Postpaid Contract Terms and Conditions



GENERAL TERMS & CONDITIONS OF SERVICE

DEFINITIONS

In this agreement, the following words will have the following meaning unless the context otherwise requires. Special definitions with regards to other services are provided in the respective annexes relating to the particular Service:

“EMTEL” means EMTEL LTD, a company registered under the laws of the Republic of Mauritius bearing Business Registration Number C06006174 and having its principal place of business at 10, Ebene Cyber City, Ebene.

“Force Majeure” an event or circumstance beyond the direct control of EMTEL. Force  majeure events shall  include,  but  not  to  be  limited  to, acts  of GOD, fire, floods,  earthquakes, epidemics, strikes,  lockouts,  riots, effects  of war, civil commotion, political unrest, and  governmental acts, proclamations and  regulations (including export  and  import  control  regulations and  foreign  exchange regulations).

“Subscriber” means a licensed user of the EMTEL system and includes a person reasonably appearing to EMTEL to act with the Subscriber’s Authority. “Subscriber Equipment” means any equipment acceptable to EMTEL and capable of providing a two way cellular  communication service  in EMTEL system in accordance with this agreement.

“Service(s)” means the Telecommunications services as made available by EMTEL from time to time and includes Value Added Services.

“System” means the systems used by EMTEL to deliver the Services from time to time and includes International Long Distance Telecommunications.

“SIM” means Subscriber Identity Module as serviced by Emtel.

“Regulatory Authority” means the Information and Communication Technologies Authority or any such Authority regulating the Service.

“Value Added Services” means any additional features and services which EMTEL may offer on the service other than the standard prestation offered by EMTEL and includes International Long Distance Service, Blackberry Service and Internet Services.

“Supplier” means any entity with whom EMTEL directly or indirectly deals to offer a service and includes content providers.

“Payer” means a 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.

“Internet” means the global data network comprising interconnected networks using the TCP/IP protocol suite.

“Internet Standards” means the protocol and standards defined in the following internet documents: RFC 1009, 1122, and 1123 and 1250 and any other applicable protocols and standards from time to time.

“License” means any license (including that license as from time to time amended) granted or having effect as it granted under the ICT Act 2001.

Consent of Electronic Record

The Subscriber herewith through the use of the Service acknowledges and agrees:

To be bound by the terms and conditions in electronic form thereof;

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. 

The electronic record shall not be denied legal effect, validity or enforceability solely on the ground that it is in electronic form.

1. APPLICATION

The would-be subscriber shall make an application to become a subscriber to the Service(s) offered by EMTEL by filling in the Subscriber Agreement (hereinafter referred as “Application”).

2. ACCEPTANCE OF APPLICATION

2.1. EMTEL shall only be bound by the Application 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 together with payment of the relevant security deposit fees. This agreement, together with  the  Terms  and  Conditions,  constitute the  entire  contract between the  Subscriber and/or  Payer  as  applicable and  EMTEL and  the  terms of this 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.

2.2.  EMTEL reserves the right to change from time to time the Terms, Conditions and  Provisions  under which the Service is offered,  including but not limited  to variation of any or all of its charges/tariffs and  charging  mechanisms for the  Service, by giving reasonable prior notice  whenever possible to the  Subscriber and  by publishing amended tariffs and/or Terms  and  Conditions which  shall be  available  at such  other  place  or published by the means of such  other  medium as may be  decided by EMTEL. Such amendments and/or variations shall have immediate effect and this agreement shall be amended and/or varied accordingly.

3. CONNECTION TO THE SYSTEM AND PROVISIONS OF THE SERVICE

3.1.  Upon  acceptance of this  agreement by EMTEL, such  acceptance being  at EMTEL’s absolute discretion, EMTEL shall  connect the  Subscriber Equipment and/or SIM to the  system as  soon as  is reasonably practicable and/or  technically  possible. Where EMTEL decides not to accept the Subscriber’s Application it shall return to the Subscriber all sums received by it from the Subscriber or liability to the Subscriber whatsoever in respect of any loss or damage suffered by the Subscriber howsoever arising.

3.2. EMTEL shall use all reasonable endeavors to maintain the connection while the Subscriber abides by the Provisions of this agreement.

3.3. A SIM card shall be activated for the use with the system 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.

3.4.  The  Subscriber Equipment including  handset is sold  at a discounted rate  and  is to be  used with the  SIM card  connected solely  through the network.  A fee as determined by EMTEL from time to time shall be payable if it is to be adapted for use through any other network.

4. DURATION OF AGREEMENT

This Agreement shall come in force  from  the date  of commencement of the  Service,  and  shall remain in force  for an  Initial Period  of 12 months (hereafter called  the  Initial Period). By default all Services shall be for a duration of 12 months unless otherwise specified in the Service Description or the Special Terms and Conditions provided in the annexes. After the Initial Period, the contract shall continue indefinitely until terminated in accordance with clause 8 below.

5. CHARGES AND PAYMENT TERMS

5.1. EMTEL shall issue to the Subscriber and the Payer(s) as appropriate at the respective addresses supplied and/or by email (E-Bill), 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.

5.2. The Subscriber and Payer(s) shall promptly pay fees in respect of the service as shown in EMTEL’s statement of account.

5.3. The Subscriber remains at all times liable for all fees stated in the statement of account arising from his use of the Service including in the event the Payer(s) fails to settle amounts they have consented to pay by the due date.

5.4. 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.

5.5. 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. It is the responsibility of the Subscriber and/or Payer(s) to ensure that their addresses remain up to date with EMTEL.

5.6.  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 2%  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.

5.7.  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.

5.8. 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.

5.9. A detailed bill will be dispatched together with the statement of account upon the Subscriber’s written request only to the Subscriber. Copy of same will be sent either by post or remitted personally to the Subscriber upon request on presentation of the National Identity Card of the Subscriber to EMTEL. 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. The Subscriber shall be liable for all charges for the Service provided in respect of the telephone line(s) and associated numbers as per the list supplied by the Subscriber, whether the said telephone line(s) and associated numbers has been used by the Subscriber or by some other person or device.

5.10. 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.

5.11. EMTEL reserves the  right to require payment for the  Service  or any  part  of it in advance or by direct  debit  and  require the  payment of any deposits it deems fit in advance of allowing International Roaming  calls.

5.12. Together with the application for the Service, the Subscriber and/or Payer shall remit to EMTEL a deposit (the “Deposit”) in an amount to be determined at the sole discretion of EMTEL. The amount of the required deposit may vary from time to time by EMTEL. The deposit is to be  used as a security  in respect of all amounts which  may  be  owed by the  Subscriber under this agreement and  any balance thereof will be  refunded to the  Subscriber and/or Payer  as appropriate upon termination of this Agreement, after  deduction in respect of all amounts due  to EMTEL. As and when requested to do so by EMTEL, the Subscriber and Payer(s) hereby agree and bind themselves to increase the deposit remitted to EMTEL. The Subscriber and Payer(s) acknowledge that failure to do so may result in suspension or termination of the Service.

5.13. EMTEL may  offer,  or  Subscriber may  request, connection for  international communications  (the  “International Service”),  which  may  be provided through the EMTEL’s International gateway and/or accessed through third party Telecommunication Operators. As regards the International service,  EMTEL shall  require the  deposit of a  supplementary sum  to  be  added to  the  then existing  deposit of the  Subscriber. Charges for the International service  include  both  the  charges of EMTEL and  the  charges levied  by the  International Gateway Operator or other  service  providers (for which  EMTEL is acting as a collecting  agent). The charges levied on behalf of the International Gateway Operator or other service providers are included in the sum due by the Subscriber to EMTEL and in the administration of credit limits.

5.14. From time to time, EMTEL may offer other facilities for the use of Cellular Telephone Service in one or several countries outside Mauritius (the “Roaming facilities”). Such Roaming facilities will be subject to unique tariffs and schedules of charges, which shall be published by EMTEL from time to time.  If the Subscriber elects to use Roaming facilities, EMTEL shall request a supplementary sum from the Subscriber and/or Payer(s) to add the deposit. The call charges incurred through the roaming facilities will be included in the administration of the credit limits. EMTEL shall not incur liability by reason of the suspension, termination or unavailability of any Specific service or the quality of Communication and/or Service whilst they are roaming as these may vary from country to country and from operator to operator.

5.15. An initial credit limit has been established and is shown overleaf.  EMTEL reserves the right to administer the customer’s account by the assigned credit limit or otherwise. EMTEL has the right in its absolute discretion to unilaterally amend this credit limit at any time.  In the event of such amendment, the Subscriber will be informed of that fact on his statement of account.

5.16. EMTEL reserves the  right to totally or partially disconnect the  Subscriber’s connection, with or without  notifying the  Subscriber in the  case  of the  Subscriber exceeding the  prescribed credit  limit. EMTEL is however not bound to effect such suspension or disconnection immediately upon the Subscriber reaching the credit limit. EMTEL has the right to predetermine and prefix the credit limit for the use of EMTEL services and other Value Added Services. In the event that the Subscriber has exceeded his predetermined limit, he will be responsible to pay for all calls made and Services obtained even beyond the stated limit. Credit Limit is only an expression of intended monthly usage for the information of the Subscriber and monitoring of the account, and not a limitation of liability.

5.17.  In the  event the  Subscriber has  elected Payer(s) and  Payer(s) have  consented to pay in whole  or part  of the  Subscriber’s bills, the  Payer’s own Credit Limit for his own subscription with EMTEL shall not be held liable in any manner whatsoever to the Subscriber/Payer should the Credit Limit of the  Payer be reached and/or disconnection of the  Payer(s) Service arising from Subscriber causing Payer’s credit limit to exceed resulting  in disconnection of Payer(s) Service(s). EMTEL shall not be liable to the Subscriber/Payer(s) for any loss or damage which the Subscriber may sustain.

