TERMS AND CONDITIONS
Terms and Conditions
The provision of the SMART BRO broadband internet access service (hereinafter referred to as “the Service”) shall be governed by the following terms and conditions (hereinafter referred to as “the Agreement”). The terms and conditions (including any amendment) governing the use of the Service shall also be found in the website www.smart.com.ph/smartbroSAF. The Subscriber agrees and undertakes to consult www.smart.com.ph/smartbroSAF website for the most updated version of the Service terms and conditions. In the event of conflict between these terms and conditions and the terms and conditions posted at the www.smart.com.ph/smartbroSAF, the terms and conditions posted at the www.smart.com.ph/smartbroSAF shall prevail.
1.0 Service Provision Conditions
1.1 Provision of Service. SMART BROADBAND INC. (hereinafter referred to as “SBI”) shall cause the installation and connection of the Subscriber’s personal computer and/or network (hereinafter referred to as the “Subscriber Equipment”) to SBI’s network as soon as reasonably practicable after receipt of payment of the prescribed fees and deposit for the Service. Should SBI be prevented from causing the installation for more than four (4) weeks by the Subscriber’s own act or omission, the advance payment, if any, shall be made available for refund at any SMART Wireless Center. SBI reserves the right to disconnect the Service at any time should any Subscriber Equipment and paraphernalia be found to cause harmful interference to SBI’s network or to cause degradation in the quality of Service. The Subscriber agrees to hold SBI free and harmless from any liability arising from such disconnection.
1.2 Equipment and Peripherals. SBI shall provide the Subscriber with the Customer Premises Equipment (“CPE”) or Modem and/or the Subscriber Identity Module (SIM) Card and other peripherals necessary for Service access (hereinafter referred to as the “CPE and/or Peripherals”) as set forth in the delivery receipt issued to the Subscriber.
Hardware. All CPE and/or Peripherals connected to or used in conjunction with the Service shall be of a type approved by SBI. SBI does not, by this Agreement, cover any representation or warranty for any telecommunications and related equipment.
Loss or Damage of Hardware. A) The security of the SIM Card and the confidentiality of his Personal Identification Number (PIN) as well as the proper care and maintenance of the CPE and/or Peripherals shall be the Subscriber’s sole responsibility. B) In case of loss of CPE and/or Peripherals, the Subscriber shall immediately inform SBI of such fact, first by telephone through SBI’s Customer Care Hotline or any SMART Wireless Center, to be followed by the submission of an affidavit of loss or a police report to document such loss within 24 hours from the discovery of the loss. SBI, upon notice of such loss, shall immediately disconnect the Service. All charges and fees accruing prior to the disconnection shall remain for the account of the Subscriber.
1.3 Site Survey. SBI reserves the right, upon due notice, to conduct site surveys, tests and/or inspections inside the Subscriber’s premises, as necessary to determine the requirements for CPE and/or Peripherals installation and Service maintenance. The Subscriber understands that should there be no signal from the SBI antenna to the Subscriber’s premises where the Service is intended to be provided, the Subscriber will not be able to avail of the Service. The Subscriber agrees to hold SBI free and harmless from any liability arising from the said non-availability of the Service.
1.4 Non-transferability of Rights and Location. The rights and privileges extended to the Subscriber in relation to the subscription and the CPE and/or Peripherals are purely personal to the Subscriber and shall not be transferred to any individual or entity or to any other location, without obtaining the prior written approval and clearance from SBI. Any such transfer of rights and/or location without the prior written approval and clearance of SBI shall be void regardless of receipt by SBI of Monthly Service Fee and other charges from the supposed transferee.
1.5 Limitation of Liability. SBI shall not be responsible for delays or for failure or omission of its Service due to any cause beyond its control not due to its willful and intentional fault or negligence and which cannot be overcome by the exercise of due diligence including, but not limited to, labor disturbance, human or equipment breakdown, acts of God, or force majeure, whether or not the cause be of the same class or kind as those herein. The Subscriber agrees that in such case, the operation of this Agreement and delivery and rendering of Service, so far as necessary, may be suspended or terminated as the case may be, even without notice, without liability for loss and damage, it being understood that the cause of such interruption shall be remedied, if possible, with all necessary dispatch at the earliest practicable time. In the cases mentioned above, SBI shall not be liable for any loss or damage suffered by the Subscriber, unless such loss or damage is caused by the willful or grossly negligent act or omission of SBI’s employees or duly authorized agent which liability shall not exceed the amount of FIVE-THOUSAND PESOS (P5,000.00) as may be proven in a court of law.
