Terms and Conditions

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1 DEFINITIONS

Agreement means, in order of precedence, the Order Form, these Terms and Conditions, the privacy policy, and any other document agreed by both parties to form part of this Agreement and sets out the terms under which Digicel will provide the Service to the Customer. Business Day means a day other than a Saturday, Sunday or national holiday. Customer means the individual or legal entity so named and described in the Order Form with whom Digicel contracts to provide the Service. Customer Premises Equipment (CPE) means all cabling, apparatus, facilities and other equipment which is installed on the Customer’s Premises to enable the Customer to access the Service including but not limited to a 3rd party Router or Switch or any other equipment used to deliver the Service. Digicel means Curacao Telecom N.V. (Digicel Curacao), Biesheuvel 24-25, Willemstad Curacao. Emergency means any failure of the Service necessitating action by Digicel. Force Majeure Event means fire; flood; lightning; explosion; war; strike; embargo; labor dispute; government requirement; civil or military authority; act of God or nature; act or omission of carriers or suppliers; acts or failures to act of any governmental or competent authority, or any other causes beyond a Party’s reasonable control, whether or not similar to the foregoing. Helpdesk means the helpdesk as identified by the telephone number and email address set out in the Order Form. Minimum Period means the period set out in the Order Form or where none is specified, a period of thirty six (36) months. Network means the telecommunications network owned and/or operated by Digicel. 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 designated by the Customer at which Digicel provides the Service as specified in the Order Form. Service means the shared internet service particularized in the Order Form. Termination Charge means the charges which would have been payable by the Customer for the Service for the remainder of the Minimum Period.

2 DURATION

This Agreement shall continue for the Minimum Period, unless terminated in accordance with clause 14. At the end of the Minimum Period, this Agreement shall continue for successive periods of one year unless otherwise terminated by either Party with at least one month notice.

3 PROVISION OF THE SERVICE

3.1 Digicel will use its best endeavors to provide the Service by the agreed date, or as extended by Digicel pursuant to 3.2 below, which is the scheduled lead time assigned for the installation of the Service however all dates are estimates and Digicel shall not be liable for failure to meet those dates.

3.2 Digicel shall not be obliged to provide the Service, unless and until the following have occurred:

(a) Positive outcome of a credit check;

(b) Digicel has successfully completed the preparations required for the service and conducted a survey showing that Digicel is able to deliver the Service at the location specified in the Order Form;

(d) Customer has paid any sums due hereunder for the installation; and/or

(e) access to the Premises has been satisfactorily provided.

If the Service cannot be provided because any of the above cannot be successfully completed Digicel will notify the Customer.

3.3 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. The Service is a shared service meaning that the speed quoted in the Order Form is the maximum speed possible. The actual speed may be lower at any given point in time due to the nature of the Service.

3.4 Digicel reserves the right, due to technical expediency, to interrupt the Service without reference or prior notification to the Customer.

3.5 Digicel reserves the right to (i) change the technical specification or any other aspect of the Service provided that reasonable notice is given to the Customer and that the change does not materially and adversely affect the Service and/or (ii) give the Customer instructions which are necessary to maintain the safety or the quality of the Service.

4 ACCESS TO AND PREPARING THE PREMISES

4.1 The installation may require (amongst other) drilling a hole in the outer wall to connect the router with the receiver. The actual work to be done will vary from customer to customer. Digicel (and/or its agents) will execute this work with due care and skill, but will not be liable for any damage caused to the Customer’s or any third party property. The Customer will secure all necessary approvals from the relevant persons, including the owner and/or landlord to enable from Digicel to carry out the installation and provision of Service to the Customer’s Premises.

4.2 The Customer will grant Digicel access for all installation and maintenance services.

5 CPE

5.1 Title in and ownership of any CPE remains with and belongs to Digicel unless the Customer has bought such CPE from Digicel in which case title passes to the Customer on receipt of payment.

5.2 The Customer will not reset, modify or in any way interfere with the CPE and will be liable to Digicel for any loss of or damage to CPE on site, except where such loss or damage is due to fair wear and tear. Any cost Digicel has to make to repair any damage done due to the foregoing will be payable by Customer.

6 DIGICEL’S RESPONSIBILITIES

6.1 Digicel will use all reasonable endeavors to schedule Planned Maintenance to cause as little hindrance as possible. Except in the case of an Emergency, Digicel shall give prior notice to the Customer of any scheduled Planned Maintenance.

6.2 Digicel will provide a Helpdesk facility, for the reporting of faults by the Customer.

6.3 Digicel shall not be responsible for any component of the Services provided to or by third parties, such as onward transmission from the Digicel network.

