Digicel 4G Broadband Postpaid Terms And Conditions

 
 
 

DIGICEL 4G BROADBAND POSTPAID TERMS AND CONDITIONS

 

1 INTERPRETATION

1.1 In this Agreement:

Agreement means, in order of precedence, these Terms and Conditions and any other document

agreed by both parties which is expressly stated to form part of this agreement and sets out the terms under which Digicel will provide the Service to the Customer.

Application/Registration Form means the standard form presented to the Customer by Digicel on which the Customer sets out the required Subscriber information, the details of the Service requested and serves as an offer by the Customer to purchase the Service.

Business Day means a day (other than a Saturday or Sunday) on which dealing commercial banks are generally open for business in the Cayman Islands.

Customer means the individual, company, corporation or other legal entity so named and described in the Application/Registration Form with whom Digicel contracts to provide the Service.

Customer Premises Equipment (CPE) means all Self Install devices which are utilized on the Customer’s Premises to enable the Customer to access the Service or any other equipment/device used to deliver the Service.

“Customer Nominated Contact” means a person designated in the Application/Registration

Form as appointed by the Customer who will be Digicel’s point of contact for all matters relating to the Service.

Digicel means Digicel (Cayman) Ltd. situated at 36A Dr Roy’s Drive, George Town, Grand Cayman.

Digicel Devices includes any CPE Self Install Modem, and any associated software owned and placed on the Premises by Digicel for the provision of the Service

Emergency means any crisis necessitating prompt action by Digicel.

“Helpdesk” means the helpdesk as identified by the short code number 100 responsible for receiving calls from the Customer when reporting faults, and for responding to queries about the Service, for logging such calls and pursuing them to resolution, and reporting back to the Customer. The Helpdesk will be available 24 hours a day, seven days a week (including Public holidays);

Minimum Period, for Postpaid Customers means a period of six (6) or twelve (12) months, to commence

from the Operational Service Date.  Network means the telecommunications system owned and/or operated by Digicel. Network Connection means all Digicel cabling, interface panels, cabinets, systems, apparatus,

facilities and any other equipment which may be utilized by Digicel to provide the Service.

NTP means a network terminating point at which calls exit the Service.

Operational Service Date means the date when the Service is actually first made available to the Customer.

Other Networks means electronic systems owned or operated by third parties.

Planned Maintenance means any work planned in advance to be carried out by Digicel or on behalf of Digicel which requires the availability of the Service to be suspended.

Premises/Customer’s Premises means a place or service address at which Digicel provides the Service.

Service means the wireless broadband service offered by Digicel and particularized in the Application Form or the Registration Form which may, pursuant to the request of the Customer, include any of the following: voice enabled services including but not limited to fixed or wireless voice telephony, access to the internet via a WSL connection, and VoIP (Voice over Internet Protocol) services.

Site Regulations means the security rules and procedures applicable to a Customer’s Premises.

Tariff Sheet means the Digicel price list in force from time to time in respect of the provision of the Service to be provided hereunder within the Cayman Islands and which the Customer shall be obliged to pay Digicel.

Termination Charge means the charges which would have been payable by the Customer for the Service for the remainder of the minimum period as if the agreement had not been terminated.

WSL means Wireless Subscriber Line Internet Service or Wireless Broadband Internet Service.

Self Install Unit means a modem with an Ethernet port or USB Dongle or any device sold by Digicel to the Customer for the Customer’s installation.

VoIP means Voice over Internet Protocol

1.2 Interpretation Generally

In this Agreement:

1.2.1 Any reference to a person includes his servants, successors, personal representatives, agents and permitted assigns;

1.2.2 If any action or duty to be taken or performed under any of the provisions of this Agreement

would fall to be taken or performed on a day which is not a Business Day such action or duty shall be taken or performed on the Business Day next following such day.

2 DURATION

2.1 This Agreement is effective from the date of signature by the Parties as set out in the Application/Registration Form for the Minimum Period and shall unless terminated under the terms hereunder continue for successive periods of  6 or 12 months.