5.18. In the  event of disconnection of Payer’s  Service,  the  Payer  undertakes to  settle  the  charges for his  own  usage and  that  of the  Subscriber promptly in order for the Service to be reconnected.

5.19. EMTEL may its entire discretion and subject to credit checking, accept to increase the Payer’s credit limit.

5.20. EMTEL may in its entire discretion review the Subscriber’s credit limit in the event any Payer(s) fail, refuse or discontinue to make payments on behalf of the Subscriber.

5.21. In the event the Subscriber elects to pay for Service(s) or part of Services on behalf of third party (ies), such Service shall be subject to Terms of Conditions of this agreement.

6. OBLIGATIONS OF THE 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  Service and  that  the  subscriber hereby undertakes:

a) To ensure that the Service 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 Service is not used at any time to cause irritation, annoyance, embarrassment, harassment, or nuisance of any kind whatsoever to others.

d) To comply with all Rules and Regulations of the Regulatory Authority.

e) To cease to utilize the service 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 until such time as the loss or theft of the Subscriber’s equipment or SIM be disconnected from the Service. The liability will last until acknowledgement is obtained from EMTEL and the Subscriber Equipment and/or SIM is disconnected. 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 Service shall be used solely for reception and transmission of speech and, if, as and when made available for the reception and transmission of data, any such other Service 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 Subscriber Equipment and SIM card. 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  Service to be impaired.

6.2.  The Subscriber acknowledges that the System and  the Service may be subject to the interference and  high atmospheric conditions and  physical feature, including  (without prejudice to the  generally  hereof) high buildings,  tunnels, lifts, trees and  proximity of other  air waves  users.

6.3.  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.

6.4.  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.

6.5. A SIM 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  of the  SIM .  In case of loss of SIM by the Subscriber, the same should be immediately reported to EMTEL. Such report shall be supported by a statement to the Police. The Subscriber shall be  liable for any changes incurred by the  use  of the  SIM  by any person until the  said  notice  to EMTEL is given in writing and  acknowledgement obtained from  it, and  the  Subscriber Equipment  and/or SIM is disconnected from  the  Service. The issue of a new SIM shall entail charges as set out in the tariffs schedule from time to time.

6.6. The SIM remains the property of EMTEL in the hands of the Subscriber. Same shall be returned immediately   to EMTEL on termination of Subscription for any reason whatsoever. EMTEL is not responsible for any manufacturing defect of the SIM.

7. TERMINATION

7.1. By the subscriber

a) The Subscriber may terminate the agreement after the initial period mentioned in clause 4, by giving EMTEL at least four (4) months prior in writing.

b) The Subscriber shall be liable on termination of this Agreement for all liabilities as stipulated under clause 8.

7.2. By EMTEL

a) In the event that the conditions of use  of the Subscriber Equipment and/or SIM or rules and  regulations of the Regulatory Authority are breached, EMTEL shall be  entitled to withdraw  the  Subscriber Equipment and/or SIM  from the  service  immediately and  without  prior consultation with the  Subscriber.

b) EMTEL reserves the right to disconnect or refuse Service to a Subscriber, if directed to do so by the Regulatory Authority.

c) EMTEL reserves the right to summarily suspend or terminate the Agreement with the Subscriber without being bound to ascribe any reasons there for. The Subscriber and/or Payer(s) shall be liable to make the payments stipulated in clause 8 hereunder.

d)  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.

In case of termination or deactivation of the SIM Emtel reserves the right to reallocate the number to another user. EMTEL is not bound to give any further notice whatsoever to the Subscriber and may reassign such SIM at its sole discretion

7.3. Termination of the  agreement either  by the  Subscriber or EMTEL shall not  relieve  the  Subscriber from  its responsibilities and  liabilities under this agreement which  are incurred prior to and  up to the  effective  date of termination.

7.4. 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  this agreement without  liability upon the  happening of any one  of the  following events:

a) If EMTEL for whatever reason is unable to provide the service.

b)  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 days of EMTEL giving notice of it.

c) If any information supplied by the Subscriber to EMTEL is inaccurate, false or misleading.

8. SUBSCRIBERS LIABILITY ON TERMINATION

8.1. In the event of termination of this agreement, the Subscriber shall be liable to EMTEL for:

a) All the  fees  and  charges incurred by the  Subscriber for use  of the  service  up to and  including  the  effective  date  of termination of this agreement. b) The monthly service fees and charges for the balance of the initial period plus, when applicable, the four (4) months notice  period.

9. EMTEL RIGHT AND NON-LIABILITY

9.1. In the event of suspension/termination/transfer of subscription, the Subscriber shall provide EMTEL with a letter authorising such suspension/termination or transfer of subscription acceptable to EMTEL.

9.2. EMTEL may at any time and from time to time modify or discontinue, either temporarily or permanently, the Service (or any part thereof) with or without  notice  if EMTEL considers such  modification, discontinuation desirable, in which  event,  EMTEL shall  not  be  liable for any  loss  or inconvenience to the  Subscriber or to any third party resulting  there from.

9.3.  For Regulatory requirements, EMTEL reserves the right to alter the telephone number of any Subscriber at any time without  being  liable for any loss, damage or inconvenience or otherwise, attributable to the  change of the  telephone number whatever may  be  the  cause for the  change.

9.4.  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, but in case  of such  interruption or loss of the service, EMTEL shall make every effort to restore the service within a reasonable time.

9.5. 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.

9.6. EMTEL reserves the right to amend, delete and/or vary any of the clauses herein stated and the Subscriber shall be bound to observe, perform and comply with clauses herein and any amendments thereof. Such amendments, as and when made, shall be conveyed to the Subscriber by such means of communication as is deemed appropriate by EMTEL.

9.7. EMTEL reserves the right to bar access to the making of international calls.

9.8.  EMTEL shall  endeavour to  provide  annoying call tracing  on  written  request under the  strict Condition that  the  Subscriber has  reported the annoyance call to the  police.  Any report on the call tracing will be given only to the police, authorities as authorized by the Court order.

9.9. EMTEL shall endeavour but not be bound to provide any feature or other Value Added Services. Value Added Services will be provided upon the Subscriber’s request and subject to EMTEL’s acceptance. Such Value Added Service may be provided at cheaper rates or free of charge for a trial prior determined by EMTEL, to certain or all of EMTEL’s customers. The Subscriber shall meet the additional cost of any Value Added Service upon subscription.

9.10. EMTEL shall not be liable to the Subscriber or any third party with respect to any action taken or committed to be taken by EMTEL in connection with or arising out of this agreement. EMTEL shall not be liable to the Subscriber or any third party for indirect or unforeseeable losses. EMTEL shall in no event be liable to third parties for the execution of the service.

9.11. EMTEL shall not be liable for loss, damage to health and/or property or otherwise through use of mobile cellular phones. The Subscriber formally and expressly agrees that the use of the Service is at his sole risks.

 9.12. EMTEL and/or its suppliers make no representations about the suitability, reliability, timeliness, quality, variety, speed and accuracy of the information, products and service.  All such information, products and service are provided “AS IS” without warranty of any kind. EMTEL and/or its suppliers hereby disclaim all warranties and conditions with regard to the information, products and service.  Notwithstanding the foregoing, EMTEL will use its best endeavors to update or cause to, make changes or cause to, regularly.  Such information or service shall however not be relied upon for personal, legal or financial decisions. EMTEL or its suppliers shall not be liable for any loss whatsoever as a result of reliance placed on the aforesaid information or service.

9.13. EMTEL does not  make any  warranty  on  the  availability of complete array of services  provided by EMTEL to the  Subscriber using  Subscriber equipment whether directly purchased from EMTEL or not.

9.14. Under  no  circumstances shall the  liability of EMTEL exceed the  aggregate value  of the  Subscriber equipment or of the  average usage of the preceding twelve  months of usage of the  service  (excluding charges for roaming facilities), whichever is the  lesser.

10. EMTEL’S REMEDY

10.1. EMTEL may,  without   prejudice to  any  other   right  or  remedy to  EMTEL and  notwithstanding any  waiver  of  previous breach, suspend  or disconnect the  service,  if:

a)  The  Subscriber and/or  Payer(s) shall  be  adjudged bankrupt or  a  receiving  order  be  made against  him  or  if he  makes any  composition  or arrangement with or assignment or the  benefit of his creditors or becomes insolvent.

b)  The Subscriber and/or Payer(s), in the case of a company or firm, shall be wound up or have a receiver   manager appointed or becomes insolvent.

c) EMTEL is of the opinion that the Subscriber and/or Payer(s) have failed to observe or perform any of the Terms and Conditions of this agreement, any provision or regulation imposed by the Regulatory Authority and/or any other relevant law in force from time to time.

10.2. Notwithstanding clause 10.1 hereof, upon subsequent payment by the Subscriber and/or Payer(s) of such terms as demanded by EMTEL (including additional deposits, if any) for the continuation of the service, EMTEL, in its absolute discretion, may restore the service, and the agreement shall continue to be in force. In the  case  of reconnection of the  service,  the  Subscriber and/or Payer(s) shall be  liable for the  reconnection charges and  such  other  charges as deemed necessary by EMTEL.

11. TRANSFER OF SUBSCRIPTION

11.1. The Subscriber (hereinafter called the Transferor) may transfer the Subscription to another party (hereinafter called the Transferee) with prior written authorization of EMTEL, and  if the  Transferee satisfies  all the  requirements of the  Regulatory  Authority and  EMTEL.

11.2. The date of transfer of Subscription shall be the date as prescribed by EMTEL in the written authorization of EMTEL.