1.6 Non-assumption of Responsibility. The Subscriber holds SBI free from any responsibility for any loss or damage resulting from the failure of Service caused by a malfunction of the SBI network or CPE and/or Peripherals for any reason whatsoever. Notwithstanding any other provision of this Agreement, SBI will not, for any reason, be liable for any indirect, incidental, out-of-pocket expenses, consequential, punitive, special or other similar damages including, but not limited to, damages resulting from loss of actual or anticipated revenues or profits, or loss of business, data or goodwill.
1.7 Use of the Service. The Subscriber’s right to use the Service is personal to the Subscriber. The Subscriber shall not re-sell or make any commercial use of the Service, without the prior express written consent of SBI. The Service shall not be utilized in bypassing or in activity/ies that tend to bypass the network or be used in prohibited services like callback, dialback, unauthorized audiotext, international and national simple resale (ISR/NSR) and other similar services (the “Unauthorized Activities”). The Subscriber further agrees not to facilitate, accommodate, forward or initiate origination and/or termination of SMS, MMS, GPRS, WAP or other voice, video or data-related services to a third-party, using the Service in a manner, numbering, labeling or routing format not duly prescribed and pre-agreed by SBI. The Subscriber shall likewise be liable to SBI for any and all compensation fee on account of any of the above Unauthorized Activities and unauthorized commercial use of the Service. The compensation fee is payable, without any limitation from the time the Unauthorized Activity and unauthorized commercial use occurred until the actual cessation thereof. A penalty equivalent to one hundred fifty percent (150%) of the computed revenue losses shall likewise be charged against the subscriber if proven accountable for such Unauthorized Activity and unauthorized commercial use. For this purpose, SBI shall have the right to full access to the relevant books and all other records of the Subscriber in order to ascertain the volume of traffic and total amount of compensation fee payable. In the absence of said record, SBI shall have the sole discretion in the determination of the said compensation fee. In addition to the Unauthorized Activities and unauthorized commercial use referred to above, the Subscriber undertakes not to use the Service for any activity that is contrary to morals and public policy or which violates any ordinance, law, decree, order, regulation or treaty, among others (the “Illegal Activities”).
The Subscriber agrees to indemnify and hold SBI free and harmless from any liability, suit, or damage arising from or connected with the Subscriber’s Unauthorized Activities, unauthorized commercial use and/or Illegal Activities. The Subscriber further authorizes SBI to supply any and all information requested by any law enforcement or government agency/ies, or other private entities, the latter within the limits provided for by law, relative to the Subscriber’s subscription to the Service. In which case, the Subscriber hereby irrevocably and unconditionally waives any and all its relevant remedies under the law, including but not limited to the right to claim damages.
2.0 Acceptance of Terms and Service Commencement Date
2.1 Term. This Agreement shall take effect from signing hereof by the Subscriber, and approval by the authorized representative of SBI and shall be effective for the duration of the period stated in the Subscriber Application Form to be counted from the Service Commencement Date and shall be automatically renewed for similar periods unless terminated by either or both parties in accordance with Section 6 hereof. In case of renewal, SBI may amend, change or modify the applicable rates.
2.2 Service Commencement Date. The Service Commencement Date for the Service provided shall be the day Service is activated.
2.3 Observance of Rules and Regulations. The Subscriber binds himself to strictly observe and comply with all government rules and regulations, laws pertaining to telecommunications, intellectual property and other related matters now existing or hereinafter promulgated, as well as reasonable rules and regulations as SBI may impose in the interest of Service. The Subscriber shall not use, interfere or jam any radio or telephone signal of other subscribers within or outside SBI’s network or other signals, otherwise, SBI shall have the right to disconnect the Service to the errant Subscriber. Any misuse shall be presumed to have been done by or under the authority of the Subscriber and shall be a ground for disconnection of the Service by SBI provided that any disconnection under this Section 2.3 shall not terminate this Agreement and the Subscriber shall still be liable for the payment of the Monthly Service Fee and other charges for the term of this Agreement.
3.0 Service Charges
3.1 Service Fee, Foreign Currency Adjustment and Other Charges. Upon approval of application for subscription, the Subscriber shall pay SBI a Monthly Service Fee in advance and the processing fee prevailing at the time of approval of application for subscription, which processing fee covers the installation fee.
