Please read this Agreement carefully, including the calling plan or plans you've chosen. Download Acrobat format Download Acrobat Reader
By signing this Agreement or using the Service, you will be bound by its conditions.
1. Expressions Used in This Agreement
"Agreement" means these terms and conditions including any documents, Schedules, referred to or incorporated herein, the terms on the SMART Application Form, and any additional or varied terms and conditions as we may notify you;
"Customer's Equipment" means the telecommunications equipment supplied by the Customer connected to the Network;
"Effective Date" means the date that this application becomes effective which shall be the date on the Application Form;
"Equipment" means New Equipment or the Customer's Equipment connected to the Network; "Network" means the telecommunications system provided by Speednet Communications Limited for use by SMART and our customers;
"New Equipment" means the telecommunications equipment that we agree to provide to you and any replacement equipment and/or parts provided by us pursuant to Schedule 1; "our normal working hours" means the opening hours of our business offices and our retail outlets as we may advise from time to time;
"Price List" means our most current published tariff or price list for Service, and New Equipment, which includes any special pricing that we may offer for promotions, copies of which are available from our offices;
"Service" means the post-paid telephone, Internet, data, and other services to be provided by us under this Agreement;
"Service Address" means the address (or any subsequent address as you provide to us in writing) at which we will bill you for the Service;
"Service Charges" means our charges for the provision of the Service to you;
"Service Start Date" means the date that the Service is operational;
"Term" means the minimum period of time, which you agree to take Service as identified in the SMART Application form;
"us" or "we" or "SMART" mean Smart Com (Belize) Limited;
"you" or "Customer" mean the Customer with whom we make this Agreement and includes a person who we reasonably believe is acting with your authority or knowledge.
2 Sale of New Equipment
2.1 If we sell you New Equipment it shall be upon the terms and conditions set out in Schedule 1 and this Agreement. 2.2 Operating supplies are not included as part of the New Equipment.
2.3 Any equipment not purchased from us for use with the Network must be compatible with the Network, and SMART will not be responsible for any incompatibility between such Equipment and the Network.
2.4 SMART may from time to time change your Equipment?s software or programming remotely and without notice, which may affect data stored on the equipment or the way your Equipment has been programmed.
3 Service
3.1 We agree to provide the Service to you for as long as you comply with the terms of this Agreement. We will use our reasonable skill and care in providing the Service, but cannot guarantee fault-free performance.
3.2 We shall maintain the Service to the best of our ability. We may, because of matters outside our control or for commercial or technical reasons, need to amend the Service provided. We will give you reasonable notice of any change of Service, where possible.
3.3 We may from time to time provide Service to you as part of a trial or test service. If so, we reserve the right to withdraw such trial or test service at any time without notice.
3.4 If you take the Service you do not have any proprietary rights in the telephone number and cannot sell or agree to transfer it to anyone else, without previous authorization from SMART.
3.5 We will make all commercially reasonable efforts to ensure your privacy while using our Network, however, privacy cannot be guaranteed and we will not be liable to you for any lack of privacy which you may experience using the Service.
3.6 Service is normally available to the Equipment when the Equipment is within the operating range of the Network. Service is subject to transmission limitation or interruption caused by weather, the Equipment, terrain, obstructions such as trees or buildings, radio interference, faults in other phone networks, and other conditions not within the control of SMART. Service may be limited in some areas where coverage is not available or may be temporarily limited or interrupted due to capacity limitations for the Network.
4 Charges
4.1 You agree to pay our charges for provision of the Service to you whether you use the Service or some other person or entity does, in accordance with our Price List, and explained below:
4.1.1 Activation Charges - These are charges payable by you for the connection of the Equipment to the Network, and are payable once you sign the Agreement.
4.1.2 Special Activation Charges - These are payable by you if we provide special connection Service and we shall inform you of our charges for such Service.
4.1.3 Access Charges - These are generally payable monthly in advance for your monthly activation, call plan and features, bundles of services, flat fees, and so on.
