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Smart Bro Terms & Conditions

SMART BRO TERMS AND CONDITIONS
The provision of the SMART BRO ENTERPRISE Broadband Internet access service (hereinafter referred to as “the Service”) shall be governed by the following terms and conditions (hereinafter referred to as “the Agreement.”)


1.0 Service Provision Conditions

1.1 Provision of Service. SMART COMMUNICATIONS INC. (hereinafter referred to as “SMART” or the “Company”) shall assist and/or guide the Subscriber in the installation of the Subscriber Identity Module (SIM) Card to the provided Customer Premises Equipment (“CPE”) or Wifi Device and connection to SMART’s network as soon as reasonably practicable after receipt of payment of the prescribed fees for the Service. SMART reserves the right to disconnect the Service at any time should any Subscriber CPE and/or Peripherals and paraphernalia be found to cause harmful interference to SMART’s network or to cause degradation in the quality of Service. The Subscriber agrees to hold SMART free and harmless from any liability arising from such disconnection.
1.2 Equipment and Peripherals. SMART shall provide the Subscriber with the CPE or Wifi Device and/or the Subscriber Identity Module (SIM) Card and other peripherals necessary for Service access (hereinafter referred to as the “CPE and/or Peripherals”) as set forth in the delivery receipt issued to the Subscriber.
1.3 Hardware. All CPE and/or Peripherals connected to or used in conjunction with the Service shall be of a type approved by SMART. SMART does not, by this Agreement, cover any representation or warranty for any telecommunications and related equipment.
1.4 Loss or Damage of Hardware. A) The security of the SIM Card and the confidentiality of his Personal Identification Number (PIN) as well as the proper care and maintenance of the CPE and/or Peripherals shall be the Subscriber’s sole responsibility. B) In case of loss of CPE and/or Peripherals, the Subscriber shall immediately inform SMART of such fact, first by telephone or email through SMART’s Aftersales Groups: Enterprise Bro and Enterprise Support, to be followed by the submission of an affidavit of loss or a police report to document such loss within 24 hours from the discovery of the loss. SMART, upon notice of such loss, shall immediately disconnect the Service. All charges and fees accruing prior to the disconnection shall remain for the account of the Subscriber and replacement or repair cost of the CPE and/or Peripherals will be charged to the Subscriber.
1.5 Site Survey. SMART reserves the right, upon due notice, to conduct site surveys, tests and/or inspections inside the Subscriber’s premises, as necessary to determine the requirements for CPE and/or Peripherals installation and Service maintenance. The Subscriber understands that should there be no signal from the SMART antenna or CPE to the Subscriber’s premises where the Service is intended to be provided, the Subscriber will not be able to avail of the Service. The Subscriber agrees to hold SMART free and harmless from any liability arising from the said non-availability of the Service.
1.6 Non-transferability of Rights and Location. The rights and privileges extended to the Subscriber in relation to the subscription and the CPE and/or Peripherals are purely personal to the Subscriber and shall not be transferred to any individual or entity or to any other location, without obtaining the prior written approval and clearance from SMART. Any such transfer of rights and/or location without the prior written approval and clearance of SMART shall be void regardless of receipt by SMART of Monthly Service Fee and other charges from the supposed transferee.
1.7 Force Majeure. SMART shall not be responsible for delays or for failure or omission of its Service due to any cause beyond its control not due to its willful and intentional fault or gross negligence and which cannot be overcome by the exercise of due diligence including, but not limited to, labor disturbance, human or equipment breakdown, acts of God, or force majeure, whether or not the cause be of the same class or kind as those herein. The Subscriber agrees that in such case, the operation of this Agreement and delivery and rendering of Service, so far as necessary, may be suspended or terminated as the case may be, even without notice, without liability for loss and damage, it being understood that the cause of such interruption shall be remedied, if possible, with all necessary dispatch at the earliest practicable time. In the cases mentioned above, SMART shall not be liable for any loss or damage suffered by the Subscriber, unless such loss or damage is caused by the willful or grossly negligent act or omission of SMART’s employees or duly authorized agent which liability shall not exceed the amount of FIVE-THOUSAND PESOS (P5,000.00) as may be proven in a court of law.
1.8 Limitation of Liability. The Subscriber holds SMART free from any responsibility for any loss or damage resulting from the failure of Service caused by a malfunction of the SMART network or CPE and/or Peripherals for any reason whatsoever. SMART shall not be liable for any loss, costs, compensation, damage or liability to the Subscriber or any third party arising directly or indirectly out of or in connection with the supply or use of the Services including, without prejudice to the generality of the foregoing, any loss, costs, compensation, damage or liability to the Subscriber or third parties caused by:

