Mobile Money Terms and Conditions Version 1.0
Digicel (Pacific) Limited Copyright 2011
The Purpose of this document
To assist you in understanding the Digicel Mobile
Money Terms and Conditions, in that this document details the significant
features of Digicel Mobile Money service, including
how to use Digicel Mobile Money and its benefits and
This document is
divided into the following sections:
Section 1: Introduction and
frequently asked questions
Section 2: Terms.
This document, including the Terms and Conditions, forms your agreement
with us. You should read it carefully before deciding whether to register and
then use Digicel Mobile Money. By using Digicel Mobile Money, you agree that you have received,
read and understood this document, and accept the Terms and Conditions. If you
have any questions about the information in this document or Digicel Mobile Money, please contact us.
Capitalised terms and expressions used in
this document have the meanings given to them at the beginning of the Terms and
Conditions in Section 2.
This document is
effective 30 September 2011.
Section 1: Introduction and
Introduction and Important Information
Section 2: Terms and Conditions
This document, including the Terms, forms
your agreement with us. You should read it carefully before deciding whether to
register and then use Digicel Mobile Money. By using Digicel Mobile Money, you agree that you have received,
read and understood this document, and accept the Terms.
In this Agreement:
Services means any additional services added by Digicel, notified to You and You
subscribing to such services.
means this agreement including any annexures and schedules.
Limit means a limit on the value of an Order or
all Orders that the Customer or an Authorised User may place with Digicel.
User means any User to whom a login and password has
been provided by the Customer.
Limit means a limit on the total amount of credit
that Digicel will provide to the Customer
Information means information that:
is by its nature confidential;
is treated by each party as confidential; or
each party knows or ought to know is confidential,
is or becomes public knowledge
otherwise than by breach of this Agreement; or
(b) has been independently acquired or developed by
a party to this Agreement.
Consequential Loss means
and includes: indirect loss and special damages; loss of revenue; loss of
profits; loss of business; loss of anticipated savings; loss of goodwill; loss
of data; claims of third parties; and loss or costs associated with Clause 25.
means any person registering and using the Digicel
Mobile Money Service.
Customer Identification Procedures means
those identification and verification procedures which need to be completed to
comply with the Financial Transactions Reporting legislation and know your
customer requirements of the Territory.
a day on which commercial banks are open for business (including dealings in
foreign exchange) in the place specified by Digicel
for that purpose;
Digicel Pacific Limited including its subsidiaries and
includes the officers, employees, agents and subcontractors of Digicel.
means employees, officers and agents of Digicel.
includes all of the services, including the Digicel
Money Transfer Services provided by Digicel to the
Customer from time to time.
Digicel Website means the Digicel website named digicelmobilemoney.com
means Your computer
or any other device used to access to the Internet.
the Tariffs and other charges payable by You under
this Agreement for use of Digicel Mobile Money.
Reporting legislation means the Financial
Transactions Reporting Act and any subsequent amendments or regulations
(collectively ‘the Act ’).
the access to Digicel’s customer care You can gain by calling 123.
means any instruction or request given by the Internet.
means the interconnected system of networks that connects computers around the
means any statute, regulation, rule, subordinate legislation or other document
enforceable under any statute, regulation, rule or subordinate legislation.
means the transfer of Money from one Customer to another Customer using the Digicel Mobile Money Platform or to a customer from a Third
means a transaction in which the Customer agrees to purchase or sell currency
from or to Digicel or enter into any other
transaction with Digicel for the Digicel
means either You or Digicel.
means the four digit identification code or more chosen by a Customer at the
time of activating their account and used to access and operate the Digicel Services.
means anything set out in this Agreement.
means Australia, Fiji, New Zealand, Samoa and Tonga.
means any Order in which the Customer agrees to purchase or sell currency from
or to Digicel or enter into any other transaction
with Digicel for the Digicel
means either the Day selected by the Customer and agreed by Digicel/KlickEx
for the settlement of an Order or if there is no such Day, then the third Day
after the execution of an Order by the Customer.
means the Customer/User.