4.1.4 Usage Charges - These are charges for incremental service usage, over and above the access charges, and are generally payable monthly in arrears and are billed at the end of the billing cycle in which they were incurred. Usage charges shall be charged at the rates prevailing at the time of connection of the call. You are responsible for payment for all calls, that are answered by fax machines, answering machines and all other forms of equipment, or facilities connected to the dialed number.
4.2 We may agree with you different billing cycles depending on your typical spending levels and may change your billing date for operational reasons. You may make any enquiries relating to a particular account either in person at our local office, or in writing, within two months of the date of the account in question. We are not obliged to consider claims that any account is incorrect made after two months have elapsed from the date of that account, but if we agree to do so we may charge a reasonable fee for carrying out such investigation. If following any such investigation, it is found that such an account was in fact incorrect we shall refund you that reasonable fee that you paid for the investigation as well as for any incorrect charge paid by you.
4.3 We shall prepare bills monthly and will send it to you by ordinary post or it will be delivered to the Service Address (or such other address, whether physical or electronic, as we may agree). You must pay each bill by the pay-by date shown on that bill. Failure to receive a bill will not relieve you of the responsibility to pay the amount due. If you do not receive a bill, you should check with our local office.
4.4 If you have agreed to pay your bill by direct debit or credit card, you authorise us to alter your variable direct debit or credit card instruction in accordance with the charges applicable to your Service. We shall notify your bank or card issuer each billing period of the amount due.
4.5 Because of the extra administrative costs incurred by us when bills are not paid when due, we may charge you interest on overdue amounts from the due date until receipt of payment by us at Commercial Bank Lending interest rates plus 2%, per month. We may also bill you charges for fees billed to us by any collection agent or attorney engaged by us to recover amounts owed to us by you on any account. You agree that any deposits, prepayments or other payments held by us for you on any account can be credited and applied to any amounts you owe to us. Deposits may not be used to pay bills without our consent. You will have to pay us a fee for any returned or dishonoured cheque issued to us as payment.
5 Credit Referencing and Deposits
5.1 On applying for Service you shall pay us a deposit as security for the non-payment of bills.
5.2 We may carry out a credit check on you at any time before or during this Agreement and if you do not meet our credit criteria or persistently default in paying your bills on time we may:
5.2.1 require you to pay a further deposit as is reasonable in the circumstances;
5.2.2 impose such credit limit on your account in respect of Usage Charges (billed and unbilled) as is reasonable in the circumstances and which may be set at the level of your deposit and to suspend the Service, if you exceed such credit limit, until we have received payment in respect of outstanding charges.
6 Loss or Theft of Equipment
6.1 In the event of loss or theft of the Equipment you shall immediately notify us orally in person or by telephone of such theft . Upon such notification we shall forthwith make every possible attempt to bar the Equipment from making or receiving calls.
6.2 Upon receipt by SMART of proper notice of the loss or theft or your Equipment we shall upon your request, give you a courtesy suspension for thirty days of Service and charges. Until we grant any suspension, you are still responsible for all fees and charges, unless you satisfy us that you are not responsible for the charges by the date payment for such charges are due. You will need to provide us a sworn statement about the theft if we ask for one.
6.3 You agree that until such notice of the loss or theft has been properly received by us and barred in accordance with Clause 6.1 above any call charges incurred with or without your knowledge using the Equipment shall be payable by you.
7 Roaming and Roaming Charges
You are "roaming" whenever you make or receive a call using a transmission site outside of Belize, or using another company's transmission site. Your wireless phone may sometimes connect to and roam on another company's network even when you are within Belize. There may be extra charges (including charges for long distance, tolls, or calls that don't connect) and higher rates for roaming calls, depending on your service plan.
8 Privacy
8.1 We will publish directories of our customers' phone numbers as required by law. A customer may request a private number listing. Private numbers are not listed in the phone number directory.
