Antilliano Por N.V

Terms & Conditions of Contract Mobile Telephone Service (hereafter: Terms and Conditions)

1.            Definitions

1.1          These terms have the following meaning:

Agreement - the application form, these Terms and Conditions, the Privacy Policy, our current price list, the User Guides and applicable fair use policies;

Charges – all the charges associated with the Service. All Charges are ex. tax (e.g. O.B.) unless expressly stated otherwise;

Connection – access to the Service;

Content – all information whether textual, visual, audio or otherwise, including all information supplied and accessible by you and third parties by means of the Services;

Digicel Customer Care – Digicel’s customer care department, which can be reached at the number and email published on our website;

IP Rights – means all registered and unregistered intellectual and industrial property rights (whether registerable or not) recognized as such in any jurisdiction including (by way of example only):

(a) patents, utility models trademarks, service marks business and trade names and rights in domain names, logos, get up (including any and all goodwill associated with or attached to same) designs, copyrights, database rights; and

(b) all similar or equivalent rights protecting inventions, discoveries, technology, know-how, trade secrets, expertise, methodologies or any creative, artistic or industrial works or        information,

together with all applications and rights to apply for registration of any such rights anywhere in the world whether presently existing or created in the future and the right to enforce past infringements of the same;

Minimum Period – means the period for services defined on the application form. If no period is defined on the application form it will be 24 months from the date the Service is first provided;

Network – our telecommunications network;

Price Plan – a bundle of airtime and supplementary Services (if any) offered by us for an agreed monthly payment;

Privacy Policy - Digicel’s privacy policy as published on its website and as may be updated from time to time;

Roaming – using the Service in another location/country using the network of another provider;

Service – any or all (as the case may be) of the following services: airtime service enabling you to make or receive calls and to send and receive SMS, MMS and/or data including the ability to send and receive email and to access, upload and download information to and from the internet and any other services we agree to provide to you, as may be amended from time to time;

SIM Card – the card or other device bearing a unique telephone number programmed to allow a mobile telephone to access the Service;

User Guides – any guides or documentation supplied with your handset and/or SIM Card, which explains for example how the Service and/or handset works, how to purchase a recharge card etc.;

we, us, our and Digicel –  –  ANTILLIANO POR N.V., T/A DIGICEL BONAIRE, with registered office at Biesheuvel 24-25, Willemstad, Curacao, with local address at Kaya Grandi 26, Kralendijk, Bonaire.

you, your and customer – the person or company defined on the application form who is a party to this Agreement. If you are not the end user, you guarantee fulfillment of the obligations pursuant this Agreement by the end user. You are and will remain responsible and liable towards us as if you were the end user.

2.            Applicability

2.1          These Terms and Conditions apply to any offer and supply of Services and/or handsets. These Terms and Conditions replace and supersede all prior Terms and Conditions between you and us. By using the Services you have agreed to these Terms and Conditions. Supplementary terms may be applicable if and when notified by us. Any codes of conduct, fair use, privacy, Price Plan and/or other policy form in integral part of the Agreement.

2.2          We reserve the right to amend or unilaterally change any of Digicel’s products, Services, Charges and/or these Terms and Conditions subject to notifying you of such amendments.  Such notification may be by way of advertisement on our website, social media or otherwise. If the Service is used after notice of amendment, then the change in product, Service, Charges and/or Terms and Conditions shall be deemed accepted.

3.            SIM Cards and Numbers

3.1          In so far as necessary, we provide you with a SIM card. The SIM card remains our property.

3.2          We are entitled to replace the SIM card provided to you. We are also entitled to change the technical properties or settings of a SIM card and to alter the mobile telephone number associated with your SIM Card or any other name, code or number associated with the Service.

3.3          You (or any third party acting on your behalf) may not interfere with the SIM Card for any reason. Any SIM Card found defective (through no fault of ours) may require payment for its replacement, exchange or repair.

3.4          Digicel has proprietary rights to any mobile number allocated to you. We reserve the right at any time to alter or replace a mobile number allocated to you. It may not be used for by-passing or other activities.  

3.5          Where the SIM Card and/or Service is suspended we may charge a reconnection charge. As a condition of reconnecting we may require a deposit from you or an increase in the deposit held by us.

3.6          You agree that the mobile telephone number associated with the SIM Card may be displayed on devices receiving the Services.

