee and/or revise your payment terms and/or restrict your Service/feature types, prior to restoration of the Service. Should you refuse to accept this Agreement, we reserve the right to refuse to reconnect you.

We may require you or your estate to pay your total debt immediately if you do not carry out your obligations under this Agreement or if you become bankrupt or insolvent, or die, or upon legal attachment, levy or execution against you, your estate or your property or if the Digicel SIM Card is used contrary to this Agreement.

Invoices will be sent to your billing address unless otherwise specified. Invoices will include:

§ fixed charges, which we may charge in advance;

§ call charges and other charges and credits, which are charged in arrears or as otherwise determined by us;

§ details of any charges which have been invoiced previously but not yet paid; andinterest, if any.

Invoices will be deemed to be received by you two (2) business days after the date that we have sent it to you, whether or not you have received it. Payment of the entire amount billed is due on fourteen (14) days from that date.

Invoices are available by methods other than post by contacting our Customer Care Centre. We will not be held responsible for non-receipt of invoices delivered by post. You must continue to make payments even when postal service is disrupted. We reserve the right to contact you by methods other than post to seek payment of amounts due. All invoices generated will be available for reprint on request. You may be required to pay for reprints.

We reserve the right to change billing cycles and/or to issue interim invoices.

10.        Settling Disputed Charges

Invoices are based on our records. If you believe that there is a mistake in your invoice, please let us know as soon as possible by contacting our Customer Care Centre and provide us with evidence supporting your belief. You agree to pay the undisputed charges of the invoice in accordance with the remainder of this Agreement. We will investigate the matter and will notify you of the results of our investigation. If we agree that there has been a mistake in your invoice, a credit of the amount disputed will be applied to your account to offset the disputed amount incorrectly charged. If we do not believe that there has been a mistake, the unpaid charges on the invoice, plus any interest owing in relation to the disputed amount, shall become payable by you immediately. You agree that you may not dispute the charges on an invoice after the date which is three (3) months from the date of the invoice.

11.        Foreign Currency Transaction

The amount of any transaction charged in any currency other than Kina will be billed and payable by you in Kina. We will make conversion from a foreign currency to Kina at a rate of exchange determined by the Bank of Papua New Guinea, plus any transaction charges, on the date we receive notification of the transaction and the relevant amount to be charged to your account.

12.        Numbers, Digicel SIM Card, Handsets and Connection to the Network

You shall have no proprietary rights, legal interest, or goodwill whatsoever in any mobile number or any other number allocated to you by us from time to time. We reserve the right at any time to alter or replace a mobile number or other number allocated to you or any other person at any time. We will use reasonable efforts to give you notice of any change required. We will not be liable for any costs which you, or anyone else, may incur as a result of such a change.

We shall issue you with, and license you to use, a Digicel SIM Card on the condition that the Digicel SIM Card shall remain our sole property and shall be returned to us upon a request from us or anyone authorised to act on our behalf. You must not interfere with or destroy the Digicel SIM Card for any reason nor shall you give or surrender the SIM Card to any other person other than Digicel or Digicel’s authorised Agents or Distributors. Any Digicel SIM Card that is lost, stolen or damaged (through no fault of ours or the manufacturer) will require payment from you for its replacement, exchange or repair. Any Digicel SIM Card found defective due to faulty workmanship or design may be replaced free of charge once returned to us within the warranty period specified. You will be required to pay for all Service charges up to the time you notify us of the loss or theft of your SIM Card and your SIM Card is deactivated.

You acknowledge that the Handset provided to you under this Agreement has been subsidised by us and remains the property of Digicel for the Term of this Agreement. You will only connect it to the Network and you must not use it to connect to any other network for the Term of this Agreement.  You must not give or surrender the Handset, whether as a gift or as substitution for another Handset to any third party unless authorised by Digicel or Digicel authorised Agents or Distributors.

Any Handset provided to you under this Agreement including through our authorised dealer channel may be locked to the Network. If you ask us to unlock the Handset before the Minimum Service Period expires, we may require you to pay an Early Termination Fee. If you ask us to unlock the Handset after the Minimum Service Period expires, we may charge you an administrative fee to process your request. You must not unlock the Handset from our Network without our prior written authorisation or permit any person to do so.

The Equipment is your responsibility. You must take every precaution to keep it safe. You may only connect to the Service using Equipment, as well as related accessories, that we have approved. We may from time to time specify the type of equipment that may be connected to or used by you in respect of the Service, including Voice over Internet Protocol services. You must immediately disconnect any equipment or device from the Network which is not approved or does not comply with our specifications. In no event shall you interfere with any equipment provided to you by us for use with the Service, including any Handset.  We accept no responsibility for the maintenance, repair or condition of equipment or devices which are not our property or have not been supplied by us and you will maintain all equipment and devices in good condition which are used or connected to the Service.  