11.3. The  Transferor  and/or Payer  shall be  liable to EMTEL for fees  and  charges incurred in respect of the  Service  rendered by EMTEL up  to and including  the  date  of transfer  of Subscription.

11.4. The  Transferee  shall  sign  an  agreement with  EMTEL and  the  agreement shall  commence from  the  date   of  transfer  provided that  if the transferee terminates the  agreement within the  transferor’s initial period provisions of clause 8 shall apply.

12. APPLICABLE

The construction, validity and  performance of this agreement shall be  governed by the  laws of the  Republic  of Mauritius, and  the  parties  irrevocably submit to the  exclusive  jurisdiction  of the  Mauritian  courts  for the  purpose of enforcing any claim arising hereunder.

13. FORCE MAJEURE

13.1. EMTEL shall not be liable to provide the service in the event of a Force Majeure or for acts or omissions of persons or bodies for whom EMTEL is not responsible or any other cause, whether similar or dissimilar, outside EMTEL’s control.

13.2. No liability of any nature whatsoever shall be incurred by EMTEL on the happening of a Force Majeure or any such events as aforesaid.

14. DATA PROTECTION

Personal Data  is any  data  that  identifies  you  as  an  individual  or is capable of doing  so  and  does not  include  general, statistical,  aggregated  or anonymised information. The Personal Data  which  you  supply  to us  you  agree will be  true,  complete and  accurate in all respects and  you  agree to notify us as soon as possible of any changes to such  Personal Data.  We will deal with your Personal Data in compliance with current Mauritian data protection law.

15. MISCELLANEOUS

15.1. No delay, neglect or forbearance on the part of EMTEL in enforcing any provision of this agreement shall be deemed to be a waiver or create a precedent or in any way prejudice to EMTEL’s rights under this agreement.

15.2. Where  there is a  conflict  between this  agreement and  any  other  Conditions mentioned  in or  printed on  any  correspondence exchanged between the  parties,  this agreement will prevail.

15.3. In the  event that  any Term, Condition or Provision  of this agreement is held  to be  a violation  of any applicable law, statute or regulation, the same shall be  deemed to be  deleted from  this agreement and  shall be  of no  force  and  effect  and  this Agreement shall remain in full force  and effect  as if such  Term, Condition or Provision  had  not  originally been contained in this agreement.

15.4. The  headings in this  agreement shall  not  affect  its interpretation throughout this  agreement, 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.

15.5. The schedules and/or annexes to this agreement constitute an integral part thereof.

15.6. Special Conditions in the annexes below shall also constitute an integral part of this Agreement.

16. SPECIAL CONDITIONS

The Terms  and  Conditions as set  out in the  following Annexes  shall be  in relation  to specific Services  and  shall be  in addition to other  provisions in this Agreement. In the event of inconsistency, the Special Terms and Conditions shall prevail.

SPECIAL TERMS AND CONDITIONS OF SERVICE

ANNEX A - INTERNATIONAL LONG DISTANCE SERVICE

1.1. The International Long Distance Service shall be provided via the International Long Distance Systems as made available by EMTEL.

1.2.  Access  to the  International Long Distance Service shall be  via such  Carrier Access  Code  as allocated to EMTEL by the  Regulatory  Authority and for the  time  being  the  ‘030’.

1.3. The Subscriber shall ensure with its access provider that the Carrier Access Code assigned to EMTEL, currently 030 has been released by the access provider and is operational on the telephone line(s) and associated numbers as per the list supplied by the Subscriber. The Subscriber shall forthwith inform EMTEL, with all necessary information and documentation required in the event that the Carrier Access Code has not been released.

1.4. Subject to Clause 15, the General Terms and Conditions shall apply to this Service.

ANNEX B - MOBILE BROADBAND SERVICE

1.0. Mobile Broadband Service is a mobile broadband internet service and provides access to the internet and related services via the EMTEL Network.

2.0. The Subscriber acknowledges being over 18 years of age and if not, shall have obtained the consent of a parent or guardian.

3.0. EMTEL shall not be responsible for any internet content that may be obtained via the Service. EMTEL reserves the right to delete any username that it considers offensive, defamatory, illegal or otherwise inappropriate.

4.0.  All applications for the  Service  are  subject to EMTEL’s credit  assessment and  acceptance and  other  Terms  and  Conditions of this agreement. The Service is only available to Subscribers within the EMTEL Network and coverage area and is subject to network availability.

5.0. Upon entering into this Agreement, the Subscriber shall be provided with a Subscriber Equipment on lease for the Initial Period.

6.0.  The Property  in the  Subscriber Equipment shall remain vested in EMTEL at all times  and  shall pass  on to the  Subscriber at the  end  of the  Initial Period provided the Subscriber has settled all his/her dues and arrears by the expiry of the Initial Period.

7.0. The Subscriber undertakes to use the property in a reasonable manner at all times.

8.0. The Subscriber shall be liable for the cost of the Equipment if he/she has negligently used it.

9.0. Usage in excess of the Subscribed data allowance mentioned above/overleaf shall be charged at the prevailing unit tariff applicable at any time without the need for any notice whatsoever from EMTEL.

10.0. Both uploads and downloads are counted towards the data allowance for the Service.

11.0. EMTEL shall in its entire discretion and if practicable, use reasonable endeavours to notify the Subscriber at intervals where the Subscriber is approaching its data  allowance via an SMS for e.g. EMTEL will send a warning  SMS when the  Subscriber reaches 75% utilisation, 100% utilisation and  when they  exceed their  data  allowance. However it shall be the sole responsibility of the Subscriber to monitor his/her own usage. The Subscriber shall be liable to pay the sum(s) due from usage in excess of his Package. The frequency of the SMS and the percentage utilization use may vary at the sole discretion of EMTEL.

12.0. EMTEL does not  guarantee constant advertised speed and  uninterrupted service  which  is dependent on many  factors  such  as internet traffic, equipment, location,  software and  source downloads.

13.0. Monthly data allowances unused at the end of the month will not carry over to the subsequent month.

14.0. During the Initial Period the Subscriber is not allowed to downgrade his package/subscribed plan. Upgrades are allowed subject to availability of such packages at the time of the request.

ANNEX D – FIXED DATA COMMUNICATION SERVICE

For the  purpose of this  Annex, Fixed Data  Communication Service  (hereinafter referred to  as  the  “Service”)  covers  any  or a combination of the following (as  subscribed by the  Subscriber in accordance with the  Order  Form/Customer Application  Form):

• Internet Leased Port (ILP) is a service which provides connectivity to the IP cloud & has three variants (Silver, Gold & Platinum) based on different levels of CAR.

• Emtel Connect service is a CAR service that enables the Subscriber’s sites to be connected to each other via Emtel Network.

• International Private Line service means the network elements provided or ordered by Emtel which aim at completing an end-to-end international private line provisioned on Emtel Network and the global network of its collaborators.

• Fixed Broadband Service is an internet service and provides access to the internet and related services via the EMTEL Network.

1.0. DEFINITIONS

“Access Speed” refers to the theoretical maximum speed achievable with this Service under ideal conditions. The Subscriber acknowledges that the actual speed may differ from the theoretical speed. Actual speed may vary for reasons which include but not limited to third-party network congestion, third party supplier line interface, and Internet congestion, errors in configuration of Subscriber equipment or any other.

“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.

“Emtel Network” means Emtel communication system(s) set up and run in compliance with the relevant License granted to Emtel.

“CAR” means Committed Access Rate. Each Access Line is configured to deliver a predictable level of throughput known as CAR. A Subscriber may burst data above CAR and this will be delivered if bandwidth is available within the EMTEL Network. However, when the load exceeds the CAR, the Emtel Network will not guarantee the bandwidth transmitted in excess of CAR.

“Cancellation Form” means the de-installation form filled by Subscriber for cancellation of service.

“Delivery Date” means the date on which the Service is provided to the Subscriber.

“Domain Name” means a name registered with an internal registration authority for use as part of the Subscriber’s URL.

“EMTEL’s Licensed Area” means the Republic of Mauritius and Outer Islands.

“Failure of  an  Access Line”  means any failure of Subscriber ’s Access  Line causing continuous loss  of ability to convey  messages, but  does not include  the  loss of such  ability arising as a result  of EMTEL’s suspension of Service under any provision  of this Contract.

“Internet” means the global data network comprising interconnected networks using the TCP/IP protocol suite.

“Internet Standards” means the protocol and standards defined in the following internet documents: RFC 1009, 1122, and 1123 and 1250 and any other applicable protocols and standards form time to time.

“Login  name“ means any  number or alphanumeric symbols or characters assigned by EMTEL to the  Subscriber as  login name, Login ID,  user name or User  ID  (whether or not  applied for or selected by the  Customer) to  be  used by the  Subscriber in conjunction with  the  password to access the service.

“Customer Application Form/Order Form” means the application form filled by the Subscriber for the provision of Service and which forms an integral part of this agreement.

“Password” means number or alphanumeric symbols or characters assigned by EMTEL to the Subscriber as the password (including any changes thereafter whether or not selected by the Subscriber) to be used by the Subscriber, in conjunction with the Login name, to access the Service. “Premises” means the premises at which the Service is or to be provided under this contract.

“Access Line” means a wired OR wireless terrestrial telecommunication link provided between Subscriber and EMTEL Network.

“Service Equipment” is defined as the equipment belonging to Emtel and installed at the Subscriber premises through which the Subscriber will be provisioned. The Service Equipment supplied shall continue to remain as property of Emtel during the period of the Agreement and will be taken back by Emtel at the end of the Agreement period or on termination of this Agreement.