1.8.1 any delay, interruption, or termination of the Service, whether caused by administrative error, technical, mechanical, electrical or electronic fault or difficulty or any other reason; or
1.8.2 circumstances beyond SMART’s control (including but not limited to acts of God, strike, labour disputes, fire, disturbance, action of government, atmospheric conditions, lightning, interference or damage by third parties or any change in legislation); or
1.8.3 any inaccuracy or omission, lack of clarity, interference in, misdirection or destruction of any information transmitted to or from the Subscriber howsoever caused or any refusal by SMART to transmit any information subject to par. (e) below; or
1.8.4 theft or unauthorized use of the CPE and/or Peripherals or any loss, costs, damages or compensation incurred by or payable to any third party by the Subscriber; or
1.8.5 any inherent defect in the CPE and/or Peripherals or any defects or damage to the CPE and/or Peripherals resulting from use other than in the normal and customary manner;
1.8.6 transmission or non-transmission of any illegal, false, misleading, derogatory, libelous, obscene or vulgar messages or information.


1.9 Use of the Service. Notwithstanding any other provision of this Agreement, SMART will not, for any reason, be liable for any indirect, incidental, out-of-pocket expenses, consequential, punitive, special or other similar damages including, but not limited to, damages resulting from loss of actual or anticipated revenues or profits, or loss of business, data or goodwill. The Subscriber shall not re-sell or make any commercial use of the Service, without the prior express written consent of SMART. The Service shall not be utilized in bypassing or in activity/ies that tend to bypass the network or be used in prohibited services like callback, dialback, unauthorized audiotext, international and national simple resale (ISR/NSR) and other similar services (the “Unauthorized Activities”). The Subscriber further agrees not to facilitate, accommodate, forward or initiate origination and/or termination of SMS, MMS, GPRS, WAP or other voice, video or data-related services to a third-party, using the Service in a manner, numbering, labeling or routing format not duly prescribed and pre-agreed by SMART. The Subscriber shall likewise be liable to SMART for any and all compensation fee on account of any of the above Unauthorized Activities and unauthorized commercial use of the Service. The compensation fee is payable, without any limitation from the time the Unauthorized Activity and unauthorized commercial use occurred until the actual cessation thereof. A penalty equivalent to one hundred fifty percent (150%) of the computed revenue losses shall likewise be charged against the subscriber if proven accountable for such Unauthorized Activity and unauthorized commercial use. For this purpose, SMART shall have the right to full access to the relevant books and all other records of the Subscriber in order to ascertain the volume of traffic and total amount of compensation fee payable. In the absence of said record, SMART shall have the sole discretion in the determination of the said compensation fee. In addition to the Unauthorized Activities and unauthorized commercial use referred to above, the Subscriber undertakes not to use the Service for any activity that is contrary to morals and public policy or which violates any ordinance, law, decree, order, regulation or treaty, among others (the “Illegal Activities”). The Subscriber agrees to indemnify and hold SMART free and harmless from any liability, suit, or damage arising from or connected with the Subscriber’s Unauthorized Activities, unauthorized commercial use and/or Illegal Activities. The Subscriber further authorizes SMART to supply any and all information requested by any law enforcement or government agency/ies, or other private entities, the latter within the limits provided for by law, relative to the Subscriber’s subscription to the Service. In which case, the Subscriber hereby irrevocably and unconditionally waives any and all its relevant remedies under the law, including but not limited to the right to claim damages.
1.10 Management of the Subscriber’s Data. The Subscriber shall be responsible in protecting its telecommunications system against unauthorized external attacks/hacks. Any and all damage, loss and prejudice suffered by the Subscriber by reason of such attacks/hacks shall be for the Subscriber’s sole account. Thus, in the event of such occurrence, it is the Subscriber’s responsibility to investigate the incident with the assistance of SMART, its affiliates and/or subsidiaries, if so requested.  The Subscriber agrees that the Internet is not owned, or managed by, or in any way affiliated with SMART and SMART has no control over the information or materials accessed via Internet through the use of the Service.  SMART does not warrant that the Service provided will be uninterrupted, error free, secure, or free from viruses, worms or the like. SMART shall not be liable for loss of the Subscriber’s data. SMART makes no warranty, express or implied, regarding the reliability and completion of any and all transactions executed using the Service or the Internet. In no event shall SMART be liable for (a) any direct, indirect, special, consequential or incidental damages, including without limitation, lost profits or loss of revenue or damage to data arising out of the use, partial use or inability to use the Service, regardless of the type of claim or the nature of the cause of action, including without limitation, those arising under contract, negligence, tort or strict liability, even if SMART has been advised of the possibility of such claim or damages, or (b) any claims against you by any other party. 