Using or agreeing to use the Services does not give you any rights in any part of the Services. You must not resell, in any way whatsoever, the whole or any part of the Services without the period written approval of Digicel. You agree to be wholly liable for an account of lost revenues and related expenses of Digicel where you have resold the Services without our prior written approval.

13. Data Service and Fair Use Policy

The Service may also provide you access to Digicel’s data network, including but not limited to EDGE/GPRS. However, you acknowledge that the availability and coverage of the Data Service may differ from the voice or SMS network.

You also acknowledge that the Data Service is a shared access service and may depend on local and international connectivity independent of Digicel’s reasonable control.

The Service is intended for normal Internet access purposes by our Customers. Because of Digicel’s commitment to provide the best possible service at all times to all its Customers, a Fair Use Policy is applicable on the Service. The application of the Fair Use Policy ensures that Customers act reasonably when using the Service and that an acceptable standard of service be provided to all Customers using the Service. Digicel will continually measure the performance of its data network and may take steps or measures necessary to restrict excessive and/or heavy users, should their activities significantly contribute towards the risk of a decrease in service level for the majority of Digicel’s Customers.

The Data Service provides means to access the Internet. The Internet is independent of the Service and Digicel, and use of the Internet is solely at the Customer’s risk and is subject to all applicable laws. Digicel shall not be liable or responsible for any information, software, services or other materials obtained or transmitted by the Customer using the Internet.

14.        Warranty Policy

All handsets supplied by us come with a manufacturer’s warranty against production defects. This warranty is three (3) months for handsets with RRP less than K400 and twelve (12) months for handsets above that price point (RRP K400).

15.        Mobile Caller ID

Our Network may allow the display of your mobile number on receiving equipment. If you wish to restrict the display of your mobile number, we will prevent your number being shown on any receiving equipment to the extent this is technically feasible. Your number may still be displayed to emergency or other services, when you send a SMS and when you make calls to us. We may also publish any mobile number allocated to you in our directory lists, subject to any objection or preference you may have indicated to us.

You must not connect any device to the Network which has not been approved by Digicel, including but not limited to, SIM boxes, mobile gateways or any other related devices. You must not mask or in any way alter the true origination or termination of any call or other transmission on the Network.

16.        Customer Information and Disclosure

You acknowledge and expressly agree to us, and companies in our group, collecting personal information about you. Such information may be collected from you and others or generated within our Network when you or anyone else uses the Service or any other service.

You acknowledge and expressly consent to us, and companies in our group, using your information for any lawful purpose including providing you with the Service, account management, billing, debt collection, credit assessments, directory purposes, market research, customer profiling, product and service development, marketing and customer care.

Your customer information may be retained for a reasonable period of time in a secure environment. You acknowledge that calls to our Customer Care Centre may be recorded for training and quality control purposes.

You acknowledge and expressly consent to us, and companies in our group:

(a)   disclosing your information to third parties (such as to our agents, credit agents and other carriers) for purposes including credit referencing, fraud detection and prevention, debt collection, investigating insurance claims, directory purposes, for any reason required by law and for any other lawful purpose, and

(b)   using your information to tell you about our products or services, any promotions that we may have from time to time, or any other matter that we have reason to believe you or other customers like you would be interested in.

You may ask to see your account information and any other information that we hold about you and ask for any details that are wrong to be corrected. We reserve the right to refuse such a request where we are unable to verify that the person requesting the information is in fact you or a person authorised by you. We shall not be liable for the disclosure or non-disclosure of such information or for any inaccuracy or lack of completeness of any information disclosed.

You agree that we may contact any person or reference provided by you to verify the accuracy of your account details. You acknowledge that we, or our agents, may from time to time contact you by post, telephone, in person, email or text message regarding details of promotions, competitions or our other products and services. You hereby expressly consent to such contacts. If you no longer wish to be contacted in such a manner please notify us in writing.

