Emtel Business Terms and Conditions
In this Agreement, the following words will have the following meaning unless the context otherwise requires. Special definitions with regard to other Services are provided in the respective annexes relating to a particular Service. In the event of any inconsistencies between this Terms and Conditions and specific terms and conditions of Customer Application Form, SLA or any other document, the specific terms and conditions shall take precedence.
1.1. “Agreement” or “Contract” means the General Terms and Conditions, the relevant Special Terms and Conditions and any related document including (but not limited to) the Order Form/Customer Application Form;
1.2. "EMTEL" means Emtel Ltd, , a private limited company, registered under the Laws of Mauritius having its principal place of business at EmtelWorld, 10, Ebene Cyber City, Ebene and bearing business registration number C06006174.
1.3. “Equipment” means all equipment or wiring, including without limitation, cabling or other tangible items installed, stored or located or to be installed, stored or located in the Sites of the Subscriber;
1.4. “Deliverables” means the items which a supplier of Emtel and/or EMTEL is obliged to produce and provide to the Subscriber as set out in the Customer Application Form, any relevant Supplemental Agreement or as otherwise agreed;
1.5. “Infrastructure” means the technical components (hardware and software) of a telecommunication or information technology system and its processes that are used by EMTEL to provide services.
1.6. “Inspection Period” shall have the meaning set forth in Section 4.9;
1.7. “Payer” means person elected by the Subscriber and consented by the Payer who accepts responsibility for paying the Subscriber’s charges in respect of the Subscriber’s use of EMTEL’s Service(s) and/or Value Added Services whether in part of whole;
1.8. “Project” means a set of related tasks executed to deliver the services, with defined deliverables, budget, resources and timelines.
1.9. “Processing” has the meaning given in the Data Protection Law and the terms processed and process shall be construed accordingly;
1.10. “Regulatory Authority” means the Information and Communication Technologies Authority or any such Authority regulating the Service;
1.11. “Services” means the services offered by EMTEL as further described in the Customer Application Form;
1.12. “Sites” means the premises provided by the Subscriber for the Services;
1.13. “SoA” means monthly Statement of Account;
1.14. "System" means the telecommunication infrastructure used by EMTEL to deliver the Services and includes mobile, fixed and international telecommunications infrastructure.
1.15. “Third Party Equipment” means the equipment which are not the property of EMTEL;
1.16. “Third Party Occupant” means any Subscriber of EMTEL using any EMTEL service;
2.1 The applicant shall make an application to become a Subscriber to the Service(s) offered by EMTEL by filling in and remitting to EMTEL the printed Customer Application Form and/or any document defining the Services to be provided, ("the Customer Application Form").
2.2 This Terms and Conditions will apply to any existing, actual and subsequent services ordered by the Subscriber. This Terms and Conditions shall be subject to amendments exclusively by Emtel provided that the provision of services to the Subscriber is not affected. Any other amendments shall be subject to the mutual consent of both parties.
2.3 The parties acknowledge and agree that this Agreement may be executed by electronic signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature. Without limitation, “electronic signature” shall include faxed versions of an original signature or electronically scanned and transmitted versions of an original signature.
3. Consent of electronic record
3.1 The Subscriber herewith through the use of the Service acknowledges and agrees:
3.1.1 to be bound by the terms and conditions in electronic form thereof;
3.1.2 that the electronic records of the terms and conditions fully satisfies any requirement that such communication be provided in writing or in a format that the Subscriber may keep; at any time, request of a paper version of the said electronic terms and conditions of service may be made.
3.2 The electronic record shall not be denied legal effect, validity or enforceability solely on the ground that it is in electronic form.
4. Built-Out and acceptance of the Sites connectivity provided by EMTEL
4.1 EMTEL shall only be bound by the Agreement when it has been signed and accepted by a duly authorized representative of EMTEL. Acceptance will only take place if the Subscriber and/or Payer(s) as applicable pass amongst others a credit rating to EMTEL’s satisfaction.
4.2 The Agreement constitutes the entire contract between the Subscriber and/or Payer as applicable and EMTEL and the terms of the Agreement shall apply to the exclusion of all other terms and conditions whether implied or proposed by the Subscriber and/or Payer orally or in writing unless expressly accepted in writing by EMTEL.
4.3 Upon acceptance of the application by EMTEL, such acceptance being at EMTEL’s absolute discretion, EMTEL shall connect any Equipment related to the System as soon as is reasonably practicable and/or technically possible.
4.4 Emtel reserves the right to reject the application within a delay of eight (8) business days from the date the application is received by Emtel’s Head Office, without having to ascribe any reason therefor and without incurring any liability towards the Subscriber save that any payment effected will be refunded within thirty (30) days of the rejection, without interest and after deducting any amount due to EMTEL by the Subscriber.
4.5 The issuance of a subscription number is not deemed that your application has been accepted by Emtel. Causes for rejection include (and are not limited to): unpaid subscription(s) at the same address or in the same building as the applicant, EMTEL shall have no responsibility or liability to the applicant whatsoever in respect of any loss or damage suffered by the applicant howsoever arising.
4.6 The Services shall be activated within a reasonable time of the receipt of the duly completed application with all required particulars, and after verification and acceptance by EMTEL of the application. EMTEL shall use all reasonable endeavors to maintain the connection while the Subscriber abides by the provisions of the Agreement.
4.7 The Subscriber shall be deemed to have accepted the connectivity upon the expiration of the Inspection Period, unless EMTEL receives a written notice from the Subscriber prior to the end of the Inspection Period setting forth the specific non-conformity with the specifications. In such case, EMTEL shall promptly rectify any such non-conformities and the inspection and acceptance process set forth in this Section shall repeat.
4.8 The Services by the SUBSCRIBER shall be deemed accepted “AS IS” by the Subscriber. EMTEL does not make, and hereby specifically disclaims, any representations or warranties, express or implied, as to the fitness of the Services for the Subscriber’s intended purpose.