Succeeding Monthly Service Fee and other charges must be paid on or before the Due Date indicated in the Statement of Account. Fees for Service and other charges shall be included in the Subscriber’s Statement of Account. Non-receipt of the Statement of Account shall not excuse the Subscriber from paying the Monthly Service Fee and other charges.
Where there is a change in any of the following economic factors: Philippine Peso-US dollar exchange rate, international carrier toll rates, labor costs, cost of utilities and other operating costs, Service rates and fees may be adjusted to take effect upon notice to the Subscriber. When applicable, fees shall be subject to VAT and other taxes, which may now or hereinafter be imposed by the Philippine Government on the Service or this Agreement. In case Service is billed based on per-minute or per-hour or per-day, or per-month, a fraction thereof shall be considered as one whole minute, or one whole hour or one whole day or one whole month, as the case may be. Further, in cases wherein Service was used to access international roaming features, the Subscriber agrees to pay usage-based charges which may be levied on top of the Subscriber’s monthly recurring charges. The Subscriber shall be liable for all transactions, including those incurring roaming charges regardless of who may make such transactions. Non-payment of these bills or refusal on the part of the Subscriber to pay bills arising from these transactions, including those incurring roaming charges, shall be sufficient ground for SBI to discontinue the Service.
3.2 Prepaid Fees and Charges. A) SBI may require a pre-paid fee as a pre-requisite for continuing Service. The pre-paid fee shall bear no interest. B) The Subscriber shall be charged a fee for the processing of any Service modification requests such as changes in the subscription plan, etc.
3.3 Additional Installation Charges. In certain instances where the subscription plan requires a CPE, the Subscriber shall pay for additional charges to cover materials and labor for non-standard installations, depending on the height of additional pole mast (i.e. for 20-ft. antenna and higher). *Applicable only for subscription plans with CPE.
3.4 Relocation. If a Subscriber of a subscription plan which requires a CPE will transfer residence, he will be charged the relocation fee prevailing at the time of relocation to cover for expenses of dismantling equipment from his current residence and re-installing to the new residence. *Applicable only for subscription plans with CPE.
3.5 Changes in Service. The Subscriber agrees to pay all charges for changes in Service feature including, but not limited to, reconnection, change of service package and change of ownership. SBI reserves the right to make changes in the Service for technical and other reasons, with due notice to the Subscriber.
3.6 International Roaming. The Subscriber shall be charged the applicable roaming rate and the roaming deposit fee in the event that the Subscriber avails of SBI’s international roaming service, if available. The Subscriber shall be responsible in notifying SBI within the appropriate number of working days before using the roaming service, if available. SBI shall not be liable for the failure of the roaming partner to provide services in the roaming area. SBI may impose a credit limit for international roaming charges. In excess of the preset credit limit, SBI reserves the right to temporarily disconnect this service until the charges incurred have been fully settled
4.0 Payment Terms
4.1. Due Date. SBI shall bill the Subscriber the Monthly Service Fee and other charges, which must be paid in full by the Subscriber on or before the Due Date indicated in the Statement of Account. SBI shall send to the Subscriber his Statement of Account at his given billing address by regular mail, facsimile or electronic mail, or by other method at SBI’s sole discretion. Should the Subscriber fail to receive the Statement of Account for whatever reason, he agrees to call and inform SBI’s Customer Service Hotline or access the electronic file or site which may be provided by SBI for this purpose from time to time, otherwise, it shall be conclusively presumed that the Subscriber has received the Statement of Account. The Subscriber acknowledges that SBI has advised him that SBI may suspend Service in case of the Subscriber’s failure to pay any bill on or before the specified Due Date. SBI shall bill the Subscriber at monthly intervals but reserves the right to alter the date of billing or interval of billing.
4.2 Billing Disputes. If the Subscriber in good faith disputes any portion of the SBI Statement of Account, the Subscriber shall submit to SBI, within twenty-one (21) days from Statement of Account date, a written documentation identifying and substantiating the disputed amount and shall make full payment of the undisputed portion of the Statement of Account within the Due Date.If the Subscriber does not report a dispute within the said twenty-one (21) day period, the Subscriber shall irrevocably waive his dispute rights for that Statement of Account and the billing shall be deemed to be correct and final. Any disputed amount resolved in favor of the Subscriber shall be adjusted in the next Statement of Account. Any disputed amount determined to be payable to SBI shall be due within seven (7) days of the resolution of the dispute. If the Subscriber withholds the disputed amount thereafter or within the time required fails to provide supporting information in writing that sets out a legitimate basis under this Agreement for disputing any charges, the Subscriber’s account shall be deemed to be past due and unpaid. In such event, SBI shall be entitled to pursue any and all legal remedies provided in this Agreement, including suspension or disconnection of Service.