3 PROVISION OF THE SERVICE

3.1Digicel shall not be obliged to provide the Service, unless and until the following is done:

(a) The Self Install Unit is successfully installed by the Customer. These devices are sold as part of our service. Customers will be required to purchase the devices in order to use the service.

(b) Digicel has successfully activated the Service.

(c) Customer has paid any sums due hereunder for the installation and use of the Digicel Equipment or any equipment required to be installed hereunder and the provision of the Service.

3.2 Digicel will provide the Service with the reasonable skill and care of a competent telecommunications service provider. Digicel however, does not warrant that the Service will be fault free.

3.3 Digicel reserves the right, due to technical expediency, to change any IP address or where applicable any e-mail address or domain names allocated to the Customer, or vary the technical

specification or interrupt the Service without reference or prior notification to the Customer. Digicel will restore the interrupted Service as quickly as is practicable however if it is not possible

to restore the Service Digicel shall be entitled to terminate the service on fourteen days’ notice in writing and shall not be liable to the Customer for any loss of use or any damages arising from the interruption of Service so occasioned.

3.4 Digicel reserves the right, from time to time, to:

3.4.1 Change the technical specification or any other aspect of the Service provided that the change does not materially and adversely affect the Service; or

3.4.2 Give the Customer instructions which are necessary to maintain the safety or the quality of the Service.

4. ACCEPTABLE USE POLICY

4.1 You may not access or use our Service to violate the law or aid another in any unlawful act. You are responsible for any transmission you send, receive, post, access, or store via our network. The following non-exhaustive list details the kinds of illegal or harmful conduct that are prohibited:

4.1.1 restricting or inhibiting any other Customer from using the Service;

4.1.2 posting, publishing, reproducing, distributing or transmitting any unlawful, threatening, abusive, libelous, defamatory, vulgar, obscene, indecent, pornographic, profane, hateful, bigoted or otherwise objectionable information of any kind, including without limitation any transmissions, constituting, or encouraging conduct that would constitute, a criminal offence, give rise to civil liability, or otherwise violate any local, state, national or international law, including without limitation export and import control laws and regulations;

4.1.3 posting or transmitting any information or software that contains a Trojan, worm, virus or other harmful component;

4.1.4 posting, publishing, transmitting, reproducing, distributing or in any way exploiting any information, software or other material obtained through the Service for commercial purposes;

4.1.5 uploading, posting, publishing, transmitting, reproducing, or distributing in any way, information, software or other materials, or other proprietary right, or derivative works without obtaining permission of the copyright owner or right holder;

4.1.6 uploading, posting, publishing, transmitting, reproducing or distributing in any way any component of the Service or derivative works, as are copyrighted as a collective work under Jamaican or International copyright laws;

4.1.7 removing or altering copyright management information including, without limitation, name or identification information of the author or owner, copyright note or terms & conditions for use of a work;

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

4.1.9 sending unsolicited e-mail or any e-mail that causes complaints from the recipients of the unsolicited e-mail;

4.1.10 sending large quantities of unwanted or unsolicited e-mail to individual e-mail accounts (also known as “spamming” or “mail-bombing’);

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

4.1.12 obtaining or attempting to obtain Service by any means or device with intent to avoid payment;

4.1.13 making any unauthorized access, alteration, destruction, or any attempt, of any information

of any Digicel Customers or end-Customers by any means or device;

4.1.14 knowingly engaging in any activities that will cause a denial of Service (DoS) (e.g., synchronized number sequence attacks) to any Digicel Customers or end-Customers, or any other person;

4.1.15 using Digicel’s products and Service to interfere with the use of Digicel’s network by other Customers or authorized customers or any other person;

4.1.16 running programs or servers that provide network services to others through the Service (“web hosting”), which includes, but is not limited to, operating a web/mail/ftp server to serve external connections, unless that right has been incorporated Into this Agreement;

4.1.17 using the Service in such a way as to impair or degrade the operation or performance of the Service and/or Digicel’s network, including but not limited to abusive or excessive use; or

4.1.18 reselling or providing access to the Service or to any other Digicel service to any third party not located on the same premises, without the prior express written consent of Digicel. Breach of this provision may result in immediate suspension of the Service until the problem is corrected;

4.2 The Internet contains unedited materials that Customers may find offensive or objectionable.

Customers access such materials at their own risk. Digicel has no control over and accepts no responsibility for these materials. Customers may wish to utilize software designed to limit access to certain material on the Internet.