8.2 We have a duty under law to protect the confidentiality of information about the quantity and content about your telephone calls, together with similar information on your bills. This does not include your name, address, and phone number. Except as provided in this agreement, we will not intentionally share personal information about you without your permission or the permission of any lawful authority. We may use and share information about you: (a) so we can provide our goods or services; (b) so others can provide goods or services to us, or to you on our behalf; (c) so we or our affiliates can communicate with you about goods or services related to the ones you already receive; (d) to protect ourselves; or (e) as required by law, legal process, or exigent circumstances. In addition, you've authorized us to investigate your credit history at any time and to request credit information about you from credit reporting agencies. If you ask, we'll tell you the name and address of any credit agency that gives us a credit report about you. It's illegal for unauthorized people to intercept or block your calls, but such interceptions or blockages can occur. For training or quality assurance, we may also monitor or record our calls with you.
8.3 We will not be responsible for the security of any password chosen by you or issued to you for use in connection with the Service. It is your responsibility to keep your password secure and you should not disclose your passwords to any other person.
8.4 As part of our sales and marketing activities our associated companies and we may write to you to give you details of our other products or services available. We may also disclose your personal information to research organisations for the purpose of surveying our customers' opinions about our Service. If you do not wish us to use your data for these purposes you must notify us in writing.
8.5 When you use the Service to access data, content or Internet services, your telephone number and other subscriber identification may be transmitted, and you may provide personal information, to third parties. The way third parties handle and use your personal identification and information is governed by their policies, and we have no responsibility for their policies or for their compliance with them. We cannot guarantee that private numbers will not appear on the Caller ID of the recipient phone.
9 Termination
9.1 You may cancel this Agreement prior to the Service Start Date by giving us written notice. We may charge you our reasonable expenses for any work that we carried out prior to receipt of your notice.
9.2 You may not cancel the service before the expiration of the minimum term of twelve (12) months after the Service Start Date. If you terminate this Agreement prior to the expiration of the minimum term then you must pay us an early termination fee equivalent to three months of the monthly Access Charge, per phone number cancelled (?Termination Fee?). The Termination Fee may be changed by SMART from time to time.
9.3 Any termination made after Service has commenced under this Agreement will only become effective on the last day of your monthly billing cycle. You will remain responsible for all fees and charges incurred until such termination is effected and will not be entitled to any partial month end credits or refunds.
9.4 After the expiration of twelve (12) months from the Service Start Date, the contract will extend for an additional 12 months, unless you terminate this Agreement by giving us 30 days written notice before the end of the initial 12 month period. You agree that you will pay the Service Charges and Usage Charges up to the end of the notice period or until you stop using the Service, whichever is later. If you terminate this Agreement otherwise than in accordance with this clause then you must pay us an early termination fee equivalent to three months of the monthly Access Charge, per phone number cancelled (?Termination Fee?). The Termination Fee may be changed by SMART from time to time.
9.5 We may terminate this Agreement prior to the Service Start Date where it proves impossible, by reason of our construction or network requirements, to provide the Service. In such circumstances we will refund to you any monies paid to us.
10 Use of the Service
10.1 You must use the Service in accordance with our reasonable instructions notified to you in writing from time to time.
10.2 You must not use the Service:
10.2.1 to send any message, which is defamatory, abusive, offensive, obscene, menacing or illegal;
10.2.2 fraudulently or in connection with any criminal offence, or for any purpose prohibited by common law, statute, regulation, rule, byelaw international convention or other law;
10.2.3 in a manner which causes needless anxiety, inconvenience or harassment to or infringes the legal rights of any other person;
10.2.4 in any manner which interferes with, modifies or adapts New Equipment supplied by us whether under this or any other Agreement or causes anything to be placed in electrical contact with or to be used in such a manner or position in relation to New Equipment that it transmits a message or other communication to or from such New Equipment;
10.2.5 in any manner or for any purpose which may circumvent, frustrate or diminish our right to provide Telecommunications Systems and Service in the Belize, including but not limited to callback; 10.2.6 in such a way as to avoid, evade or reduce payment of our standard charges, including but not limited to callback;
10.2.7 to provide or receive any telecommunications service using the Network which is not provided by or with our written consent;
10.2.8 in a manner which, we reasonably believe adversely affects the provision of telecommunications Service to our other customers; or
10.2.9 in any manner to transmit voice, internet or data communications to a destination outside the Belize by a telecommunications route other than that established or approved by us for that purpose, and you agree that we may block transmission over such unauthorised routes.