In this Agreement:
the singular includes the plural and vice versa;
headings to clauses are included for the sake of convenience
only and shall not affect the interpretation of the clauses to which they
to any statute or statutory provision include that statute or statutory
provision as amended, extended, consolidated or replaced by subsequent
legislation and any orders, regulations, instruments or other subordinate
legislation made under the relevant statute;
this Agreement shall bind each party’s legal personal representatives,
successors and assigns.
Mobile Money Account Application and Required Information
Before You can
commence using Digicel Services You must register
with Digicel or on the Digicel
Website in the prescribed form.
You must provide to Digicel
all Customer Identification documents before you may be registered for Digicel Mobile Money.
You agree that You:
will supply to Digicel,
upon request, any information in order for Digicel to
provide Digicel Mobile Money to You;
authorise Digicel to obtain from and provide to any third party in
the Territory such information as may be reasonably required for the purpose of
providing Digicel Mobile Money, including in the
resolution of complaints.
to receive and disclose any information about You to local and international
law enforcement or any competent regulatory or governmental agencies to assist
in the prevention, detection or prosecution of criminal activities or fraud;
to receive and disclose any information about You to and from our service
providers, dealers, agents, or any other company that may be or become our
subsidiary, parent company or partner, for reasonable commercial purposes
connected to Your use of Digicel Mobile Money, such
as marketing and research related purposes;
to receive and disclose any information about You to facilitate our
ability to carry out any activity in connection with a legal, governmental or
authorise Digicel to receive and disclose any information about You to
our lawyers or auditors or to the applicable court in connection with any legal
or audit proceedings (notwithstanding that any such proceedings may be of a
You must ensure that You
provide accurate information to satisfy the Customer Identification Procedures
and any of our requests under this Agreement.
Digicel may at
its sole discretion decline Your application for Digicel Mobile Money.
4.1 Representations and Warranties
the time of entering into this Agreement and immediately before entering into
any transaction contemplated by this Agreement, the Customer represents and
warrants to Digicel that:
(a) If the
Customer is a natural person, the Customer is of sound mind, at least 18 years
of age, and possesses full legal competence;
(b) If the Customer is not a natural person,
(i) the Customer is duly organized and validly existing under
the applicable laws of the jurisdiction of its organisation;
(ii) the execution and delivery of this Agreement and all other
transactions contemplated under it and performance of all obligations
contemplated under this Agreement and all other transactions contemplated under
it have been duly authorised by the Customer;
(iii) it has
the power to enter into and perform its obligations under this Agreement, to
carry out the transactions contemplated by it and to carry on its business as
now conducted or contemplated; and
person executing and delivering this Agreement and all other transactions
contemplated under it on behalf of the Customer, performing the obligations
contemplated under this Agreement and any other transaction contemplated under
it on behalf of the Customer, has been duly authorised by the Customer to do
(c) If the
Customer enters into this Agreement in its capacity as the trustee of a trust,
the Customer makes the following representations and undertakings:
(i) the relevant trust instrument is valid and complies with the
(ii) the Customer is properly appointed as sole trustee of the
(iii) the Customer has
a right of indemnity from the trust assets in respect of this Agreement and the
transactions contemplated by it;
(iv) the Customer will comply with its duties as trustee of the
(v) the Customer will
not do anything which may result in the loss of its right of indemnity from the
(vi) the Customer will remain sole trustee of the trust;
(vii) if, despite the above, the Customer is
replaced or joined as trustee, the Customer will make sure the new trustee
becomes bound to the Customer’s satisfaction by this Agreement and any other
agreement relating to a transaction contemplated by this agreement to which the
Customer is expressed to be a party, or by a document which is identical in
(viii) the Customer will not resettle, set aside or distribute any
of the assets of the trust without Digicel’s consent
unless compelled to do so by the trust instrument; and
(ix) the Customer will not amend or vary the trust instrument.
