Smart Postpaid Terms and Conditions
The Subscriber has read the Terms and Conditions of this Service Agreement ("Agreement"). After having read the contents hereof, Subscriber agrees to the supply of telecommunications services ("Service") under the terms and conditions hereinafter contained, Smart Communications, Inc. ("Company" or "SMART") agrees to supply the Service under the conditions stipulated herein.
All terminal equipment/unit connected to or used in conjunction with the SMART telecommunication networks shall be of a type approved by the Company. The Company does not by this Agreement cover any representation or warranty for any telecommunications and related equipment ("Hardware").
Ownership of all Hardware received by Subscriber under the Service shall only be transferred to the Subscriber at the end of the lock-in period. In the event the Subscriber violates this Agreement, SMART reserves the right to retrieve, collect, or block the said Hardware and use whatever means it may deem necessary to protect its interest.
2. TERMS AND CONDITIONS:
This Agreement relates only to the Service provided by the Company and shall be in full force and effect from and after the actual date of approval of the application for the Service..
3. PAYMENT TERMS
- The Subscriber shall pay all accounts due to the Company in respect of: 1) A monthly fixed fee for the Service as invoiced; 2) All charges incurred in using the Service as applicable; and 3) All applicable Philippine taxes as included in the billed charges.
- The Company may, at its absolute discretion, allow the Subscriber credit for using the Service up to a certain level and the Company may set, revoke, or impose conditions on such credit limit at any time and at its absolute discretion. The Company may determine the billing period at its absolute discretion. Any fees paid in advance shall not be refundable.
- The Subscriber shall be liable for all outgoing calls, texts and other transactions, including those incurring roaming charges from his terminal unit regardless of who may make such calls, texts, and other transactions, including those incurring roaming charges. Non-payment of these charges or refusal on the part of the Subscriber to pay charges arising from these calls, texts, and other transactions, including those incurring roaming charges shall be sufficient ground for the Company to discontinue the Service.
The Subscriber agrees to pay on or before the date specified in the service bill ("Due Date") all charges stated on the bill. Billing Statement for the Service shall be rendered at regular intervals at the end of applicable billing cycles. Contested bills, if any, should be brought to the attention of the Customer Care Department of the Company within twenty-one (21) days from the statement date, otherwise the Subscriber shall be deemed to have accepted the correctness or accuracy of the bill.
- Notwithstanding the non-receipt of any bill, it shall be the Subscriber's responsibility to inform himself of his outstanding fees or charges through the SMART Website, Customer Care Hotline, or any SMART Store and effect payment, without need for further demand on or before the Due Date.
- The Subscriber shall be charged the Company's applicable roaming rate and the roaming service activation fee in the event that the Subscriber avails of the Company's International Roaming Service. The Company shall not be liable for the failure of the roaming partner to provide services in the roaming area.
- The Subscriber agrees that all payments shall be applied first to bills in arrears, including interests and-penalties. The balance, if any, will be applied to the current obligation.
- The Subscriber agrees not to transfer this Agreement or any right or interest originating therefrom, to any person or entity without prior written approval from the Company. Pending the approval of such transfer, the Subscriber shall remain liable for any and all accrued fees and charges.
- The Subscriber agrees that all cheques and other payments shall be made payable directly to the Company/authorized collection partners and any cheque payment made out, or any payment in cash made directly, to any representative or salesman shall be invalid.
- The Company may require the Subscriber to pay a deposit of such amount as the Company may determine from time to time as a guarantee for all payments due hereunder. No interest shall be payable on such deposit.
- Without prejudice to any of the Company's rights to recover amounts due from the Subscriber, the Company shall be entitled at any time to set off any amounts due from the Subscriber against the deposit without prior notice to the Subscriber.
- The Company may (without prejudice to any other rights it may have) forfeit the Subscriber's deposit If the Subscriber is in breach of any of these Terms and Conditions.
- Subject to any rights which the Company may have, and upon termination of the Service, the Company shall, upon the written request of the Subscriber, refund the deposit after deduction of all outstanding amounts due from the Subscriber within sixty (60) days of receipt of the written request for refund.
- If any deposit remains unclaimed for twelve (12) months after the termination of the Service, the Subscriber shall forfeit such deposit in favor of the Company without need of any further act or deed.
5. PRE-PAID FEES, CHARGES AND DEPOSITS
- The Company may require a pre-paid fee as a pre-requisite for continuing the Service. The pre-paid fee and/or deposit (as stated in Clause 4 above) shall bear no interest. Upon termination of the Service, the pre-payment shall be applied against the Subscriber's final bill, In case the pre-payment is not sufficient to cover the final bill, the Company shall charge the Subscriber any deficiency. The balance of the pre-payment and/or deposit, if any, will be refunded to the Subscriber, without interest, after one hundred eighty (180) days post termination.
- The Subscriber shall be charged a fee for the processing of any Service modification requests such as changes in subscription plan, etc.