4.3 Penalties. SBI shall charge interest equivalent to one and a half percent (1.5%) per month for all accounts not paid by the Due Date, plus a late payment charge equivalent to one and a half percent (1.5%) per month, until the date of payment.
4.4 Repair and Maintenance. The Subscriber shall be entitled to free spare parts and service from the vendor’s authorized service center for non-performance of the CPE and/or Peripherals due to factory defects for a period of one (1) year from the Service Commencement Date. However, the cost of repair and maintenance of CPE and/or Peripherals as a result of damage due to the act or negligence of the Subscriber shall be for the account of the Subscriber. The Subscriber shall shoulder the cost of spare parts and service after the lapse of the above mentioned one year period.
4.5 Loss or Damage. The Subscriber shall be liable should any CPE and/or Peripherals be damaged or lost due to the Subscriber’s acts or omissions, and the Subscriber shall be charged for the replacement value of the same.
5.0 Suspension / Disconnection of Service
5.1 Default. The Subscriber agrees that in the event of failure to pay the Monthly Service Fee and other charges by the Due Date, subscription account shall no longer be deemed current and at the option of SBI the Service may be suspended, or discontinued without the need for judicial declaration, and the provisions on termination shall apply.
5.2 Disconnection. The Subscriber agrees that SBI may, without prior notice, disconnect the Service of any Subscriber whose bill remains unpaid after the specified Due Date. The Subscriber also agrees that SBI may suspend or terminate the Service in any of the following instances:
- Violation by the Subscriber of the terms and conditions of this Agreement;
- Misrepresentation or false statements by the Subscriber in the application for Service;
- Illegal connection or use of unauthorized equipment or accessories;
- Suspicious fraudulent misuse or abuse of Service, CPE and/or Peripherals;
- Unauthorized transfer of Service;
- Failure to notify SBI of change in billing address;
- Any other analogous cause.
5.3 Reconnection. In the event of suspension or disconnection, SBI may, at its option, restore Service and/or require the Subscriber to rectify the cause of suspension upon payment of all outstanding obligations by the Subscriber, including any and all applicable fees. SBI may charge such fees for reconnection of the Service as it shall in its discretion determine.
6.0 Termination of Service
6.1 Termination by Subscriber. The Subscriber may terminate his subscription in writing by giving one (1) month prior notice for cancellation and by fully settling all his outstanding obligations with SBI. If termination is made during the lock-in period as stated in the Subscriber Application Form, the Subscriber shall pay a pre-termination fee in the amount of the full Monthly Service Fee multiplied by the number of the months left in the lock-in period as stated in the Subscriber Application Form or as may be specified at the sole discretion of SBI. In determining the unexpired period, a fraction of a month shall be considered as one (1) month.
6.2 Termination by SBI. SBI may terminate the Service or this Agreement for non-payment or delay in payment of the Subscriber’s accountabilities or violation by the Subscriber of any provision of this Agreement or for such other causes set forth in this Agreement. If termination is made during the lock-in period as stated in the Subscriber Application Form, the Subscriber shall pay a pre-termination fee in the amount of the full Monthly Service Fee multiplied by the number of the months left in the lock-in period as stated in the Subscriber Application Form or as may be specified at the sole discretion of SBI. In determining the unexpired period, a fraction of a month shall be considered as one (1) month.
6.3 Subscriber Liability. The Subscriber possesses the CPE and/or Peripherals in trust for and on behalf of SBI. In the event that the Subscription is terminated for whatsoever reason, or if SBI disconnects the Service or terminates use of CPE and/or Peripherals equipment for non-payment or delay in the payment of the Subscriber’s accountabilities or violation of the terms and conditions of this Agreement, the Subscriber hereby authorizes SBI, its agents or representatives to enter the Subscriber’s premises where the CPE and/or Peripherals are installed, and allow SBI to pull out or remove such CPE and/or Peripherals.
6.4 Pullout of CPE and/or Peripherals In Subscription Plans with CPE. Upon termination of the Service, for any reason whatsoever, SBI shall have the right to pull-out the CPE and/or Peripherals excluding the modem and SIM Card.