and delivery by the Customer of this Agreement, and performance of all of the
Customer’s obligations contemplated under this Agreement, does not violate any
Law applicable to the Customer;
information provided by the Customer to Digicel,
including, but not limited to, the information provided on the Application
Form, is true, correct and complete, and the Customer will notify Digicel promptly of any changes in such information;
information provided by the Customer to Digicel is
true in all material respects as at the date of this Agreement or, if later,
when provided. Neither that information nor the Customer’s conduct or the
conduct of anyone acting on its behalf in relation to the transactions
contemplated by this Agreement, was or is misleading, by omission or otherwise.
4.2 Acknowledgement by the Customer
Customer acknowledges that Digicel has entered into
this Agreement and will enter into the transactions contemplated by this
Agreement in reliance on the representations and warranties in Article 4.1.
4.3 Joint and Several Liability
the Customer is comprised of two or more legal persons then a reference to a
right or obligation of the Customer under this Agreement or under a transaction
contemplated by this Agreement confers that right or imposes that obligation,
as the case may be, jointly and severally on those persons.
are the Services?
5.1 You can only use Digicel Money Transfer subject to the Terms in this
You are validly registered Digicel
may provide the following as Digicel Mobile Money
5.3 Digicel will
use its best efforts to provide Digicel Mobile Money
and enable You to access the services 24 hours each
day, 7 days a week. Digicel will not be liable to You for interruptions to Digicel Mobile
deemed to have accepted these Terms as amended from time to time and which take
effect upon your registration to the Digicel Mobile
obligations and responsibilities
7.1 You will be responsible for all
applicable Fees at the applicable rates for any Transaction effected using the Digicel Website.
7.2 You are solely responsible for any
transmitted material and or communication, which is classified as defamatory,
illegal or in breach of any copyright and shall indemnify and keep us
indemnified against any claims and expenses made against us in respect thereof.
7.3 You must not use Digicel
Mobile Money to commit any offence(s) against the laws applicable in the
8 Digicel Obligations
8.1 Digicel will
hold all Transfer Transactions for the benefit of the third party as mentioned
on Your Application Form and the latter shall be beneficially entitled to such
amounts transferred by You at that particular time.
8.2 Digicel is not
bound to make any independent investigation of any third party’s beneficial
entitlement to the amounts transferred by You.
8.3 You further acknowledge that, in
relation to any transfer of money, we may act on instructions given by You
using your Password or instructions purported to be given by You using your Password
even if they are actually given by a third party.
8.4 You agree that:
(a) Digicel is under no obligation to invest any amounts transferred
by You; and
(b) to the extent
that any interest accrues, You shall have no beneficial entitlement to such
interest and Digicel shall be entitled to retain such
interest to defray the costs and expenses of operating Digicel
Mobile Money or deal with such amounts as directed under any the applicable
9.1 Indemnity and Survival
The Customer shall
indemnify and hold Digicel harmless from any and all
liabilities, claims, costs, expenses and damages of any nature, including, but
not limited to, reasonable legal fees and any fees and expenses incurred in
connection with litigation, arising out of or relating to the Customer’s negligence
or wilful misconduct, the violation of any Law by the Customer, or the breach
by the Customer of any provision of this Agreement. The Customer also agrees to
promptly pay to Digicel all damages, costs and
expenses, including reasonable legal fees and expenses, incurred by Digicel in the enforcement of any of the provisions of this
Agreement. The Customer’s obligations under this Article shall survive the
termination of this Agreement.