4.3 Digicel is not responsible for content or policies available on other sites linked to its site. Use of any links to other web pages, is at the Customers own risk.

4.4 As excessive use by individual Customers may adversely impact the performance of other Customers on the network, Digicel reserves the right to manage the traffic on its network so as to ensure the best use of the resources involved in providing this Service.

4.4.1 Uploads:

The service provided is for personal and not commercial use. Commercial use shall include any form of web hosting, hosting of a download server of any nature or hosting of an email server, whether provided for financial gain or not.

4.4.2 Downloads:

The Customer shall be entitled to use the Service to download material from the Internet onto their computer/s and shall be entitled to all reasonable access for this purpose. However the Customer acknowledges that the Service is a shared service and that all Customers are entitled to a reasonable quality of service, and agrees that their usage will be reasonable and undertakes not to do anything that may prevent other Customers from having reasonable access to their service.

Reasonable access may be determined by using criteria such as, but not limited to, the daily duration for which the Customer downloads material for a continuous period of time, the amount of data downloaded where the average use by the Customer exceeds the normal average use for all Customers by more than a factor of 5, the length of time that the Customer downloads continuously over any period of time, and such other reasonable criteria as Digicel may develop.

Digicel may take such measures as it deems necessary, including termination of service, restricting capacity during periods when other Customers may experience unsatisfactory service due to the actions of the Customer or bundling the connection of the Customer with other similar profiled Customers so that they will not interfere with other Customer.

4.5 Digicel may take any action it deems appropriate without notice to protect the Service or its operations. If Digicel denies Customers access to the Service pursuant to this Section, Customers will have no right;

4.5.1 to access through Digicel to any materials stored on the Internet; or

4.5.2 to access third party services, merchandise or information on the Internet through Digicel, and Digicel will have no responsibility to notify any third-party providers of services, merchandise or information nor any responsibility to any consequences resulting from lack of notification.

4.6 Customers agree that Digicel may monitor the Service electronically from time to time, and consent to Digicel’s access, use and disclosure of any information as necessary to satisfy any law, court order, summons, statute, regulation or other governmental request, to operate the Service properly, to improve the Service, or to protect itself or its Customers. Digicel reserves the right to refuse or to remove any information or materials, in whole or in part, that in its sole discretion are unacceptable, undesirable, or in violation of this Acceptable Use Policy.

4.7 Any network address assignments issued by Digicel (i.e., Class C address Internet Protocol numbers) are the property of Digicel and are considered to be loaned to its Customers.

In the event the Service is discontinued for any reason, such IP addresses will revert to Digicel immediately.

4.8 If Digicel determines in its sole discretion that your conduct violates the terms of this Acceptable Use Policy, Digicel may, without incurring liability to any Customer, suspend, restrict, terminate, or take any other appropriate action with regard to your Service without any obligation to refund fees paid and Digicel reserves the right to take such actions without notice to you.

4.9 Customers may use the WiFi functionality in the CPE modem for a fully “no wires” Internet experience within their premises. WiFi is configurable to restrict the number of concurrent WiFi users to four (4). Configuration of WiFi access is the responsibility of the customer. The customer is also responsible for Network security related to their setting up of Wifi Access.

5 DIGICEL EQUIPMENT/DEVICES

5.1 The Customer must not add to, modify or in any way interfere with Digicel Equipment/devices and will be liable for any loss of or damage devices/equipment caused by the negligent or willful act or omission of Digicel its agents, employees or subcontractors.

5.2 The Customer shall not be authorized to carry out maintenance and repair of Digicel Equipment/Devices.

5.3 Where VOIP services are used on non-Digicel Internet connections. (e.g. By Softphone users or when the VOIP service is used overseas and uses another ISP Network), Digicel will not be responsible for issues caused by other ISP’s that affect access to the VoIP service.