2.0 Acceptance of Terms and Service 

2.1 Term. This Agreement shall take effect from signing hereof by the Subscriber, and approval by the authorized representative of SMART and shall be effective for the duration of the period stated in the Subscriber Application Form (SAF) to be counted from the Service Commencement Date and shall be automatically renewed for similar periods unless terminated by either or both parties in accordance with Section 7 hereof. In case of renewal, SMART may amend, change or modify the applicable rates.
2.2 Service Commencement Date. The Service Commencement Date for the Service provided shall be the day Service is activated.
2.3 Observance of Rules and Regulations. The Subscriber binds himself to strictly observe and comply with all government rules and regulations, laws pertaining to telecommunications, intellectual property and other related matters now existing or hereinafter promulgated, as well as reasonable rules and regulations as SMART may impose in the interest of Service. The Subscriber shall not use, interfere or jam any radio or telephone signal of other subscribers within or outside SMART’s network or other signals, otherwise, SMART shall have the right to disconnect the Service to the errant Subscriber. Any misuse shall be presumed to have been done by or under the authority of the Subscriber and shall be a ground for disconnection of the Service by SMART provided that any disconnection under this Section 2.3 shall not terminate this Agreement and the Subscriber shall still be liable for the payment of the Monthly Service Fee and other charges for the term of this Agreement.

3.0 Service Charges

3.1 Service Fee, Foreign Currency Adjustment and Other Charges. Upon approval of application for subscription, the Subscriber shall pay SMART a Monthly Service Fee in advance and the processing fee prevailing at the time of approval of application for subscription, which processing fee covers the installation fee. Succeeding Monthly Service Fee and other charges must be paid on or before the Due Date indicated in the Statement of Account. Fees for Service and other charges shall be included in the Subscriber’s Statement of Account. Plan offers may have a built-in feature that automatically protects the Subscriber’s bill up to a certain amount determined by SMART covering the standard data charges in addition to or on-top of the monthly service fee of the plan offer (“Anti-Bill Shock”). The Subscriber shall be liable for all incurred data charges based on the standard data rating scheme as indicated in the Smart Enterprise SAF, up to the Anti-Bill Shock (ABS) if applicable. Nonpayment of these charges or refusal on the part of the Subscriber to pay charges shall be sufficient ground for SMART to discontinue the Service. Non-receipt of the Statement of Account shall not excuse the Subscriber from paying the Monthly Service Fee and other charges. Where there is a change in any of the following economic factors: Philippine Peso-US dollar exchange rate, international carrier toll rates, labor costs, cost of utilities and other operating costs, Service rates and fees may be adjusted to take effect upon notice to the Subscriber. When applicable, fees shall be subject to VAT and other taxes, which may now or hereinafter be imposed by the Philippine Government on the Service or this Agreement. In case Service is billed based on per-minute or per-hour or per-day, or per-month, a fraction thereof shall be considered as one whole minute, or one whole hour or one whole day or one whole month, as the case may be.
3.2 Additional Installation Charges. In certain instances where the subscription plan requires a CPE, the Subscriber shall pay for additional charges to cover materials and labor for non-standard installations, depending on the height of additional pole mast (i.e. for 20-ft. antenna and higher). *Applicable only for subscription plans with CPE.
3.3 Relocation. If the Subscriber will transfer office location, the Subscriber will be charged the relocation fee prevailing at the time of relocation to cover for expenses of dismantling equipment from current location and re-installing to the new location and subject to Section 1.5 of this Agreement.
3.4 Changes in Service. The Subscriber agrees to pay all charges for changes in Service feature including, but not limited to, reconnection, change of service package and change of ownership. SMART reserves the right to make changes in the Service for technical and other reasons, with due notice to the Subscriber.
3.5 Downgrading of service within the contract term. Subscriber is required to submit a written notice at least one (1) month prior to the date of circuit termination stating the reason/s for such request. Pre-termination charge equivalent to 100% of the difference of the current monthly charge and downgraded monthly charge of the circuit and its related equipment multiplied by the number of months of the unexpired term of the contract will be imposed if pre-termination is done without cause.  In addition, Subscriber will be charged the actual expenses for recovery of equipment relative to the original grade of service.

