General
These Terms and Conditions of Use (the “Terms of Use”) apply to the Smart Pay-with-mobile (the “Service”) of Smart Communications Inc. (“Smart”). It is important that you take the time to read them carefully. The Terms of Use form a legally binding agreement between you and Smart in relation to your use of this Service. BY USING THIS SERVICE, YOU SIGNIFY YOUR AGREEMENT TO THESE TERMS OF USE; IF YOU DO NOT AGREE TO ANY OF THESE TERMS, PLEASE DO NOT USE THIS SERVICE.
Smart reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms of Use, at any time. It is your responsibility to check these Terms of Use periodically for changes. Your continued use of the Service following the posting of changes will mean that you accept and agree to the changes. As long as you comply with these Terms of Use, Smart grants you a personal, non-exclusive, non-transferable, limited privilege to use the Service.
The Service allows you to charge your purchases on iTunes and the App Store to your prepaid airtime load or your postpaid bills. The Service relies on a virtual account issued by the Bank (as defined below) on behalf of Smart.
All purchases are made from iTunes and the App store and existing Terms and Conditions and proprietary rights apply, including refund policies. You can refer to iTunes Terms and Conditions at http://www.apple.com/legal/internet-services/itunes/ph/terms.html
Ability to Accept Terms of Service
You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Use, and to abide by and comply with these Terms of Use. By using the Service, you represent and warrant that you have the right, authority, and capacity to enter and to abide by all of the terms and conditions of these Terms of Use.
Definitions
'Application' means any software program or other downloadable digital content (together with any applicable documentation or end user license agreement) created by a third party application developer or publisher including in-application purchase for the same.
'Bank’ means BDO Unibank, Inc., a banking corporation registered in the Philippines that is one of the solution partners of Smart for providing the Service.
'Service' refers to the Smart Pay-With-Mobile service. This is the facilitation of the billing of your purchase, license and/or subscription of Applications via your mobile postpaid bill or prepaid airtime.
'Vendor' refers to the third party authorized application or content developer who sell and/or license their Applications to end users at iTunes and the App Store.
Your Use of the Service
This Service is limited to customers of Smart.
This Service is limited only to purchases on iTunes and the App Store. You agree that you shall not use the Service for any other purchases except as set out above. You agree that any purchase transactions using the Service at any other merchant location shall be declined and not honored by Smart.
You must be the true owner of the Smart account to use this Service. If not, permission must be attained from the respective account holder to charge the account accordingly.
You are solely responsible for maintaining confidentiality of personal account credentials and information in using this Service including, but not limited to, your Apple ID details, and activities and transactions that occur under your account. You must notify iTunes, the App Store, the Vendor, the Bank and/or Smart customer care for any detected unauthorized use of your Service details, or any breach of security.
Smart shall not be liable for any delay in or for failure to perform obligations under this Agreement if that delay or failure is caused by circumstances beyond Smart’s control or by a third party.
Smart has no control over the Applications and is not responsible to ensure that these will not contain or promote anything defamatory, illegal or discriminatory.
Each Application and your use of it is subject to the terms and conditions contained in the Vendor’s end user license agreement, as set out on their website or WAP site or as otherwise provided to you by them. You are subject to applicable terms and conditions of iTunes and the App Store.
Smart does not provide any operational or technical support for iTunes, the App Store and Vendor’s Applications. Aftersales support instructions are provided in your e-mail receipt, sent by iTunes to the designated email of your Apple Account.
Smart may suspend your use of the Service where it is suspected that there is unauthorized or fraudulent use. In the event that your use is suspended pursuant to this clause, you may be barred from future use of the Service.
Smart may implement a per-transaction value limit or per-calendar month spending limit. Such limit may cause temporary suspension of your use of the Service once such limit has been reached.
For added customer experience, you authorize Smart to send push notification to you for activities in relation to the Service
If you transfer to another carrier, you will be deemed to have cancelled the Service and will be subject to the terms and conditions of the other carrier after the transfer is completed, if applicable. Notwithstanding the above, you will remain responsible for all fees and charges incurred as a Smart customer.
You may request from Smart for your mobile number to be blocked or barred from using the Service.