2.0. PROVISION OF THE SERVICE

2.1. For operational reasons EMTEL may vary the technical specification of Service.

2.2.  The  Subscriber acknowledges and  agrees that  it is technically  impracticable for Emtel  to  provide  a  fault  free  Service  and  EMTEL does not undertake to do so.

2.3. Any date proposed by EMTEL for the provision of Service or a facility is to be treated as an estimate only and EMTEL accepts no liability for failure to meet it.

2.4.  Where,  at the  request of the  Subscriber, any work to provide  Service  is done outside EMTEL’s normal working hours,  the  Subscriber will pay a charge for such  work calculated at EMTEL’s applicable hourly rate.

2.5. If EMTEL agrees any change in Service, this Contract is to be treated as varied accordingly.

2.6.  In consideration of the  payment by the  Subscriber of the  charges, fees  and/or rentals,  EMTEL shall provide  the  Service during  the  continuance of this Contract  subject to the  compliance by the  Subscriber with all the  Terms  and  Conditions set  out  in this Contract.

2.7.  EMTEL reserves the  right to cancel  or to delay  the  provision  of the  Service to a Subscriber, if the  Service is not likely to be  effected in satisfying conditions for the Subscriber or for the Subscribers already connected, or if the Subscriber is likely to use it for purposes which constitute a breach of Contract.

2.8. Occasionally EMTEL may:

(a)  for operational reasons, change the  codes or the  numbers allocated to the  Subscriber or the  technical specification of the  Service  to match changes in the  network  infrastructure.

(b)  suspend the Service for operational reasons such  as repair, maintenance or improvement of the Service or because of an emergency, but before doing  so  will give as much online,  written  or oral notice  as is reasonable practicable. EMTEL will restore the Service as soon as it reasonably can after the suspension. EMTEL will not be liable for any prejudice suffered by or caused to the Subscriber as a result of the suspension of the Service. (c)  give  the  Subscriber instructions which  it believes are  necessary for reasons of  health,   safety  or  quality  of  any  telecommunications  service provided by EMTEL to the  Subscriber or to any  other  Customer.  Whenever possible, EMTEL will give the Subscriber as much notice as possible before doing any of the above things and EMTEL will restore Service as soon as possible after temporary suspension.

3. MINIMUM PERIOD OF SERVICE

The first minimum period of Service  beginning on  the  day when Service  is first made available  is 12 months but  it does not  prevent EMTEL from exercising  its rights to suspend Service, or, subject to paragraph 8, either  party from terminating this Contract  or the  provision  of a Service or facility under it. A further minimum period of 12 months may apply in respect of each new facility added or changes made to the Service provided by EMTEL to the Subscriber. If the Subscriber does not notify in writing EMTEL of his/her intention to terminate the contract one month prior to the end of the contract period, it is implied that the Subscriber is renewing the contract for a subsequent period of one year.

4. THE SUBSCRIBER’S RESPONSIBILITY AND OBLIGATIONS

4.1.  The Subscriber is responsible for EMTEL’s Service  Equipment placed within the  boundary of the  Subscriber’s Premises and  for its proper use; if any part of EMTEL’s Service Equipment is lost, destroyed or damaged (except for fair wear  and  tear)  the  Subscriber must pay EMTEL’s charge for its replacement and/or repair. The Subscriber must not interfere with it nor permit anybody else (except someone authorized by EMTEL) to do so. The Subscriber shall insure EMTEL’s equipment against theft, cyclone, and power surge on CEB supply.

4.2.  The Subscriber shall ensure that  any equipment connected to or used with the  Service  must be  connected and  used in accordance with any instructions, safety,  and  security  procedures applicable to the  use  of that  equipment.

4.3. The Subscriber shall ensure that any equipment that is attached (directly or indirectly) to the Service must be technically compatible with the Service and approved for that purpose under any relevant legislation.

4.4.  EMTEL is acting  only  as  a  reseller  or  licensor  of any  hardware, software and  equipment (collectively,  the  “Equipment”) offered under this Contract  that  was  manufactured by a third party. EMTEL shall not be liable for any changes in Service that cause Equipment to become obsolete, require modification or alteration, or otherwise affect the performance of the Service.  Any malfunction or manufacturer’s defects of Equipment, either sold, licensed or provided by EMTEL to the Subscriber or purchased directly by the Subscriber used in connection with the Service will not be considered a breach of EMTEL’s obligations under this Contract.

4.5.  Any rights or remedies the  Subscriber may  have  regarding the  ownership, licensing,  performance or compliance of Equipment are  limited  to those rights extended to the Customer by the manufacturer of such  Equipment. The Subscriber is entitled to use any Equipment supplied by EMTEL only in connection with the Service.

4.6.  The Subscriber shall use  his best  efforts  to protect and  keep confidential all intellectual property provided by EMTEL through any Equipment and  shall  make no  attempt to  copy,  alter,  reverse engineer,  or tamper with such  intellectual property or to  use  it other  than  in connection  with the  Service.  The Subscriber shall not resell, transfer, export or re-export any Equipment, or any technical data derived therefrom, in violation of any applicable Mauritian or foreign law.

4.7. EMTEL shall place Service Equipment on the Customer’s Premises to provide Service.  The Subscriber must provide a suitable place and appropriate environment for EMTEL’s Subscriber Equipment. The Subscriber must prepare the Premises before Service is provided according to any instructions EMTEL gives the Subscriber.

4.8.  If EMTEL  has  to supply  Service  Equipment that  needs a continuous mains electricity supply  and  connection points,  the  Subscriber must at his own expense provide them where EMTEL needs them.

4.9. Service will not be used:

4.9.1. For any unlawful purposes such as, but not limited to sending a message or communication which is offensive, abusive, indecent, obscene or menacing; or

4.9.2. to cause annoyance, inconvenience or needless anxiety; or

4.9.3. in breach of instructions EMTEL has  given under this contract

4.9.4. 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

4.9.5. to  send or  provide  unsolicited advertising or  promotional material  or  to  receive  responses to  any  unsolicited advertising or  promotional material  sent  or provided using  the  Service by any third party; or

4.9.6. attempt to gain access to any computer system connected to Internet without  authorization by the  owner of the  computer system; and

4.9.7.   to access information or resources which  are  private  to individuals  and  organizations unless permission to do  so  has  been granted by the owners or holders of the  rights to such  resources and  information.

4.9.8. 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.

4.9.9. Other than in accordance with the Acceptable Use Policies of any connected networks and the Internet Standards.

4.10. If EMTEL suspends Service for contravention of paragraph 4.9 it can refuse to restore Service until it receives an acceptable assurance from the Subscriber that there will be no further contravention.

4.11. If EMTEL  needs someone else’s permission to cross  or put EMTEL’s Telecommunications Apparatus on the  Premises, the  Subscriber must get that  agreement for EMTEL and  make any necessary arrangements as may  be  required.

5. SUBSCRIBER OBLIGATIONS AND INDEMNITY

5.1. The Subscriber shall at all times use the Service in accordance with the present Terms and Conditions and shall indemnify and hold harmless

 EMTEL from any losses incurred by reason of breach of this clause.

5.2. The Subscriber is responsible for the acts and omissions of all Users in connection with the Service and is liable for any failure by any User to perform or observe the Terms and Conditions of this Contract as if it were a party to it.

5.3. This Contract is personal to the Subscriber and accordingly the Subscriber may not assign or transfer its rights under this Contract or any part of the Service itself without the prior written consent of EMTEL.

5.4. The Subscriber shall not, in any case, resell or sublet the Service. Examples of prohibited reselling  or subletting include,  but  are not  limited  to: Internet Service  Provision  outside of the  Subscriber’s company or organization, resale of bandwidth, internet connectivity  or services  provided by EMTEL unless specifically authorized by EMTEL.

5.5.  Unless  otherwise agreed in writing between the  parties,  the  Subscriber is solely responsible for its own  and  any third party software, programs and  data,  the  maintenance of the  same and  the  output therefrom and  for ensuring that  such  items  are  (if applicable) properly  licensed, including being  licensed for use  by EMTEL if necessary.

5.6. The Subscriber shall not use the server capacity or access system or the software made available to it in any way which, in EMTEL’s opinion, is, or is likely to be, detrimental to the provision of the Service to the Subscriber or any other Subscriber.

5.7.  The Subscriber shall protect the  secrecy of the  login and/or e-mail  address and/or password assigned to him at all times  and  shall ensure that the same is not revealed or disclosed in any manner whatsoever to any person or persons whomsoever. The Subscriber shall be fully responsible for and shall bear all charges, losses or damages arising from any use of his e-mail address and/or password howsoever the same may arise.

5.8. EMTEL reserves the right to suspend user ID and password access to the Service if at any time EMTEL considers that there is or is likely to be a breach of security.

5.9.  EMTEL reserves the  right (at  its sole  discretion) to  require the  Subscriber to  change any  or all of the  passwords used by the  Subscriber  in connection with the Service.

5.10. The Subscriber must immediately inform EMTEL of any changes to the information the Subscriber supplied when registering for the Service.

5.11. The Subscriber shall be solely responsible for the data retrieved, stored or transmitted through the Service.

5.12. The  Subscriber shall  be  responsible for ensuring that  the  data  retained or stored by or for the  Subscriber on  any  EMTEL System does not exceed the  storage capacity  allotted  to the  Subscriber by EMTEL from time  to time.

5.13. The Subscriber shall be  solely responsible for managing the  use  of the  storage capacity  such  that  it is within the  capacity  allocated to him  or as may be stipulated by EMTEL from time to time.

5.14. The  Subscriber shall  provide  at his own  expense, when so  required by EMTEL, all facilities and/or resources whatsoever necessary for the proper installation,  operation and  maintenance of the service and/or equipment, such  as, but not limited to, power points,  electricity, conduits, pipes, access or license.