 

Total Pre-termination Charge = Full Device Acquisition Cost x No. of months remaining over Total Contract Period + Total SAC + Total Unbilled Usage

4.0 Fraudulent, Unauthorized Use or Illegal Use and Abusive Conduct

4.1 If the Subscriber or any other person, at the sole discretion of SMART, is found to use the Service for any fraudulent purpose, Unauthorized Activities or Illegal Activities, or is found to use abusive and/or indecent language to other subscribers or SMART employee, staff, representatives or authorized agents, or has submitted an application for Subscription through fraudulent means or has supplied any false/ wrong information in connection with such application, SMART reserves the right to immediately disconnect the Service without prior notice and/or refuse to reconnect the Service. SMART also reserves the right to file the appropriate legal action against the erring Subscriber or person concerned, and to charge the appropriate pre-termination fee, if any.

4.1.1 Resale or any other commercial use of the Service without the prior express written consent of the Company
4.1.2 Utilization of the Service in bypassing or in activity/ies that tend to bypass the SMART network, billing and/or traffic routing;
4.1.3 Use of the Service in prohibited activities like callback, dialback, unauthorized audiotext, international and national simple resale (isr/nsr) and other similar services;
4.1.4 Tampering, altering, modification, or unauthorized programming of the SIM Card or its digital reference ("Unauthorized Activities");
4.1.5 Use of SMART Subscriber Identity Module (SIM) cards with unauthorized types of devices apart from the intended hardware (i.e. Pocket WiFi, tablets, fixed routers) For example, SIM cards must not be inserted in multi SIM gateways. Otherwise, SMART reserves the right to temporarily suspend or terminate its service without prior notice.
4.1.6 Excessive use, where maximum allowable data usage within a billing cycle exceeds up to 60GB beyond the Service’s Anti-Bill Shock feature;
4.1.7 Activities that are considered unlawful by the laws of the Republic of the Philippines;
4.1.8 Obstruction or penetration, or attempts to obstruct or penetrate the security of any entity’s network or systems such as malicious software (e.g., Trojan horses, worms, spyware, etc.), denial of service attacks, spam emails, etc.;
4.1.9 ;or
4.1.10 Use of high bandwidth applications and services like operation of servers, web broadcasting, and the like.
Should the Subscriber engage in any of the abovementioned activities, SMART has the right to take necessary actions including, but not limited to, the following:


4.2 The Subscriber agrees to indemnify and hold SMART free and harmless from any liability, suit, or damage arising from or connected with the Subscriber's Unauthorized Activities and/or Illegal Activities. The Subscriber further authorizes SMART to supply any and all information requested by any law enforcement or government agency/ies, or other private entities, the latter within the limits provided or by law, relative to the Subscriber's subscription to the Service. The Subscriber hereby irrevocably and unconditionally waives any and all its relevant remedies under the law including, but not limited, to the right to claim damages.