4.9 The Subscriber shall have two (2) days from the date that EMTEL delivers each Site, to inspect the Site for conformance with the Services (“Inspection Period”) which does not in any event impact the billing for the provision of the services unless otherwise agreed with the Client.
4.10 EMTEL shall endeavor within a reasonable timeline to provide the Services as per the date agreed. The Parties agree that the date if indicated on the Customer Application Form is an estimate and Emtel shall not be liable for any failure to meet the said date.
4.11 The Subscriber agrees and acknowledges that it is in consideration of the payment by the Subscriber of the charges, fees and/or rentals, that the Services will be provided by EMTEL in accordance with the terms and conditions set out herewith.
4.12 In case any Equipment including handset is sold at a discounted rate and is to be used with a SIM card and/or any other telecommunication equipment connected solely through the network, a fee as determined by EMTEL from time to time shall be payable.
5. Obligations of Emtel
5.1. EMTEL shall where applicable provide the Subscriber the Services, under the conditions specified in the relevant Service Level Agreement (“SLA”) which is a condition precedent to the provision of the Services.
5.2. At the Subscriber’s written request, EMTEL may perform certain limited “remote hands” maintenance operations on the Equipment if any, in exchange for payment of an additional service charge by Emtel (as per EMTEL’s current tariffs for such Services, which may be amended by EMTEL from time to time);
5.3. EMTEL shall provide the Subscriber with Services as described in the Customer Application Form;
5.4. EMTEL shall use industry standard efforts to maintain its facilities and the Equipment if any required to deliver the Services;
5.5. EMTEL confirms that it has obtained all authorisations, licenses and certificates from all relevant authorities for the delivery of Services listed in the present Agreement and the SLA entered by EMTEL and the Subscriber.
6. Obligations of subscriber
6.1 The Subscriber and Payer(s) acknowledges that the System is operated under the license from the Regulatory Authority and that the provision of the said license(s) and agreement(s) apply to the use of the Services and that the Subscriber hereby undertakes:-
a) to ensure that the Services is not used for any unlawful purpose;
b) to ensure that the Subscriber equipment is lawfully possessed and does not contravene any law or regulation of the Republic of Mauritius;
c) to ensure that the Services is not used at any time to send, deliver or show a message which is obscene, indecent, abusive, threatening, false or misleading, which is likely to cause or causes annoyance, humiliation, inconvenience, distress or anxiety to any person;
d) to comply with all rules and regulations of the Regulatory Authority;
e) to cease the utilization of the Services for such periods as may be required by EMTEL;
f) to be liable jointly and severally with all Payer(s) of all usage and charges for such time as the loss or theft including any event of fraud and misuse of the EMTEL’s Equipment if any and/or Subscriber’s Equipment resulting in the Services being disconnected from the System;
g) to continue to be liable for all fees and charges during the period of interruption or loss of Service for any cause whatsoever including if the Payer(s) fail, refuse or discontinue payments on behalf of the Subscriber;
h) to ensure that the Services shall be used solely for the reception and transmission of data and any such other Services and/or Value Added Service as may be made available from time to time. Unless otherwise specified, the Services are for the Subscriber’s personal and non-commercial use;
i) to promptly report to EMTEL the discovery of any event of fraud, theft, loss, unauthorized usage or any other occurrence of unlawful acts/events in respect of the Emtel Equipment is any Such report shall be supported by a statement to the Police.
j) not to act or omit to act in any way which may injure or cause damage to any person, property or the System or cause the quality of the Services to be impaired.
k) to pay for any intervention visit and related costs thereof, in the event that after such intervention visit it is averred that the fault and/or failure of access to the Service is not attributable to Emtel.
6.2 The Subscriber agrees to indemnify EMTEL in respect of any claims, costs, damages and losses (including loss of profits and legal fees) sustained by EMTEL as a result of breach of this Agreement by the Subscriber.
6.3 Any person signing this Agreement on behalf of an individual or a company, should produce relevant documents authorizing to do so, as a guarantor or as a responsible official of the company, but the non-production of any such documents shall not impair EMTEL’s claim against the company.
6.4 Equipment if any, is provided for the Subscriber use in order to gain access to EMTEL’s network. It is the Subscriber’s responsibility to keep it secure, as EMTEL is not liable for any loss or liability incurred by the Subscriber resulting from the unauthorized use thereof. The Subscriber shall be liable for any changes incurred by the use of the Equipment if any.
6.5 The Equipment provided if any unless otherwise specified, remains the property of EMTEL in the hands of the Subscriber .The same shall be returned to EMTEL on termination of Subscription for any reason whatsoever. EMTEL is not responsible for any manufacturing defect of the Equipment.
7. Infrastructure and Equipment
7.1.1 EMTEL is not responsible for the installation, maintenance, compatibility, or performance of any equipment or software not provided by EMTEL.
7.1.2 In the event that the Subscriber provides any router / firewall / proxy or any other equipment to interface with the Services, the Subscriber must cooperate with EMTEL while the Subscriber or EMTEL configures and manages such equipment(s) in order to implement and operate the Services.
7.1.3 The Subscriber shall bear sole responsibility for delivery and bringing any subscriber Equipment to the Sites.
7.1.4 EMTEL shall not be responsible for any loss and damage, which may occur during transit or commissioning of Subscriber equipment.
7.1.5 EMTEL will commence work only after seeking the Subscriber’s prior written approval for the execution plan one (1) week in advance, save for emergency situations and/or force majeure, which shall then be notified to the CUSTOMER as soon as possible.
7.2 Equipment Installation and Maintenance
7.2.1 EMTEL shall be responsible for the installation, maintenance and operation of EMTEL Equipment only. In this context, EMTEL shall engineer, furnish, install and test, at its sole expense, the EMTEL Equipment at the Sites. The Subscriber shall be solely responsible, at its own expense, for making the final power connections to the EMTEL Equipment. Prior to the commencement of the installation of any of the EMTEL Equipment, EMTEL shall submit to the Subscriber for its approval, all engineering plans and specifications pertaining to the EMTEL Equipment to be installed as well as a proposed plan of work for the installation and proposed installation details. EMTEL shall also submit to the Subscriber, for its approval in advance, any subsequent EMTEL Equipment proposed to be installed in the Sites.