7.0 Indemnification and Use of Service
7.1 General. The Subscriber shall indemnify and hold harmless SBI, its affiliates, partners, directors, officers, employees, shareholders, agents and representatives from and against all claims, causes of actions, judgments, damages, expenses and liabilities arising from or in connection with (a) the use of the Service by the Subscriber other than as permitted by this Agreement, and (b) the content of material that the Subscriber transmits through use of the Service including, but not limited to, claims for defamation, invasion of privacy, disparagement and/or alleged violation of trademark or copyright.
7.2 “As Is” Services. The Subscriber acknowledges that the Service is provided “as is”. SBI, ITS EMPLOYEES, AGENTS, SUPPLIERS, VENDORS AND DISTRIBUTORS MAKE NO WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, REGARDING THE QUALITY, ACCURACY OR VALIDITY OF THE DATA/OR INFORMATION AVAILABLE ON ITS SYSTEM, OR RESIDING ON OR PASSING THROUGH ITS INTERCONNECTING NETWORKS, OR THAT THE SBI SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. SBI EXPRESSLY EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE TO THE FULLEST EXTENT POSSIBLE BY LAW.
7.3 Venue of Suits and Litigation Expenses. In case of litigation arising out of this Agreement, all suits shall be exclusively filed with the proper court of Makati City only. The Subscriber hereby expressly waives all claims to any other venues. The Subscriber shall, in addition to the amount due and collectible, pay twenty-five (25%) of such amount as attorney’s fees and an equivalent amount for cost of suit.
7.4 Exclusion from Liability. SBI shall not be liable for any loss, costs, compensation, damage or liability to the Subscriber or any third party arising directly or indirectly out of or in connection with the supply or use of the Services including, without prejudice to the generality of the foregoing, any loss, costs, compensation, damage or liability to the Subscriber or third parties caused by: a) any delay, interruption, or termination of the Service, whether caused by administrative error, technical, mechanical, electrical or electronic fault or difficulty or any other reason; or b) circumstances beyond SBI?s control (including but not limited to acts of God, strike, labour disputes, fire, disturbance, action of government, atmospheric conditions, lightning, interference or damage by third parties or any change in legislation); or c) any inaccuracy or omission, lack of clarity, interference in, misdirection or destruction of any information transmitted to or from the Subscriber howsoever caused or any refusal by SBI to transmit any information subject to par. (e) below; or d) theft or unauthorized use of the CPE and/or Peripherals or any loss, costs, damages or compensation incurred by or payable to any third party by the Subscriber; or e) any inherent defect in the CPE and/or Peripherals or any defects or damage to the CPE and/or Peripherals resulting from use other than in the normal and customary manner; f) transmission or non-transmission of any illegal, false, misleading, derogatory, libelous, obscene or vulgar messages or information.
8.1 Entire Agreement. This Agreement together with all attachments incorporated herein specifically by reference, represents the entire understanding of the Parties with respect to the subject matter hereof and all other agreements, whether written or oral, between the Parties relating to the Service shall be superseded by this Agreement. In entering into this Agreement, neither Party is relying upon any representation of warranties that are not set forth in this Agreement.
8.2 Assignment by SBI. SBI reserves the right to transfer or assign its rights and obligations under this Agreement whether in parts or in whole to any third party.
8.3 Modification. SBI reserves the right at its discretion to modify, delete or add to any of the terms and conditions of this Agreement at any time without further notice. It is the Subscriber’s responsibility to regularly check any changes to these Terms and Conditions. The Subscriber’s continued use of the Service after any such changes constitutes acceptance of the new Terms and Conditions.
8.4 Separability Clause. The Parties also agree that should any provision in this Agreement be declared void, invalid or ineffective for any reason whatsoever, the validity of the remaining provisions shall not be affected and shall continue to be binding.
8.5 Waiver. No waiver by SBI of any breach shall operate as a waiver of any other or subsequent breach. SBI shall not be prejudiced or restricted by any concessions, indulgence or forbearance.
9.0 Fraudulent, Unauthorized Use or Illegal Use and Abusive Conduct
9.1 If the Subscriber or any other person, at the sole discretion of SBI, is found to use the Service for any fraudulent purpose, Unauthorized Activities or Illegal Activities, or is found to use abusive and/or indecent language to other subscribers or SBI employee, staff, representatives or authorized agents, SBI reserves the right to disconnect the Service and/or refuse to reconnect the Subscriber. SBI also reserves the right to file the appropriate legal action against the erring Subscriber or person concerned, and to charge the appropriate pre-termination fee, if any.