5.0 Payment Terms

5.1 Due Date. SMART shall bill the Subscriber the Monthly Service Fee and other charges, which must be paid in full by the Subscriber on or before the Due Date indicated in the Statement of Account. SMART shall send to the Subscriber his Statement of Account at his given billing address by regular mail, facsimile or electronic mail, or by other method at SMART’s sole discretion. Notwithstanding the non-receipt of any bill, it shall be the Subscriber's responsibility to inform himself of his outstanding fees or charges through the SMART Website, Customer Care Hotline, or any SMART Store and effect payment, without need for further notice or demand on or before the Due Date. The Subscriber acknowledges that SMART has advised him that SMART may suspend Service in case of the Subscriber’s failure to pay any bill on or before the specified Due Date. SMART shall bill the Subscriber at monthly intervals but reserves the right to alter the date of billing or interval of billing.
5.2 Billing Disputes. If the Subscriber in good faith disputes any portion of the SMART Statement of Account, the Subscriber shall submit to SMART, within fifteen (15) days from Statement of Account date, a written documentation identifying and substantiating the disputed amount and shall make full payment of the undisputed portion of the Statement of Account within the Due Date. If the Subscriber does not report a dispute within the said fifteen (15) day period, the Subscriber shall irrevocably waive his dispute rights for that Statement of Account and the billing shall be deemed to be correct and final. Any disputed amount resolved in favor of the Subscriber shall be adjusted in the next Statement of Account. Any disputed amount determined to be payable to SMART shall be due within seven (7) days of the resolution of the dispute. If the Subscriber withholds the disputed amount thereafter or within the time required fails to provide supporting information in writing that sets out a legitimate basis under this Agreement for disputing any charges, the Subscriber’s account shall be deemed to be past due and unpaid. In such event, SMART shall be entitled to pursue any and all legal remedies provided in this Agreement, including suspension or disconnection of Service.
5.3 Penalties. SMART shall charge interest equivalent to one and a half percent (1.5%) per month for all accounts not paid by the Due Date, plus a late payment charge equivalent to one and a half percent (1.5%) per month, until the date of payment.
5.4 Repair and Maintenance. The Subscriber shall be entitled to free spare parts and service from the vendor’s authorized service center for non-performance of the CPE and/or Peripherals due to factory defects for a period of one (1) year from the Service Commencement Date. However, the cost of repair and maintenance of CPE and/or Peripherals as a result of damage due to the act or negligence of the Subscriber shall be for the account of the Subscriber. The Subscriber shall shoulder the cost of spare parts and service after the lapse of the above mentioned one year period.
5.5 Loss or Damage. The Subscriber shall be liable should any CPE and/or Peripherals be damaged or lost due to the Subscriber’s acts or omissions, and the Subscriber shall be charged for the replacement value of the same.

6.0 Data Privacy

6.1 SMART shall, at all times, comply with the provisions of Republic Act No. 10173 or “the Data Privacy Act of 2012,” its implementing rules and regulations, and all other laws and government issuances which are now or will be promulgated relating to data privacy and the protection of personal information. SMART, its officers, employees, agents and represent

6.1.1 Process personal data only upon the documented instructions of the Subscriber, including transfers of personal data to another country or an international organization, unless such transfer is authorized by law;
6.1.2 Implement measures and systems such as clear written guidelines and training modules for its employees, agents, and representatives, that will enable data subjects to exercise any and all of their rights under the Data Privacy Act of 2012;
6.1.3 Implement such measures and systems that will allow data subjects to exercise their right to object or withhold consent to further processing as provided under the Data Privacy Act of 2012;
6.1.4 Implement such measures and systems that will allow data subjects to exercise their right to access under the Data Privacy Act of 2012;
6.1.5 Maintain proper records, and provide the Subscriber access to such records, as will allow said Subscriber to comply with the exercise by data subjects of their right to access under the Data Privacy Act of 2012;
6.1.6 Ensure that data subjects will be able to exercise their right to rectification, modification, or blocking of data under the Data Privacy Act of 2012;
6.1.7 Determine the appropriate level of security measures, subject to, and in conjunction with, that of the Subscriber, taking into account the nature of the personal information to be protected, the risks represented by the processing, the size of the organization and complexity of its operations, current data privacy best practices, and cost of security implementation;
6.1.8 Implement security measures for data protection (i.e., generally, the physical, organization, and technical security measures prescribed by the Data Privacy Act and its implementing rules and regulations), including policies for evaluation, monitoring, and review of operations and security risks. These measures may include clear written guidelines, training modules for its employees, agents, and representatives, and audit measures in relation to the (1) collection, processing, maintenance, and deletion/disposal of personal data and records; and (2) the sharing of these information, especially on the specific persons to whom the information may be given access. Such measures shall aim to maintain the availability, integrity, and confidentiality of personal data, and prevent negligent, unlawful, or fraudulent processing, access, and other interference, use, disclosure, alteration, loss, and destruction of personal data;
6.1.9 Implement reasonable and appropriate organizational, physical, and technical measures intended for the protection of personal information against any accidental or unlawful destruction, alteration, and disclosure, as well as against any other unlawful processing, or for such other purposes as may be required under the Data Privacy Act of 2012 or any other applicable law or regulation;
6.1.10 Implement reasonable and appropriate measures to protect personal information against natural dangers such as accidental loss or destruction, and human dangers such as unlawful access, fraudulent misuse, unlawful destruction, alteration, and contamination;
6.1.11 Ensure that its employees, agents, and representatives who are involved in the processing of personal information operate and hold personal information under strict confidentiality. This obligation shall continue even after their transfer to another position or upon termination of their employment or contractual relations;
6.1.12 Not to engage another processor without prior instruction from the Subscriber: Provided, that any such arrangement shall ensure that the same obligations for data protection under this document are implemented, taking into account the nature of the processing;
6.1.13 In case of data breach, promptly notify the Subscriber within twenty-four (24) hours or earlier from the time of discovery, to enable said Subscriber to notify the National Privacy Commission and the affected data subject or subscriber within the period prescribed under the Data Privacy Act of 2012, when sensitive personal information that may, under the circumstances, be used to enable identity fraud are reasonably believed to have been acquired by an unauthorized person, and the Subscriber, SMART, or the National Privacy Commission believes that such unauthorized acquisition is likely to give rise to a real risk of serious harm to any affected data subject or subscriber;
6.1.14 Promptly inform the Subscriber if, in its opinion, any instructions of the Subscriber violates, or may be construed to violate, any provision of the Data Privacy Act of 2012 or any other issuance of the National Privacy Commission;
6.1.15 Assist the Subscriber in ensuring compliance with the Data Privacy Act of 2012, its implementing rules and regulations, other relevant laws, and other issuances of the National Privacy Commission, taking into account the nature of processing and the information available to SMART;
6.1.16 At the choice of the Subscriber, delete, destroy, or return all personal data to the former after the end of the provision of services relating to the processing: Provided, that this includes deleting or destroying existing copies unless storage is authorized by the Data Privacy Act of 2012 or another law;
6.1.17 Make available to the Subscriber all information necessary to demonstrate compliance with the obligations laid down in the Data Privacy Act of 2012, and allow for and contribute to audits, including inspections, conducted by the Subscriber or another auditor mandated by the latter; and
6.1.18 Include all the foregoing in the privacy and security policy of SMART.