7.2.2 Notwithstanding Clause 7.2.1, the Subscriber shall at all times, ensure the safety of the Equipment provided including the provision of adequate space for the installation of the equipment thereof.
7.2.3 The Parties shall use reasonable care and skills in installing, maintaining and operating the EMTEL Equipment at the Sites.
7.2.4 EMTEL shall provide to the Subscriber, and update as necessary, a list of Equipment installed at the Sites. EMTEL shall be permitted to remove at any time from the Sites only those EMTEL Equipment which have been provided during the installation of the EMTEL Equipment.
7.2.5 The Subscriber shall maintain the Equipment in a manner that ensures its continued compliance with all applicable laws and avoids hazard or damage to the facilities of the EMTEL or to “Third Party Occupants” or injury to EMTEL’s or Third Party Occupants’ employees, agents or to the public.
7.2.6 EMTEL shall ensure that EMTEL Equipment does not interfere or cause interference with Subscriber equipment or that of any Third Party Equipment. If such interference does occur, EMTEL shall have the right to take such corrective action as EMTEL (in its sole discretion) deems necessary, including (without limitation) the powering down of the most recent EMTEL’s installation until the interference issue is resolved to the satisfaction of Subscriber and any other affected party.
7.2.7 The Subscriber shall ensure that Equipment complies with the power utilization specifications of the Equipment. EMTEL shall not be responsible for any service disruption caused over-utilization of power. In addition, the Subscriber shall be liable for and indemnify and hold harmless EMTEL from and against all costs and expenses and claim or losses incurred or suffered by EMTEL or Third Party Equipment as a result of or in connection with any power over-utilization by the Subscriber including, without limitation, any costs and expenses incurred by EMTEL in repairing or replacing any equipment damaged.
7.2.8 The Subscriber shall provide EMTEL with at least two (2) technical points of contact. Any changes in the identity of such points of contact shall be immediately notified to EMTEL.
7.2.9 The Subscriber shall bear all risks associated with EMTEL Equipment. In no event shall EMTEL be liable for damage, theft, misappropriation or loss of the EMTEL Equipment, except where such damage or loss was a direct result of EMTEL’s gross negligence or willful misconduct. EMTEL shall label all the EMTEL Equipment as the property of EMTEL.
7.2.10 EMTEL shall have no liability whatsoever to third parties for equipment placed by EMTEL in the Sites. Installation of Equipment by EMTEL in the Sites shall not entitle any third party to have access to the Sites (or to have any rights hereunder) except with the written consent of EMTEL.
7.3 Service Levels
7.3.1 EMTEL shall provide the Services to meet or exceed the Service Levels as per Annexures where applicable.
7.3.2 EMTEL shall notify the Subscriber of, in writing immediately upon becoming aware of the relevant matter, any matter which causes or appears to be reasonably likely to cause a Service Failure or otherwise cause disruption to the Services. The notice shall record, where relevant, the nature of any work or alterations necessary to remedy the Service Failure, their estimated duration, details of the way in which such works or alterations may affect EMTEL's ability to provide the Services and details of the alternative arrangements which the CUSTOMER will implement to ensure the performance by it of the Services in accordance with the Service Levels. Unless otherwise agreed by the CUSTOMER in writing, no such notification shall in any way absolve EMTEL from the requirement to provide the Services in accordance with the Service Levels and this Agreement.
7.3.3 Service Levels may be reviewed and revised with the approval of both Parties throughout the term of this Agreement. Upon any agreement between the Parties, the revised and agreed Service Levels shall be documented in a Supplemental Agreement.
8. Duration of agreement
8.1 The Agreement shall come in force on the Commencement of the Service, and shall remain in force for an Initial Period of twelve (12) months (hereafter called the "Initial Period"). By default all Services shall be for a duration of twelve (12) months unless otherwise specified in the Customer Application Form or the Specific Terms and Conditions. After the Initial Period, the Agreement shall be automatically renewed indefinitely until terminated in accordance with clause 9 & 10.
9. Charges and payment terms
9.1 EMTEL shall issue to the Subscriber and the Payer(s) as appropriate at the respective addresses supplied, a monthly statement of account showing the amount due by the Subscriber and/or Payer to EMTEL. The Subscriber and Payer(s) shall be bound to promptly pay to EMTEL the amounts shown against their respective names/accounts on the statement of account notwithstanding any contestation there may be in respect thereof. Any dispute relating to that statement of account shall be settled thereafter and all adjustments. The Subscriber and Payer(s) shall promptly pay fees in respect of the service as shown in EMTEL’s statement of account.
9.2 The Subscriber consents and agrees to receive its statement of account for the Services by email. The Subscriber consents and agrees that in its first SoA, it shall be invoiced installation charges, pro-rated service charges and actual service charges.
9.3 The Subscriber remains at all times liable for all fees stated in the statement of account arising from its use of the Services including in the event the Payer(s) fails to settle amounts they have consented to pay by the due date.
9.4 Notwithstanding clause 9.3 above, Emtel reserves the right to charge the full amount for and in consideration of the Services contracted by the Subscriber in the event of a delayed delivery of the Services which is solely attributable to the Subscriber and/or its contractors and/or any third parties.
9.5 It shall be the sole responsibility of the Subscriber to ensure that the Payer(s) settle such sums that they have contracted to settle on behalf of the Subscriber by the due date.
9.6 The Subscriber and/or Payer(s) shall be deemed to have received the statement of account at the appropriate time; it has been posted or delivered to their addresses as supplied to EMTEL including emails addresses. It is the responsibility of the Subscriber and/or Payer(s) to ensure that their addresses remain up to date with EMTEL.