6. LOSS OR DAMAGE OF HARDWARE
- The security of the Subscriber Identity Module (SIM) Card and the confidentiality of his Personal Identification Number (PIN) as well as the proper care and maintenance of the Hardware and/or SIM Card shall be the Subscriber's sole responsibility.
- The Company, upon notification of lost SIM Card/Hardware, shall immediately effect barring of outgoing and incoming calls/SMS. All charges and fees accruing prior to the disconnection shall remain for the account of the Subscriber.
7. MULTIPLE LINES
The Subscriber may avail of a maximum of ten (10) postpaid lines for retail individual plans. The Company has the right to decline applications that exceed this limit. Subscribers obtaining lines beyond the maximum allowed number may apply for corporate plans.
8. FRAUDULENT AND UNAUTHORIZED USE
If the Subscriber or any other person, at the sole discretion of the Company, is found to use the Service for any fraudulent purpose or illegal activity, or is found to use abusive and/or Indecent language to other Subscribers or Company staff, or has submitted an application for Subscription through fraudulent means or has supplied any false/ wrong information in connection with such application, the Company reserves the right to immediately disconnect the Service without prior notice and/or refuse to reconnect the Service.
The Company 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. The Subscriber's right to use the Service is personal to the Subscriber. The Subscriber shall not engage in the following activities:
- Resale or any other commercial use of the Service without the prior express written consent of the Company;
- Utilization of the Service in bypassing or in activity/ies that tend to bypass the SMART network, billing and/or traffic routing;
- Use of the Service in prohibited activities like callback, dialback, unauthorized audiotext, international and national simple resale (isr/nsr) and other similar services;
- Tampering, altering, modification, or unauthorized programming of the SIM Card or its digital reference ("Unauthorized Activities");
- Use of SMART Subscriber Identity Module (SIM) cards with unauthorized types of devices apart from the intended hardware (i.e. smartphones or tablets) For example, SIM cards must not be inserted in portable hotspots and fixed routers. Otherwise, the Company reserves the right to temporarily suspend or terminate its service without prior notice.
- Abusive use of data services where data usage exceeds 60GB under the Service’s anti bill-shock feature.
- Activities that are considered unlawful by the laws of the Republic of the Philippines;
- Obstruction or penetration, or attempts to obstruct or penetrate the security of any entity’s network or systems such as malicious software (e.g., Trojan horses, worms, spyware, etc.), denial of service attacks, spam emails, etc.;
- Excessive contribution to network congestion, which results to disruption of other subscribers’ access to the network and diminishes network performance; or
- Use of high bandwidth applications and services like operation of servers, web broadcasting, and the like
Should the Subscriber engage in any of the abovementioned activities, the Company has the right to take necessary actions including, but not limited to, the following:
- SMART may implement network management practices to improve its service, to reduce network congestion, and/or to adapt to technological advancements;
- SMART may downgrade Subscriber’s data speed in case of excessive usage at any point during a billing cycle;
- SMART may obtain and monitor Subscriber’s usage information through reasonable and legal methods; and/or
- SMART may temporarily disconnect, interrupt, or terminate the Subscriber’s data services without prior notice.
The Subscriber shall likewise be liable to the Company 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 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. For this purpose, the Company 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, the Company shall have 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 ("Illegal Activities"). The Subscriber agrees to indemnify and hold the Company free and harmless from any liability, suit, or damage arising from or connected with the Subscriber's Unauthorized Activities and/or Illegal Activities. The Subscriber further authorizes the Company 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 or by law, relative to the Subscriber's subscription to the Service. 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.
9. SERVICE REDIRECTION
Unless otherwise inconsistent with other provisions in this Agreement, the Company reserves the right without incurring any liability, and at the Subscriber's expense, to redirect partially or in full the Subscriber's Service. Upon compliance with the requirements of the company, the Service may be restored partially or in full. Failure of the Subscriber to comply with the Company's requirements will give the Company the option to terminate the Service permanently, subject to RA 7925 and its implementing rules, and to charge the appropriate pre-termination fee, if any.
10. EXCLUSION FROM LIABILITY
The Company 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 Service including, without prejudice to the generality of the foregoing, any loss, costs, compensation, damage or liability to the Subscriber or third parties caused by:
- 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 circumstances beyond the Company's control (including but not limited to acts of God, strike, labor disputes, fire, disturbance, action of government, atmospheric conditions, lightning, interference or damage by third parties or any change in legislation);
- Any inaccuracy or omission, lack of clarity, interference in, misdirection or destruction of any information transmitted to or from the Subscriber howsoever caused;
- Theft or unauthorized use of the Hardware or any loss, costs, damages or compensation incurred by or payable to any third party by the Subscriber or other party;
- Any inherent defect in the Hardware or any defect or damage to the Hardware resulting from use other than in the normal and customary manner; or
- Transmission or non-transmission of any illegal, false, misleading, derogatory, libelous, obscene or vulgar messages or information.