5.15. The Subscriber shall promptly comply with all notices, instructions or directions given by EMTEL in respect of the installation, use or operation of the Service and/or Equipment.

5.16. The  Subscriber shall  permit  EMTEL’s authorized personnel to  enter and  remain on  the  Subscriber’s premises and  every  other  place  under his control  at all times  and  for any reasonable lapse  of time  for the  purpose of carrying out  any inspection which  EMTEL deems necessary for the purpose of this agreement or to recover  any equipment belonging to EMTEL upon termination of this agreement or any service provided hereunder.

5.17.  The  Subscriber shall  promptly comply  with  EMTEL’s advice  to  upgrade, at his  own  expense, the  existing  facilities, which  in the  opinion of EMTEL are  inadequate to  cope with his telecommunications traffic and/or likely to  cause congestion in EMTEL’s telecommunications  system or equipment.

5.18. The Subscriber is aware that the Service provides permanent access to the Internet, that its computer may remain connected to the Internet once the  computer is powered up  and  that, in such  conditions, it is the  Subscriber’s responsibility to take  all necessary and  appropriate measures so as to protect its data  and/or software from, among other  things, computer viruses  on the  Internet or the  intrusion  of a third party on its computer for whatever reason since the Internet is not a secured network.

5.19. The  Subscriber agrees that  his/her activity will not  improperly restrict,  inhibit  or degrade any  other  User’s  use  of the  Service  nor  represent (in  the  sole  judgment of EMTEL) an  unusually large  burden on  the  network  itself. If the  Subscriber is found to be  making  excessive use  of their broadband service  they  may  find their service  restricted and  if it continues may  have  their service  suspended or cancelled.

5.20. The Subscriber must indemnify EMTEL against all claims that the Subscriber threatens or makes against EMTEL because of the way the Service is used or because the Service is faulty or cannot be used.

5.21. In the  event that  changes are introduced to EMTEL’s network,  EMTEL shall not be  responsible to ensure that  the  Software  will continue to be compatible with EMTEL’s network  and  the  Subscriber shall have  no claim whatsoever against  EMTEL arising there from.

5.22. The Subscriber shall strictly comply with and ensure compliance by his servants and agents with all instructions or notices in whatever form and through whatever means given by EMTEL from time to time regarding the use of the Software.

5.23. The Subscriber further agrees to abide by the following Terms and Conditions in the eventuality of the rental of the Service Equipment.

5.23.1. The Subscriber shall pay rental charges in addition to the service charges, for the entire rental period on each Service Equipment.

5.23.2. The monthly rental shall not be subject to any deductions on any accounts;

5.23.3. EMTEL reserves the right to recall any or all Subscriber premises equipment upon 10 days written notice to the Subscriber.

5.23.4. The Subscriber shall not remove, alter, disfigure  or cover  up any numbering, lettering  displayed upon the  equipment, and  shall see that  the equipment and  its appurtenances in good  repair  and  operative condition, and  return  it in such  condition to EMTEL safe  ordinary  wear  and  tear;

5.23.5. The Subscriber shall pay and  be  liable for all repairs  made during  the  rental  period,  including  labour,  material,  parts  and  other  items.

5.23.6. EMTEL shall at all times  retain  the  ownership and  title of the  equipment and  shall not  be  responsible for the  loss  or damage to property, material,  or equipment belonging to the  Subscriber, its agents, employees, suppliers or anyone directly or indirectly employed by the  Customer.

5.23.7. The Subscriber shall keep the Service Equipment insured against all risks of loan or damage from any cause whatsoever for not less than the full replacement value thereof;

5.23.8. No equipment shall be sublet by the Customer.

5.24. The Subscriber further agrees that the Service shall not be used for distribution of traffic to or from any third party in Mauritius.  The Service shall not  be  interconnected to the  telephone network  of EMTEL or to the  network  of any  other  Company operating telecommunication  facilities within Mauritius  without  prior agreement of EMTEL in writing.

5.25. Access to the Service shall be provided through feasible Access Line.

5.26. Any connection to the Service is subject to the following:

5.26.1. The Subscriber premise to be located within a coverage zone of Emtel Network.

5.26.2. Availability of signal and tests being carried out for the Service to be successful.

6. APPLICABLE TARIFFS

6.1. The Subscriber must pay on demand the charges for Service as set out by EMTEL for the relevant period.

6.2.  Unless  this  Contract  provides otherwise, the  Subscriber is responsible for all charges set  out,  from  time  to  time,  by EMTEL for Service;  this applies whether the  Subscriber or someone else  uses the  Service. In particular, for connection charges and charges for all facilities provided at the Customer’s request in relation to Service.

6.3. Unless EMTEL’s charges provides otherwise, all charges for Service are exclusive of value added tax for which, if it is applicable, an amount will be added to the Customer’s bill.

6.4. Rental for Service will commence on the Delivery date, unless specified otherwise.

6.5. Except for temporary Service, the Subscriber must pay rental in accordance with EMTEL’s billing cycle. If EMTEL  begins, or ceases Service on a day which  is not  the  first or last day of the  period by reference to which  EMTEL charges rental,  EMTEL will apportion rental  on a daily basis  for the incomplete period. Rental is normally payable in advance but EMTEL may on occasion bill the Subscriber in arrears.

6.6. EMTEL may ask the Subscriber for payment in advance not exceeding the connection charge, and rental for the minimum period of Service for the Service requested, before Service is provided.

6.7.  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 2%  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.

6.8. In the event of recovery of any unpaid amount through the medium of a recovery agent and/or an attorney at law, the Subscriber 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.

7. FAULT REPAIR

7.1. The Subscriber must report a fault in Service by calling on the number specified in the Intervention Report or such other number as EMTEL may from time to time provide to the Subscriber. The Subscriber will at the time of report provide EMTEL with a Contact Telephone Number to enable EMTEL to advice on the progress being made to clear the fault.

7.2. If the Subscriber reports a fault in Service EMTEL will respond in accordance with the level of Service Care (service care may not be standard in case  Subscriber has  signed an SLA with EMTEL) provided to the  Subscriber with Service by carrying out  one  or more of the  following actions:

7.2.1. providing  advice  by telephone, including  advice,  where appropriate, as to tests  and  checks  to be  carried  out  by the  Subscriber;

7.2.2. Where possible, carrying out diagnostic check from EMTEL premises; or

7.2.3. Visiting the Subscriber’s Premises or a point in EMTEL’s network only if EMTEL’s action under paragraphs

7.2.1 Fails and;

7.2.4. Does not result in the fault being diagnosed or cleared and where such a visit is considered necessary by EMTEL.

7.3. EMTEL will take all proper steps without undue delay to correct the fault.

7.4. If EMTEL does work to correct a reported fault in Service and finds there is none, EMTEL may charge the Subscriber for the work.

7.5. If EMTEL agrees to attend a reported fault in Service outside the normal working hours, the Subscriber must pay a charge calculated at EMTEL applicable hourly rate.

ANNEX E – EMTEL HOME & OFFICE

By ordering and/or using  the  EMTEL Home & Office/Fixed Wireless  service  (the “EMTEL Home & Office Service” or “this Service”)  the  Subscriber agrees and  accepts fully the Terms  and  Conditions as set out herein and  in the General Terms  and  Conditions of Service to the extent  that the terms therein are not  inconsistent with these special  Terms  and  Conditions:

1.0. EMTEL HOME & OFFICE SERVICE

EMTEL Home & Office Service  refers  to the  telecommunication service  (voice,  data,  Value Added  Services  etc)  as provided from  time  to time  by EMTEL via a fixed wireless  handset device  (“Fixed Wireless Terminal”)  connected to EMTEL’s wireless  network  such  as a GSM or 3G network,  or such other  technology as may  be  made available  by EMTEL from time  to time.

2.0. ENTIRE AGREEMENT

The Subscriber agrees to be bound by this Agreement and  to use  the  Service in compliance with the  terms of this Agreement and  with EMTEL’s General Terms  and  Conditions of Service and  acceptable usage policies  and  any modifications made to same by EMTEL from time  to time.

3.0. SUBSCRIBER ACKNOWLEDGEMENTS REGARDING THE SERVICE

3.1. The EMTEL Home & Office Service consists of a fixed wireless connection. While EMTEL will undertake all reasonable commercial efforts  to deliver  the  stated Service  the  Subscriber acknowledges that  Service  speed can  vary depending on  Internet traffic and  other  factors  beyond the control of EMTEL.

3.2. EMTEL Home & Office Service is powered by a standard electrical connection. If the customer’s electrical connection fails then the Service will be disrupted or will be unavailable.

3.3.Access to services  is provided on a “best  effort” basis  and  is reliant on an electrical  supply  to the  Subscriber Equipment (as  defined in Section  4 below) and availability of the network. In the circumstance where service is unavailable due to network availability, the Subscriber may terminate the service in writing within 7 days from the time it is first connected on EMTEL’s network, without penalty and with refund of fees paid.

3.4.Subscriber accepts that  EMTEL may  change or withdraw  any element of this Service from time  to time  and  will use  reasonable efforts  to notify Subscriber of any necessary change in the  Services.

3.5.Subscriber acknowledges that  internet access using  this Service  is an “always on” connection to the  internet while the  Fixed Wireless  Terminal is powered on and  that  it is Subscriber’s SOLE RESPONSIBILITY to install, configure and  maintain suitable security  measures to protect Subscriber’s computer and  other  device  from  unauthorised or malicious access from  the  internet. Any advice or equipment provided by EMTEL is provided ‘as is’ and EMTEL accepts no responsibility or liability for the  security  of Subscriber’s systems.