will use reasonable precautions to maintain the confidentiality of information it
receives from the Customer and material and/or data the Customer provides,
creates, inputs or develops in connection with the Customer’s use of the Digicel Services. Nonetheless, because such information,
material and/or data may be provided through the Internet, the Customer hereby acknowledges
and agrees that Digicel cannot assure that such
information, material and/or data will continue to be confidential. The
Customer accepts the risk of a third party receiving confidential information
concerning the Customer and specifically releases and indemnifies Digicel from any claim arising out of a third party
intercepting, accessing, monitoring or receiving any communication from a
Customer intended to be provided to Digicel or from Digicel intended to be provided to the Customer. The
Customer acknowledges and agrees that Digicel may
disclose the Customer’s name and other personal and financial information about
the Customer, and any relevant details of an Authorised User, to its employees,
representatives, officers, agents, and affiliates, as well as to a governmental
entity or self-regulatory authority, an Internet service provider or any other
third party agent or service provider for any purpose related to offering,
providing, administering or maintaining the Digicel
Services, or to comply with applicable Laws. Digicel
will treat the Customer’s personal information in accordance with its privacy
policy, which the Customer may obtain by contacting Digicel
or at the Digicel Website.
10.2 Money Laundering
to the inherent risks in transferring currency between parties located in
different countries, Digicel takes extraordinary
measures to ensure that it is not participating or assisting in money
laundering or terrorist financing. Law enforcement agencies and regulatory
authorities may periodically inspect and require copies of customer information
and business records held by Digicel. To ensure
compliance with all applicable money laundering and terrorist financing Laws,
the Customer should be fully aware that in appropriate cases all communications
and information concerning the Customer held by Digicel
including, but not limited to, details of Orders, accounts, and related
transactions, may be disclosed to and reviewed by law enforcement agencies and
regulatory authorities. In addition, the Customer agrees to comply with all
applicable money laundering and terrorist financing Laws, including, but not
limited to, the requirement to obtain satisfactory evidence of the identity of
any principal whom the Customer may represent in any transaction entered into
with Digicel. The Customer shall comply (and shall
cause the Customer’s officers, principals and employees to comply) with all applicable
laws and regulations applicable to the Customer’s business, as the same may be
amended from time to time, including but not limited to: (a) licensing laws
applicable in each Territory; (b) anti-money laundering laws, terrorist
financing laws, cash reporting requirements and Digicel’s
written policies and procedures (as amended from time to time) as they relate
to compliance with the detection and prevention of money laundering and cash
reporting requirements; and (c) all applicable privacy laws and regulations in
11 Quality of Services
11.1 Digicel Mobile
Money is provided through the web page www.digicelmobilemoney.com.
The quality and availability of Digicel Mobile Money
and related products and services are subject to limitations including physical
obstruction, network congestion, maintenance, outages, the configuration or
limitations of your internet connection, or other operational and technical
will always do its best to
provide a reasonable quality of service but Digicel does
not warrant that they will be continuously available or fault free and without
does not represent or warrant
that Digicel Mobile Money or related products and
services shall be available in all parts of the Territory or in any other
does not represent or warrant
that the operation of Digicel Mobile Money or related
products and services will be uninterrupted, timely, secure or error-free or
that it will meet Your or any other person’s specific requirements;
not accept responsibility for the security of any use of Digicel
Mobile Money. You use the Digicel Mobile Money at Your
own risk and You are solely responsible for adopting such appropriate security
measures against unauthorized access to and interference your Account (or
associated software/hardware and data) as may be necessary;
may modify or suspend Digicel Mobile Money and our related products and services
wholly or partly, with or without notice, if we, in our sole discretion,
reasonably believe it to be necessary or consider that such action is necessary
or desirable for the purpose of upgrading, maintaining, modifying or otherwise
the Digicel Website or other systems or if such
action is required or reasonably requested of us by an authorized
authority. We shall attempt to minimize
such Digicel Mobile Money disruptions but will not be
able to guarantee any minimization in each instance.
12 Market Disturbance
(a) Digicel may give a notice (a Disturbance Notice) to the
Customer at any time if it forms the view that market conditions in the
relevant financial market for the currency concerned are seriously disturbed.
includes circumstances where, in Digicel’s opinion,
deposits in the currency concerned are not available in the ordinary course of
business to Digicel in the relevant financial market
or because of national or international financial, political or economic
circumstances or exchange controls, it is impractical.