3.7          Upon expiration or termination of the Agreement, a SIM card must be put beyond use immediately.

3.8          Theft and loss

3.8.1      In the event of theft, loss or (suspicion of) use against your will of a SIM card, handset or the associated security codes, you can ask us to block the SIM Card. Blocking is done as soon as possible. A request for blocking must be made promptly after the discovery of the theft, loss or use against your will.

3.8.2      You remain obliged and liable to pay the Charges incurred until the SIM Card is blocked. However, periodic payments for the Service remain due during the Minimum Term.

3.8.3      Blocking can be lifted at your request. Costs may be charged for this. Certain settings or information with regard to the Connection may be lost as a result of blocking.

3.8.4      You can visit one of our stores to request a new SIM Card. We may charge a fee for the replacement SIM Card.

4.            Handsets

4.1          All Digicel authorized handsets sold through our authorized dealer channel are network locked. Customers are not permitted to remove, or have a third party remove the lock, without prior written consent from us. You may return your handset within seven (7) calendar days of the date of purchase to the original place of purchase in case of a technical problem with the handset for a full refund, provided that all contents are returned in reasonable condition, free of damage. However, any and all warranties will seize to be applicable after the removal of the network lock.

4.2          If you take advantage of an offer to obtain a rebate for a handset by signing the rebate receipt you assume all liabilities associated with the mobile telephone that was traded in by you and indemnify us from any claims made by any third party.

5.            Service

5.1          In mobile telecommunications the possibilities for building up connections and the quality and properties of connections cannot be the same in all places at all times. The differences may depend, among other things, on the handsets used, the radio coverage of the network being used (which can be affected by, among other things, the location or presence in a building), the quantity of telecommunications traffic and atmospheric conditions. We will use our reasonable efforts to provide the Services with as little disruption as possible. However it is technically impossible to prevent all Service malfunctions or other limitations to the use of the Service. Liability for the non-functioning or not proper functioning of Services only exists within the limits of this Agreement.

5.2          Our Network may from time to time require upgrading, modification, maintenance or other work, which may result in partial or complete non-availability of Service for any length of time. Digicel is not liable for damage and/or loss caused by such non-availability.

5.3          You are solely responsible for evaluating the accuracy and completeness of any Content and the value and integrity of goods and services offered by third parties by means of the Service. We will not be a party to nor in any way be responsible or liable for any transaction concerning third party goods and services.

5.4          You can utilize the option to use the Connection for Roaming where we have provided for this. This option and the associated rates and terms and conditions are available on the website and may vary from time to time. You can use the services of the foreign provider concerned, with due regard for the use options, quality characteristics and regulations that are offered by this provider. For the avoidance of doubt the Charges associated with Roaming do not form part of the bundled airtime included in a Price Plan. A Roaming deposit maybe required. 

5.5          We do not guarantee that the availability of nor your ability to use and or reach any and all services, applications and/or content available on the internet or elsewhere via our network. In order to protect our interests we may restrict access.  

6.            Use

6.1          You are responsible for all use of the Service, the SIM Card and the handset, even if this is without your knowledge or permission. All cost and liabilities arising out of the use of the Services, the SIM Card and/or the handset will be borne by you. 

6.2          You agree and warrant to: a) only use the Service and SIM Card with equipment approved for use with our Network and that do not pose any danger to person or property or interferes with any Service; b) comply with all relevant laws and regulations and instructions given by us and not engage in any by-passing or other illegal activities; c) provide us with correct information and notify us in time of any relevant changes; d) take adequate precautions to prevent damage to or unauthorized use or theft of the your handset and/or SIM Card; e) use the SIM Card exclusively in connection with the Service; f) return the SIM Card to us, or anyone acting on our behalf, at our request; g) to comply with all reasonable requests by us (or our agents), particularly in relation to the investigation of fraud (including by-passing) or other offences or as required by law or in legal proceedings; h) co-operate with our reasonable security checks (which may include us making phone calls to you); i) not use the Service and SIM Card to send, receive, upload, download or otherwise facilitate any material which is offensive, indecent, defamatory, of a menacing nature, a nuisance, a breach of privacy,  unlawful, immoral or improper or to receive reverse charge calls; and j) not access or use Content that infringes the IP Rights and/or other rights of others; k) use the Service and SIM Card exclusively for personal use; l) not use the Service and SIM card  for the provision of commercial services.