9.7 In the event of any fees and/or charges remaining unpaid after becoming due, EMTEL reserves the right to charge interest on the overdue amount which is still outstanding at ten percent (10 %) above the minimum lending rate charged by the Mauritius Commercial Bank Limited or by the State Bank of Mauritius Limited, as from the date the account was overdue.
9.8 In the event of recovery of any unpaid amount through the medium of an attorney at law, the Subscriber and/or Payer shall be liable to indemnify EMTEL of all costs incurred by EMTEL in order to recover the unpaid amount. Such costs shall include but not be limited to the actual expenses, overheads, man-days, and any commission and VAT charged by the attorney-at-law.
9.9 The Subscriber and/or Payer(s) bind himself/themselves to comply with the billing and payment conditions as stipulated on the statement of account. Any query regarding fees and charges shown on the statement of account must be made in writing not later than the service restriction date shown on the statement of account, failing which the statement of account shall be deemed to have been accepted by the Subscriber. EMTEL endeavors to resolve such queries promptly. The decision of EMTEL shall be final and binding.
A detailed bill will be dispatched together with the statement of account upon the Subscriber’s written request only to the Subscriber. A copy of same will be sent either by email through the email address supplied by the Subscriber. EMTEL may charge such reasonable fees for the detailed bills as it may, in its sole discretion, determine. The Payer(s) understand and agree that any payment made whatsoever on the Subscriber’s behalf does not entitle them to the Subscriber’s detailed bill save and except in cases as authorised by law and/or with the authorization of the Subscriber.
9.10 The Subscriber and/or Payer(s) shall pay to EMTEL any government tax on all charges where applicable at the rate ruling at the relevant time.
9.11 In the event the Subscriber does not pay any and all monies owing to EMTEL by the prescribed due date, then a Late Payment Charge (LPC) of 10% on the outstanding monies owing will be made payable to EMTEL without the need for any judicial or extra judicial formality.
10.1 Termination by EMTEL
10.1.1 In the event that the conditions of use of the EMTEL Equipment or rules and regulations of the Regulatory Authority are breached, EMTEL shall be entitled to withdraw the Equipment from the System immediately and without prior consultation with the Subscriber;
10.1.2 EMTEL reserves the right to disconnect or refuse Services to a Subscriber, if directed to do so by the Regulatory Authority;
10.1.3 EMTEL reserves the right to summarily suspend or terminate the Agreement without the need for judicial and extra judicial formality with the Subscriber without being bound to ascribe any reasons therefor. The Subscriber shall be liable to make the payments stipulated in Clause 10.3 hereunder;
10.1.4 In the event EMTEL exercises its right to suspend or terminate the Service provided for herein, EMTEL shall not be liable to the Subscriber for any loss or damage which the Subscriber may sustain.
10.1.5 Termination of the Agreement either by the Subscriber or EMTEL shall not relieve the Subscriber from its responsibilities and liabilities under the Agreement which are incurred prior to and up to the effective date of termination.
10.1.6 EMTEL shall, without prejudice to any other claims or remedies which it may have against the Subscriber, have the right to terminate the Service and the Agreement without liability upon the happening of any one of the following events:
10.1.6.1 If EMTEL for whatever reason is unable to provide the Services;
10.1.6.2 If the Subscriber commits a breach of this Agreement or in the case of a breach capable or rectification fails to rectify the same within seven (7) days of EMTEL giving notice of it;
10.1.6.3 If any information supplied by the Subscriber to EMTEL is inaccurate, false or misleading.
10.2 Termination by the Subscriber
10.2.1 The Subscriber may terminate the Agreement after the Initial Period, by giving EMTEL at least four (4) months prior in writing.
10.3 Effects of Termination
10.3.1 The rights of either Party (the “Aggrieved Party”) to terminate this Agreement shall be without prejudice to any other remedy available to the Aggrieved Party in law or under this Agreement (including, without limitation, the right to obtain an injunction, or claim specific performance of any obligation whether or not the due date for performance has arrived, and the right to claim damages).
10.3.2 The Parties’ rights and obligations that, by their nature, would continue beyond the termination or expiration of this Agreement, shall survive the termination or expiration of this Agreement. Without limiting the foregoing, the following provision shall survive the termination or expiration of this Agreement: Limitation of Liability, Force Majeure, No Third Party Beneficiaries, Relationship of the Parties, Confidentiality, Data Privacy and Intellectual Property.
10.3.3 In the event of an Aggrieved Party’s termination of this Agreement, the other Party (the “Defaulting Party”) shall remain responsible for any costs incurred or that become incurred by the Aggrieved Party as a result of this Agreement. Payment for such costs shall be due immediately upon written notice to the Defaulting Party by the Aggrieved Party. In the case of a termination by EMTEL, in addition to all of EMTEL’s other rights and remedies available at law or equity, EMTEL shall be entitled to reclaim or recover the EMTEL Equipment provided in the Sites.
10.3.4 EMTEL shall not refund and shall forfeit any service charges paid in advance of termination;
10.3.5 In the event of termination of the Agreement, the Subscriber shall be liable to EMTEL for:
10.3.5.1 all the fees and charges incurred by the Subscriber for use of the service up to and including the effective date of termination of the Agreement;
10.3.5.2 The monthly service fees and charges for the balance of the Initial Period plus, when applicable in case of early termination during the Initial Period.
10.4 Additional Termination or Suspension by EMTEL
10.4.1 EMTEL shall have the right to immediately terminate or suspend this Agreement or any Customer Application Form (as applicable), and discontinue or suspend the delivery of the affected Services (without liability) in the event that:
a. Subscriber fails to make a payment when due and CUSTOMER fails to cure such breach within thirty (30) days after receipt of written notice from EMTEL; or
b. Subscriber or any End User has violated any law, rule, regulation or policy of any Governmental Authority related to the Services or Subscriber's use thereof; or
c. Subscriber has engaged in conduct that has caused or may cause (in EMTEL's sole reasonable judgment) damage to the Facilities, EMTEL network or third parties; or
d. EMTEL receives any direction, notification or instruction from any Governmental Authority to suspend or terminate the provision of Services to CUSTOMER;
e. Upon any suspension pursuant to 10.4.1 (a) to (d) above, EMTEL shall provide reasonable written notice where legally permissible thereof to Subscriber.