6 DIGICEL’S RESPONSIBILITIES

6.1 Digicel will manage traffic flows within the Network and any failure of Digicel Equipment, Customer equipment managed by Digicel, and all hardware, software or leased lines within the Network. Digicel will endeavor to remedy any such failure as soon as reasonably practicable

6.2 Digicel will respond to reported faults without undue delay by taking such network management

measures as it deems appropriate. Digicel will notify the Customer if the fault does not relate to either the Network or Digicel Equipment.

6.3 For the purposes of providing new connections, changing routing tables, updating facilities and, repair and maintenance, scheduled downtime may be required from time to time. Digicel will use all reasonable endeavours to schedule Planned Maintenance in accordance with the Customer’s requirements. Except in the case of an Emergency, Digicel shall give three (3) days notice to the Customer of any scheduled Planned Maintenance.

6.4 Digicel will provide a Help Desk facility, for the reporting of faults within the Network by the Customer and to advise on the day to day use of the Service.

6.5 Digicel shall be responsible for ensuring reasonable access to Device repair centre.

6.6 Digicel shall not be responsible for any component of the Services provided to or by third parties eg. onward transmission from the Digicel network.

7 CUSTOMER’S RESPONSIBILITIES

7.1 The Customer undertakes:

7.1.2 Not to use the Service in a manner that would jeopardize the operation of the Network, the network of any Digicel customer, or other third party.

7.1.3 Not to interfere with any labels or warnings affixed to the Digicel Devices’

7.1.4 Not to create or permit any charges, pledges, liens or encumbrances of any kind to be created in respect of Digicel Equipment on the Premises;

7.1.5 To promptly report faults in the Service to the help desk facility provided by Digicel; and

7.1.6 To inform Digicel of any change of name, civic or electronic mail addresses and/or telephone number of the Customer.

7.1.7 To pay all charges for the Service. These charges are exclusive of any interconnection charges.

7.2 The Customer shall not, nor permit any other person to:

7.2.1 Attach anything directly or indirectly to any Digicel Devices.

7.2.2 Place anything in electrical connection with any Digicel Devices or

7.2.3 Use anything in such a way that it is capable of transmitting or receiving any message, signal or communication to or from a wireless broadband channel.

7.3 The Customer acknowledges that:

7.3.1 It is ultimately responsible for any and all activity that originates from its Internet circuit regardless of its knowledge of and consent to such activity.

7.3.2 The Customer is liable and accountable for any activity originating from any of its account services that are deemed to be in violation of Clause 9.3. The Customer shall therefore take proper precautions to ensure the security of its devices /equipment.

7.3.3 In the event of activity which could be considered deliberately or otherwise abusive or in violation of Clause 9 hereof, Digicel shall be entitled to suspend and/or terminate the Customer’s

account and all Digicel-Services on the expiration of reasonable notice not to exceed twenty-four hours, to cease all such activity where the Customer has failed or neglected to cease the activity notified. Digicel reserves the right, acting reasonably, at its sole discretion, to make a determination of what constitutes abuse and the Customer agrees that Digicel’s determination is final and binding on it.

7.4Connection of equipment or Other Networks to the Network can only be made with the prior written approval of Digicel. It is the Customer’s responsibility (unless otherwise agreed by Digicel) to arrange for the connection of equipment or Other Networks to the Network.

8. BYPASS

8.1 The Customer shall use the Services provided by Digicel only for the purpose stated herein and shall not use the same to conduct any service such as callback, unauthorized audio-tex, international simple resale (ISR), and other analogous services which are prohibited by the law of the Cayman Islands and/or international telecommunications law or which operation or service constitutes bypass defrauding Digicel and/or its interconnection partners the rightful access changes and other interconnect revenues.

8.2 In the event that the Customer uses Digicel’s Devices and/or Services for any illegal or unauthorized service including but not limited to these mentioned above, Digicel may terminate or suspend the Services and Customer shall immediately compensate Digicel upon demand an amount equivalent to the appropriate revenue share as would have been paid to Digicel under any prevailing interconnect agreement at the time the bypass was connected plus the total bypass compensation charges. The above does not affect the right of Digicel and its interconnection partners to make any claim against the Customer for damages or otherwise.