6.4 Digicel may change these terms and conditions in its sole discretion upon due notification to the Customer.

7 CUSTOMER’S RESPONSIBILITIES

7.1 The Customer undertakes:

(a) to inform Digicel of existing facilities which run the risk of being damaged during the installation and connection of CPE on the Premises and provision of the Service;

(b) to make available to Digicel, at no charge, access to the CPE as well as space and other resources as are reasonably required by Digicel to enable Digicel to provide the Service;

(d) 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.

(e) not to interfere with any labels or warnings affixed to the CPE;

(f) to permit Digicel to examine, test or repair the CPE at all reasonable times;

(g) not to create or permit any charges, pledges, liens or encumbrances of any kind to be created in respect of CPE or Digicel Equipment on the Premises; and

(h) to promptly report faults in the Service to the Helpdesk.

7.2 The Customer acknowledges that:

(a) it is ultimately responsible for any and all activity and content that originates from its Internet circuit regardless of its knowledge of and consent to such activity. This includes but is not limited to activity by all users of the Service;

(b) it is liable and accountable for any activity originating from any of its account services that are deemed to be in violation of clause 8.2. The Customer shall therefore take proper precautions to ensure the security of its equipment. This includes ensuring the CPE is installed behind a proper fire wall; and

(c) in the event of activity which could be considered deliberately or otherwise abusive or in violation of clause 8 hereof, Digicel reserves the right to suspend the Service.

8. USE OF THE SERVICE

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

(a) does not comply with applicable law or any license or authorization applicable to the Service, Customer and/or Digicel;

(b) does not comply with any instructions given by Digicel or any competent regulatory authority; and/or

8.2 The Customer is prohibited from doing the following:

(a) Violating system or network security including but not limited to:

(i) gaining or seeking to gain unauthorized access to or use of data, 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;

(ii) interference with service to any internet user, host or network including, but not limited to mail-bombing, packet flooding, attempts to overload a system and broadcast attacks;

(iii) Forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting;

(iv) transmission, distribution or storage of any material in violation of any applicable law or regulation; and/or

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

8.3 Customers using the Services shall not make unreasonable or excessive demands on the network nor make improper or abusive use of the network as to be reasonably determined in Digicel’s sole discretion.

9 CONFIDENTIALITY

9.1 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.

9.2 If a Party is required by law to disclose Confidential Information, it shall - so far as reasonably practicable - consult with the other Party and provide it with an opportunity to oppose the disclosure and/or otherwise agree the timing and content of any such disclosure.

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

10 CHARGES, PAYMENT TERMS AND DEPOSITS

10.1 The Customer agrees to pay all charges in the amount and manner as set out in the Agreement. All charges are exclusive of any installation and other surcharge unless stated otherwise in this Agreement. Prices include OB.

10.2 Digicel shall present the Customer with an invoice on a monthly basis for the amounts due which shall be paid by Customer within thirty (30) days of the provisioning date thereof. Digicel may chance these payment terms in its sole discretion upon due notification to the Customer.

11 LIMITATION OF LIABILITY

11.1 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.

11.2 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 during the term of this Agreement shall be limited to the money paid to Digicel by the Customer for the Service in the three months immediately preceding the event or circumstances giving rise to such liability.

11.3 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, losses or other liabilities are incurred by reason of the negligence or willful default of Digicel, its servants and/or agents.

12 FORCE MAJEURE

If Digicel is prevented, hindered or delayed from or in performing any of its obligations under this Agreement by a Force Majeure Event Digicel’s obligations under this Agreement will be suspended while the Force Majeure Event continues.

13 SUSPENSIONS

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

(a) In the event of an Emergency;

(b) In the event that the Customer fails to comply with the provisions of this Agreement;

(c) in order to prevent damage to or degradation of the Network which may be caused by the Customer or anyone using the Customer’s access;

(d) in order to comply with any law, regulation, court order or other governmental or regulatory request or order;

(e) in order to comply with any request of an emergency service organization; and/or

(f) in order to prevent use of the Service which in the reasonable opinion of Digicel is fraudulent, illegal or improper.

(g) in the event the Customer does not adhere to the payment terms as specified in clause 10.

13.2 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 14.3 occurs.

14 TERMINATION

14.1 Either Party may terminate this Agreement upon giving not less than 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.

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

(a) 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;

(b) Commits a breach of this Agreement which cannot in the opinion of the non-defaulting Party, be remedied;

(d) 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.

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

14.4 Following termination or expiration of this Agreement the Customer shall make appropriate arrangements with Digicel for Digicel to remove the CPE from the Premises.

14.5 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.

15 MISCELLANEOUS

15.1 This Agreement supersedes all prior representations, arrangements, understanding and agreements between the Parties (whether written or oral) relating to the subject matter hereof and sets forth the entire and complete understanding between the Parties relating to the 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.

15.2 The Laws of Curacao will apply to this Agreement and any dispute hereunder will be settled in the courts of Curacao.