11. Limitation of liability
11.1.1 Either Party agrees to indemnify and hold harmless the other Party, its employees, directors and officers against any material breach of any representation or undertaking made by that Party under this Agreement.
11.1.2 The provisions of this Agreement set out the maximum liability of the Parties under or in connection with this Agreement and all other liability is excluded.
11.1.3 EMTEL shall be fully liable for any damage and/or interruption of Service on any Site, if such damage or interruption was the act and/or omission of EMTEL’s Personnel and/or authorised representatives.
11.2 Limitation of Liability
11.2.1 Nothing in this Agreement limits or excludes any liability:
a) for death or personal injury resulting from the other Party’s negligence;
b) any liability for fraud or fraudulent misrepresentation by the other Party or its employees or agents;
c) willful default or gross negligence by the other Party or;
d) the obligation on the CUSTOMER to pay the Charges.
11.2.2 The EMTEL’s maximum liability in respect of damage caused to the Subscriber’s Infrastructure and/or Equipment as a result of its negligence shall not exceed the aggregate of the replacement value and cost of installation of the Infrastructure and /or Equipment if any installed at the Sites.
11.2.3 Subject to the clauses 11.2.1 and 11.2.2 above, neither Party shall be liable to the other, whether in contract or tort (including under any indemnity or warranty), under any statute or otherwise for or in respect of any incidental, indirect or consequential loss or penal or punitive damages of whatever nature whether or not reasonably foreseeable, reasonably contemplated, or actually contemplated by the Parties at the Commencement Date.
11.2.4 EMTEL shall not be liable for any loss or damage which may be occasioned through the interruption or loss of the service from any cause whatsoever including but not limited to loss or lack of coverage or line of sight, but in case of such interruption or loss of the Service, EMTEL shall make every effort to restore the Service within a reasonable time.
11.2.5 EMTEL will not be liable to the Subscriber for any loss of business, profit, revenue of goodwill, anticipated savings, use or contracts or for any indirect or consequential loss however it arises.
11.2.6 Neither Party shall be liable for any delay or failure by it in performing or complying with any obligation under the terms of this Agreement or any Schedules to the extent that such delay or failure is attributable to any act or omission of the other Party or any of its Personnel or by Force Majeure or any third parties including members of the public.
11.2.7 Notwithstanding clause 11.2.1, neither Party’s liability shall exceed the aggregate value of this Agreement.
Unless otherwise stated in the Customer Application Form, ownership of EMTEL Equipment provided if any, shall rest solely and exclusively with the EMTEL during the Period of this Agreement and similarly, ownership of the Subscriber Infrastructure and Equipment shall rest solely and exclusively with the Subscriber.
In the event that EMTEL sub-contracts certain services, EMTEL shall remain the prime contractor and shall be responsible for the service delivery as if it had delivered the services itself.
At all times, EMTEL shall ensure that: (a) the relevant EMTEL staff is suitably qualified, adequately trained and capable of providing the Services in respect of which they are engaged; and (b) there is an adequate number of EMTEL’s staff to provide the Services properly.
16. Non Solicitation
The Parties agree that during the term of this Agreement and for a period of three (3) years thereafter, they will not:
16.1 Hire, contract or take away or cause to be hired, contracted or taken away any employee of the other Party, who has been directly and/or indirectly involved in the performance of the Services, as set out in the present Agreement;
16.2 Solicit or encourage any employee of the other party, who has been directly involved in the performance of the Services, as set out in the present Agreement, to terminate employment;
16.3 Induce or attempt to induce any client, supplier, vendor or other business associate of the other Party, who has been directly involved in the performance of the Services, as set out in the present Agreement, to cease doing business with the other Party or in any way interfere with the relationship between the other Party and any of its clients, vendors, or business associates;
16.4 Divulge to any person the names of any of the other Party’s clients or business associates, who has been involved in the performance of the Services, as set out in the present Agreement.
17.1 The Subscriber shall allow EMTEL and any authorized auditor of EMTEL to access the Sites in relation to the performance of the Services and to relevant records as may be reasonably required in order to:
17.1.1 fulfill any legally enforceable request by the regulatory authorities; or
17.1.2 Undertake verification that the Services are being provided in accordance with the present Agreement;
17.1.3 For the performance of this Agreement.
17.2 EMTEL shall use its reasonable endeavors to ensure that the conduct of each audit does not unreasonably disrupt the Subscriber or delay the provision of the Services and that, where possible, individual audits are coordinated with each other to minimize any disruption. The frequency of any such audits will be mutually agreed between the Parties.
18. Regulatory and Legal Changes
In the event of any change in applicable law or regulation that materially changes the cost of delivery of Services, EMTEL shall give the Subscriber written notice thereof and the Subscriber shall have thirty (30) days to accept Services provided after the said thirty (30) day period shall be at the increased or decreased rate, as mutually agreed between the Parties.
19. Liquidation / Receivership
In the event Subscriber goes into receivership or liquidation or into any other situation of financial default, the Subscriber shall (i) promptly apprise EMTEL of its status, and (ii) grant EMTEL and/ or procure such rights for EMTEL from any regulatory authority so that EMTEL may, in a reasonable time frame, gather and take away its Equipment from the Sites.