17.        Suspension & Termination

We may, without notice, suspend or terminate this Agreement wholly or partially for any of the following reasons:

(a)   we are required to do so by a regulatory authority, by law, or by law enforcement agency;

(b)   the provision of the Service becomes illegal or we believe on reasonable grounds that it may become illegal;

(c)   you supply or have supplied at any time false, inaccurate or misleading information to us;

(d)   you fail to observe and/or comply with any material provisions of this Agreement the materiality of which we shall at our sole discretion determine or any relevant law or any of our property rights;

(e)   if for any reason we are unable to provide the Service to you or if intermittent checks, modifications and/or maintenance are deemed necessary to the Network;

(f)    you fail to pay us any sums due under this Agreement or any other agreement between us and you on the due date specified in the invoice, notwithstanding the issue of any invoices thereafter;

(g)   you are adjudicated bankrupt, become insolvent or make any composition or arrangement with or assignment for the benefit of creditors;

(h)   you die or, in the case of a partnership, its or is intended to be dissolved;

(i)     you access the Service other than with the Equipment with mobile handset or device other than the Equipment as well as related accessories, that we have approved;

(j)     we reasonably believe that you are unable to comply with payment obligations, represent a credit risk, exceed any credit limit, or if we are unable to contact you following reasonable efforts;

(k)   your usage of the Service is unusual or excessive;

(l)     you notify us that your Equipment has been lost or stolen;

(m) we are reasonably of the view that you or any other person in connection with the Service are conspiring to defraud us or interfere with the operation and quality of our Network, including without limitation causing congestion;

(n)   you attempt to bypass the Service and or Network or use your Handset for Voice of Internet Protocol or Messaging of Internet Protocol services;

(o)   we are of the view, in our sole discretion, that your usage and monthly spend warrants a different Service from the one provided to you under this Agreement; or

(p)   we are otherwise entitled to do so under the Agreement.

We do not need to suspend your Service before we terminate this Agreement. If we do suspend your Services, you must continue to pay any recurring fees that apply to your Services.

Should your access to the Service be interrupted or suspended in any of the circumstances outlined in this Agreement, we are in no way obligated to provide the Service to you. During any period of Service suspension, we may disconnect your Equipment from the Network and you shall remain liable for all charges owing to us unless we decide otherwise. We reserve the right to reconnect you to the Network and to levy a reconnection fee on each suspended subscription and/or require revised payment terms, including additional security deposits. Where we exercise any of our powers under this clause, such exercise shall not prejudice or affect the exercise of any other right or remedy which may be available to us.

We may, for convenience and at our sole discretion, terminate this Agreement by giving you at least one (1) month’s notice.

You may terminate this Agreement before the Minimum Service Period expires by paying us the Early Termination Fee. If you wish to do so, please contact our Customer Care Centre to arrange this. This Agreement will terminate upon payment of the Early Termination Fee. You may terminate this Agreement after the Minimum Service Period expires by giving us one month’s notice.

On termination of this Agreement (whether before or after the Minimum Service Period), you must within 14 days of the termination also pay all amounts owing to us up to the termination, any bills owing and any disconnection fee as may be determined by us from time to time, including any costs of recovery. To avoid doubt, this payment is in addition to the Early Termination Fee which is payable if you terminate this Agreement before the Minimum Service Period expires. 

18.        Remedies for Breach

If you breach any term of this Agreement, you consent to the granting of injunctive relief by any court having jurisdiction over the enforcement of this Agreement restraining any or any further breach of this clause and you further will indemnify and hold harmless Digicel from any and all losses or damages sustained by Digicel by virtue of any breach of this clause, including but not limited to the cost involved of obtaining injunctive relief against you. 

19.        Rights and Responsibilities that survive termination

The termination of this Agreement does not affect any rights and responsibilities which are intended to continue or to come into existence after this Agreement ends, such as restricting the use of the Handset on another network and the return of the Digicel SIM Card and any other of our property and the payment of any outstanding debt or sums due to us.

20.        Force Majeure

If we are prevented from carrying out or in our reasonable opinion we are or will be unable to carry out any obligation in this Agreement by reason of any act of God, act of State, act of a national or international regulatory body, riot, insurrection, civil commotion, strike, sanctions, boycott, carrier dispute, embargo, an act or default of any supplier, agent or other person, any destruction (temporary or permanent), breakdown, malfunction or damage of or to any premises, plant or equipment (including computer systems or the Network) or materials which is not attributed to the gross negligence or fraudulent act or omission of either party, their agents, employees or assigns, or any other circumstance (a “Force Majeure Event”) which in our sole opinion is beyond our reasonable control, our performance of this Agreement will, to the extent that it is made impossible under the circumstances, be suspended until such circumstances cease to exist. We will not be liable to you for a failure to perform, or a delay in performing, any such obligation set out in this Agreement.

