1. Expressions Used In This Agreement:-
"Agreement" means these terms and conditions including any documents, Schedules, referred to or incorporated herein and any additional or varied terms and conditions hereto as we may notify you;
"Card" means the calling card supplied by us, which will enable you to access the Service;
"Call Credits" mean the value of the calls remaining on the Card, which is available for use by you;
"Customer’s Equipment" means the telecommunications equipment including any handset purchased by the customer for connection to the telecommunications services purchased from SMART;
"Dollars" mean Belize dollars;
"Effective Date" means the date when you initialize or use the Service;
"SMART Equipment" means the telecommunications equipment that we agree to sell to you and any replacement equipment and/or parts provided by us pursuant to this Agreement for connection to the Speednet telecommunications network;
"our normal working hours" means 8.30 am to 5:00 pm Monday to Friday (except public holidays);
"Price Lists" means our most current published price lists for Service, and sale or rental of SMART Equipment and reactivation charges, which includes any special pricing that we may offer for promotions, copies of which are available from our customer service department;
"Service" means the telecommunications services and associated services to be provided by us under this Agreement;
"Service Start Date" means the date that the Service is first used by you;
"Speednet" means Speednet Communications Limited;
"Usage Charges" means our charges for use of the Service;
"us" or "we" means Smart Com ( Belize) Limited;
"you" means the customer with whom we make this Agreement and includes a person who we reasonably believe is acting with your authority or knowledge.
2 SMART Equipment
2.1 The SMART Equipment shall be delivered to you on purchase at which time risk and title in the SMART Equipment will pass to you.
2.2 The Price for either the sale or rental of SMART Equipment is set out in our Price List.
2.3 The Price does not include:
2.3.1 any sales tax, or any other levy or charge imposed by the Government of Belize, which shall be paid by you in such manner and at such rate prescribed by law.
2.4 The Price shall remain valid for 30 days from the date on which we issue a written quotation to you showing the Price.
3 Specification
We shall use our reasonable endeavours to ensure that all technical information, particulars of SMART Equipment and performance specifications and performance descriptions submitted by us are as accurate as possible, but such information, particulars, specifications and performance descriptions 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 SMART Equipment as supplied by the manufacturer.
4 Warranty
4.1 SMART warrants that SMART Equipment sold to you hereunder shall be free of defects in materials and workmanship at the time of delivery. Any SMART Equipment which is found to our satisfaction to be defective at the time of delivery to you or within thirty (30) days thereof as a result of faulty design, manufacture or workmanship will be replaced by us during that period at no cost. Thereafter we agree to repair free of charge defective SMART Equipment for up to a period of three (3) months from the Service Start Date, provided that in either case the SMART 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 you provide us with proof of purchase of the SMART Equipment from us.
4.2 Our obligations under clause 4.1 above shall apply during our normal working hours.
4.3 Any SMART Equipment or component parts of the SMART 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.
4.4 Save as expressly set out in this Agreement all conditions, warranties, terms and undertakings express or implied statutory or otherwise in respect of the SMART Equipment are expressly excluded from this Agreement.
5 Liability Under Warranty
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 SMART Equipment to you.
6 Delivery of the Card and Call Credits
6.1 The Card shall be delivered to you on purchase at which time risk in the Card will pass to you.
6.2 Call credits for various denominations shall be valid for prescribed periods specified on the Card from the Service Start Date.
6.3 Any Call Credits not used within the periods set out on the Card will expire.
6.4 Call Credits are not redeemable for cash nor may they be transferred to anyone else.
6.5 If you do not agree to the terms of this Agreement do not use the pin to initialize Service or scratch the coating off the back for any Card. If you activated a Service without a Card do not make a call. Any Card or wireless device purchased under this Agreement may be returned for a refund to the place of its purchase together with the original sales receipt within fifteen (15) days of the purchase date stated on the original sales receipt. No refund will be granted after fifteen days from the date of purchase, if the Card has been scratched or a Service initialized.
7 Service
7.1 We agree to provide the Service to you for as long as you comply with the terms of this Agreement. We may reject your use of the Service if we discover that any SMART Equipment or Customer Equipment has been previously reported as stolen or that you have an outstanding balance with us from another account. We do not guarantee that our standard lines and international telephone connections will support data or fax. We will use our reasonable skill and care in providing the Service, but cannot guarantee fault-free performance.
7.2 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.
7.3 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.
7.4 We will supply you with a telephone number to use in connection with the Service. You do not have any proprietary right in the telephone number assigned to you and you cannot sell or agree to transfer the telephone number to anyone else.
7.5 If any call is cut or interrupted after connection due to our fault, we may in our discretion credit you with the cost of that call.
7.6 Service cannot be provided when your Customer Equipment or SMART Equipment is not in range of one of the transmission site for the Speednet telecommunications network or the transmission site of another company that has agreed to carry our customers’ calls, or if there is not sufficient network capacity available at that moment. Weather, topography, buildings, Customer’s Equipment and other conditions we do not control may also cause dropped calls or other problems.