20. Confidentiality and Intellectual Property
Each Party understands and acknowledges that any data or information, oral, written or obtained by observation, that relates to the other Party’s research, development or any other business activities, including any software, business processes, products, identity of clients and/or suppliers, inventions, processes, financial information, revenue, forecasts, projections or methods of operating EMTEL Sites which is disclosed or otherwise made available to the other Party (“Confidential Information”), represent valuable information entitled to protection. Each Party shall keep confidential, and shall not disclose, the Confidential Information, and shall limit access to the Confidential Information only in connection with this Agreement. Each Party shall secure and protect the Confidential Information in a manner consistent with the steps taken to protect its own trade secrets and confidential information, but not less than a reasonable degree of care.
The confidentiality obligations set forth above shall not prohibit disclosure of (a) information previously known to the receiving Party, (b) information which is or becomes publicly known through no wrongful act of the receiving Party, (c) information received from a third party that is not subject to confidentiality obligations, (d) information independently developed by the receiving Party without access to or knowledge or use of such information or information required to be disclosed by a governmental agency or court order, but then only to the extent so required and provided that the receiving Party shall notify the disclosing Party hereof in writing in advance of any such disclosure being made.
The Parties may disclose Confidential Information to their accountants, legal and financial advisors, subcontractors and consultants (the “Authorised Persons”) as necessary for the performance of their obligations under this Agreement; provided that the disclosing Party shall cause such persons to adhere to the confidentiality requirements of this Agreement.
Each Party shall not, without the other Party’s prior written consent, communicate or disclose any part of the Confidential Information to any person other than the Authorized Persons.
Nothing contained in this Agreement shall be construed as obligating a Party to disclose its Confidential Information to the other Party, or as granting to or conferring on a Party, any expressed or implied rights or license to the Confidential Information of the other Party.
No Party shall make any public announcement or disclosure with respect to the subject matter of this Agreement without obtaining the written consent of the other Party hereto, which consent shall not be unreasonably withheld.
20.2 Intellectual Property Rights
Intellectual Property Rights means patents, inventions, know-how, trade secrets and other confidential information, computer programs, registered designs, copyrights, database rights and design rights, semi-conductor topography rights, trademarks, service marks, logos, images, domain names, business names, trade names, moral rights, any other intellectual or industrial property rights (and any licences in connection with the same) and any and all registrations or applications to register any of the aforesaid items, rights in the nature of any of the aforesaid items in any country or jurisdiction, rights in the nature of unfair competition rights and rights to sue for passing-off;
All Intellectual Property Rights belonging to each Party prior to signing of this Agreement shall remain solely for the latter;
Each Party warrants that it shall not use any Intellectual Property Rights of the other Party trademarks and brands for any purpose without the latter’s prior written consent.
21. Force Majeure
21.1 Neither party will be liable for any failure or delay in performing any of its obligations (except payment obligations) under this Agreement as a result of Force Majeure for as long as the Force Majeure continues for more than thirty (30) days and to the extent that that party is so prevented, hindered or delayed.
21.2 For the purposes of this Agreement, Force Majeure means any cause beyond the affected Party’s reasonable control which, without in any way limiting the generality of the foregoing, shall include acts of God, riots, wars, accidents, pandemic, cable cuts, embargo or requisition (acts of government).
21.3 If either party claims to be affected by Force Majeure then it will notify the other party in writing within seven (7) Working Day of commencement of the Force Majeure, giving details of the effect on its ability to perform its obligations under this Agreement and likely duration of the Force Majeure. The affected party shall use all reasonable efforts to mitigate the effects of the Force Majeure upon the performance of its obligations under this Agreement.
21.4 Within one (1) day after the cessation of the Force Majeure, that affected party shall notify the other party in writing of the cessation of the Force Majeure and shall resume performance of its obligations under this Agreement.
21.5 Unless otherwise agreed by the Subscriber in writing, no such notification shall in any way absolve EMTEL from the requirement to provide the Services in accordance with the Service Levels and this Agreement.
This Agreement shall not be assigned by either Party without the written consent of the other Party, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, EMTEL may assign this Agreement, (i) in whole or in part, without the consent of the Subscriber, to an affiliate or a third party provided that such assignment shall not relieve EMTEL of its obligations to perform and remain responsible under this Agreement or (ii) in whole or in part, without the consent of the Subscriber, in the event of a change of controlling ownership of EMTEL or in the event of a sale, merger, or consolidation of business of all or substantially all of the assets of EMTEL or all or substantially all of the Project. Any purported assignment, transfer or other disposition by any Party which is in violation of this Article shall be null, void and of no force and effect.
23. Successors and Assigns
This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
24. No third party beneficiaries
This Agreement does not provide, and is not intended to provide, third parties (including, but not limited to, customers of the Subscriber, any permitted transferee of the Services or any other permitted user of the Services) with any remedy, claim liability, reimbursement, cause of action or any other right. The Subscriber acknowledges that it is not a third-party beneficiary of any agreement entered into by EMTEL or its affiliates, including, but not limited to, any capacity purchase agreement or any other contract relating to the construction, maintenance or operation of the Project. This Agreement is for the sole benefit of the Parties and their permitted assigns, and nothing herein expressed or implied shall give, or be construed to give, any person other than the Parties and their permitted assigns any legal or equitable rights hereunder.
25. Relationship of the Parties
At all times the relationship between the Parties shall be that of independent contractors, and nothing expressed or implied herein shall be deemed to create any type of partnership, agency or joint venture relationship between EMTEL and the Subscriber. In addition, this Agreement shall not be deemed to create any type of employment relationship (direct or indirect) between, on the one hand, EMTEL and, on the other hand, the CUSTOMER and/or any of the Subscriber’s employees and agents. Neither Party shall have the right to enter into a binding agreement on behalf of, or otherwise bind, the other, nor have the right to direct or control the activities of the other, nor shall one Party act as an agent of the other Party.
26. Export Control
Each Party acknowledges and agrees that to the extent any products, software or technical information provided under this Agreement are or may be subject to any applicable export laws and regulations, the Party will not use, distribute, transfer or transmit the products, software or technical information (even if incorporated into other products) except in compliance with such export laws and regulations (or licenses or orders issued pursuant thereto). If reasonably requested by a Party, the other Party agrees to sign all necessary export related documents as may be required to comply with any applicable export laws and regulations.