(c) When a
Disturbance Notice is given, Digicel’s obligations
will be suspended while it and the Customer negotiate alternative arrangements.
If both parties reach agreement before the Value Date, those alternative
arrangements will apply. If they do not reach agreement within that period,
each will be released from its obligations under the relevant transaction.
(a) The Customer understands that:
(i) Digicel may advise the Customer of a
Credit Limit applicable to some or all Orders;
(ii) Digicel is not obliged to agree to or accept any Order;
(iii) Digicel is not obliged to provide credit to the Customer;
(iv) any Credit Limit
set by Digicel may be reduced or withdrawn at any
time by giving Notice to the Customer.
Customer acknowledges that if Digicel acts on an
Instruction which would result in a Credit Limit being exceeded:
(i) Digicel is not
obliged to advise the Customer that the Credit Limit will be exceeded;
(ii) the Customer
will continue to be liable to Digicel for all amounts
including those above the Credit Limit; and
(iii) Digicel is not obliged to, though may, act upon any
subsequent Instruction where a Credit Limit might be exceeded.
reserves the right to refuse any Order that is incorrect, incomplete, or
unsatisfactory to Digicel for any reason.
15 Payment of Order
Acceptance of an Order, unless otherwise agreed in writing, the Customer must
pay or deliver to Digicel transferable cleared funds
before Digicel is obliged to make payment on behalf
of the Customer. If the Customer fails to settle the Order on the Value Date, Digicel may, without limiting any other remedies that it
may have, in its absolute discretion
Value Date to a later date, by which date Customer must make settlement;
(b) cancel the Order, in which case the Customer must reimburse Digicel for any cancellation costs and other expenses
incurred by Digicel in cancelling the order. The
Customer is liable to Digicel for all of the costs,
taxes, interest, expenses and losses incurred by Digicel
arising out of the Customer’s failure to settle an Order and Digicel exercising its rights under this Article.
the Value Date for the settlement of an Order is not a Day in the jurisdiction
in which any of the accounts from or to which the Customer will be making or
receiving payment for an Order is located, the Value Date for the Order will be
the first day following the Value Date that was selected that is a Day in each
of the jurisdictions in which such accounts are located.
Digicel will use all reasonable efforts to process
the Customer’s Order on the same Day it is submitted to Digicel
(provided that the Order is received before the close of business on that Day),
Digicel shall not be responsible or liable for the
time it may take financial institutions to settle accounts. Digicel
shall not, in the absence of gross negligence or willful
misconduct, be liable for delays, damages, failures or errors in the completion
of the Order.
indications from Digicel are available on the Digicel Mobile Money website (the “Indication”). The
Indication is not binding, and the rates will be as agreed when the Order is
placed. As a dealer in currency, Digicel has a spread
between its purchase and sale prices; and it bases its individualised rates on
many factors including its assessment of market conditions, its overhead and
a quoting error occur due to a typographical error or obvious mistake in a
quote or Indication (the “Quoting Error”), Digicel shall
not liable for any damages, claims, losses, liabilities or costs arising from
the Quoting Error. Digicel reserves the right to make
the necessary adjustments to correct the Quoting Error. Any dispute arising
from a Quoting Error will be resolved on the basis of the fair market value, as
determined by Digicel acting reasonably, of the
relevant currency at the time such Quoting Error occurred.
the Customer subsequently wish to reverse, alter or cancel any Order made by
Internet on the Digicel Mobile Money Website, the
Customer shall be liable to reimburse Digicel in
full, on demand, for any loss or costs incurred by Digicel
as a result of such reversal, cancellation or amendment.
Order made by the Internet on the Digicel Mobile
Money Website will be confirmed by Digicel in writing
to the Customer by email and the Customer shall on receipt of the Order,
immediately notify Digicel by phone and in writing of
any discrepancy, otherwise the Customer shall be deemed to have accepted the
confirmation as an accurate record of the transaction.