7.0 Suspension / Disconnection of Service

7.1 Default. The Subscriber agrees that in the event of failure to pay the Monthly Service Fee and other charges by the Due Date, subscription account shall no longer be deemed current and at the option of SMART the Service may be suspended, or discontinued without the need for judicial declaration, and the provisions on termination shall apply.
7.2 Disconnection. The Subscriber agrees that SMART may, without prior notice, disconnect the Service of any Subscriber whose bill remains unpaid after the specified Due Date. The Subscriber also agrees that SMART may suspend or terminate the Service in any of the following instances:

7.2.1 Violation by the Subscriber of the terms and conditions of this Agreement;
7.2.2 Misrepresentation or false statements by the Subscriber in the application for Service;
7.2.3 Illegal connection or use of unauthorized equipment or accessories; (d)Suspicious fraudulent misuse or abuse of Service, CPE and/or Peripherals;
7.2.4 Unauthorized transfer of Service;
7.2.5 Failure to notify SMART of change in billing address; and
7.2.6 Any other analogous cause. Whenever the disconnection leads to eventual termination, the effects of such termination shall retroact to the date of disconnection for the purpose of computing pre-termination charges.

Disconnection shall become permanent upon failure of the Subscriber to correct or rectify the ground for discontinuance of Service within thirty (30) days from suspension of Service. Disconnection of Service shall not be construed as a waiver of the outstanding tariff, charges, penalties, and surcharges accruing on overdue bills. The Subscriber agrees to hold SMART free and harmless from any liability and waives any action against the latter, which may arise as a result of such suspension or disconnection of Service.

7.3 Reconnection.  In the event of suspension or disconnection, SMART may, at its option, restore Service and/or require the Subscriber to rectify the cause of suspension upon payment of all outstanding obligations by the Subscriber, including any and all applicable fees. SMART may charge such fees for reconnection of the Service as it shall in its discretion determine.

