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TERMS AND CONDITIONS
Terms and Conditions 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 Subscriber's personal computer and/or network (hereinafter referred to as the Subscriber Equipment to SBI's network as soon as reasonably practicable after payment of the prescribed fees and deposit for the Service. SBI reserves the right to disconnect the Service at any time should any Subscriber Equipment be found to cause harmful interference to SBI's network or to cause degradation in the quality of Service. 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 equipment and 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. 1.3 Site Survey. SBI reserves the right, upon due notice, to conduct site surveys, test and/or inspections inside Subscribers premises, as necessary to determine the requirements for CPE and/or Peripherals installation and Service maintenance. Subscriber understands that should there be no signal from the SBI antenna to the Subscribers premises where the Service is intended to be provided, Subscriber will not be able to avail of the Service. 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 extendedto 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 consent,approval and clearance from SBI. Any such transfer of rights and/or location without the prior written consent 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. Subscriber agrees that in such case, the operation of this contract 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 Subscriber, unless such loss or damage is caused by the willful or grossly negligent act or omission of SBI's employees or 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. 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 good will. 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 SBI 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 shall 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 occured until the actual cessation thereof. 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 bypass compensation. In addition to the Unauthorized Activities 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 (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 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 Subscriber, and approval by the authorized representative of SBI and shall be effective for one (1) year from the Service Commencement Date and shall be automatically renewed for similar one-year 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 each Service provided shall be set forth on the day Service is activated. 2.3 Observance of Rules and Regulations. 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 andregulations as SBI may impose in the interest of Service. Subscriber shall not use, interfere or jam any radio or telephone signal of other subscribers within or outside SBI's network, 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 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 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. Subscriber shall pay SBI a Monthly Service Fee in advance and the processing fee of ONE THOUSAND PESOS (P1000.00) which covers the installation fee, upon approval of the application for subscription. 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 charges shall be included in Subscribers Statement of Account. Non-receipt of the Statement of Account shall not excuse 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, inter 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 Subscriber. When applicable, fees shall be subjected 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 wholehour or one whole day or one whole month, as the case may be. 3.2 Additional Installation Charges. In certain instances, 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. antennae and higher). SBI. 3.3 Relocation. If Subscriber will transfer houses, he will be charged a fee of TWO THOUSAND PESOS (P2,000.00) to cover for expenses of dismantling equipment from current residence and re-installing to the new residence. 3.4 Changes in Service. 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 reason, with due notice to the Subscriber. 4.0 Payment Terms 4.1. Due Date. SBI shall bill 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, facsimileor electronic mail, or by other method at SBI's sole discretion. Should 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 Subscriber has received the Statement of Account. Subscriber acknowledges that SBI has advised him that SBI may suspend Service in case of Subscribers 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 Subscriber in good faith disputes any portion of the SBI Statement of Account, Subscriber shall submit to SBI, within fifteen (15) days from Statement of Account date, full payment of the undisputed portion of the Statement of Account and written documentation identifying and substantiating the disputed amount. If Subscriber does not report a dispute within the said fifteen (15) day period, 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 Subscriber shall be credited to Subscribers account in the next Statement of Account. Any dispute amounts determined to be payable to SBI shall be due within seven (7) days of the resolution of the dispute. If 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, Subscribers 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 per month (1.5%) 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. Subscriber shall be entitled to free spare parts and service for non-performance of the CPE and/or Peripherals due to factory defects for the term of this Agreement. However, the cost of repair and maintenance of CPE and/or Peripherals as a result of damage due to the actor negligence of Subscriber shall be for the account of Subscriber. 4.5 Loss or Damage. The Subscriber shall be liable should any CPE and/or Peripherals be damaged or lost due to the Subscribers acts or omissions, and Subscriber shall be charged for the replacement value of the same. 5.0 Suspension / Disconnection of Service 5.1 Default. 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 discounted without the need for judicial declaration, and the provisions on termination shall apply. 5.2 Disconnection. Subscriber agrees that SBI may without prior notice, disconnect the Service of any Subscriber whose bill remains unpaid after the specified Due Date. Subscriber also agrees that SBI may temporarily suspend the Service in any of the following instances: Violation by Subscriber of the Terms and Condition of this Agreement; Misrepresentation or false statements by 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. Whenever the disconnection leads to eventual termination, the effects of such termination shall retroact to the date of disconnection for the purpose of computing pre-termination charges. Disconnection shall become permanent upon failure of Subscriber to correct or rectify the ground for discontinuance of Service within thirty (30) days from suspension of Service. Disconnection of Service shall not be construed as a waiver of the outstanding tariff, charges, penalties, and surcharges accruing on overdue bills. Subscriber agrees to hold SBI free and harmless from any liability and waives any action against the latter, which may arise as a result of such suspension or disconnection of Service. 5.3 Reconnection. In the event of suspension or disconnection, SBI may at its option restore Service and/or rectify the cause of suspension upon payment of all outstanding obligations by Subscriber, including any and all applicable fees. 6.0 Termination of Service 6.1 Termination by Subscriber. 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 first twelve (12) month period of the Service Commencement Date,Subscriber shall pay a pre-termination fee in the amount of the full Monthly Service Fee multiplied by the number of the months balance of the unexpired twelve (12) month period or 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 Subscribers accountabilities or violation by Subscriber of any provision of this Agreement or for such other causes set forth in this Agreement. If termination is made during the first twelve (12) month from Service Commencement Date. Subscriber shall pay a pre-termination fee in the amount of the full Monthly Service Fee multiplied by the number of the months balance of the unexpired twelve (12) month period 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. 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 Subscribers accountabilities or violation of the terms and conditions of this Agreement, Subscriber hereby authorizes SBI, its agents or representatives to enter the Subscribers 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. Upon termination of the Service, for any reason whatsoever, SBI shall have the right to pull-out the CPE and/or Peripherals. 7 Indemnification and Use of Service 7.1 General. 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 Subscriber other than as permitted by this Agreement, and (b) the content of material that 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. 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 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. Subscriber hereby expressly waives all claims to any other venues. Subscriber shall, in addition to the amount due and collectible, pay twenty-five (25%) of such amount as attorneys fees and an equivalent amount for cost of suit. 8 Miscellaneous 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 allother 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 absolute discretion to modify, delete or add to any of the terms and conditions of this Agreement by giving notice in writing to the Subscriber. 8.4 Separability Clause. The Parties also agrees 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 of forbearance extended to the Subscriber.