10.3 You agree to comply with the terms of any Acceptable Use Policy published by us from time to time and made accessible to you, when you use the Service to access data, content and Internet services.
11 Unusually High Usage of the Service
11.1 In exceptional circumstances, for your and our protection, we can suspend the Service if the number of calls or charges for calls made by you has increased to such an extent that it appears, in our reasonable opinion, that the Service is not being used by you in a manner consistent with your previous use.
11.2 We will make reasonable efforts to contact you before we suspend the Service, but we are not liable for any loss you may suffer if we are unable to do so or if we suspend the Service for a reason covered by this Clause.
11.3 If we suspend the Service, we will not provide it again until you satisfy us that you know of the increase in use of the Service and that you will pay the Usage Charges relating to such increased usage. We may in addition bar you from making international calls and/or premium rated calls if, in our reasonable opinion, the charges for such calls form a significant proportion of the Usage Charges. We will act reasonably in deciding whether to do any of these things.
12 Maintenance
12.1 We shall provide such maintenance and repair to any Equipment as we reasonably consider necessary to provide the Service.
12.2 You agree to notify us promptly by telephoning or writing to us of any defect in the operation of the Network or provision of the Service. We aim to respond as soon as possible during our normal working hours. Many problems can be corrected remotely without the need to dispatch a technician. If you request we will consider working outside our normal working hours, but you must pay us for those out of normal working hour? services.
12.3 You must not attempt to restore the Service nor permit anyone else to do so.
12.4 We may charge you for our reasonable costs and expenses attending to fault reports or in providing maintenance and repairs if the need for such maintenance arises out of:
12.4.1 misuse, neglect or damage to the New Equipment; or
12.4.2 your failure to reasonably comply with the provisions of this Agreement.
13 Suspension of Service
13.1 We may immediately suspend Service to you if:
13.1.1 you fail to make payment when due of our charges for the Service;
13.1.2 you breach any term or condition of this Agreement;
13.1.3 you exceed the agreed credit limit;
13.1.4 you fail to satisfy us as to your creditworthiness at any time;
13.1.5 we are entitled to terminate this Agreement;
13.1.6 we need to carry out repairs, maintenance or improvements to any part of the Network;
13.1.7 we believe that any Equipment used in connection with the Service poses a danger to persons or property or interferes with any Service;
13.1.8 there is an emergency or in order to provide or safeguard service to a hospital or emergency or other medical services;
13.1.9 we are required to do so by any lawful authority; or
13.1.10 we believe that the Service is being used in a way prohibited by Clause 10 above.
13.2 Where we suspend the Service as a result of your breach of this Agreement, we may not restore the Service unless we are satisfied that there will be no repetition of the circumstances giving rise to the suspension. In the case of non-payment by you of any of our charges we may not restore Service until you have paid us all outstanding charges, a reconnection charge and a deposit to secure your future liabilities.
14 Changing the Agreement
14.1 You may add to or reduce the Service from time to time by contacting our Customer Services. Any upgrade or downgrade in service level or any other change in Service must be effective for a minimum period of one month (or such longer period up to one year as we may in future notify you in writing) before a further change in the same Service may be implemented. The charges applicable to your changed Service and for changing the Service will be as set out in our current Price List at the time we agree to the change.
14.2 We may from time to time change the terms of this Agreement including our Access Charges and/or Usage Charges. Where possible we shall give you reasonable advance notice of not less than 30 days of any changes which significantly affect the Service or increase your Access/Usage Charges.