8 Usage and Rental Charges
8.1 You agree to pay our charges for provision of the Service to you whether you use the Service or someone else does, as set out in our Price Lists.
8.2 In the event that Usage Charges are not decremented in real time and we subsequently become aware of such use of the Service we shall decrement the Usage Charges from your Card.
8.3 You agree to pay our rental charges if you rent SMART Equipment from us.
9 Loss or Theft of Equipment
9.1 In the event of loss or theft of SMART Equipment or Customer’s Equipment you should immediately notify us of such theft. Upon such notification we shall forthwith attempt to bar the Equipment from making or receiving calls, but we may not be able to do so. If the stolen SMART Equipment or Customer’s Equipment is subsequently recovered, you shall provide a request to us to lift the bar on such Equipment. We will require your completed Registration card and proof of identity to effect these changes.
9.2 You agree that until such notice of the loss or theft has been properly received by us in accordance with Clause 9.1 above any Usage Charges incurred with or without your knowledge using the Equipment shall be payable by you.
10 Termination
We may terminate the Service without prior notice if the account maintains a zero balance for over 90 days from the date you had your last outgoing call.
11 Use of the Service
11.1 You must use the Service in accordance with our reasonable instructions as made available from time to time.
11.2 You must not use the Service:
11.2.1 to send any message which is defamatory, abusive, offensive, obscene, menacing or illegal; or
11.2.2 fraudulently or in connection with any criminal offence, or for any purpose prohibited by common law, statute, regulation, rule, bye-law international convention or other law; or
11.2.3 in a manner which causes needless anxiety or inconvenience to or infringes the rights of any other person; or
11.2.4 in any manner which interferes with, modifies or adapts 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 SMART Equipment that it transmits a message or other communication to or from such Equipment; or
11.2.5 in any manner or for any purpose which may circumvent, frustrate or diminish our right to provide telecommunications systems and service in Belize, including but not limited to callback; or
11.2.6 in such a way as to avoid, evade or reduce payment of our standard charges for the Service, including but not limited to callback; or
11.2.7 to provide or receive any telecommunications service which is not provided by or with our written consent; or
11.2.8 in a manner which, we reasonably believe adversely affects the provision of telecommunications service to our other customers; or
11.2.9 any manner to transmit voice or data communications to a destination outside of 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.
11.3 You agree to be responsible for any claims or liabilities arising out of your failure to observe this condition relating to your use of the Service.
12 Suspension of Service
12.1 We may immediately suspend the Service if:
12.1.1 repairs, maintenance or improvements need to be carried out to any part of the Speednet telecommunications network; or
12.1.2 we believe that any equipment used in connection with the Service poses a danger to persons or property or interferes with any Service; or
12.1.3 there is an emergency or in order to provide or safeguard service to a hospital or emergency or other medical services; or
12.1.4 we are required to do so by any lawful authority; or
12.1.5 we believe that the Service is being used in a way prohibited by Clause 11 hereof fraudulently.
12.2 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.
13 Changing the Agreement
We may from time to time change the terms of this Agreement including Usage Charges. Where possible we shall give you advance notice of any changes which significantly affect the Service or increase your Usage Charges.
14 If You Break This Agreement
14.1 We may terminate this Agreement with immediate effect if you:
14.1.1 break or continue to break 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;
14.1.2 our Licence expires or is revoked.
14.2 Subject to the provisions of this Agreement you agree to indemnify us, defend us and hold us harmless against all demands, claims, actions, assessments, losses, damages, costs and expenses incurred by us arising directly out of the breach by you of any term or obligation owed by you to us under this Agreement.
15 If We Break This Agreement
15.1 We accept liability for our failure to perform our obligations, however our liability is limited as set out in Clauses 15.2 to 15.4 below.
15.2 We do not exclude or restrict our liability:
15.2.1 for death or personal injury caused by our negligence; or
15.2.2 for any liabilities which cannot by law be excluded.
15.3 Our liability under this Agreement is otherwise limited to the value of the Card purchased.
15.4 We do not accept any liability for loss of revenue, business, contracts, anticipated savings, profits, or wasted expenses or any other consequential damages.
16 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, industrial disputes, actions of local or national government, war or acts of terrorism or vandalism, location of Equipment, and atmospheric or topographical conditions and the actions of any third party.
17 Notices
Any notices given under this Agreement must be in writing and must be delivered by hand or sent by fax or by post to us at our Customer Service address (as shown on our User Guide) and to you at the address set out in the application form.
18 Legal Action
If we commence legal proceedings 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.
19 Data Protection
19.1 We may use and disclose any personal information you give us for the purposes of managing your account and providing the Service. We may also disclose this information to our contractors and agents in connection with these purposes.
19.2 As part of our sales and marketing activities we and our associated companies may write to you to give you details of our other products or services available. We may also disclose your personal information to research organizations 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.
20 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.
21 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.
22 Severability
If any of the provisions of this Agreement is or becomes illegal, unenforceable or invalid (in whole or in part for any reason), the remainder of this Agreement shall remain in force and effect without being impaired or invalidated in any way.
23 Jurisdiction
This Agreement shall be governed and construed in accordance with the laws of Belize.