TERMS AND CONDITIONS
The provision of the Sun Broadband internet access and traditional voice calls and SMS messaging service (hereinafter referred to as “the Service”) shall be governed by the following terms and conditions (hereinafter referred to as “the Agreement.”).
1.0 SERVICE PROVISION CONDITIONS
1.1 Provision of Service.
Digitel Mobile Philippines, Inc. (hereinafter referred to as “DMPI”) shall cause the connection of Subscriber’s equipment/devices and/or network (hereinafter referred to as the “Subscriber Equipment”) to DMPI’s network as soon as reasonably practicable after receipt of payment of the prescribed fees and deposit for the Service. DMPI reserves the right to disconnect the Service at any time should any Subscriber Equipment and paraphernalia be found to cause harmful interference to DMPI’s network or to cause degradation in the quality of Service. Subscriber agrees to hold DMPI free and harmless from any liability arising from such disconnection
1.2 Equipment and or Peripherals.
DMPI shall provide the Subscriber with a modem, pocket wifi 3G router or any other specified device and Subscriber Identity Module (SIM) Card and other peripherals necessary for Service access (hereinafter referred to as the “Peripherals”) as set forth in the delivery receipt issued to the Subscriber. These Peripherals are locked to the Sun Cellular Network and may be used only with a Sun Broadband SIM card. The use of any unauthorized equipment to access the Sun Broadband Service is strictly prohibited, and shall be sufficient cause for the immediate disconnection of the Service without need of prior notice and liability to DMPI. Hardware. All Peripherals connected to or used in conjunction with the Service shall be of a type approved by DMPI. DMPI 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 Peripherals shall be the Subscriber’s sole responsibility.
(b) In case of loss of Peripherals, the Subscriber shall immediately inform DMP of such fact, fist by telephone through DMPI’s Customer Care Hotline (dial (02)395-8000 from any phone or 200 toll-free from any Sun Cellular phone) or any Sun Shop, 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. DMPI, 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.
DMPI reserves the right, upon due notice, to conduct site surveys, tests and/or inspections inside Subscriber’s premises, as necessary to determine the requirements for Peripherals installation and Service maintenance. Subscriber understands that should there be no signal from the DMPI antenna to the Subscriber’s premises where the Service is intended to be provided, Subscriber will not be able to avail of the Service. Subscriber agrees to hold DMPI free and harmless from any liability arising from the said non-availability of the Service.
1.4 Non-transferability of Rights.
The rights and privileges extended to Subscriber in relation to the subscription and the 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 DMPI. Any such transfer of rights and/or location without the prior written consent of DMPI shall be void regardless of receipt of Monthly Service Fee and other charges from the supposed transferee.
1.5 Limitation of Liability.
DMPI 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 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, DMPI 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 DMPI’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.
Subscriber holds DMPI free from any responsibility for any loss or damage resulting from the failure of Service caused by a malfunction of the DMPI network or Peripherals for any reason whatsoever. Notwithstanding any other provision of this Agreement, DMPI 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 DMPI. 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, dial back, unauthorized audiotext, international and national simple resale (ISR/NSR) and other similar services (the “Unauthorized Activities”). 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 DMPI. The Subscriber shall likewise be liable to DMPI 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, DMPI 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, DMPI 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 DMPI 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 DMPI 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
This Agreement shall take effect from signing hereof by Subscriber, and approval by the authorized representative of DMPI 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, DMPI 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.
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 DMPI 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 DMPI’s network or other signals, otherwise, DMPI 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 DMPI 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 FAIR USE POLICY
DMPI will implement a Fair Use Policy to help ensure the quality of service to all subscribers. DMPI believes that each subscriber should be responsible and reasonable in their use of the Service and how it affects other users. By accepting the Terms & Conditions, the Subscriber is bound to this Fair Use Policy.
The Sun Broadband service shall not be used under any of the following circumstances included but not limited to:
(a) peer-to-peer fie sharing;
(b) machine-to-machine applications
(c) in any manner which adversely affects DMPI’s ability to provide, complete or maintain the level or quality of its network or other services; and
(d) in any manner which is designed to unfairly exploit the usage or to cause loss or damage to DMPI such as using the Service for commercial purposes or reselling the Service.
DMPI has the sole discretion to limit the Subscriber’s data throughput or amount of data transferred, or suspend/terminate the Service without prior notice, upon the occurrence of any of the circumstances mentioned above. If in the reasonable opinion of DMPI, the Subscriber’s use of the Service is excessive, DMPI may ask the Subscriber to moderate usage. If the Subscriber fails to do so, DMPI reserves the right to charge the Subscriber for the excessive usage at a rate specified by DMPI, or suspend or terminate the Service. DMPI reserves the right to change the terms and conditions of this Fair Use Policy.