15 If You Break This Agreement
15.1 We may terminate this Agreement with immediate effect if you:
15.1.1 breach or continue to breach your obligations under this Agreement. In the case of minor breaches which are capable of remedy, we shall give you notice of the breach and at least 7 days in which to remedy the breach before we terminate this Agreement;
15.1.2 if you become bankrupt or insolvent; or
15.1.3 our Licence expires or is revoked.
15.2 You agree to indemnify and hold us, our employees, affiliates and agents harmless from claims and damages relating to this Agreement or arising out of the or from your failure to perform your obligations under this Agreement and use of the Service and Equipment. You also agree to pay our reasonable attorney fees and other costs incurred in enforcing this Agreement.
16 If We Break This Agreement
16.1 Save and except for any warranty given in accordance with Schedule 1 hereto, we make no representations or warranties, express or implied concerning our Service or any Equipment sold by us to you, including to the extent permitted by any applicable law, any implied warranty of merchantability or fitness for a particular purpose, unless the same has been given in writing and signed by a duly authorized officer of SMART. Our liability is further limited as set out in this Agreement
16.2 We do not exclude or restrict our liability:
16.2.1 for death or personal injury caused by our negligence; or
16.2.2 for any liabilities which cannot by law be excluded.
16.3 Our liability under this Agreement is limited to the total charges for the Service provided to you during the month in which such liability arises.
16.4 We do not accept any liability for loss of revenue, business, contracts, anticipated savings, profits, or wasted expenses or any other consequential damages. In this section "anticipated savings" means any costs which you expected to avoid by using the Equipment or Services.
16.5 We do not accept any liability in connection with information, data, goods or services you may obtain from third parties when using the Service.
17 Matters Outside Our Reasonable Control
We shall not be liable to you if the performance of any of our obligations contained in this Agreement is delayed or prevented by matters outside our reasonable control. Such matters include, but are not limited to, fire, flood, hurricane, lightning, extreme weather conditions, hills, buildings, network congestion, signal propagation, tunnels, industrial disputes, actions of local or national government, war or acts of terrorism or vandalism, location of Equipment, acts of any third party and atmospheric or topographical conditions.
18 Transfer of Service From One Customer to Another
18.1 The Service is provided by us to you and you may not assign the benefit of this Agreement or otherwise transfer the Service whether temporarily or permanently to a third party without our prior approval in writing.
18.2 You may apply for the transfer of Service to a new customer. Application must be made to us in writing signed by both parties. Where the prospective customer is not already our customer, he will be required to complete and submit an application form to us and additional documents may be required. An application for the transfer of Service shall be treated in all respects as a new application for Service. All outstanding charges must be paid before the transfer can take place.
19 Legal Action<
If legal proceedings are commenced by us against you as a result of your breach of these terms and conditions, you will accept the presentation of documents produced from microfiche or other electronic means as good and sufficient evidence in any court of law.
20 Data Protection
We may use and disclose any personal information you give us for the purposes of managing your account, operating our Mobile Network and providing the Service, billing and collecting our charges, protecting our rights or property, or preventing the fraudulent use of our Network or Services. We may also disclose this information to our contractors and agents in connection with these purposes. Such information may be maintained in a consolidated database at such place and in such form as we may choose.
21 Waiver
Any waiver by us of a breach of any term of this Agreement shall not operate as or be construed as a waiver of any other breach of such term in this Agreement. Our failure to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered to be a waiver of any rights under this Agreement or operate to deprive us of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
22 Entire Agreement>
It is our intention that all the terms of the Agreement between us shall be in writing and you should ask for any variations or special terms to be recorded in writing.
23 Jurisdiction>
This Agreement shall be governed, construed and enforced in accordance with the laws of the Belize.
24
24.1 You may not transfer or try to transfer any of your rights and responsibilities under this Agreement unless we have agreed in writing beforehand. We may transfer any of our rights without your permission.