27. Waiver of Immunity
The Parties acknowledge that this Agreement is commercial in nature, and the Parties expressly and irrevocably waive any claim or right which they may have to immunity (whether sovereign immunity or otherwise) for themselves or with respect to any of their assets in connection with any proceeding to enforce this Agreement, including, without limitation, immunity from service of process, immunity of any of their assets from pre-judgment or post-judgment attachment or execution and immunity from the jurisdiction of any court or arbitral tribunal.
The waiver by any Party, in whole or in part, of a breach of or a default under any of the provisions of this Agreement, or the failure, in whole or in part, of any Party, upon one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder (a) shall be effective only if provided in writing and (b) shall not thereafter be construed as a waiver of any subsequent breach or default or as a waiver of any other provision, right or privilege hereunder.
If any of the provisions of this Agreement is found by an appropriate arbitral, judicial or regulatory authority to be void or unenforceable, such provision shall be deemed to be deleted from this Agreement and the remaining provisions shall continue in full force and effect. The Parties shall use their best endeavors to amend the Agreement.
30. Entire agreement
This Agreement including the Annexures hereto, constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior agreements, understandings or proposals, whether oral or written, with respect to the subject matter hereof.
This Agreement may be executed in counterparts, each of which when executed and delivered shall be deemed an original. Such counterparts shall together (as well as separately) constitute one and the same instrument.
32. Changes to the Agreement
32.1 Any change to this Agreement including to the scope of the Services and deliverables and other matters specified in an Annexure shall only be made by a written amendment executed by an authorized representative of each Party (an “Amendment”).
32.2 Any ad-hoc Services (“Ad Hoc Services”) requested by the Subscriber and accepted to be provisioned by EMTEL, acting in its discretionary powers at all times, shall be written down in Annexures of this Agreement, which to all intents and purposes, shall form part of this Agreement.
33. Data Protection
33.1 By having the Services installed and/or agreeing the usage terms and conditions, the Subscriber is giving its/his consent to the following:
33.1.1 From time to time, Emtel may contact the Subscriber by mail, telephone, email, SMS or other electronic messaging services with information about other Emtel products and service.
33.1.2 Emtel shall for the purposes of its obligations under this Agreement share details of the Subscriber with suppliers, vendors, consultants and such other professionals directly related to the provision of the Services hereunder.
34. Governing Law
The construction, validity and performance of the Agreement shall be governed by the laws of the Republic of Mauritius, and the parties irrevocably submit to the exclusive jurisdiction of the Republic of Mauritian courts for the purpose of enforcing any claim arising hereunder.
35. Specific Terms and Conditions for Bulk SMS Services
By accessing and using the Bulk SMS Service (“Service”), you agree to be bound by the following terms and conditions including all the policies mentioned hereunder (hereinafter referred to as the “Specific Terms & Conditions”). In case you do not accept to be bound by these Terms & Conditions, you may not use the Service including any services provided hereunder.
For the purposes of this Specific Terms & Conditions, the following terms shall have the following meanings:
1.1 Agreement: Emtel Business general terms and conditions;
1.2 CAF: Customer Application Form;
1.3 POC: the period for proof of concept of the Service as set out in clause 2;
1.4 Pull SMS: an SMS sent by a subscriber from his device;
1.5 Push SMS: an SMS emitted from an application/platform to the relevant Subscriber;
1.6 Subscriber or Company: Any individual or entity registered with the Company and using Emtel’s network;
1.7 SMS: “Short Message Services” or “SMS” - 160-character text message that is sent to or from a cellular phone is a telecommunication service that allows the Subscriber to send/receive messages on their devices;
2. Service Description:
2.1 The Service to be provided by Emtel to the Company shall be a HTTP API protocol to send SMS to the Company’s customers.
2.2 For avoidance of doubt, Emtel retains the ownership and any intellectual property rights associated of the entire infrastructure (hardware and software) for the provision of the Services referred to as above.
2.3 Proof of Concept (POC) Phase:
2.3.1 This POC is only applicable if the Company and Emtel mutually agree on the POC in the CAF.
2.3.2 The POC phase aims at allowing the Company to assess and test the functionality of the Service. Unless agreed otherwise in writing, the POC will last for thirty (30) days (“POC Term”) as from the successful provision of the Service.
2.4 Decision Term
2.4.1 At the end of the POC Term, the Company will (i) review mutually the Services with Emtel (ii) provide termination notice before the fifteen (15) days of POC phase or If the Company decides to proceed with the Services, the Parties will agree the commercial terms & conditions that are to apply to this Specific Terms and Conditions, and mutually agree with a commercially Go live date. The Decision Term shall last for a period of seven (7) days.
2.5 Operational Term
2.5.1 If the Company decides to proceed with the Services after the POC Term, the Operational Term will last for a period of one (1) year (“Operational Term”) unless terminated in accordance with clause 10.2 of the Agreement. During the Operational Term, the terms and conditions of this Specific Terms and Conditions and the Agreement will continue to apply.
3. Obligation of Company
3.1 The Company is solely responsible and liable: (i) for the Services including for organizing, managing feedback related thereto in compliance with all applicable and enforceable laws, ordinances and regulations and (ii) to seek, obtain and maintain in full force and effect, any permits, licenses, consents, approvals and authorizations required by the Government or any other relevant authority for the performance of its obligations hereunder including but not limited to authorization for organizing and collecting money for the stated purpose.
3.2 The Company is solely responsible for any payment that may be due to any relevant authorities in relation to the Services.
3.3 The Company shall be solely responsible to communicate to the public all information relating to the Services, including but not limited to the details of the Services.
3.4 The Company shall comply with any request made by Emtel which is made with a view to address any technical impediment to ensure the good running and performance of the Services under this Agreement.
3.5 The Company shall be solely liable for any content, or communication made with regards to the Services including via the allocated platform.