8.3 The foregoing is without prejudice to any civil or criminal action that Digicel may have under the law or to Digicel’s claim for any and all damages that Digicel may suffer by virtue of any illegal and/or prejudicial acts of the Customer and which Digicel is entitled to claim under the law and equity.

9. USE OF THE SERVICE

9.1 The Customer agrees not to use the Service for any purpose or in any manner that:

9.1.1 Does not comply with the terms of any legislation or any license or authorization applicable

to the Customer or Digicel;

9.1.2 Does not comply with the Acceptable Use Policy set out at Clause 4 or any instructions given by Digicel;

9.1.3 Does not comply with any instructions given to Digicel by any other telecommunications operator or any competent regulatory authority and which has been notified in writing by Digicel to the Customer;

9.1.4 Would result in Digicel being in breach of any agreement between Digicel and any public telecommunications operator which has been notified in writing by Digicel to the Customer; or

9.2 Customer hereby indemnifies and agrees to keep Digicel indemnified against all costs, damages, losses and other liabilities which it incurs howsoever arising out of any and all claims by any third party in connection with the Service, because:

9.2.1 The Service is used in breach of the provisions of Clause 9 and/or

9.2.2 The Service is faulty and/or cannot be used by that third party.

9.3 The Customer is prohibited from doing the following:

9.3.1 Violating system or network security including but not limited to:

9.3.1.1 Gaining or seeking to gain unauthorized access to or use of data, VOIP, systems or networks, including any attempt to probe, scan or test the vulnerability of a system and / or network or to breach security or authentication measures without express authorization of the owner of the system or that network.

9.3.1.2 Interference with service to any internet user, host or network including, but not limited to:

• Mail-bombing

• Packet flooding

• Deliberate attempts to overload a system

• Broadcast attacks

• Spoofing

9.3.1.3 Forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting.

9.3.1.4 Monitoring of data and / or traffic on any network or system without the express authorisation

of the owner of the system or network.

9.3.1.5 Sending unsolicited mail messages (SPAM), including, without limitation, commercial advertising and informational announcements.

9.5 A Fair Usage Policy applies to the use of the Services. The Services are shared and Digicel

reserves the right to manage the Network to ensure that all Customers get fair access to the Network. If Customers make excessive use of their Service, their Service may be restricted or the Customer may be asked to subscribe to an alternative Service package more suitable to their usage. Digicel, at its sole discretion, will determine from time to time what constitutes excessive use of the Service. In the event that the Customer refuses or neglects Digicel’s Fair Usage Policy, Digicel has the right to terminate Service to the Customer.

10 INTELLECTUAL PROPERTY RIGHTS

10.1 In the event that Digicel provides the Customer with software to enable the Customer to use the Service,

10.1.1 Digicel hereby grants the Customer a nonexclusive non-transferable license to use the software for that purpose,

10.1.2 The Customer shall not copy nor, except as permitted by law, decompile or modify the software in any way or copy any accompanying manuals or documentation without Digicel’s prior written consent.

10.1.3 The Customer agrees to sign any agreement required by the owner of the copyright in the software to protect the owner’s interest in that software.

11 INTELLECTUAL PROPERTY RIGHT INFRINGEMENT

11.1 Digicel hereby agrees to indemnify the Customer against all fees, losses, liabilities and damages incurred by the Customer arising from all and any claims that the provision of the Service has infringed the intellectual property rights of a third party provided that the Customer:

11.1.1 Notifies Digicel promptly in writing of any allegation of infringement;

11.1.2 Makes no admission relating to the alleged infringement;

11.1.3 Permits Digicel to conduct and settle, if appropriate, all negotiations and proceedings in respect of any such claims; and

11.1.4 Provides Digicel with all reasonable assistance in investigating, defending and settling the claim (Digicel will reimburse the Customer’s reasonable expenses in respect of any assistance

specifically requested by Digicel).

11.2 The indemnity in this clause does not apply to alleged infringements occasioned by use of the Service in conjunction with apparatus or software not supplied by Digicel or to infringements

occasioned by the Customer in which case the Customer hereby indemnifies and agrees to keep Digicel indemnified against all fees, losses, damages and liabilities incurred by Digicel howsoever arising from all such alleged infringements.