6.3          You must notify us immediately if anyone makes or threatens to make a claim or issue legal proceedings against you relating to the use of the Service or Content.

6.4          Digicel has the right to suspend the Service for operational reasons, in an emergency, for your security and/or to prevent fraud or in circumstances where we could suffer direct loss.

6.5          We or our contractual partners may provide links to other web sites or resources. We neither accept responsibility for third party web sites or resources nor endorse their Content.

6.6          For Internet access, you understand that all Content on the Internet using the Service whether publicly posted or privately transmitted, is the sole responsibility of the person from which such Content originated. This means that you, and not us, are entirely responsible for all Content that you upload, download, email or otherwise transmit or receive via Internet access.

6.7          Your dealings with, and interest in, promotions, services, or merchants found by using your handset on or via the Services (including access to the Internet) are solely between you and the person with whom you are dealing. We will not be responsible for any losses or damages that may arise from any such dealings with third parties.

6.8          If you have a problem with your SIM Card, handset, the Service, a recharge card or any other problem relating to the Service please contact Digicel Customer Care.

7.            Liability

7.1          We are only liable to you (or any one claiming through you) as set out in this Agreement. We have no other duty or liability to you (or any one claiming through you).

7.2          We are not liable to you (or any one claiming through you) in contract, tort (including negligence or breach of statutory duty) or otherwise however and whatever the cause thereof, (a) for any increased cost or expenses; (b) for any loss of profits, revenues, business, contracts, anticipated savings, wasted expenses, or loss property or use of property; (c) for any other special, indirect or consequential loss of any nature whatsoever; (d) for suspension or non-availability of any Service; (e) for suspension or termination of this Agreement; (f) for interruption of or failure to connect any call made to or by the equipment; and/or (g) for any information transmitted or received using the Services being altered or lost or intercepted by any third party.

7.3          We are not be liable to you (or any one claiming through you) if we are unable to carry out our obligations or provide the Service because of something beyond our control including, but not limited to the following: (a) Acts of God, (b) outbreak of hostilities, riot, civil disturbances acts of terrorism, (c) the act of any government or authority (including refusal or revocation of any licence or consent), (d) fire, flood, fog or bad weather, (e) power failure, failure of telecommunications lines, failure or breakdown of plant, machinery, equipment or vehicles, (f) default or failures of suppliers, subcontractors or other telecommunications operators, (g) theft, malicious damage, strikes, lock-outs or industrial action of any kind and (h) shortcomings of other providers of networks and services to which our Network is directly or indirectly connected.

7.4          Save as expressly set out in this Agreement, all conditions, warranties, terms and undertakings expressed or implied (including but not limited to fitness for a particular purpose) are expressly excluded from this Agreement to the extent permitted by law.

7.5          If we are found liable to you (or any one claiming through you), our liability to you (or any one claiming through you) under this Agreement shall be limited to a maximum of the monthly recurring charges paid for the preceding six calendar months with a maximum of USD 1,000 per claim or series of related claims which are direct financial loss or direct physical damage to or loss of property resulting from our breach of contract or negligence when providing the Service.

7.6          You agree to indemnify and hold us, our agents, employees, directors, successors and assignees from and against all liabilities, losses, damages, claims, suits and expenses, including but not limited to reasonable legal expenses and other costs relating to or arising out of your use of the Services or your obligations under this Agreement.

8.            Suspension and termination

8.1          In addition to our other rights, we can at our sole discretion suspend the Service or terminate this Agreement immediately at any time in respect of any or all Services provided, in whole or in part, without the need of prior notice if: a) you are in breach of clause 6.2, 13.3 or any other part of this Agreement, any breach will constitute immediate default; b) you fail to pass any credit assessments; c) we have reasonable cause to suspect fraudulent use of the Service or SIM Card, including bypassing; d) an order, instruction or request of any government body, an emergency service organisation or any other person or organization with the appropriate authority orders us to; e) you are the subject of a bankruptcy order, or become insolvent, or make any arrangements with or for the benefits of your creditor(s); and f) you or anyone that uses the SIM Card damages the Network or puts it at risk.