4.0 SERVICE CHARGES
4.1 Service Fee, Foreign Currency Adjustment and Other Charges.
Upon approval of application for subscription, the Subscriber shall pay DMPI the following: (i) a Monthly Service Fee (MSF) based on the subscription plan, the first payment of which is to be made upon approval of the application, (ii) usage charges, and (iii) any applicable fees, charges and taxes. 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 Subscriber’s 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, 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 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.
4.2 Prepaid Fees and Charges
(a) The Company 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.
(c)Voice and SMS service charges will be at par with rates offered by Sun Postpaid GSM. DMPI also reserves the right to charge the Subscriber for any subscriber-initiated services such as value added services (VAS), IDD calls, and international roaming at their respective Sun Postpaid GSM rates.
4.3 Credit Limit.
A credit limit shall be assigned to the Subscriber. The credit limit is an indicative amount of all outstanding billed and/or unbilled charges and fees, that when attained may cause the temporary disconnection of Services. DMPI shall have no obligation nor can it be compelled to effect a temporary disconnection of Services once the credit limit is reached. Subscriber agrees to pay for all charges and fees whether it is within or in excess of the credit limit. The Subscriber must first settle all outstanding accounts in order to avail of the Services and prevent the permanent disconnection (i.e. cancellation of account) of the Services. Any disconnection of Service shall be effected without need of prior notice and liability to DMPI.
4.4 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. DMPI reserves the right to make changes in the Service for technical and other reason, with due notice to the Subscriber.
5.0 PAYMENT TERMS
5.1 Due Date.
DMPI 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. DMPI shall automatically send to the Subscriber his Statement of Account sent to his given billing address by regular mail. The Subscriber can also opt to have the Statement of Account via electronic mail. Should Subscriber fail to receive the Statement of Account for whatever reason, he agrees to call and inform DMPI’s Customer Service Hotline or access the electronic fie or site which may be provided by DMPI for this purpose from time to time, otherwise, it shall be conclusively presumed that Subscriber has received the Statement of Account. Subscriber acknowledges that DMPI has advised him that DMPI may suspend Service in case of Subscriber’s failure to pay any bill on or before the specified Due Date. DMPI shall bill the Subscriber at monthly intervals but reserves the right to alter the date of billing or interval of billing.
5.2 Billing Disputes.
If Subscriber in good faith disputes any portion of the DMPI Statement of Account, Subscriber shall submit to DMPI, within sixty (60) 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 Subscriber does not report a dispute within the said sixty (60) 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 adjusted in the next Statement of Account. Any disputed amount determined to be payable to DMPI 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, Subscriber’s account shall be deemed to be past due and unpaid. In such event, DMPI shall be entitled to pursue any and all legal remedies provided in this Agreement, including suspension or disconnection of Service.
Failure or refusal of the Subscriber to pay any outstanding charges before the due date shall entitle DMPI to charge applicable interest and/or penalties until the date of payment.
Subscriber shall be entitled to free spare replacement for nonperformance of the Peripherals due to factory defects for a period of seven (7) days from the Service Commencement Date. However, the cost of repair and maintenance of Peripherals as a result of damage due to the act or negligence of Subscriber shall be for the account of Subscriber. Subscriber shall shoulder the cost of spare parts and service after the lapse of the above mentioned one year period.
6.0 SUSPENSION / DISCONNECTION OF SERVICE
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 DMPI the Service may be suspended, or discontinued without the need for judicial declaration, and the provisions on termination shall apply.
Subscriber agrees that DMPI may without prior notice, disconnect the Service of any Subscriber whose bill remains unpaid after the specified Due Date. In case of delinquency in any or all of the existing or subsequent lines under the Subscriber’s name, DMPI has the right to redirect or temporarily disconnect any or all of said lines, regardless of whether the redirected or disconnected lines are current or active in status. A service that has been temporarily disconnected due to delinquency of payment or has exceeded its credit limit shall escalate to a permanent disconnection should the Subscriber fail to settle his/her account within a period of sixty (60) days from the date temporary disconnection was effected. Subscriber also agrees that DMPI may suspend or terminate the Service in any of the following instances:
• Violation by Subscriber of the terms and conditions 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 and/or Peripherals;
• Unauthorized transfer of Service;
• Failure to notify DMPI 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 DMPI 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.
In the event of suspension or disconnection, DMPI may at its option restore Service and/or require the Subscriber to rectify the cause of suspension upon payment of all outstanding obligations by Subscriber, including any and all applicable fees. DMPI may charge such fees for reconnection of the Service as it shall in its discretion determine.