3.6. Both uploads and downloads are taken into consideration for the computation of data usage for the Service.

3.7 EMTEL shall at its discretion and if practicable, use reasonably endeavours to notify the Subscriber at interval where the Subscriber is approaching its credit limit. However it shall be  the  sole  responsibility of the  Subscriber to monitor his own  usage.

3.8 The EMTEL Home & Office Service is not provided with International Roaming capability. The Subscriber shall not use the EMTEL Home & Office Service for International Roaming Agreement. Breach of this clause will be deemed material and EMTEL shall reserve the right to terminate this Agreement as of right and without any judicial or extra judicial formality.

4.0 EQUIPMENT & WARRANTY

4.1. Upon entering into this agreement and payment of the relevant fees, the Subscriber shall be provided with the Subscriber Equipment. For the purposes of the Emtel Home & Office service the, Subscriber Equipment refers to the Fixed Wireless Terminal and/or Spare Part.

4.2. Subscriber agrees to use the Subscriber Equipment reasonably and in accordance with EMTEL’s instructions and equipment User Guide.  In the event where Subscriber Equipment is loaned to Subscriber by EMTEL, that Equipment shall remain the sole property of EMTEL and Subscriber agrees to take reasonable steps to protect the Equipment from damage, loss or theft.

4.3. If EMTEL cannot for any reason recover the Equipment in good condition on demand from Subscriber then Subscriber agrees that he will be immediately liable to pay a replacement fee determined by EMTEL plus applicable taxes.

4.4. Subscriber agrees to notify EMTEL as soon as reasonably possible once he becomes aware of any damage to the equipment or defect in the operation of the equipment by telephoning EMTEL at the numbers or addresses published from time to time.

4.5. Subscriber agrees not to, nor allow any other party to modify, tamper the Equipment. Any evidence of tamper will tantamount to material breach by the Subscriber entitling EMTEL to terminate the Agreement as of right without the need for any judicial or extra judicial formality.

4.6. The Subscriber Equipment is provided with a warranty in accordance with EMTEL’s warranty policy.

THE WARRANTY PROVIDED BY THE WARRANTY POLICY REPRESENTS EMTEL’S ONLY EXPRESS WARRANTY AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS, EXPRESS OR IMPLIED.

5.0 LIMITATIONS OF THE EMTEL HOME & OFFICE SERVICE

EMTEL Home & Office Service  is to be  provided between stationary network  connecting points  and  at the  address indicated by the  Subscriber as the  Installation  Address  provided by the  Subscriber on the  Tariff and  Subscription Details  for User. The Subscriber may be charged higher rates and penalty if the Subscriber Equipment is used at place(s) other than the Installation Address.  It is the Subscriber’s responsibility to inform EMTEL in writing of any change in this address.

ANNEX F – EMTEL CASH SERVICE

1.    Definitions

The following expressions used in this annex    shall have, except where not appropriate in this context, the meanings as described hereunder. The plural shall include the singular, the masculine shall include the feminine and vice-versa.

“Agent” means any person (natural or corporate) appointed by Emtel and approved by the Bank to act as agents for the provision of Emtel Cash to Subscribers on behalf of Emtel.

“Agreement” means the  agreement between the  Subscriber and  Emtel  comprising the  following:  the  present Terms  and  Conditions including relevant Special  Terms  and  Conditions, the  Application Form and  the  Fee Schedule , which will be  effective  on the  date  the  Subscriber’s application for Emtel Cash is accepted..

“Airtime” means the communication time stored on a Mobile Communication Device. Airtime can refer to voice, SMS and/or data.

“Application Form” means the application form provided by Emtel including all information and statements contained therein. This form can be obtained from Emtel’s website (www.emtel.com), any Emtel Shop or Agent.

“Bank” means the Bank of Mauritius established under the Bank of Mauritius Act 2004 (as amended from time to time).

“Bill Company” means any person (natural or body corporate) which has appointed Emtel to receive payment in respect of the bills or invoices issued by him/it and includes amongst others, the Central Electricity Board, the Central Water Authority and the Waste Water Management Authority. “Call Centre” means Emtel Call Centre which shall act as a hotline and offering Subscriber support. Call Centre number is 8970 or such other number as may be reviewed by EMTEL and communicated from time to time. “Cash” means money in the physical form of currency, such as banknotes and coins.

“E-Money” or  “Stored  Value”  means funds   or  monetary value  represented in digital  electronics format  and  stored or  capable of  storage on electronic media in such a way as to be retrievable and transferable electronically.

“Emtel Cash” or “Mobile Financial Services” means the Mobile Payment services provided by Emtel through its Shops or Agents.

“Emtel Shop” means an Emtel showroom.

“Fee Schedule” means a schedule containing all fees applicable to Emtel Cash.  This Fee Schedule is available from any Agent, Emtel Shop and/or from Emtel’s website (www.emtel.com).

“Guideline” means the Guideline on Mobile Banking and Mobile Payment Systems as issued by the Bank in 2013 and amended from time to time.

“Merchant” means a Bill Company or a trader registered on the Platform.

“Mobile Communication Device” means any mobile device having a unique internationally recognised identifier (e.g.  Fitted with an integrated circuit for Subscriber identification such as a Subscriber Identification Module), whether embedded or removable and which can be used as a mobile communication equipment.

“Mobile Financial Services Platform” or ”Platform” means the system deployed by Emtel for the provision of Emtel Cash.

“Mobile Payment” or “M-Payment” means any financial transaction with fund movement undertaken using a mobile device such as a Mobile

Communication Device whether the fund transfer takes place from the Stored Value or from a bank account. “Mobile Wallet” means the Subscriber’s E-Money account found on the Mobile Financial Services Platform. “Network” means the mobile telecommunication network operated by Emtel from time to time.

“Non-Resident of Mauritius” means a person who is not domiciled in the Republic of Mauritius.

“PIN” means the personal identification number which the Subscriber uses to access and operate his Mobile Wallet.

“Secret Word” means the secret code allocated to the Subscriber following the activation of his Mobile Wallet. This Secret Word is to be used by the Subscriber as an identification ID when calling the Call Centre.

“SMS” means a short messaging service that enables the transmission of text messages from one Mobile Communication Device to another.

“Subscriber” means a person:

(a)   having subscribed to the  services  of Emtel,

(b)   having been issued by Emtel  with a unique internationally recognised identifier  such  as a Subscriber Identification Module (SIM) card, and

(c)   being registered by Emtel  or an Agent as a customer to Emtel  Cash.

“Subscriber Identification Module” or “SIM” means an integrated circuit that stores the international mobile subscriber identity (IMSI) and the related key used to identify and authenticate subscribers on information and communication devices (such as mobile phones and tablets). “Transaction” means any movement of money in to, or out of a Mobile Wallet including any attempt thereof.

2.     Service Description

2.1. Emtel Cash is a service which allows the Subscriber to use his Mobile Communication Device to carry out Transactions.

2.2.  Such  Transactions include  but  are  not  limited  to: (i) Airtime purchase, (ii) Cash  deposit (Cash-in) and  Cash  withdrawal (Cash-Out), (iii) peer- to-peer E-Money  transfer  and  (iv) Merchant payment including  payment to Bill Companies

2.3. All Transactions shall be denominated in Mauritian rupees.

2.4. Subscribers acknowledge that Emtel is neither a bank nor a deposit-taking institution.

2.5. The fees applicable to Emtel Cash are set forth in the Fee Schedule. Subscribers acknowledge that the Fee Schedule   is subject to change at any time at Emtel’s sole discretion.

3.     Registration on Emtel Cash

3.1. The following pre-conditions are required for registration on Emtel Cash:

3.1.1. The applicant must be an individual of at least 18 years old.

3.1.2. The applicant must have the capacity to enter into contracts

3.1.3. The applicant must fill in and  sign the  Application  Form which  he  then submits to the  Agent or Emtel  Shop  (as  relevant).

3.1.4. The applicant must provide sufficient proof of his identity.  The  documents which  can  be  relied  on  are:  (i)  national identity  cards  and 

(ii) Current valid passports.

3.1.5. The applicant must provide sufficient proof of address. The documents which  can  be  relied  on  are:  (i) a recent utility bill, (ii) a recent bank or credit  card  statement, (iii) a recent bank  reference or (iv)  any  other  document or documents which  either  singly or cumulatively establishes, beyond reasonable doubt, the address of the applicant.

3.2. With regards to sub-clauses 3.1.4 and 3.1.5 above, the Agent or Emtel Shop (as relevant) shall keep a copy of the relevant document.

3.3. Additional verification of identity may be effected by: (i) checking a local telephone directory, (ii) checking a current register of electors and/or

(iii) visiting the  applicant at his permanent residential address.

3.4.  For an  applicant who  is a  Non-Resident of  Mauritius,  his  identity  and  address shall  be  further  verified  with  a  reputable credit  or  financial

institution in his home country or country of residence.

3.5.  The holding  of a bank  account is not  as a pre-requisite for registration to Emtel  Cash.

3.6.  Following successful registration of the  Subscriber on the  Platform,  he  shall get an SMS notification  containing a Secret  Word and  a default  PIN. That PIN is to be changed by the Subscriber before he starts initiating Transactions.

3.7.  The Subscriber acknowledges that  he  must not  provide  false, inaccurate, incomplete or misleading information.

3.8.  The Subscriber is responsible for ensuring that  his registration details  are maintained up to date.

3.9.  Emtel  reserves the  right, at any time,  to request further  information pertaining to a Mobile  Wallet. Failure by the Subscriber to adhere to same may result in Emtel’s limiting usage of that Subscriber on Emtel Cash including freezing or termination by Emtel of that account without undergoing any judicial or extra-judicial formality.