Smart reserves the right to remove the facility to pay using your Smart account without prior notice.
Charges and Payment
Prices for Applications are determined by the Vendors and are subject to adjustment or taxes or currency exchange rates determined by them.
Smart may charge additional fees on top of the price published by iTunes and the App Store and/or Vendor and may make changes to the applicable fees for the Service, at any time, without notice.
If you are a postpaid subscriber, you agree and acknowledge that your acceptance of a charge during the transaction process will entitle Smart to collect payment through your postpaid mobile service bills. Charges will apply within 24 hours of transaction. Transaction will be reflected on the respective monthly phone bill.
If you are a prepaid subscriber, you agree and acknowledge that your acceptance of a charge during the transaction process will entitle Smart to deduct your airtime load. Charges will apply within 24 hours of transaction. Your prepaid airtime balance will be deducted accordingly.
If you subscribe to a subscription service on an Application, you will be billed in accordance with the subscription, frequency and price indicated at the time of your subscription. You are required to refer to the applicable subscription cancellation policy. The cancellation request has to be made to iTunes or the App Store and the respective Vendor. If the subscription is not cancelled prior to the renewal date, you may no longer have the right to cancel or receive a refund and any cancellation will take effect from the following renewal period.
Refunds and returns
All purchases of Applications are considered final.
Refund policy of iTunes and the App Store applies.
If you are a postpaid subscriber, and if you are entitled to a refund from iTunes, the App Store and/or from respective Vendor, your refund will be applied in the respective monthly billing period through billing adjustments. Refunds will apply within 24 hours of confirmation from iTunes, the App Store and/or from respective Vendor
If you are a prepaid subscriber, and if you are entitled to a refund from iTunes, the App Store and/or from respective Vendor, your refund will be added to your current balance. Refunds will apply within 24 hours of confirmation from iTunes, the App Store and/or from respective Vendor
If your postpaid account has been incorrectly debited, you must notify Smart within 21 days from statement date.
If your prepaid balance has been incorrectly deducted, you must notify Smart immediately of said transaction.
Refund policy of Smart does not apply to any issues relating to the operation or performance of iTunes, the App Store, or the Application. All refunds or disputes relating to iTunes, the App Store and/or the respective Application should be referred to iTunes and/or the relevant Vendor.
Personal Data
By using this Service, you consent to your Personal Data being collected, used and/or disclosed to or by Smart, the Bank and Vendors for the purpose of providing you the Service. You further agree that we may share your personal data with Apple, Vendor or service providers who provide operational services to Smart, such as, telecommunications, information technology, payment, payroll, processing, or other services to Smart for the purpose of providing this Service.
Disclaimers
The Service is supplied on an "as is" basis without any express or implied warranties except for those as may be provided for by fair business practice under Philippine relevant laws and regulations. You hereby waive any and all claims for service fees, compensations or other benefits as well as claims for liabilities, attorney's fees suits, costs and for any special, indirect, incidental or consequential damages OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES, RESULTING FROM THE USE OF OR THE INABILITY TO USE THE SERVICE, THE PERFORMANCE OF THE SERVICE, OR DAMAGES FOR LOSS OF GOODWILL, BUSINESS PROFIT, BUSINESS OPPORTUNITIES, BUSINESS STOPPAGE, LOSS OF DATA OR BUSINESS INFORMATION, COMPUTER DAMAGES, OR DAMAGES RESULTING FROM UNAUTHORIZED ACCESS TO OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, against SMART or its officers, directors and employees or any of its affiliates, subsidiaries, suppliers or parent corporation(s) resulting from or arising out of the use (or inability to use) and access of the SERVICES rendered by SMART by virtue of these Terms of Use.
You agree that all claims, causes of action and/or disputes relating to the Service shall be resolved exclusively between us, to the exclusion of any third parties that are not a party to these Terms and Conditions.
YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF SMART PAY-WITH-MOBILE SERVICE AND ANY OF THE APPLICATIONS. SMART SHALL NOT BE LIABLE FOR THE QUALITY OR PERFORMANCE OF APPLICATIONS ACCESSED THROUGH THE ITUNES OR THE APP STORE
Smart reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of the Service; (2) to modify or change the Service, and any applicable policies or terms; and (3) to interrupt the operation of the Service, or any portion of the Service, as necessary to perform routine or non-routine maintenance, error correction, or other changes.