8.0 Termination of Service

8.1 Termination by Subscriber. The Subscriber may terminate his subscription in writing by giving one (1) month prior notice for cancellation and by fully settling all his outstanding obligations with SMART. If termination is made during the lock-in period as stated in the Subscriber Application Form, the Subscriber shall pay a pre-termination fee that can be computed by: Total Pre-termination Charge = Full Device Acquisition Cost x No. of months remaining over Total Contract Period + Total SAC + Total Unbilled Usage or as may be specified at the sole discretion of SMART. In determining the unexpired period, a fraction of a month shall be considered as one (1) month.
8.2 Termination by SMART. SMART may terminate the Service or this Agreement for non-payment or delay in payment of the Subscriber’s accountabilities or violation by the Subscriber of any provision of this Agreement or for such other causes set forth in this Agreement. If termination is made during the lock-in period as stated in the Subscriber Application Form, the Subscriber shall pay a pre-termination fee in the amount of the full Monthly Service Fee multiplied by the number of the months left in the lock-in period as stated in the Subscriber Application Form or as may be specified at the sole discretion of SMART. In determining the unexpired period, a fraction of a month shall be considered as one (1) month.
8.3 Without prejudice to clause 8.2, SMART may discontinue or terminate the Service at any time by giving the Subscriber not less than thirty (30) days’ notice of such discontinuation or termination.
8.4 Subscriber Liability.The Subscriber possesses the CPE and/or Peripherals in trust for and on behalf of SMART. In the event that the Subscription is terminated for whatsoever reason, or if SMART disconnects the Service or terminates use of CPE and/or Peripherals equipment for non-payment or delay in the payment of the Subscriber’s accountabilities or violation of the terms and conditions of this Agreement, the Subscriber hereby authorizes SMART, its agents or representatives to enter the Subscriber’s premises where the CPE and/or Peripherals are installed, and allow SMART to pull out or remove such CPE and/or Peripherals.
8.5 Pullout of CPE and/or Peripherals. Upon termination of the Service, for any reason whatsoever, SMART shall have the right to pull-out the CPE and/or Peripherals.

9.0 Indemnification and Use of Service

9.1 General. The Subscriber shall indemnify and hold harmless SMART, its affiliates, partners, directors, officers, employees, shareholders, agents and representatives from and against all claims, causes of actions, judgments, damages, expenses and liabilities arising from or in connection with (a) the use of the Service by the Subscriber other than as permitted by this Agreement, and (b) the content of material that the Subscriber transmits through use of the Service including, but not limited to, claims for defamation, invasion of privacy, disparagement and/or alleged violation of trademark or copyright.
9.2 “As Is” Services. The Subscriber acknowledges that the Service is provided “as is”. SMART, ITS EMPLOYEES, AGENTS, SUPPLIERS, VENDORS AND DISTRIBUTORS MAKE NO WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, REGARDING THE QUALITY, ACCURACY OR VALIDITY OF THE DATA/OR INFORMATION AVAILABLE ON ITS SYSTEM, OR RESIDING ON OR PASSING THROUGH ITS INTERCONNECTING NETWORKS, OR THAT THE SMART SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. SMART EXPRESSLY EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE TO THE FULLEST EXTENT POSSIBLE BY LAW.
9.3 Venue of Suits and Litigation Expenses. In case of litigation arising out of this Agreement, all suits shall be exclusively filed with the proper court of Makati City only. The Subscriber hereby expressly waives all claims to any other venues. The Subscriber shall, in addition to the amount due and collectible, pay twenty-five (25%) of such amount as attorney’s fees and an equivalent amount for cost of suit.

10.0 Corporate Governance

The Parties warrant and represent that their business activities are regulated by their own internal business rules or Corporate Governance policies which are compliant with their applicable local laws. The Parties agree that any dispute, breach or violation of this Section shall be dealt with, remedied and/or resolved in accordance with the appropriate provisions of this Agreement on dispute settlement

11.0 Miscellaneous

11.1 Entire Agreement. This Agreement together with all attachments incorporated herein specifically by reference, represents the entire understanding of the Parties with respect to the subject matter hereof and all other agreements, whether written or oral, between the Parties relating to the Service shall be superseded by this Agreement. In entering into this Agreement, neither Party is relying upon any representation of warranties that are not set forth in this Agreement.
11.2 Assignment by SMART. SMART reserves the right to transfer or assign its rights and obligations under this Agreement whether in parts or in whole to any third party.
11.3 Modification. SMART reserves the right at its discretion to modify, delete or add to any of the terms and conditions of this Agreement at any time without further notice. It is the Subscriber’s responsibility to regularly check any changes to these Terms and Conditions. The Subscriber’s continued use of the Service after any such changes constitutes acceptance of the new Terms and Conditions.
11.4 Separability Clause. The Parties also agree that should any provision in this Agreement be declared void, invalid or ineffective for any reason whatsoever, the validity of the remaining provisions shall not be affected and shall continue to be binding.
11.5 Waiver.No waiver by SMART of any breach shall operate as a waiver of any other or subsequent breach. SMART shall not be prejudiced or restricted by any concessions, indulgence or forbearance.