11. DISCONNECTION OR TERMINATION OF THE SERVICE
- The Company may temporarily suspend or terminate the Service without prior notice if: 1) The Subscriber fails to pay promptly any amount due and payable hereunder; 2) The Subscriber commits breach of the terms of this Agreement; 3) The Subscriber transfers or allows the Hardware to be tampered with or used by any other person (except if such use is authorized by the Subscriber) without the consent of the Company; 4) The Subscriber dies or becomes bankrupt, fails to pay its debts as they fall due or any of its assets becomes subject to any form of winding up, administration, receivership, or insolvency proceedings or it enters into any arrangement with its creditor generally.
- Without prejudice to any of subclause 10(a), the Company may discontinue or terminate the Service at any time by giving the Subscriber not less than thirty (30) days notice of such discontinuation or termination.
- Any discontinuation or termination shall be without prejudice to the rights of the Company, including the right to recover all amounts due from the Subscriber hereunder, including but not limited to the pre-termination fee, if applicable, together with any expense and cost (including legal costs) incurred in recovering such amounts due. No refund of any advanced payment will be made to the Subscriber.
- The Subscriber may terminate this Agreement at any time by giving the Company not less than thirty (30) days written notice of such termination, which shall become effective only upon settlement of all amounts due hereunder, including the pre-termination fee as provided in the Pre-termination Acknowledgment that forms part of this Agreement, together with any expense and cost (Including legal cost) incurred.
12. TEMPORARY DISCONNECTION AND RESUMPTION OF SERVICE
The Subscriber may request a temporary disconnection of the Service by giving not less than fourteen (14) days prior notice to the Company and by settling all amounts due to the Company. Such temporary disconnection shall not constitute a termination of this Agreement if it does not exceed six (6) months. If the temporary disconnection is for a period which is more than six (6) months, the Company reserves the right to terminate this Agreement without prejudice to the rights of the Company, including the right to recover all amounts due from the Subscriber hereunder including but not limited to the pre-termination fee, together with any expense and cost (including legal costs) incurred in recovering, such amounts due and no refund of any advanced payment will be made to the Subscriber. The Company may charge such fees for reconnection of the Service as it shall In Its absolute discretion determine.
13. USE OF PASSWORD
Upon request of the Subscriber, any transaction on his customer account and Service record can be handled through the use of a password issued by the Company which the Subscriber undertakes to keep confidential. The Subscriber may request for a change of his password by accomplishing and submitting a Request for Password Form and presenting a valid identification card to any SMART Store.
The Subscriber shall indemnify the Company against all liabilities, losses, damages, costs, charges, expenses (including legal costs) incurred by or brought against the Company arising directly or indirectly out of or in connection with any breach by the Subscriber of his obligations hereunder.
- This Agreement shall be governed and construed in accordance with the laws of the Philippines.
- This Agreement, together with the Company's records shall be final and conclusive evidence of any dispute between the Company and the Subscriber.
- The Company reserves the right at its absolute 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 used of the Service after any such changes constitutes acceptance of the new Terms and Conditions.
- This Agreement constitutes the entire Agreement between the Company and the Subscriber and supersedes all previous agreements (if any) between the parties, and the Subscriber acknowledges that in agreeing to enter into this Agreement it has not relied on any representation, warranty or other assurance (including any that may have been made by any authorized agent or dealer of the Company) except those set out in this Agreement. .
- The Company's right shall not be prejudiced or restricted by any concession, indulgence or forebearance extended to the Subscriber.
- No waiver by the Company of any breach shall operate as a waiver of any other subsequent breach.
- All notices under this Agreement shall be in writing and sent to the registered office of the Company or the address of the Subscriber as stated on this Service Application Form or such other address which may be notified to the Company in writing from time to time.
- Any complete or partial invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability for any other purpose of the remaining provisions
- Interest on all amounts outstanding to the Company shall accrue at the rate of 2% per month.
- In case it will be necessary to use a lawyer or collection agency, the Subscriber shall pay 25% of the amount due as collection or attorney's fees, in addition to damages or billing for services, penalty, charges and surcharges.
16. DISCLAIMER OF WARRANTY
Subscriber acknowledges that it has not relied on any warranty, expressed or implied with regards to the Service provided hereunder.
The venue of all suits from this Agreement and of other suits directly or indirectly arising from the relationship between the Company and the Subscriber shall be exclusively in the proper courts in Makati City. Subscriber hereby expressly waives claims to any other venue.
Complaints against the Company or its agents should be brought to the attention of the Customer Care Department of the Company.
19. SKETCH OF BILLING ADDRESS
Subscriber agrees and consents to the disclosure to third parties and the processing, either by SMART or by third parties on behalf of SMART, of personal information and data, including personal information, traffic and billing data for marketing and other purposes. Subscriber acknowledges and agrees that SMART may send commercial and promotional advertisements, surveys, and other broadcast push messages. Specifically, subscriber agrees and consents that SMART and its affiliates may use subscriber personal information and data to:
- Manage subscriber account, carry out customer-care activities and train staff, including monitoring calls, emails or text messages that subscriber send to SMART;
- Monitor the quality and security of the network and test and maintain SMART's IT systems;
- 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 SMART websites;
- Send to the emergency services (if subscriber make an emergency call), including subscriber approximate location; and