12 ALLOCATIONS AND USE OF TELEPHONE NUMBERS AND CODES

12.1 The Customer shall, at no time, acquire any rights or title in the numbers and/or codes allocated

to it by Digicel. Digicel reserves the right to withdraw or replace any numbers or codes allocated to the Customer for operational or technical reasons or where any such withdrawal is required by the telecommunications regulatory authority. Where numbers or codes are to be withdrawn or replaced, Digicel will endeavor to provide the Customer with the maximum notice practicable having regard to the circumstances of the withdrawal or replacement and in these circumstances Digicel shall not be liable to the Customer for any losses, claims, damages, costs and attorneys costs arising from the withdrawals or replacements.

13 CONFIDENTIALITY

13.1 The Parties hereby agree to treat as confidential all information which they obtain or receive in the performance of this Agreement (“Confidential Information”). The Parties agree not to disclose any Confidential Information without the prior written consent of the other Party.

13.2Clause 13.1 does not apply in respect of:

13.2.1 Any information which is in the public domain otherwise than by means of a breach of this Agreement or any other confidentiality obligation;

13.2.2 Information lawfully already in the possession of the recipient or obtained from a third party;

13.2.3 Information which a Party is required by law to disclose.

13.3 The Parties agree to use Confidential Information only for the purposes of this Agreement.

13.4 Digicel shall be at liberty to use the information supplied by the Customer under this Agreement for the purpose of introducing and offering to the Customer from time to time, additional, improved or new products and services of Digicel and its affiliates or associated companies which may be of interest to Digicel.

13.5 Digicel may use Customer information on an aggregate basis to better understand its customers and improve services. Aggregate statistics may also be disclosed to potential advertisers and/or business partners but in any event Digicel will not disclose, share or sell Customer information to any third party for any other purposes.

14 CHARGES, PAYMENT TERMS AND DEPOSITS

14.1 Charges shall be invoiced by Digicel (electronically or otherwise) and are payable from the Operational Service Date.

14.2 Charges for the provision of the Service to Postpaid Customers, are payable on a monthly basis unless otherwise revised by Digicel and notified to the Customer.

14.3 Where Digicel carries out an investigation of faults on its Equipment which are reported by the Customer, and no faults are identified, or if identified, are attributed to the Customer’s acts or omission, Digicel reserves the right to invoice the Customer reasonable costs of carrying

out the investigations and repairs and the Customer shall pay the costs within thirty days of the date of the invoice.

14.4 Digicel reserves the right to charge interest on any overdue amount at 4% per annum over the prime lending rate charged by Digicel’s banker from time to time. Interest will be charged from the time the amount is outstanding to Digicel to the time of payment (whether before and after judgment).

14.5 Digicel may, at any time, require the Customer to pay a deposit or provide or procure a guarantee as security for payment of future bills.

14.6 Postpaid Customers will be bound to a credit limit. You will be notified of your credit limit when your application is accepted. Digicel reserves 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 will not exceed your credit limit. Your credit limit, established at the discretion of Digicel, relates to your current usage. The Customer understands that Service may be suspended if your account usage exceeds your credit limit.

15 LIMITATION OF LIABILITY

15.1 Digicel shall not be liable to the Customer in contract, tort (including negligence) or otherwise for direct or indirect loss of profits, business or anticipated savings or for any indirect or consequential loss or damage whatsoever or for any failure of interruption of the Service for whatever reason.

15.2 Notwithstanding anything else herein Digicel’s liability to the Customer in contract, tort (including negligence) or otherwise in relation to this Agreement or the provision by it, of the Service to the Customer for any one incident or series of related incidents in any calendar year shall be limited to the money paid to Digicel by the Customer for the Service in the twelve months immediately preceding the event or circumstances giving rise to such liability..

15.3 Digicel does not accept liability to the Customer for the acts or omissions of other telecommunication operators.

15.4 Digicel shall implement reasonable measures to prevent any unauthorized access by third parties to any part of the Network under its control; however, Digicel shall not be liable for any such unauthorized access.