21.        Exclusion of Liability

Insofar as it permissible by law, we shall not be liable for any injury, loss or damage, whether foreseen or unforeseen, directly or indirectly (and including Consequential Loss) resulting from:

(i)             any failure, interruption, delay, suspension or restriction in providing the Service to you which is due to a force majeure event set out in Clause 18 above;

(ii)            any suspension or non-availability of a part or the whole of the Service;

(iii)           suspension or termination of this Agreement;

(iv)          any unlawful or unauthorised use of or access to the Equipment, Service and/or Network by you or third parties;

(v)           any claim arising out of any act or omission by you, your servants or agents or arising out of any reliance placed by such persons on call content;

(vi)          any loss, theft or malfunction of the Digicel SIM Card and/or your Handset;

(vii)         any claim arising in relation to the provision or non-provision, maintenance or use of telecommunications lines, channels, equipment, networks or services or arising out of calls being dropped or data connections being lost or the failure to connect any call made to or by the Equipment for whatever reason.

(viii)        any claim arising out of errors, faults or any other disruption in telecommunications lines, channels, equipment, including but not limited to billing equipment, networks or services.

In this Clause 21, Consequential Loss means and includes: indirect loss and special damages; loss of revenue; loss of profits; loss of business; loss of anticipated savings; loss of goodwill; loss of data; claims of third parties; and loss or costs associated with any of the above.

Further to above, we, our associated or affiliated companies, and our and their respective officers, agents, directors, principals, employees, attorneys, underwriters, advisors, successors and assigns will not be liable for or in respect of any effects, claims, actions, proceedings, suits and causes of action (whether at law or in equity and including emotional distress), liens, debts, damages, fatalities, losses or injury (whether property or personal, consequential or otherwise), judgments, liabilities, costs and expenses of every nature kind whatsoever, whether known or unknown, suspected or unsuspected arising out of or in respect to the Equipment, Service, Network and/or any electronic or radio systems in equipment, vehicles or aircraft in your vicinity, or of any emissions or transmissions to, from, by or through the Network and/or Equipment.

If we offer goods and/or services as agents of any principal provider or providers, or as contractors, we will accept neither responsibility nor liability to you for the performance, loss of profit, emotional or mental distress or disappointment, or provision thereof by such providers so long as we have identified the providers to you and identified ourselves as agents or contractors.

Nothing in this Clause 21, or otherwise in this Agreement, shall limit our liability for:

(a) fraud or other criminal act,

(b) personal injury or death caused by our negligence, or

(c) any other liability that cannot be limited or excluded by law

provided always that we are only liable for loss, injury or death arising from immediately proximate causes (established through scientific evidence) and reduced to the extent that your own actions or those of other parties have contributed to the loss, injury or death.

You waive any claim against us that is based on any “precautionary principle” or other presumptive principles that are not based on concrete scientific evidence.

In the event that we are liable to you under any rights you may have under any legislation, for which our liability is not able to be excluded, then our liability is limited to re-supplying, repairing or replacing the relevant goods or services (or payment of the cost of re-supply, repair or replacement) where it is fair and reasonable to do so.

22.        Hold Harmless

 You will indemnify and hold Digicel, our associated or affiliated companies, and our employees, officers and agents harmless against all loss, damage and injury caused to the Service and Network as a result of your negligence or failure to abide by this Agreement and all claims arising out of your act or omission in conjunction with the Service provided by us.

Failure on your part to comply with the provisions set out in this Agreement shall constitute a material breach of these Terms and Conditions.

Not withstanding any damage/compensation/ paid for material breach of this Agreement, failure on your part to comply with the provisions of Clause 12 above shall constitute a material breach of these Terms and Conditions and you shall be liable to indemnify Digicel for all costs incurred in the provision of products and services listed in Clause 12 of this Agreement including, inter alia, any subsidy provided by Digicel for promotional handsets.

Digicel shall be entitled to retrieve all handsets and SIM Cards in possession of the person in breach of this Agreement.

23.        Unenforceability

 If a provision of this Agreement is determined by any competent authority to be invalid or unenforceable in whole or in part for any reason whatsoever, it shall not affect the validity and enforceability of the remainder of this Agreement and shall whenever allowed by the context be deemed to be replaced by such valid and enforceable clause whose contents are as close as permissible to those of the invalid or unenforceable clause.

24.        Inconsistency

In the event of any inconsistency between this Agreement and any marketing or advertising material which relate to the Service or this Agreement then this Agreement shall prevail to the extent of the inconsistency.

25.        Waiver

Any waiver, concession or extra time permitted by us is limited to the specific circumstances in which it is given and does not affect our rights under this Agreement in any other way.

If we fail or delay to exercise any right or power under this Agreement, this will not be a waiver of that right or power. Any failure or delay will not prevent us from exercising that right or power in the future.

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