Violation of These Terms of Use
Smart may disclose any information we have about you (including your identity) if we determine that such disclosure is necessary in connection with any investigation or complaint regarding your use of the Service, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) Smart’s, Apple’s, or Vendor’s rights or property, or the rights or property of visitors or users of the Service, including Smart’s customers. Smart reserves the right at all times to disclose any information that Smart deems necessary to comply with any applicable law, regulation, legal process or governmental request. Smart also may disclose your information when Smart determines that applicable law requires or permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes.
You acknowledge and agree that Smart may preserve any transmittal or communication by you with Smart in relation to the Service, and may also disclose such data if required to do so by law or Smart determines that such preservation or disclosure is reasonably necessary to (1) comply with legal process, (2) enforce these Terms of Use, (3) respond to claims that any such data violates the rights of others, or (4) protect the rights, property or personal safety of Smart, its employees, users of or visitors of the Service, and the public.
You agree that Smart may, in its sole discretion and without prior notice, terminate your access to the Service and/or block your future access to the Service if we determine that you have violated these Terms of Use or other agreements or guidelines which may be associated with your use of the Service. You also agree that any violation by you of these Terms of Use will constitute an unlawful and unfair business practice, and will cause irreparable harm to Smart, for which monetary damages would be inadequate, and you consent to Smart obtaining any injunctive or equitable relief that Smart deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies Smart may have at law or in equity.
You agree that Smart may, in its sole discretion and without prior notice, terminate your access to the Service, for cause, which includes, but is not limited to, (1) requests by law enforcement or other government agencies, (2) a request by you (self-initiated account deletions), (3) discontinuance or material modification of iTunes, the App Store or any Application, or (4) unexpected technical issues or problems.
If Smart does take any legal action against you as a result of your violation of these Terms of Use, Smart will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to Smart. You agree that Smart will not be liable to you or to any third party for termination of your access to the Service as a result of any violation of these Terms of Use.
Changes to the Terms
Smart reserves the right to modify these Terms of Use at any time and without prior notice to you. Such modified Terms of Use shall be effective when posted at the website for the Smart Pay-With-Mobile Service.
Governing Law; Dispute Resolution
You agree that all matters relating to your access to or use of the Service, including all disputes, will be governed by the laws of the Republic of the Philippines without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in the appropriate courts of Makati City, Philippines, and waive any objection to such jurisdiction or venue. Any claim under these Terms of Use must be brought within one (1) year after the cause of action arises otherwise such claim or cause of action is barred. No recovery may be sought or received for damages other than out-of-pocket expenses, except that the prevailing party will be entitled to costs and attorneys’ fees. In the event of any controversy or dispute between Smart and you arising out of or in connection with your use of the Service, the parties shall attempt, promptly and in good faith, to resolve any such dispute. If we are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then either party may submit such controversy or dispute to mediation. If the dispute cannot be resolved through mediation, then the parties shall be free to pursue any right or remedy available to them under applicable law.
Miscellaneous
If any of the provisions of these Terms of Use are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms of Use, so that these Terms of Use shall remain in full force and effect. These Terms of Use constitute the entire agreement between you and Smart with regard to your use of the Service, and any and all other written or oral agreements or understandings previously existing between you and Smart with respect to such use are hereby superseded and cancelled. Smart will not accept any counter-offers to these Terms of Use, and all such offers are hereby categorically rejected. Smart’s failure to insist on or enforce strict performance of these Terms of Use shall not be construed as a waiver by Smart of any provision or any right it has to enforce these Terms of Use, nor shall any course of conduct between Smart and you or any other party be deemed to modify any provision of these Terms of Use. These Terms of Use shall not be interpreted or construed to confer any rights or remedies on any third parties.
Feedback and Information
Any feedback you provide on Smart channel in relation to the Service shall be deemed to be non-confidential. Smart shall be free to use such information on an unrestricted basis.
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