9.            Data Protection

9.1          We process information, including personal, traffic and location information about you in the provision of the Services on the grounds of this Agreement, possible other contracts with us and the Privacy Policy , with due regard to the applicable legislation and regulations.

9.2          Information on how, why and what information we process about you and the protection of your privacy is set down in our Privacy Policy, as published on our internet site. This Privacy Policy may be amended from time to time. The following paragraphs of this clause contain a few provisions relating to protection of your personal privacy.

9.3          We may process the information referred to in the first paragraph for commercial, idealistic and charitable purposes including market research, marketing and sales activities, assessing creditworthiness, combating fraud and provision to third parties, with due regard for the purposes and options to resist applicable to the processing concerned, as described in more detail in the Privacy Policy.

9.4          We will comply with statutory obligations to provide information, for example as part of a criminal investigation, and will cooperate with lawfully issued instructions for telephone tapping. We cannot provide any information about criminal investigations. Questions about this should be put to the office of the relevant authorities.

9.5          If, in the context of collecting claims against you, we use third parties such as collection agencies, or it transfers such claims to such third parties, we are entitled to provide these third parties with the information we have concerning you.

10.          Intellectual Property

10.1        You acknowledge that Digicel is the owner or licensee of IP Rights and that nothing herein contained shall be construed as conferring upon you any right, title or interest in said IP Rights.

11.          General

11.1        You may not transfer or try to transfer any of your rights and responsibilities under this Agreement unless we have agreed in writing beforehand. We may transfer our rights and responsibilities pursuant this Agreement to any third party.

11.2        Any notice you are required to send to us under this Agreement must be sent to our registered   office.

11.3        If a clause in this Agreement is found to be invalid or unenforceable in whole or in part for any reason whatsoever it shall not affect the validity and enforceability of the remainder of this Agreement and shall whenever allowed by the context be deemed to be replaced by such valid and enforceable clause the content of which shall be as close as permissible to that of the invalid or unenforceable clause.

11.4        The laws of the Openbare Lichamen BES in Bonaire apply to this Agreement and any dispute will be settled in the courts of Bonaire.

12.          Pre-Paid terms

12.1        Payment process

12.1.1    As you use the Service, charges are incurred and will be deducted from your account. Your account balance is available by typing the relevant code and then pressing send on your phone. If you make a call and your credit expires during the call, the call will be terminated.

12.1.2    The Charges, as amended from time to time, also form part of the Agreement. Such Charges may include in addition to our cost, other charges, fees as from time to time may be applicable, levied or charged from third party providers and or authorities.

12.1.3    You may add value to your account at any time. Each recharge card has an expiry date. Once you purchase a new recharge card, the expiry date of the latest recharge card will prevail and apply to the entire balance of your account.

12.1.4    Based on factual circumstance, your account will go through the ‘Prepaid Subscriber Life Cycle’ that consists of 4 different states:

State 1: Active - Your account becomes active once you have made or received your first call SMS, MMS or other act using your preinstalled credit. The number of days your account remains active is dependent on the value of the Digicel prepaid card (recharge card) purchased.  Each denomination has a defined number of days before the card expires. 

State 2: Inactive - Your account becomes inactive when there is zero money in your account. In this state, you can receive calls but you cannot make paid calls. You can only call emergency numbers and Customer Care as well as top-up your account, therefore moving you back into the active state. When your recharge card time expires, you move into the Deactive State.

State 3: Deactive - Your account moves into this deactive state when the time on your most recent recharge card has expired. This can occur even with money in the account. When your account becomes deactive, you have a maximum of sixty (60) days before you move into the expired state. In this deactive state, you can send and receive SMS (text messages) until there is zero money in your account. You can also receive calls, however you cannot make paid calls.  You can only call emergency numbers, and Customer Care as well as your fast recharge number to top-up your account. When next you top-up, you will be moved into the active state and any money remaining on your account, will be added to your new balance.

State 4: Expired - Your account becomes expired if you fail to recharge your account before the sixty (60) days given in the Deactive state.  At this point your account will be terminated and you will be removed from the Network. Your mobile number and any credit on your account will be revoked.

12.1.5    If you wish to regain access to the Network, you will need to purchase a new Digiflex SIM Pack. You may not transfer any credit balance to a third party and Digicel has no obligation to pay or refund you for the cost of the handset or any credit remaining on your previous prepaid account.