Furthermore, the Company undertakes that the Services provided by Emtel will NOT be used: -
a) for any unlawful purposes such as, but not limited to communication which is or likely to be offensive, abusive, indecent, obscene or menacing; defamatory or
b) to cause and/or likely to cause annoyance, inconvenience, humiliation, distress or needless anxiety; or
c) in breach of instructions Emtel has given under this Agreement;
d) to send, receive, upload, download, use or re-use any information or material which is offensive, abusive, indecent, defamatory, obscene or menacing, or in breach of confidence, copyright, privacy or any other rights;
e) to access information or resources which are private and of a confidential nature to individuals and organizations unless express permission to do so has been granted by the owners or holders of the rights to such resources and information;
f) to assign or dispose of in whole or in part any rights or obligations herein contained without the prior written approval of Emtel. Any purported assignment or disposal without such written consent shall be null and void and of no effect;
g) in any way which could be detrimental to Emtel.
3.6. Emtel reserves the right to suspend the Services for contravention of any terms of clause 8.5 by the Company and Emtel may further refuse to restore the said platform until it receives an acceptable assurance from the Company that there will be no further contravention.
3.7 The Company shall be responsible to seek and obtain all necessary authorizations including from the relevant bodies and/or authorities in relation to the Services.
4. Acknowledgement of the Company
4.1 The Company agrees to abide by all applicable local and international laws and regulations and is solely responsible for all acts or omissions that occur under its account, including the content of your transmissions through the Services. By way of example, and not as a limitation, the Customer agrees that:
4.1.1 The Company is responsible for the content and accuracy of any SMS sent on their account;
4.1.2 The Company will adhere to an appropriate code of conduct of a responsible person when utilizing the Services;
4.1.3 Unless otherwise specified, the Services are for the Subscriber’s personal and non-commercial use. The Subscriber shall not act as an aggregator and resell the Services provided by Emtel;
4.1.4 Sending of unsolicited advertising material, illegal content, unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature is not permitted and may, at the sole discretion of Emtel, result in the immediate termination of the Services;
4.1.5 The Company will not create a false identity or otherwise attempt to mislead others as to the identity of the sender or the origin of the message;
4.1.6 The Company shall at all times ensure that the Subscriber has consented to the delivery of SMS;
4.1.7 The Company will not collect or otherwise collect information about others, without their consent;
4.1.8 The Company will not transmit any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright or right of publicity;
4.1.9 The Company will not defame or slander any person, or infringe upon any person's privacy rights;
4.1.10 The Company will not transmit any material that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs;
4.1.11 The Company will not interfere with or disrupt networks connected to the Services or violate the regulations, policies or procedures of such networks;
4.1.12 The Company will not attempt to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means;
4.1.13 In the eventuality that the Supplier receive any complaints from Subscribers regarding the receipt of unsolicited SMS, Emtel will notify the Company thereof. Similarly, should the Company receive any complaint from any Recipient regarding the receipt of any SMS, the Company will immediately notify Emtel. Emtel shall not in any event be deemed liable or responsible vis a vis the Subscribers;
4.1.14 The persistent abuse of the sending of unsolicited SMS’s by the Company or the omission to notify Emtel of any complaint referred to above may, at the sole discretion of Emtel, result in immediate termination of the Services.
5. Emtel Responsibilities
5.1 Emtel shall be responsible for providing the service (as defined in Annex 1 of this Agreement).
5.2 Emtel warrants that its obligations pertaining to the Service will be performed in a good and workmanlike manner. THIS SECTION IS EMTEL’S ONLY EXPRESS WARRANTY AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, INFORMATIONAL CONTENT, SYSTEMS INTEGRATION, NON-INFRINGEMENT, INTERFERENCE WITH ENJOYMENT OR OTHERWISE.
5.3 Delivery of SMS is dependent on several factors such as the recipient having coverage and his number being active. Although Emtel shall, to the extent reasonably practicable, take all necessary measures to ensure smooth delivery of the Push SMS, the Company understands that some Push SMS may not be delivered to the intended recipients and that Emtel shall not be held liable for same.
5.4 In case of downtime, violation of clause 4.1.2 or unforeseen events, Emtel reserves the rights to suspend or terminate the Services at any time.
6. Commercials and Billing
The terms and conditions with respect to payment are as set out in the CAF.
7. Term and Termination
Unless specified herein, the duration of this Specific Terms & Conditions shall be for a minimum of one (1) year (“Initial Period”). After the Initial Period, this Specific Terms & Conditions shall be automatically renewed indefinitely until terminated in accordance with clause 10 of the Agreement.
8.1 No delay, neglect or forbearance on the part of Emtel in enforcing any provision of this Specific Terms & Conditions shall be deemed to be a waiver or create a precedent or in any way prejudice to Emtel’s rights under this Specific Terms & Conditions.
8.2 Where there is a conflict between this Specific Terms & Conditions, CAF, Agreement and any other Conditions mentioned in or printed on any correspondence exchanged between the parties, the terms and conditions of the CAF will prevail.
8.3 This Specific Terms & Conditions constitute an integral part of the Agreement thereof. The terms and conditions of the Agreement unless otherwise stated herein shall apply to this Specific Terms & Conditions.
8.4 In the event that any Term, Condition or Provision of this Specific Terms & Conditions is held to be a violation of any applicable law, statute or regulation, the same shall be deemed to be deleted from this Specific Terms & Conditions and shall be of no force and effect and this Specific Terms & Conditions shall remain in full force and effect as if such Term, Condition or Provision had not originally been contained in this Specific Terms & Conditions.
8.5 The headings in this Specific Terms & Conditions shall not affect its interpretation throughout this Specific Terms & Conditions, whenever required by context, the use of the singular number shall be construed to include the plural, and the use of the plural the singular, and the use of any gender shall include any genders.
8.6 Any Special Conditions in the annexes below shall also constitute an integral part of this Specific Terms & Conditions.