Ordering through Digicel Mobile Money Website
the Customer uses Digicel’s website based foreign
exchange ordering system (the “Internet System”), the Customer confirms and
accepts the following:
exchange rates quoted on the Internet System are indicative only and may
change. The actual exchange rate will be as agreed when the Customer’s Order is
booked. The booked exchange rate may be different to the rate quoted on the
Internet System for a number of reasons, for example, because the Order is
booked sometime after the quoted rate was given.
transactions must be completed using the logins and passwords chosen by the
Customer and valid entry of such a login and password will constitute an
authorisation by the Customer to complete the Order specified irrespective of
whether the login and password are entered by an Authorised User.
(c) The Customer must ensure that the logins
and passwords are kept secure and confidential. The Customer must also ensure
that each Authorised User to whom a login and password is provided, will keep
them secure and confidential.
(d) The Customer must ensure that no
unauthorised person is able to use the logins and passwords. As part of this
obligation the Customer must ensure that each Authorised User quits the
Internet browser whenever he or she leaves his or her computer after using the
(e) The Customer must promptly verify all
Orders to ensure that the details of those Orders match the Customer’s records
and the Customer will report any discrepancies to Digicel
on the same day.
(f) Digicel may at
any time without Notice to the Customer suspend, withdraw or deny access to the
Digicel Website for any reason including but not
limited to security, quality of service, failure by the Customer to pay an
amount when due or breach by the Customer of any provision of this Agreement.
provided by Digicel and other entities on the Digicel Mobile Money Website is believed to be accurate and
reliable when placed on this site, but Digicel cannot
guarantee it is accurate or complete or current at all times. Information on
the Digicel Mobile Money Website is for informational
purposes only and is not intended to provide financial, legal, accounting or
tax advice and should not be relied upon for those purposes.
Agreement shall be governed by the laws of New South Wales. The parties submit
to the exclusive jurisdiction of the courts of that State.
notice or other writing required or permitted to be given under this Agreement
or for the purposes of this Agreement (”Notice”) shall be in writing and shall:
(a) If to the
Customer, it is to be sent by prepaid registered mail or delivered by hand to
the address of the Customer set out in this Agreement, or such other address
the Customer designates in writing, or by Digicel
posting a Notice to the Digicel Website;
(i) if posted on the Digicel Website,
Notice is deemed to have been given 3 Days after the Notice was posted on the Digicel Website; or
(ii) if the Notice was sent to the address of the Customer, the
Notice is deemed to have been given on the Day after the Notice was sent,
unless delivered by hand in which case the Notice is deemed to have been given
(b) If to Digicel, be sent by prepaid registered mail or delivered by
hand to the address of Digicel set out in this
Agreement, or such other address Digicel designates
in writing, and such Notice is deemed to have been given on the Day after the
Notice was sent, unless delivered by hand in which case the Notice is deemed to
have been given on delivery. Any Notice given or made under this Agreement may
also be sent by email if:
(i) the Notice is sent to the email address last notified by the
intended recipient to the sender; and
(ii) the sender keeps an electronic or printed copy of the Notice
sent. A Notice sent by email will be deemed to have been given on the first to
occur of: (a) receipt by the sender of an email acknowledgement from the
recipient’s information system showing that the Notice has been delivered to
the email address stated above; (b) the time that the Notice enters an
information system which is under the control of the recipient; and (iii) the
time that the Notice is first opened or read by an employee or officer of the
using the Digicel Mobile Money Website and/or any Digicel Service, the Customer and Digicel
are expressly authorised to send financial and other data as well as electronic
messages to each other through the Internet. The Customer acknowledges that
when the Internet or any other means of electronic communication are used to
transmit or receive data and messages, the data and the messages may be
accessed by unauthorised third parties. Digicel shall
not be liable to the Customer for any loss or damages in connection with any
data and messages which may be accessed by unauthorised third parties. The risk
of such unauthorised third party receipt of information confidential to the
Customer is expressly acknowledged and accepted by the Customer when using any Digicel Service. The Customer releases and indemnifies Digicel from any claim arising out of an unauthorised third
party accessing data or messages being transmitted between the Customer and Digicel.