Third Party Solutions Terms and Conditions

These Third Party Solutions Terms and Conditions shall supplement the Smart Enterprise Terms and Conditions for all solutions and/or hosting services provided by the third party Suppliers (“Suppliers” of “Third Party Products/Services”) of SMART that are connected to or used in conjunction with SMART’s telecommunications services.

  1. Should the Subscriber avail of these Third Party Products/Services, the Subscriber agrees to be bound by, and shall be responsible for causing all Users accessing the Third Party Products/Services to comply with, the End User License Agreement/ End User Service Agreement/ Terms of Use and Privacy Policy of the Third Party Product/Services Supplier (“Supplier Terms”) as each may be amended from time to time. The Subscriber shall be responsible for the acts and omissions by any User. Should the Subscriber fail to comply with Supplier Terms, SMART shall immediately cause the termination of your access to the Third Party Products/Services.
  2. Deployment, provisioning, activation, and training will be based on a mutually agreed timeline and only upon (a) submission of documentary requirements of SMART; (b) approval of the Subscriber’s application; and (c) payment of corresponding advance Monthly Service Fee, unless otherwise specified in writing.
  3. The security of the Subscriber's pre-assigned Service Access and the confidentiality of its Personal Identification Number (PIN) as well as the proper care and maintenance of the Hardware shall be the Subscriber's sole responsibility.
  4. Risk of loss, theft or damage to any of the data provided by the Subscriber shall be for the account of the Subscriber, unless proven that the same was caused by the fault or negligence of the Supplier. SMART shall not be liable for any loss, theft or damage to the data provided by the Subscriber.
  5. The Subscriber shall be responsible for the use of the Service and shall not use the Service nor allow the Service to be used to transmit, distribute or store contents or messages (including e-mail messages) which are inappropriate (including, but not limited to, obscene (including child pornography), defamatory, libelous, threatening, abusive, hateful, or excessively violent, harmful (including, but not limited to, viruses, worms, password-cracking programs or Trojan horses), and/or fraudulent or misleading (including, but not limited to, false, deceptive, or misleading statements, claims, or representations), as reasonably determined by SMART in accordance with generally accepted standards of the Internet community, nor to transmit or distribute unsolicited e-mail messages where such e-mail messages could reasonably be expected to provoke complaints (spam). The Subscriber shall not resell or sublicense any Third Party Products/Services availed through SMART.
  6. The Subscriber shall be responsible to take all reasonable measure to avoid any unauthorized or fraudulent use of the Service and shall immediately notify SMART of the same. The Subscriber shall be liable for all transactions from the use of the Service regardless of who may make such transactions or even if such charges were incurred through or as a result of such fraudulent or unauthorized use of the Service. Non-payment of bills or refusal on the part of the Subscriber to pay bills arising from these transactions shall be sufficient ground for SMART to discontinue the Service.
  7. The Third Party Products/Services are supplied on an "as is" basis without any express or implied warranties except for those provided in the Supplier Terms. The Subscriber waives any and all claims for service fees, compensations or other benefits as well as claims for liabilities, attorney's fees suits, costs and for any special, indirect, incidental or consequential damages OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES, RESULTING FROM THE USE OF OR THE INABILITY TO USE THE SERVICE, THE PERFORMANCE OF THE SERVICE, OR DAMAGES FOR LOSS OF GOODWILL, BUSINESS PROFIT, BUSINESS OPPORTUNITIES, BUSINESS STOPPAGE, LOSS OF DATA OR BUSINESS INFORMATION, COMPUTER DAMAGES, OR DAMAGES RESULTING FROM UNAUTHORIZED ACCESS TO OR CHANGES MADE TO CLIENTS TRANSMISSIONS OR DATA, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, against SMART or its officers, directors and employees or any of its affiliates, subsidiaries, suppliers or parent corporation(s) resulting from or arising out of the use (or inability to use) and access of the SERVICE.
PLDT Enterprise

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