3.10. Notwithstanding any other provision, Emtel may, in its absolute discretion, refuse to register/revoke the registration of any person on/from

Emtel Cash.

3.12. The Subscriber will obtain a mini statement containing his last 5 Transactions by dialing the relevant code on his Mobile Communication Device or if he is looking for a more detailed statement, he may contact the Call Centre.

4.     Data Protection

4.1.  Emtel  may  process the  data  and/or information relating  to the  Subscriber which  is collected under this Agreement (including the  Application Form)  and  through the  Subscriber’s dealings with Emtel  (e.g.  Using Emtel Cash etc.)  Or otherwise for the purposes of performing its obligations under this Agreement and for administration, account management, risk assessment, customer profiling, market research, customer care, and other legitimate business purposes.

4.2.  Emtel  may  also  share the  Subscriber’s data  with its agents, banks  and  other  authorised persons for the  purpose of providing  Emtel  Cash  and those purposes listed above.

4.3. Subscriber’s data and/or information is not otherwise disclosed to third parties, save where required or permitted by law.

4.4.  The Subscriber accepts that  Emtel shall monitor his Mobile Wallet usage and,  in case  of any suspected Transaction or otherwise, may disclose his data  and/or information to local law enforcement or investigative agencies or any competent regulatory  or governmental agencies to assist  in the  prevention, detection or prosecution of money laundering activities, fraud  or other  criminal activities.

5.     Account Usage

5.1.  Once  a Subscriber is registered in accordance with Clause  3 above, that  Subscriber will need E-Money if he  wants  to use  Emtel Cash  and  start carrying out Transactions. For that  purpose, the  Subscriber shall deposit Cash  with an Agent or Emtel Shops and  the  latter shall send the  equivalent funds  in E-Money  on  that  Subscriber’s Mobile  Wallet. As mentioned in Clause 9 hereto, a Subscriber may also obtain E-Money from another Subscriber.

5.2.  Subject  to the  prescribed Transaction limits and  the  provisions of these Terms  and  Conditions, the  balance of the  Subscriber’s Mobile Wallet is redeemable at any time  and  shall be  disposed of only in accordance with the  Subscriber’s written  instructions.

5.3. Emtel may, in its absolute discretion, restrict or limit the number of Mobile Wallets a Subscriber may have at any one point in time.

5.4.  The Subscriber acknowledges that  at any point  in time,  the  maximum amount of E-Money he  can have  on his Mobile Wallet is limited  to such amount as may  be  specified by Emtel  from time  to time.

5.5   Emtel   may,  as a direct  result  of new  or amended legislation,  statutory instrument, Government regulations or policy or any other  compelling reason, withdraw:  (i) any functionality  of Emtel  Cash  or (ii)  Emtel  Cash  in general.

5.6. Emtel Cash may be provided with additional functionality following integration of the Platform with platforms of financial institutions and other

Entities. Emtel does not warrant that the additional functionality shall   provide the Subscriber with full   access to those other platforms.

5.7.  In  the   event  of  any   review   of  Emtel’s    business  planning,  technical, public  interest or operational reasons, changes within the  industry, recommendations from  regulatory  bodies or   similar   events,   Emtel   may   vary  these  Terms   and  Conditions and  shall notify the  Subscriber  of such  changes through appropriate means. The Subscriber’s continued use of Emtel Cash shall be deemed to be his acceptance of all such varied Terms and Conditions.

6.     Emtel Cash Access Responsibility

6.1. Access to Emtel Cash is PIN protected. The Subscriber hereby agrees to guard his PIN and not to disclose it to any third party including to the

Agent, staff of Emtel Shop or any person purporting to have authority to ask for it.

6.2. The Subscriber acknowledges that he shall be solely responsible for the security of his PIN and Secret Word. Emtel shall not be liable for any disclosure of the Subscriber’s PIN to any third party and the Subscriber hereby agrees to defend, indemnify and/or hold Emtel harmless from any losses that result from any PIN disclosure.

6.3. The Subscriber is responsible for all instructions given to Emtel in relation to his Mobile Wallet.

6.4.  Emtel  shall  deem each correct  PIN  entry  as  being  performed by the  legitimate owner of the  Mobile  Wallet and  shall  regard  all subsequent

Transactions as final and irrevocable.

7.    Lost or stolen Mobile Communication Device

In case of lost or stolen Mobile Communication Device, the Subscriber is requested to call the Call Centre on 8970 to have his Mobile Wallet frozen and for any other relevant support. This is a 24/7 service.

8.      E-Money Transactions

8.1. Transaction limits as prescribed shall apply each time the Subscriber uses Emtel Cash.

8.2. The Transaction request will not be completed:

8.2.1 If the Subscriber has insufficient funds in his Mobile Wallet to undergo that Transaction or to cover the charges of the Transaction;

8.2.2 If the Subscriber has reached the prescribed daily Transaction limit;

8.2.3 If Subscriber’s Mobile Wallet has been temporarily suspended or permanently frozen on valid grounds;

8.2.4 If there is any other compelling reason such as temporary system delay, outage, service interruption or otherwise.

8.3.   For use of Emtel Cash, the fees as listed in the Fee Schedule will apply.

8.4. For all Transactions effected, the Subscriber will receive an SMS notification on his Mobile Communication Device. Each successful Transaction will be backed by a receipt containing a unique reference number.

8.5.  In any  event that  a Transaction  cannot be  completed or fails, the  Subscriber will be  notified  by SMS as  for the  reasons of the  unsuccessful Transaction.

8.6. A Transaction once completed is final and irrevocable. As such, Emtel shall be under no obligation to reverse any Transaction.

8.7.  The  Subscriber    agrees to  indemnify, defend and/or hold  Emtel  harmless for any  losses arising  from  a mistaken, erroneous or fraudulent transfer  of funds  or any transfer  of funds  from the  Subscriber’s   Mobile Wallet effected under constraints or under coercion or criminal force.

9.      Peer-To-Peer E-Money Transfer

9.1. One Subscriber may transfer E-Money to another Subscriber. The receiving  party will get an SMS informing  him  that  he  has  received E-Money from the  sending party, the  E-Money shall be  loaded on the  Mobile Wallet of the  receiving  party and  that  receiving  party may redeem the  E-Money at any Agent or Emtel  Shop.

9.2 The Subscriber can also transfer funds to a non-Subscriber.

In this  case,  since  the  receiving  party  does not  have  a Mobile  Wallet registered on  the  Platform,  he  shall  receive  an  SMS containing a one-time voucher code which  he  shall show  to any Agent or Emtel  Shop  so as to redeem the  monetary value  sent  to him.

If, within 2 days, the  receiving  party has  not  redeemed this voucher code,  the  Transaction will be  cancelled and  the  E-Money  will automatically be sent  back to the  Subscriber’s account. The Subscriber will be notified by SMS of the cancellation and reversal of the E-Money.

9.3. In all cases, the Subscriber sending the E-Money shall receive an SMS notification for each Transaction undertaken.

9.4. A receiving party (whether he is a Subscriber or not) may be liable to face prosecution for consuming or using funds sent to him erroneously.

10.    Cash-Out

10.1. Cash-Out is to be done at any Agent’s premises or Emtel Shop.

10.2. The  Agent  or the  Emtel  Shop  (as  relevant) shall, subject to the  prescribed Transaction  limits, process the  request for Cash-Out after  being satisfied  that  the  person making  the  withdrawal has  successfully passed all identity and  security  verification  procedures.

10.3. Subject to any other provisions to the contrary, the Subscriber will be charged a withdrawal fee each time he withdraws funds from his Mobile Wallet

11.     Payment to Bill Companies

11.1. The Subscriber may use Emtel Cash to pay Bill Companies. He shall, at all times, remain solely responsible for the correct inputting of bill account details and other relevant information. Upon the successful completion of the Transaction, the Subscriber will receive an SMS notification with a unique Transaction ID.

11.2. Emtel shall under no obligation be required to match the customer bill account number with the records of the Bill Company.

11.3. If the Subscriber performs a Bill Payment Transaction after 22:00 pm, that Transaction shall be processed on the next working day.

11.4. In any  event that  a  Transaction  cannot be  completed or  fails, the  Subscriber will be  notified  by  SMS as  to  the  reasons of  unsuccessful Transaction.

11.5. In addition to  the  cases listed  above where a  Transaction  will not  be  completed, a  request for bill payment will not  be  completed if the

Subscriber does not respect the requirements of the Bill Company.

11.     Payment to Bill Companies

11.1. The Subscriber may use Emtel Cash to pay Bill Companies. He  shall, at all times,  remain solely  responsible for the  correct  inputting  of bill account details  and  other  relevant information. Upon the successful completion of the Transaction, the Subscriber will receive an SMS notification with a unique Transaction ID.

11.2. Emtel shall under no obligation be required to match the customer bill account number with the records of the Bill Company.

11.3. If the Subscriber performs a Bill Payment Transaction after 22:00 pm, that Transaction shall be processed on the next working day.

11.4. In any  event that  a  Transaction  cannot be  completed or  fails, the  Subscriber will be  notified  by  SMS as  to  the  reasons of  unsuccessful Transaction.

11.5. In addition to  the  cases listed  above where a  Transaction  will not  be  completed, a  request for bill payment will not  be  completed if the Subscriber does not  respect the  requirements of the  Bill Company.

11.6 The  Subscriber is responsible for  all payments he  undertakes using  Emtel  Cash  and  is advised that  any  payment made by  him  to  Bill Companies after the  deadline date  may  make him  liable for surcharges to the  latter.

