Terms and Conditions - Pacific Islands Money Transfer

Digicel Terms and Conditions

Digicel Mobile Money Terms and Conditions Version 1.0

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 risks.

This document is divided into the following sections:

a. Section 1: Introduction and frequently asked questions

b. 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 Important Information

Introduction and Important Information

Section 2: Terms and Conditions

1 The Agreement

1.1 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.

2 Definitions and Interpretation

2.1 In this Agreement:

Additional Services means any additional services added by Digicel, notified to You and You subscribing to such services.

Agreement means this agreement including any annexures and schedules.

Authorisation Limit means a limit on the value of an Order or all Orders that the Customer or an Authorised User may place with Digicel.

Authorised User means any User to whom a login and password has been provided by the Customer.

Credit Limit means a limit on the total amount of credit that Digicel will provide to the Customer

Confidential Information means information that:

(a) is by its nature confidential;

(b) is treated by each party as confidential; or

(c) each party knows or ought to know is confidential,

except information that:

(a) 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.

Customer/User 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.

Day means 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 means Digicel Pacific Limited including its subsidiaries and includes the officers, employees, agents and subcontractors of Digicel.

Digicel Personnel means employees, officers and agents of Digicel.

Digicel Services 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

Equipment means Your computer or any other device used to access to the Internet.

Fees mean the Tariffs and other charges payable by You under this Agreement for use of Digicel Mobile Money.

Financial Transactions Reporting legislation means the Financial Transactions Reporting Act and any subsequent amendments or regulations (collectively ‘the Act ’).

Help means the access to Digicel’s customer care You can gain by calling 123.

Instruction means any instruction or request given by the Internet.

Internet means the interconnected system of networks that connects computers around the world.

Law means any statute, regulation, rule, subordinate legislation or other document enforceable under any statute, regulation, rule or subordinate legislation.

Money Transfer means the transfer of Money from one Customer to another Customer using the Digicel Mobile Money Platform or to a customer from a Third Party Network.

Order 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 Services.

Party means either You or Digicel.

Password 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.

Terms means anything set out in this Agreement.

Territory means Australia, Fiji, New Zealand, Samoa and Tonga.

Transaction 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 Services.

Value Date 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.

You/Yours means the Customer/User.

2.2 In this Agreement:

(a) the singular includes the plural and vice versa;

(b) headings to clauses are included for the sake of convenience only and shall not affect the interpretation of the clauses to which they relate;

(c) references 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;

(d) this Agreement shall bind each party’s legal personal representatives, successors and assigns.

3 Digicel Mobile Money Account Application and Required Information

3.1 Before You can commence using Digicel Services You must register with Digicel or on the Digicel Website in the prescribed form.

3.2 You must provide to Digicel all Customer Identification documents before you may be registered for Digicel Mobile Money.

3.3 You agree that You:

(a) will supply to Digicel, upon request, any information in order for Digicel to provide Digicel Mobile Money to You;

(b) 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.

(c) authorise Digicel 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;

(d) authorise Digicel 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;

(e) authorise Digicel to receive and disclose any information about You to facilitate our ability to carry out any activity in connection with a legal, governmental or regulatory requirement;

(f) 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 public nature).

3.4 You must ensure that You provide accurate information to satisfy the Customer Identification Procedures and any of our requests under this Agreement.

3.5 Digicel may at its sole discretion decline Your application for Digicel Mobile Money.

4 The Customer

4.1 Representations and Warranties

At 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

(iv) each 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 so;

(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 Law;

(ii) the Customer is properly appointed as sole trustee of the trust;

(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 trust;

(v) the Customer will not do anything which may result in the loss of its right of indemnity from the trust assets;

(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 effect;

(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.

(d) Execution 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;

(e) All 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;

(f) All 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

The 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

If 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.

5 What are the Services?

5.1 You can only use Digicel Money Transfer subject to the Terms in this Agreement.

5.2 When You are validly registered Digicel may provide the following as Digicel Mobile Money Services:

(a) Money Transfer;

(b) Additional Services.

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 Money.

6 Acceptance and Commencement

You are deemed to have accepted these Terms as amended from time to time and which take effect upon your registration to the Digicel Mobile Money services.

7 Your 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 Territory.

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 regulatory bodies.

9 Indemnity

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.

10 Confidentiality

10.1 Confidentiality

Digicel 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

Due 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 each Territory.

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 difficulties.

11.2Digicel:

(a) 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 variance;

(b) 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 country;

(c) 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;

(d) does 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;

(e) 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.

(b) This 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.

13 Credit Limits

(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.

(b) The 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.

14 Rejection

Digicel reserves the right to refuse any Order that is incorrect, incomplete, or unsatisfactory to Digicel for any reason.

15 Payment of Order

Following 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

(a) extend the 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.

16 Value Date

If 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.

17 Delay

Although 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.

18 Rates

Rate 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 processing costs.

19 Quoting Error

Should 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.

20 Cancellation or Amendment

Should 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.

21 Confirmation of Orders

An 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.

22 Internet Ordering through Digicel Mobile Money Website

If the Customer uses Digicel’s website based foreign exchange ordering system (the “Internet System”), the Customer confirms and accepts the following:

(a) The 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.

(b) All 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 Internet System.

(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.

23 General

23.1 Informational Purposes

Information 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.

23.2 Jurisdiction

This Agreement shall be governed by the laws of New South Wales. The parties submit to the exclusive jurisdiction of the courts of that State.

23.3 Notices

Any 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 on delivery.

(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 recipient.

23.4 Internet

In 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.

23.5 Hyperlinks

Hyperlinks 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.

24 Termination

24.1 This 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 termination.

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:

(a) 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;

(b) any suspension or non-availability of a part or the whole of the Digicel Mobile Money;

(d) any unlawful or unauthorised use of or access to the Equipment, Digicel Mobile Money and/or Digicel Website by You or third parties;

(e) 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;

(f) any 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 whatever reason.

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 utilities, 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 instructions.

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.

26 Severability

If 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.

27 Conflict

This 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.

28 Amendments

The 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 Website; or

(b) on the date of the entry of any Order after the amendment.

29 Entire Agreement

This 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.

30 Compliance with Law

Each 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.

31 Force Majeure

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 information thereto.

32 Governing law

This Agreement is governed by the law applicable in New South Wales and You submit to the exclusive jurisdiction of the courts of New South Wales, Australia.

Terms & Conditions

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