24.2 If you telephone us your call may be monitored or recorded so that we may manage your account or the Service. 24.3 For your own protection, you must keep confidential the electronic serial number of your phone, any lock code(s) associated with your phone, your voice mail access number and any other personal identification or security codes. You will be solely responsible for all charges made to your account, and for any loss and damage which you suffer if you fail to comply with this section.
24.4 Any notices required to be provided by us to you under this Agreement may be provided by way of advertisements in the daily newspapers, radio, by electronic mail or text message, by billing inserts or in any other manner selected by us.
24.5 Any notices that you are required to send us under this Agreement should be sent to us at our registered office.
24.6 If a section or condition of this Agreement is not legally effective, the remainder of this Agreement shall be effective. We can replace any section or condition that is not legally effective with a section or condition of similar meaning.
Schedule 1
Terms and Conditions of Sale of New Equipment
1. Delivery
1.1 All risks in the New Equipment shall pass to you upon delivery. Unless otherwise specified delivery shall be deemed to take place when the New Equipment has been delivered to you or to the location specified by you.
1.2 All dates and times specified to you for delivery of New Equipment are best estimates only. We shall have no liability for any losses or other expenses sustained or incurred by you as a result of delay that occurs for reasons beyond our reasonable control. You shall not be entitled to refuse acceptance of the New Equipment as a consequence of such delay.
2. Title
2.1 Until we have been paid in full for the New Equipment supplied to you, you shall hold the same in a fiduciary capacity as bailee for us, and legal and beneficial title to the New Equipment shall remain with us and you shall store it in such a way that it is clearly our property.
3. Specification
3.1 We shall use all commercially reasonable endeavours to supply the New Equipment in accordance with the specification therefor.
3.2 We shall use our reasonable endeavours to ensure that all technical information, particulars of New Equipment and performance specifications and performance descriptions submitted by us are as accurate as possible, but are not to be treated as binding or as forming part of this Agreement or part of any contract between us. We shall provide you with any user manual for the New Equipment as supplied by the manufacturer.
4. Warranty
4.1 We will grant to you a warranty consistent with the manufacturer's warranty. Should New Equipment sold by us be defective we will:
4.1.1 repair the New Equipment,
4.1.2 replace the New Equipment with Equipment of an identical type if available. If an identical type is not available we will replace the New Equipment with the closest type available; or
4.1.3 refund you the price paid for the New Equipment.
4.2 The provisions of clause 4.1 shall only apply where:
4.2.1 New Equipment has not been misused, mishandled, overloaded, amended, modified or repaired in any way by you, your servants or agents, or any other person not authorised by us for the purposes thereof or used for any purpose other than that for which it was designed; and
4.2.2 you provide us with proof of rental of New Equipment from us.
4.3 Our obligations under clause 4.1 above shall apply during our normal working hours.
4.4 Any New Equipment or component parts of the New Equipment replaced by us pursuant to clause 4.1 shall upon replacement become the property of SMART unless and until title has passed to you in accordance with clause 2.1.
4.5 Save as expressly set out in this Agreement all conditions, warranties, terms and undertakings express or implied statutory or otherwise in respect of the New Equipment are expressly excluded from this Agreement.
5.Liability
5.1 The express warranty and undertaking given above is the only warranty given by us and shall be our entire liability including liability for negligence in respect of the sale of New Equipment to you.
In Witness Whereof the Customer (as applicable) has executed this Agreement.
If by a Company:
THE COMMON SEAL of )
LIMITED was duly affixed and this ) (place seal here)
Agreement was duly delivered )
On the _____ day of ____________ )
__________ )
in the presence of: )
____________________________
DIRECTOR
____________________________
DIRECTOR
If by a Person:
Signature: _____________________________
Print Name:____________________________
Print Title:_____________________________
Date: ________________
Witness:______________________________
If by a Business: Signed for and on behalf of the Customer by:
Signature: _____________________________
Print Name:____________________________
Print Title:_____________________________
Date: __________________
Witness:______________________________ |