7.0 TERMINATION OF SERVICE
7.1 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 DMPI. If termination is made during the lock in period as stated in the Subscriber Application Form, Subscriber shall pay a pre-termination equal to the sum of the Monthly Service Fee and Monthly Amortization times the number of months remaining in the lock in period or as may be specified at the sole discretion of DMPI. In determining the unexpired period, a fraction of a month shall be considered as one (1) month.
7.2 Termination by DMPI.
DMPI may terminate the Service or this Agreement for non-payment or delay in payment of Subscriber’s 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 lock-in period as stated in the Subscriber Application Form, Subscriber shall pay a pre-termination fee as stated in the Subscriber Application Form or as may be specified at the sole discretion of DMPI. In determining the unexpired period, a fraction of a month shall be considered as one (1) month.
8.0 INDEMNIFICATION AND USER OF SERVICE
Subscriber shall indemnify and hold harmless DMPI, 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.
8.2 “As Is” Services.
Subscriber acknowledges that the Service is provided “as is”. DMPI, 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 DMPI SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. DMPI EXPRESSLY EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE TO THE FULLEST EXTENT POSSIBLE BY LAW.
8.3 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 Quezon City only. Subscriber hereby expressly waives all claims to any other venues.
8.4 Exclusion from Liability.
DMPI 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 DMPI’s control (including but not limited to acts of God, strike, labor disputes, fie, 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 DMPI to transmit any information subject to par. (e) below; or
(d) theft or unauthorized use of the Peripherals or any loss, costs, damages or compensation incurred by or payable to any third party by the Subscriber or other; or
(e) any inherent defect in the Peripherals or any defects or damage to the Peripherals resulting from use other than in the normal and customary manner; or refusal by DMPI, at its sole discretion, to transmit any illegal, obscene or vulgar messages or information.
9.0 PERSONAL INFORMATION AND BROADCAST MESSAGES
Subscriber agrees and consents to the disclosure to third parties and the processing, either by DMPI or by third parties on behalf of DMPI, of personal information and data, including sensitive personal information, traffic and billing data for marketing and other purposes. We acknowledge and we agree that DMPI may send commercial and promotional advertisements, surveys, and other broadcast push messages.
Specifically, subscriber agrees and consents that DMPI and its affiliates may use subscriber personal information and data to:
(a) Manage subscriber account, carry out customer-care activities and train staff including monitoring calls, emails or text messages that subscriber send to DMPI;
(b) Monitor the quality and security of the network and test and maintain DMPI’s IT systems;
(c) Analyze subscriber use of the services for marketing purposes, including, but not limited to, the calls and messages the subscriber send and receive and subscriber location at the time these communications take place, as well as subscriber browsing history and use of DMPI websites;
(d) Send to the emergency services (if subscriber makes an emergency call), including subscriber’s approximate location;
(e) Contact the subscriber with marketing messages such as commercial and promotional advertisements, surveys, and other broadcast push messages, which may include marketing from other organizations, if subscriber has no express written objection.
(f) DMPI does not include subscriber details in any directory or directory enquiry service. If subscriber wants to have subscriber information included in these services, subscriber should contact DMPI.
10.1 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.
10.2 Assignment by DMPI.
DMPI reserves the right to transfer or assign its rights and obligations under this Agreement whether in parts or in whole to any third party.
DMPI reserves the right at its discretion to modify, delete or add to any of the terms and conditions of this Agreement.
10.4 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.
No waiver by DMPI of any breach shall operate as a waiver of any other or subsequent breach. DMPI shall not be prejudiced or restricted by any concessions, indulgence or forbearance.
11.0 FRAUDULENT, UNAUTHORIZED USE, OR ILLEGAL USE AND ABUSIVE CONDUCT
If the Subscriber or any other person, at the sole discretion of DMPI, 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 DMPI employee, staff representatives or authorized agents, DMPI reserves the right to disconnect the Service and/or refuse to reconnect the Subscriber. DMPI 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.
12.0 SUN BROADBAND PRODUCTS AND SERVICES
12.1 Non-Stop Surf Plans
All Sun Broadband Postpaid Plans with Non-Stop Surf shall have monthly access to casual internet activities. These casual internet activities include, but are not limited to, social media browsing, search, web browsing, and emailing. Online activities such as streaming, uploading, and downloading of files, photos and videos are not included and will be charged to the plan’s existing open-access volume allocation or on top of the plan’s MSF using the current on-top usage rates.
The Subscriber hereby acknowledges that he/she has read, fully understood and freely and voluntarily agreed to be bound by the foregoing terms and conditions which shall be in effect from the date of the first use of the Sun Broadband Service.
Note: The foregoing terms, conditions and rates are subject to change without prior notice.