12.1.6    No invoice, including the provision of periodic or itemized statements of account, or record of calls made and/or received will be sent to a prepaid customer.

12.2        Term

12.2.1    The Agreement for pre-paid is entered into for an indefinite term. .

13.         Post-Paid terms

13.1        Applicability

13.1.1    These Post-Paid terms apply to all postpaid services.

13.2        Credit assessment and deposit

13.2.1    All applications for registration and additional Services may be subject to a credit assessment before we connect you to the Network. If the assessment does not meet our requirements we reserve the right not to supply the requested (additional) Services. We accept no responsibility for the accuracy of the information provided. Nor do we accept any liability for the consequences of declining to Connect you.

13.2.2    We may request a deposit and/or activation fee from you (a) before Connection; (b) before making additional Services available to you; and/or (c) before reinstating the Services after suspension. We do not pay interest on deposits. If you owe us money, Digicel may in its sole discretion set off the deposit against the amount due to us, without prejudice to any other rights we have pursuant the Agreement. If there is a balance left over on termination or expiration of this Agreement we will remit this to you.

13.3        Payment and invoicing

13.3.1    Ordinarily we will invoice you monthly in advance for monthly Charges, which are non-refundable, and monthly in arrears for actual usage (such as voice, SMS, MMS and data) Charges and for any Charges for Services used at any earlier time if they have not previously been invoiced. We reserve the right to amend the invoicing period and procedure and submit interim invoices to you. OB and any other taxed and/or levies imposed will be added to all invoices at the relevant rate if applicable. Monthly Charges incurred for periods of less than a month will be calculated on a pro rata basis.

13.3.2    Charges for using the Service will be calculated using the details we have recorded. Our information is conclusive in determining the amounts owed unless it can be demonstrated that this information is not correct.

13.3.3    You must pay your monthly bill by the date stated on the bill. If no due date is specified you must pay within 21 days of the invoice date. Invoices will be sent electronically to an email address specified by you to us. Digicel may charge for the provision of hard copy invoices. For any overdue payments we may charge interest at a minimum of 1.5% per month or part thereof with a minimum of USD 2.80 per month. We reserve the right to charge for cost (including attorney fees and collection agency fees) that we incur in case of late payment or non-payment of invoices with a minimum of USD 100. Digicel may set off any monies owed to you against any amount due to us under this or any other agreement with Digicel. Customer is not allowed to set off.

13.3.4    We may - at our discretion - apply a credit limit to your account (which we may alter by notifying you) and may suspend the Service if this limit is exceeded. As our billing system is not instantly updated each time you use the Service it is possible, especially when making international calls or Roaming, to exceed your usage and/or credit limit. You will be liable for all Charges incurred including any Charges exceeding your usage and/or credit limit. You may be asked to pay any Charges incurred in excess of your usage before Service is reinstated.

13.3.5    Where a Price Plan includes minutes, which apply to certain call types up to a monthly limit, unused inclusive call minutes can be carried forward for one month only after which they expire, unless the specific Price Plan indicates differently. Eligible calls will be set against inclusive minutes in the order in which such calls are made.

13.3.6    Call charging rates that vary according to the time of day (“Rate Band”) which extend across several Rate Bands are billed according to the duration of the call against the rate of the applicable Rate Bands.

13.3.7    Calls are charged in one second increments rounded up to the nearest second and then up to the nearest cent, with the exception of GSM Gateway services, which are charged in minutes. 

13.3.8    You will be responsible for paying all Charges on your account, whether or not they have been incurred by you personally.

13.4        Term

13.4.1    After expiry of the Minimum Term the Agreement will continue for an indefinite term.

13.4.2    You may terminate this Agreement at any time after the Minimum Period by giving us at least one month’s written notice. We may terminate this Agreement at any time after the Minimum Period by giving you at least one month’s written notice.

13.4.3    You may terminate this Agreement before the Minimum Period if (i) during the first three months of the Agreement we increase the Charges in that period and/or (ii) at any time without reasons if you pay us: (a) all charges that are due, plus (b) a lump sum equivalent to all of the monthly subscription Charges still remaining up to the end of the initial Minimum Period. In the event you purchased a handset with your postpaid subscription, ownership will remain with us until all monthly subscription Charges for the Minimum Term are paid in full.

