Limited Prepaid Terms and Conditions: FLEX
These Terms and Conditions are published at the Digicel website at www.digicelsamoa.com (“Digicel website”) and apply to you when you subscribe to our Services as a Flex customer.
We may unilaterally change a part or all of these Terms and Conditions from time to time subject to notifying you of any material change that is adverse to you, the materiality of which we shall at our sole and absolute discretion determine. If you continue using a Service after our notice, you are deemed to have accepted the change notified. A change is material only if it affects a Service that you have committed to use for a fixed period and the change takes place during that period. Otherwise, the change is not material. If Digicel at its sole and reasonable discretion agrees a change has a material adverse effect on a Service that you have committed to use for a fixed period (“fixed period commitment”), you may terminate the fixed period commitment without incurring any termination fee or charge.
You agree to regularly visit the Digicel website from time to time and read these Terms and Conditions to familiarise yourself with any changes. If Our CEO issues a certificate attaching a version of these Terms and Conditions and stating the period when that version was in effect, the certificate is prima facie evidence of the matter certified.
“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, Voucher, promotion and competition, the applicable tariffs and charges and the application form.
“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 and receiving 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 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.
“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.
“Country” means Samoa.
“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.
“Network” means our mobile and/or other telecommunications network and systems used to provide the Service.
“Registration” means our acceptance of your application for Service or once you purchase call time with us in the form of a Voucher. “Register”, “Registering” and “Registered” have a corresponding meaning.
“Service” means the mobile 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.
“Voucher” means our call time voucher, whether electronic or otherwise that you can purchase from us or our authorised agents or dealers, the face value of which can be credited to your Account.
“Website” means our website at www.digicelsamoa.com.
“we” or “us” means Digicel (Samoa) 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.
This Agreement begins once you Register your Account with us or first use the Service or purchase a Handset from us, whichever occurs first. 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. Unless otherwise agreed in writing between the Parties, this Agreement supersedes all prior representations, arrangements, understanding and agreements in relation to the Service between us and you.
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 from time to time subject to notifying you of any material amendment, the materiality of which we shall at our sole discretion determine. Such notification may be by way of advertisement notice in writing or by any other means we choose, such as printed collateral, national media, our webite, 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 any provision which is inconsistent with this Agreement.
Any notice that you are required to send to us must be sent to our postal address in Samoa being, 2nd floor, SNPF Plaza, Apia, Samoa.
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 and construed in accordance with the Laws of Samoa and we and you agree to submit to the exclusive jurisdiction of the Courts of Samoa.
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) 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;
(c) 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;
(d) not interfere with any part of our Network and/or Service;
(e) 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 an unauthorised Voice over Internet Protocol device or to interfere with the integrity or security of any telecommunications or IT network or system;
(e) not use 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;
(f) 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;
(g) ensure that nothing is connected to the Network other than equipment that we have approved;
(h) be solely responsible for the manner in which the Equipment is used, including being solely responsible for paying all tariffs, charges and debts arising from the use of the Digicel SIM Card (whether authorised or unauthorised);
(i) 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;
(j) immediately report, and confirm in writing to us, if your Handset and/or Digicel SIM Card has been lost, stolen, damaged or used without authorisation;
(k) protect us against any legal action taken against us in connection with your use of the Services and any other use of the Equipment;
(l) 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
(m) ensure that anyone that uses the Equipment also meets the obligations of this Agreement.
If you do not comply with the obligations in this clause we may be entitled to cancel or suspend the service under clause 13.
4. 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 or your intended recipient’s Equipment, or other operational and technical difficulties.
We will always do our best to provide a reasonable quality of Services 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 Samoa 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.
5. 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 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 devaluation.
You may be able to use the Service while located outside Samoa. However, access to networks outside of Samoa 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. , the details of which are available from our authorised dealers, local media, Customer Care Centre and or 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 continuously dependent on the other operator and are outside Digicel’s reasonable control.
You pay for the Service by purchasing a Voucher and Registering it with us. We will not be under any obligation to make a refund to you where you purchase more call time than you use or intended to use, for whatever reason. 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, VAT/GST (which will be added on charges where applicable), regulatory fees, surcharges and other charges or taxes incurred in relation to the Service will be added to your debt and will form part of it. Each time you incur a debt, the credits that are Registered on your Account will be reduced accordingly. If at the time we attempt to deduct a debt from you and you do not have enough credit on your Account, you will be Barred. Once your credit on your Account has been used up, you will be Barred. If for whatever reason you are not able to obtain your current Account balance by using the Service, we are not obliged to provide that information in another format.
If you have a Voucher which appears to be faulty, return it to our Customer Care Centre. We will check the Voucher and, if it is faulty, you may collect a replacement Voucher.
7. Foreign Currency Transaction
The amount of any transaction charged in any currency other than Samoa Dollars will be billed and payable by you in Samoa Dollars. We will make conversion from a foreign currency to dollars at a rate of exchange determined by the Central Bank of Samoa plus any transaction charges, on the date we receive notification of the transaction and the relevant amount to be charged to your account.
8. 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 or allow it to be handed over to any other carrier (without our prior written consent). 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 if you receive a subsidised Handset from us or through our authorised dealer channel following your application, such Handset remains the property of Digicel for a minimum period of six (6) months or until such time that the Handset registers Chargeable Events that are at least equivalent to the cost of the subsidy, whichever is the latest.
Any such subsidised Handsets you receive from us or through our authorised dealer channel may be locked to the Network and are to be used exclusively on the Network and may not be resold, unlocked, interfered with, disposed of or disassembled without the prior written approval of Digicel. Should you wish to unlock the Handset, you shall require our prior written authorisation and we reserve the right to recover from you the cost of the subsidy received by you for the Handset, administrative costs and any related network costs. Such costs are defined in the application form. You agree that such costs are 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. We may also recover any such cost from you if you unlock the Handset from our Network without our prior written authorisation or permit any person to do so.
