GENERAL TERMS & CONDITIONS OF SERVICE
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.
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.
7.1. 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.
c) No reconnection following disconnection, for any reason whatsoever, of a SIM Card would be applicable using same number, where disconnection has lasted for a minimum period of 6 months or such other timeframe as may be determined by EMTEL from time to time.
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.
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.
15.1. 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.
“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
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
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.
10.1. 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.
13.1. 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
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.
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