12.    Intellectual Property

All  intellectual property  rights  vested in  Emtel  Cash  including  the  trademark, logo  or  otherwise are  the  property of  Emtel.  Any unauthorized reproduction, modification, distribution or republication of materials or intellectual property related to Emtel Cash in any way whatsoever without the express prior written consent of Emtel is strictly prohibited.

13.    Fees

13.1. The Subscriber is responsible for the payment of the applicable fees as listed in the Fee Schedule in relation to the use of Emtel Cash.

13.2. All fees are deducted at source and are subject to change at any time at Emtel’s sole discretion.

13.3. On  completion of each Transaction, the  Subscriber’s Mobile  Wallet will be  deducted with the  relevant fee  and  the  Subscriber’s new  balance shall be  notified  to him  by SMS.

13.4. Except as may otherwise be notified in writing, fees are inclusive of all applicable taxes including Value Added Tax at the prevailing rate.

14.    Termination, Freezing, Unclaimed amount & Reallocation of E-Money account

14.1. Emtel, without  prejudice to its other  rights and  without  undergoing any judicial or extra-judicial formality, reserves the  right at its sole  discretion to freeze  or terminate this Agreement if the  Subscriber utilizes  Emtel Cash   for any purpose which is unauthorized, fraudulent, illegal  or otherwise.

14.2. The Subscriber acknowledges that  Emtel  may  be  compelled by law to freeze his Mobile Wallet or decline to execute his Transaction requests if there are reasonable grounds to suspect that  his Mobile  Wallet has  been or is being  or may  be  used to conduct Transactions in connection with any activity which  is unauthorized, fraudulent, illegal or otherwise.

14.3. Closing of his Mobile Wallet by the Subscriber is to be done at an Emtel Shop.  Emtel  shall only act on the  Subscriber’s request for closing his Mobile Wallet if: (i) the Subscriber establishes his identify to Emtel’s satisfaction and  (ii) the balance of that Subscriber’s Mobile Wallet is, at the time of the  request, zero.

14.4. Emtel  may  close  the  Subscriber’s Mobile  Wallet if that  Mobile  Wallet has  remained inactive  for a  certain  period of time  as  prescribed  by Emtel, subject to giving 5 (five)  days’ notice  to the  Subscriber.   In such circumstances, the Subscriber shall be entitled to the balance of any funds remaining in his Mobile Wallet

14.5 Any unclaimed amount which has been left untouched and not reclaimed for 7 years or more and the Subscriber has not responded within 6 months to a letter  from Emtel about the  unclaimed amount sent  by registered post  to the  Subscriber’s last known  address, the  unclaimed amount, shall be deemed  to have been abandoned and shall, without further formality, be transferred forthwith by Emtel to the Bank of Mauritius to be dealt  with as decided by the  Bank. The procedures set out in Section 59 of the Banking Act 2004 (as amended from time to time) with respect to abandoned funds shall apply to these unclaimed amounts.

14.6.   The Subscriber understands that his Mobile Wallet is attached to the number of his Mobile Communication Device which he provided in the Application Form. If the  Subscriber now  wants  to change that  number, he  will be  required to fill in the  change request form  available  at any Emtel Shop  after having  provided sufficient  proof  of his identity and  address and  any other  information which  may  be  required.

14.7. This Agreement terminates automatically upon the death of the Subscriber. The residual amount (if any) remaining in the Subscriber’s Mobile

Wallet will be handed over to any beneficiary in accordance with the Subscriber’s affidavit de succession.

15.  Warranties, and Limitation of Liability

15.1. Emtel will report any suspicious transaction to the Financial Intelligence Unit (FIU). For the purpose of Emtel Cash, a suspicious transaction has the same meaning as in the Financial Intelligence and Anti Money Laundering Act 2002 (as amended from time to time).

15.2. Emtel warrants that it is compliant with the Guideline issued by the Bank including the security measures mentioned therein. THIS CLAUSE IS EMTEL’S ONLY EXPRESS WARRANTY CONCERNING EMTEL CASH, AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WARRANTY AS TO UNINTERRUPTED AVAILABILITY OF EMTEL CASH.

15.3 Emtel shall use reasonable efforts to ensure that all Transaction requests are processed in a timely manner. The Subscriber understands  that: (i) Emtel Cash is a payment facility and that Emtel shall not be liable for any delay in payment, incomplete payment or otherwise suffered by the Subscriber using  Emtel  Cash  and  (ii)   Emtel  Cash  may  be  affected by factors  outside Emtel’s control,  or may  be  subject to periodic  testing,  repair, maintenance,  upgrades or otherwise.

15.4. Emtel will not be liable for any claim unless caused by willful default attributable to Emtel.  Emtel  specifically  disclaims all liability for any damage, expenses or losses, including,  without  limitation, direct, indirect,  consequential, special,  incidental or punitive  damage deemed or alleged to have  resulted from or caused by but  not  limited  to:

15.4.1 Transactions made to unintended recipients or payments made in incorrect amounts due to the input of incorrect and/or incomplete information by the Subscriber;

15.4.2 Transactions made from an unauthorised third party who passes all identity and verification checks;

15.4.3 Any fraud, deception or misrepresentation made by the Subscriber,

15.4.4 Any damage, expense or loss resulting from a recipient’s decision not to accept or record a Transaction made by the Subscriber through

Emtel Cash,

15.4.5 Failure of any other telecommunications or data transmission system other than the Platform;

15.4.6 Result of any acts of government or authority, any act of God or force majeure.

15.5. Emtel Cash is not available on roaming.

15.6. The sole  liability of Emtel  for any claim in any manner related to this Agreement shall be  the  payment of direct  damages and  such  damages shall in no event in the  aggregate exceed the  maximum Transaction limit for the  time  being  in force according to the  Guideline for any single event or series of events.

15.7. The  User  agrees to  defend indemnify and/or hold  Emtel  harmless for any  claim  brought against  Emtel  by a third  party  resulting  from  the

Subscriber’s breach of these special Terms and Conditions.

16. Dispute Resolution

16.1. The Subscriber may contact the Call Centre on 8970 for any dispute, claim, to report discrepancies on his Mobile Wallet or for any support in relation to Emtel Cash.

16.2. Any dispute arising out of or in connection with this Agreement that is not resolved by Emtel’s customer care may be escalated up to the CEO

if not resolved within 14 days from the date of its receipt and eventually escalate to the Bank for resolution, if still not solved.

16.3. Emtel shall try to resolve any dispute arising out of or in connection with this Agreement within a period of 90 days of the date Emtel became first aware of it.

16.4. Nothing in this section shall be deemed to exclude any legally recognised dispute resolution body from receiving, hearing and determining the dispute.

17.  Data Retention

17.1 The Subscriber acknowledges that where it is determined by a competent judicial authority that his Mobile Wallet contains proceeds of money laundering or any other criminal or illegal activity, Emtel may be required by law to surrender those funds   as may be directed.

17.2 The Subscriber acknowledges that Emtel may retain his Transaction data for a period of up to seven (7) years or as may be required by any law or regulation.

18. Force Majeure

Emtel  shall not  be  liable to the  Subscriber for any delay  or failure to perform its obligations under the Terms and  Conditions under this Annex as a result  of a force  majeure event which  includes any event which  is beyond its reasonable control,  is unforeseen and  irresistible.  Such  events may include  without  limitation:  revolution or other  civil disorders; belligerent aggression by an  enemy; strikes;  labour  disputes; electrical  equipment or system availability delay  or failure; fires; floods;  acts  of God; government or regulatory  intervention.

If such delay or failure continues for at least thirty (30) days then either party to this Agreement may terminate their engagement by serving a notice in writing to the other.  Upon such termination all E-Money held for the Subscriber on the Platform shall be returned to the Subscriber.

19. General

If any term of this Agreement is held invalid, illegal or unenforceable by any court of competent jurisdiction, it will be severed and the remaining terms will continue in full force as if this Agreement had been made without the invalid, illegal or unenforceable terms.

2 This Agreement may be amended by Emtel from time to time as Emtel introduces new Emtel Cash functionalities. Such amended Agreement may be published in posters or pamphlets available at Agents, in the daily newspapers and/or on the Emtel website (www.emtel.com) from time to time and shall take effect immediately upon publication.

3. Emtel’s failure to exercise or enforce any right under this Agreement shall not be deemed to be a waiver of any such right nor shall it prevent Emtel from exercising or enforcing the rights in question at any time.. The Subscriber may not transfer any rights or obligations that he may have under this Agreement without Emtel’s prior written consent. The Subscriber  must not  use   Emtel  Cash   for the  receipt  of or payment for goods or services  that  offend  or circumvent any law including without  limitation, narcotic  drugs, firearms,  obscene or  pornographic material  or services,  infringement of third party intellectual rights, running  illegal or unauthorised lotteries,  gaming  or gambling,  as well as material  that  is morally repugnant; incites  violence or desires to cause harm;  induces an unacceptable sense of fear or anxiety; encourages or incites  any person to engage in dangerous practices or to use  harmful  substances; induces or promotes tribal, religious  or racial disharmony; causes grave or widespread offence; or debases, degrades or demeans others.

. Without  prejudice to the  provisions of clause 14.7, where Emtel  receives notification  of the  death of the  Subscriber, Emtel  shall suspend all activity of his Mobile Wallet until satisfied  that  the  relevant provisions of the  applicable legislation  have  been followed. Any notice or other communication in connection with this Agreement shall be:  in writing and delivered by hand, fax or registered post with advice of delivery. Notices  to the  Subscriber are to be  sent  at the address provided by him  in the  Registration Form and  notices to Emtel  shall be  sent  as follows:

Address:  EmtelWorld, 10, Ebene Cybercity, Ebene, Mauritius

Fax: +230 454 10 10

Attention:  Chief Executive Officer