15.5 The Customer hereby indemnifies and agrees to keep Digicel indemnified in respect of any costs, damages, losses or other liabilities incurred by Digicel in respect of any damage or interference caused to the services or equipment of the Customer or any third party by Digicel equipment on the Premises save where such costs, damages, claims, losses or other liabilities shall have arisen by reason of the gross negligence and/or willful default of Digicel, its servants and/or agents.

16 INDEMNITY

16.1 The Customer hereby indemnifies and agrees to keep Digicel indemnified against any costs, damages or losses or other liabilities incurred by it arising from or in connection with any claims for loss, damage, costs, expenses, injury or death to third parties howsoever arising (whether directly or indirectly) out of or in connection with any act of the Customer in relation to its use of the Service and or the breach of any of the Customer’s obligations hereunder save where such costs, damages, claims, losses or other liabilities shall have arisen by reason of the gross negligence and/or willful default of Digicel, its servants and/or agents.

17 FORCE MAJEURE

17.1 If a Party (the “Affected Party”) is prevented, hindered or delayed from or in performing any of its obligations under this Agreement by a Force Majeure Event:

17.1.1 The Affected Party’s obligations under this Agreement will be suspended while the Force Majeure Event continues to the extent that it is so prevented, hindered or delayed;

17.1.2 As soon as reasonably possible after the start of the Force Majeure Event, and in no event later than three Business Days, the Affected Party shall notify the other Party of the Force Majeure Event, the date the Force Majeure Event started and the effects of the Force Majeure Event on its ability to perform its obligations under this Agreement;

17.1.3 The Affected Party shall make all reasonable efforts to mitigate the effects of the Force Majeure Event on the performance of its obligations under this Agreement; and

17.1.4 As soon as reasonably possible after the end of the Force Majeure Event, the Affected Party shall notify the other Party that the Force Majeure Event has ended and resume performance

of its obligations under this Agreement.

17.2 For the purposes of this Agreement, a Force Majeure Event means: fire; flood; lightning; explosion; war; strike; embargo; labor dispute; government requirement; civil or military authority;

act of God or nature; inability to secure materials or transportation facilities; act or omission of carriers or suppliers; acts or failures to act of any governmental or competent authority, loss or absence of coverage at the Customer’s Premises (in respect of non-mobile Devices), or any other causes beyond a Party’s reasonable control, whether or not similar to the foregoing.

17.3 Nothing in clause 18.1 shall relieve the Customer of its payment obligations hereunder.

17.4 If the Force Majeure Event continues (or is likely to continue) for more than three months a Party may terminate this Agreement by giving not less than fourteen days written notice to the other Party.

18 ESCALATION AND DISPUTE RESOLUTION

18.1 If any dispute or difference of any kind whatsoever arises between the Parties in relation to this Agreement or the provision of the Service, the Parties will use their reasonable endeavors

to settle the dispute as soon as possible.

18.2 In the event that a dispute between the Parties is not settled under within sixty days of the event giving rise to the dispute occurring, then the matter may be referred by either Party to binding arbitration pursuant to Jamaican laws.

19 SUSPENSIONS

191 Digicel reserves the right to suspend the provision of the Service:

191.1 In the event of an Emergency;

191.2 In the event that the Customer fails to comply with the provisions of this Agreement; or

191.3 In the event that Digicel is unable to obtain a telecommunications service on term satisfactory to it.

19.2 In relation to non-payment by the Customer of any amount due to Digicel prior to suspension of the Service, Digicel shall reasonably endeavor to advise the Customer of the proposed suspension.

19.3 Digicel reserves the right to suspend the provision of the Service in order to:

19.3.1 Prevent damage to or degradation of the Network which may be caused by the Customer or anyone using the Customer’s access;

19.3.2 Comply with any law, regulation, court order or other governmental request or order;

19.3.3 Comply with any request of an emergency service organization; or

19.3.4 Prevent use of the Service which in the reasonable opinion of Digicel is fraudulent, illegal or improper.

19.4 Without prejudice to its right to terminate this Agreement, Digicel may suspend the provision

of the Service in the event that any of the circumstances listed in clause 20.3 occurs.