or other links to or from websites outside of the Digicel
Mobile Money Website are for the convenience of Digicel’s
clients only. Digicel does not review, monitor,
endorse or control, and is not responsible for, any sites linked to or from the
Digicel Mobile Money Website. Digicel
will not be liable for any damages in respect of linking or in consequence of
following a link.
Agreement shall continue and be in effect until terminated by the Customer or Digicel. Either party may terminate this Agreement at any
time, effective as of the close of business on the Day Notice of termination is
given. From and after termination Digicel shall not
be required to accept or process any Order thereafter placed by the Customer.
24.2 Subject to
paragraph 24.3, termination by either party shall not affect any Order or other
transaction previously entered into and shall not relieve either party of any
outstanding obligations arising out of this Agreement, nor shall it relieve the
Customer of any obligations arising out of any Order entered into prior to such
24.3 In the event that Digicel
is made aware of or has reason to believe any of the following:
(i) that the Customer has provided false or misleading
information to Digicel; or
(ii) that the
Customer has participated or is participating or has assisted or is assisting
in money laundering or terrorist financing;
(iii) that the Customer is being officially investigated by law
enforcement and/or regulatory agencies; or
(iv) that an Insolvency Event has occurred,
then Digicel, at its sole discretion, may terminate this
Agreement immediately by Notice to the Customer, and Digicel
shall be relieved of any obligations set out in this Agreement or arising out
of the transactions contemplated by this Agreement, including any obligations
arising out of any Order already placed with and accepted by Digicel.
25 Exclusion of liability
25.1 Digicel shall
not be liable for the loss of cash or unauthorized use of Your Account or has
been accessed by an unauthorized User.
25.2 Digicel shall
not be liable for any indirect or consequential damage suffered by the Customer
for any defect or failure in the performance of Digicel
Money Transfer by reason of any mistake, omission, interruption, or delay.
25.3 Insofar as it is permissible by law, Digicel shall not be liable for any injury, loss or damage,
whether foreseen or unforeseen, directly or indirectly (and including
Consequential Loss) resulting from:
any failure, interruption, delay,
suspension or restriction in providing Digicel Mobile
Money to You which is due to a force majeure event set out in Clause 31 below;
any suspension or
non-availability of a part or the whole of the Digicel
suspension or termination of this
any unlawful or unauthorised use
of or access to the Equipment, Digicel Mobile Money
and/or Digicel Website by You or third parties;
any claim arising out of any act
or omission by You, Your servants or agents or arising out of any reliance
placed by such persons on call content;
claim arising in relation to the provision or non-provision, maintenance or use
of the Equipment, or website being lost or the failure to connect to the Digicel Mobile Money website or by the Equipment for
25.4 Further to above, Digicel,
our associated or affiliated companies, and our and their respective officers,
agents, directors, principals, employees, attorneys, underwriters, advisors,
successors and assigns will not be liable for or in respect of any effects,
claims, actions, proceedings, suits and causes of action (whether at law or in
equity and including emotional distress), liens, debts, damages, fatalities,
losses or injury (whether property or personal, consequential or otherwise),
judgments, liabilities, costs and expenses of every nature kind whatsoever,
whether known or unknown, suspected or unsuspected arising out of or in respect
to the Equipment, Digicel Mobile Money and/or Digicel Website by or through the Digicel
Website and/or Equipment.
25.5 If Digicel
offers services as agents of any principal provider or providers, or as
contractors, Digicel will accept neither
responsibility nor liability to You for the performance, loss of profit,
emotional or mental distress or disappointment, or provision thereof by such
providers so long as we have identified the providers to you and identified
ourselves as agents or contractors.