14.          Hybrid terms

14.1        The Hybrid Service provides an alternative to the pure pre- and postpaid Services. The Hybrid Service is a postpaid subscription that gives you a fixed amount of data and credit to use for minutes and/or SMS for a fixed price. The use of minutes and SMS (and where applicable roaming) will be processed on a pre-paid basis, thus using the credit. When you have exhausted your credit, you can top-up on a pre-paid basis.

14.2        The Pre-Paid terms as specified in clause 12 above apply to the Hybrid Service except for clause 12.1.4, 12.1.5, 12.1.6 and 12.2.

14.3        The Post-Paid terms as specified in clause 13 above apply to the Hybrid Service.

15.          Closed User Group (CUG) terms

15.1        CUG Service

15.1.1    The terms regarding CUG apply to the extent you and Digicel agreed on the provision of CUG services.

15.1.2    The CUG is a group nominated by you in which the members can call each other for a fixed amount per month. This relates to Digicel numbers only (prepaid and postpaid) for local calls in Bonaire. Calls to and from the nominated Digicel numbers that form the CUG will not be free of charge whilst roaming. Such calls will be billed at the applicable roaming rates. SMS, MMS, data and other usage are excluded as well. We may charge an administration fee for setting up a CUG.

15.1.3    The CUG is made available for reasonable business usage. We reserve the right to suspend and/or terminate the CUG service and/or disconnect the relevant number from the CUG if monthly service charges are not paid in time and/or if at our sole discretion the CUG service is being abused. Such abuse includes, but is not limited to:

15.1.3.1                Keeping a call ‘live’ without a voice conversation being ongoing;

15.1.3.2                Using the CUG service for data transmission and/or non-GSM voice communication;

15.1.3.3                Unreasonable usage;

15.1.3.4                Unreasonable usage that causes or may cause congestion on out Network;

15.1.3.5                Attempting to undermine our Network; and/or

15.1.3.6                Reselling the CUG service or an attempt thereto, whether on a commercial basis or otherwise.

15.1.4    The CUG is available for a minimum of five (5) and a maximum of three hundred (300) numbers, unless agreed otherwise in writing. We reserve the right to amend the minimum and maximum. Without prejudice to the foregoing, upon at least two (2) months notice you may add or delete numbers to the CUG after the Minimum Period. We may charge an administration fee.

15.2        Payment and invoicing

15.2.1    Ordinarily we will invoice you monthly in advance. We reserve the right to amend the invoicing period and procedure and submit interim invoices to you. OB and any other taxed and/or levies imposed will be added to all invoices at the relevant rate if applicable. Monthly Charges incurred for periods of less than a month will be calculated on a pro rata basis.

15.2.2    A copy of the Price Plan is available when you purchase the Service and/or the handset.

15.2.3    You must pay your monthly bill by the date stated on the bill. If no due date is specified you must pay within 21 days of the invoice date. For any overdue payments we may charge interest at a minimum of 1.5% per month or part thereof. We reserve the right to charge for cost (including attorney fees and collection agency fees) that we incur in case of late payment or non-payment of invoices.

15.2.4    We may at our discretion apply a credit limit to your account (which we may alter by notifying you) and may suspend the Service if this limit is exceeded. You will be liable for all Charges incurred including any Charges exceeding your usage and/or credit limit. You may be asked to pay any Charges incurred in excess of your usage before Service is reinstated.

15.2.5    You will be responsible for paying all Charges on your account, whether or not they have been incurred by you personally.

15.3        Term

15.3.1    After expiry of the Minimum Term the CUG service will continue for an indefinite term.

15.3.2    You may terminate the CUG service at any time after the Minimum Period by giving us at least one month’s written notice. You are free to restore the CUG service throughout this notice period, should you change your mind. We may terminate the CUG service at any time after the Minimum Period by giving you at least one month’s written notice.

15.3.3    You may terminate the CUG service before the Minimum Period (i) during the first three months of the Agreement if we increase the Charges in that period and/or (ii) at any time without reasons if you pay us: (a) all charges that are due, plus (b) a lump sum equivalent to all of the monthly subscription charges still remaining up to the end of the initial Minimum Period. In the event you purchased a handset, ownership will remain with us until all monthly subscription Charges for the Minimum Term are paid in full.