19.5 In the event that the Service is suspended due to a breach by the Customer of this Agreement,

the Customer shall continue to pay to Digicel the monthly charges.

20 TERMINATION

20.1 The Customer may terminate this contract at any time before the Service is activated and available for use.

20.2 At any time after the Operational Service Date, the Customer can only end this contract as set out in Clause 20 herein.

20.2 For Postpaid Customers, after the Operational Service Date, either Party may terminate this Agreement upon three months’ notice in writing to the other Party. If the Customer terminates this Agreement within the Minimum Period, the Customer shall pay Digicel the Termination Charge.

20.3 Either Party may terminate this Agreement immediately on giving notice in writing to the other Party, if the other:

20.3.1 commits a breach of this Agreement that is capable of remedy and fails to remedy that breach within 30 days of a written notice from the other Party to do so;

20.3.2 commits a breach of this Agreement which, in the opinion of the non-defaulting Party, cannot be remedied;

20.3.3 Is repeatedly in breach of this Agreement; or

20.3.4 Is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or if it goes into either voluntary (otherwise than for the purposes of a solvent reconstruction or amalgamation), or compulsory liquidation or a receiver, examiner or administrator is appointed over its assets.

20.4 In the event that any intellectual property used by Digicel for the purposes of providing the Service infringes the rights of any third party, Digicel reserves the right to modify or substitute same (provided any such modified or substituted intellectual property does not adversely affect Service quality) or in the event that Digicel is not in a position to do so on terms satisfactory to it, to terminate this Agreement by serving one month’s notice on the Customer.

20.5 In the event Digicel is unable to obtain a telecommunications service on terms satisfactory

to it, Digicel shall be entitled to terminate this Agreement by serving one month’s notice on the Customer.

20.6 Any termination of this Agreement shall be without prejudice to the rights of either Party accrued before the date thereof.

20.7 Following termination of this Agreement:

20.7.1 The Customer shall make appropriate arrangements with Digicel for Digicel to remove from the Premises Digicel equipment;

20.7.2 Any information which has been furnished to the Customer by Digicel shall be returned to Digicel, deleted, destroyed or expunged, as appropriate.

20.8 In the event that this Agreement is terminated and any alteration of the Premises has taken place in order to facilitate the provision of the Service, the Customer shall be responsible for restoration of the Premises.

21 MISCELLANEOUS

21.2 Waiver, release and remedies

21.2.1 A waiver by either Party of any remedy, right, power, breach, of or by the other Party of any of the terms, provisions or conditions of this Agreement or the acquiescence of either Party in any act (whether commission or omission) which but for such acquiescence would be a breach as aforesaid shall not constitute a general waiver of such remedy, right, power, term, provision or condition or an acquiescence to any subsequent act contrary thereto.

21.2.2 Any remedy or right conferred upon either Party for breach of this Agreement shall be in addition to and without prejudice to all other rights and remedies available to it whether pursuant

to this Agreement or provided for by law.

21.3 Assignment/Subcontracting

Neither Party can assign or subcontract this Agreement in whole or in part except that Digicel can transfer all or part of it to a company that is an affiliate (as defined by the Companies Act).

21.4 Modification

Digicel may modify the terms of this Agreement or the charges hereunder at any time. Any increase

in charges becomes effective 28 days after Digicel has notified the Customer, all other modifications become effective two (2) days after notification. The means of notification may include, without limitation, nationwide advertising campaigns, electronic mail messages sent to the Customers through the Service, advertisement on the Digicel website, or by mail.

21.5 Whole Agreement

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

21.6 Governing Law and Jurisdiction

The laws of the Cayman Islands will apply to this Agreement and any dispute hereunder will be settled in the courts of the Cayman Islands.

 

Notes

·         Provision of service is restricted to specified coverage areas only.

·         Deposit requirements apply.

·         There is a one-time fee applicable to purchase of modems.

·         Digicel does not guarantee a specific speed.

·         Package speed of up to 4MBps indicates the maximum possible bandwidth, however, actual speeds may vary based on location, prevailing network, Internet conditions and other factors.