Full details of the authorisation format and unlocking process, including any associated charges, are available from our Customer Care Centre.
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. We reserve the right to access the property in order to ensure that these terms and conditions are being adhered to.
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.
9. 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 be dependent upon local and international connectivity independent of Digicel’s reasonable control which means that the service quality and service level may vary..
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 take steps to 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.
10. Warranty Policy
All Handsets supplied by us come with a manufacturer’s warranty against production defects. In addition to the manufacturer’s warranty, we offer a dead on arrival (DOA) replacement policy. Warranty and DOA conditions are available at any of our stores or by calling our Customer Care Centre.
11. Mobile Caller ID
Our Network may allow the display of your mobile number on receiving equipment. Where possible, if you have requested to have the display of your mobile number restricted, we will prevent your number being shown on any receiving equipment. Your number may still be displayed to emergency or other services, when you send a SMS and when you make calls to us. We also reserve the right to include 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.
12. Customer Information and Disclosure
You acknowledge and expressly agree to us, and companies in our group, collecting information about you, including your personal information. 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. In this Agreement, personal information means information or an opinion (including information or an opinion forming part of a database) whether true or not, and whether recorded in material form or not, about an individual whose identity is apparent, or can reasonably be ascertained from the information or opinion.
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.
You acknowledge and expressly consent that Digicel may:
(a) disclose your information (including your personal information) to a 3rd party in order to provide services to You or if Digicel reasonably believes that the 3rd party provides goods or services that may be relevant to or of interest to You; and
(b) use, copy, reproduce, process adapt, publish, transit, display and distribute data (including your personal information) collected in any media including the transfer of this information to other jurisdictions to the extent permitted by law for storage, and processing and that Your 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 (including your personal 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 (including your personal 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.
13. Suspension & Termination
Each Voucher has a date by which you must Register the Voucher and use the amount credited to your Account (“Expiration Date”). The Expiration Date may vary according to the value of the Voucher. Once the Expiration Date lapses, you will no longer be able to make outbound Calls on our Network (with the exception of Emergency Calls) but only to receive inbound Calls. If you credit your Account within a period of 15 or 30 days from the Expiration Date, which is determined by the value of the Voucher, the amount of the new Voucher will be credited to your Account and any existing credit in your Account will expire on the date the new Voucher expires. If you do not credit your Account within the above period of 15 or 30 days from the Expiration Date, your Equipment may at our absolute discretion be disconnected from our Network, and Services may at our absolute discretion be barred and the unused credit will be forfeited, will not be refundable, and will not be carried over to any other Service. If you do not make a call at least once within the relevant period as determined by the value of your Voucher, such period being not less than 22 calendar days or greater than 150 calendar days, your Equipment may at our absolute discretion be barred and or disconnected from our Network. Please contact our Customer Care Centre should you have any queries, including with respect to which period apply to your Voucher.
In addition we may, without notice, bar Services, reclaim mobile numbers and/or 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 a law enforcement agency;
(b) the provision of 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 intellectual 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 including the mobile handset or device other than the Equipment as well as related accessories, that we have approved;
(j) your usage of the Service is unusual or excessive;
(k) you notify us that your Equipment has been lost or stolen;
(l) we are reasonably of the view that you or any other person in connection with the Service are defrauding or attempting to defraud or are conspiring to defraud us or interfere with the operation and quality of our Network, including without limitation causing congestion;
(m) you attempt to bypass the Service and or Network or use your Handset for Voice of Internet Protocol or Messaging of Internet Protocol services or have unlocked a Handset in breach of this Agreement; or
(n) you do not make a chargeable event using the Service within a continuous period of 120 days.
(o) we are otherwise entitled to do so under the Agreement.
We do not need to suspend your Service before we terminate this Agreement.
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. If your Equipment is disconnected from our Network, any credits in your Account will be forfeited. If you are disconnected and wish to be reconnected, you must purchase a new Digicel SIM Card. Once the Digicel SIM Card is disconnected from our Network, the telephone number associated with that Digicel SIM Card will be lost.
We may at our sole discretion, terminate this Agreement by giving you at least one (1) month’s notice.
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, voluntarily and at our own discretion, terminate this Agreement for any other reason.
14. Rights and Responsibilities that Continue
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.
15. 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 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.
16. 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:
(a) 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 4154 above;
(b) any suspension or non-availability of a part or the whole of the Service;
(c) suspension or termination of this Agreement;
(d) any unlawful or unauthorised use of or access to the Equipment, Service and/or Network by you or third parties;
(e) 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;
(f) any loss, theft or malfunction of the Digicel SIM Card and/or your Handset;
(g) 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.
(h) 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.
Digicel shall not be liable to you in connection with events arising from third parties gaining unauthorised access to data that you may have disclosed to such third parties.
In Clause 16, 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 16, 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 where our liability is able to be limited, then we choose to limit our liability 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.
17. Hold Harmless
You will indemnify and hold us 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 and you shall be liable to penalty.
Notwithstanding any damage/compensation/penalty paid for material breach of this Agreement, failure on your part to comply with the provisions at Clause 8 above shall constitute a material breach of these Terms and Conditions and you shall be liable to indemnify Digicel (Samoa) Limited for all costs incurred in the provision of products and services listed at Clause 8 of this Agreement including, inter alia, any subsidy provided by Digicel for promotional Handsets.
Pursuant to Clause 17, Digicel shall be entitled to retrieve all Handsets and SIM Cards in possession of the person in breach of this Agreement.
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.
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.
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.