25.6 In the event that Digicel
is liable to You under any rights You may have under any legislation, for which
our liability is not able to be excluded, then where our liability is able to
be limited, then we choose to limit our liability to replacing the relevant
goods or services where it is fair and reasonable to do so.
25.7 Digicel will not
at any time, in any circumstances, be liable for any loss or damage whatsoever including
but not limited to any loss of data, loss of savings, loss of business, loss of
profit, or any other direct, indirect, special or consequential damage, in each
case whether arising from negligence, breach of contract, breach of statutory
duty or otherwise which is in any way connected with or arises out of Your use
of Digicel Mobile Money.
25.8 Digicel and Digicel Personnel will not be liable for any failure to
perform their and our obligations if such failure arises from such
circumstances reasonably beyond their and our control. These circumstances
include, but are not limited to, strikes at a national level or industrial
disputes at a national level, lockouts, riots, labour disputes, epidemics,
earthquakes, fire, floods and other acts of nature, government action or their
agencies, war, sabotage or inability to obtain sufficient labour, fuel or
failure of telecommunications lines, power failures,
power interruptions or shortages, failure or breakdown of machinery, computer or processing systems failures, theft,
malicious damage, strike, lock-out or industrial action of any kind.
25.9 Digicel will not be responsible
for delays or failures in accessing Digicel Mobile
Money, or processing of transactions, or transactions being declined, or by
delaying or failing to implement any of Your
25.10 Digicel will
endeavour to process all transactions without delay, but expressly disclaim any
and all liability for any processing delays, or the consequences of any
processing delays, which may occur in any circumstance, whether beyond Our
reasonable control, or otherwise.
any provision of this Agreement shall be prohibited by Law or is or becomes illegal,
invalid or unenforceable in any jurisdiction, that will not affect:
(a) the legality, validity or enforceability in that
jurisdiction of any other term of this Agreement; or
(b) the legality, validity or enforceability in other
jurisdictions of that or any other term of this Agreement.
Agreement comprises the terms and conditions governing the relationship of the
Parties. If there is any conflict between the terms of any schedule, attachment
or other addenda attached to this Agreement, then the terms in this Agreement
shall prevail, to the extent of that conflict, over the terms of the schedule,
attachment or other annexure.
terms of this Agreement and any transactions under it, may be amended by Digicel at any time. Digicel will
provide Notice to the Customer of any such amendment. The Customer agrees to be
bound by the terms of such an amendment on the earlier of
(a) ten (10) Days after Digicel has
posted notice of the amendment on the Digicel
on the date of the entry of any Order after the
Agreement, and all schedules, attachments or other annexure attached to it,
constitute the entire agreement between the parties with respect to the use and
provision of the Digicel Services, and supersede and
replace any and all prior or contemporaneous understandings, communications or
agreements, written or oral, regarding such subject matter.
party will conduct its activities under this Agreement in compliance with all
applicable Laws. The Customer may be required to provide Digicel
with personal information or information concerning its business, which will be
kept on record. If Digicel considers it necessary in
order to comply with any applicable Law, Digicel may
make a report of transactions involving the Customer to the appropriate
regulatory authority or law enforcement agency.
Neither party will be
liable for any failure or delay in performance (except for duties of payment)
due to an event or cause beyond the reasonable control of the party claiming
the force majeure, which shall include acts of God (earthquakes,
flood, fire, fog, storm, volcanic eruption or other natural disaster, but
excluding bad weather, riots, wars, accidents,
industrial disputes, embargo or requisition (acts of government), or delays in
performance of its personnel, agents, or contractors caused by any such circumstances as referred
to in this Clause 31. In case of a force majeure, the affected Party shall
promptly notify the other Party in writing and furnish it with all relevant
32 Governing law
is governed by the law applicable in New South Wales and You
submit to the exclusive jurisdiction of the courts of New South Wales,