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1.1 Provision of Service. This Agreement relates only to the Service provided by SMART and shall be in full force and effect from and after the actual date of approval by SMART of the application for the Service and shall continue until the end of the contract term as indicated in the Smart Enterprise Service Application Form (SAF), unless sooner terminated as provided herein. The Subscriber may continue by renewing the Service in writing after the said contract term by executing a retention request via the SAF.
2.1 This refers to all terminal equipment/unit issued by SMART connected to or used in conjunction with the Service ("Hardware"). SMART does not by this Agreement cover any representation or warranty for any telecommunications and related equipment that are not issued by SMART.
2.2 Hardware issued by SMART (except iPhone units) shall be subject to a seven (7) day replacement warranty commencing on the date of delivery of the Hardware. This warranty covers inherent defects only. After the 7-day period, the vendor’s warranty terms and conditions shall apply, and all warranty claims shall be made directly to the vendor’s accredited service centers.
2.3. Special terms and conditions apply to iPhone units.
3.1 The Subscriber shall pay all amounts due to SMART in respect of: .
3.1.1 A monthly fixed fee for the Services;
3.1.2 All charges incurred in using the Service; and
3.1.3 . Hardware cost, if applicable.
The fees paid or payable by the Subscriber to SMART pursuant to this Agreement shall be inclusive of all Philippine taxes.
The Value Added Tax (VAT), if any, shall be for the account of the Subscriber, provided that SMART submits its VAT registration certificate upon request for the Service and issues a duly registered VAT official receipt upon receipt of payment. In the event that the Subscriber will be required to withhold tax and remit the same to tax authorities, the Subscriber shall deduct the said tax from payments in relation to this Agreement. The Subscriber shall furnish SMART with the corresponding certificate of withholding tax within twenty (20) days after the end of each quarter.
3.2 The Subscriber agrees and assumes full responsibility for the charges incurred on the use of the Hardware and the Service pertaining to the lines registered under the Subscriber’s account.
3.3 The Subscriber agrees that it shall be fully responsible for the settlement of Hardware cost, if any, subject of this Agreement. The Subscriber shall bind itself to be continuously responsible of the Hardware cost regardless of assignments and movements of its User/s or transfer of use/ loss/ damage of the Hardware. The proper care and maintenance of the Hardware shall be the Subscriber's sole responsibility.
3.4 SMART may allow the Subscriber credit for using the Service up to a certain level and SMART may set, revoke, or impose conditions on such credit limit at any time. The Subscriber may request for an increase or decrease in the credit limit subject to SMART’s approval.
3.5 The Subscriber shall be liable for all outgoing calls, texts and other transactions, including those incurring roaming charges from the line regardless of who may make such calls, texts and other transactions, including those incurring roaming charges. Nonpayment of these charges or refusal on the part of the Subscriber to pay charges arising from these calls, texts and other transactions, including those incurring roaming charges shall be sufficient ground for SMART to discontinue the Service.
3.6 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 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.
3.7 The Subscriber agrees to pay on or before the date specified in the Service bill (“Due Date”) all charges stated on the bill. SMART may determine the billing period. Billing statement for the Service shall be rendered at regular intervals at the end of applicable billing cycles. Contested bills, if any, should be brought to the attention of SMART in writing within thirty (30) days from the receipt of the bill, otherwise the Subscriber shall be deemed to have accepted the correctness or accuracy of the bill. Any disputed amount resolved in favor of the Subscriber shall be credited to the Subscriber’s account. Any disputed amount determined to be payable to SMART shall be due within fifteen (15) days from notice of resolution of the dispute.
3.8 Notwithstanding the non-receipt of any bill, it shall be the Subscriber's responsibility to inform itself of the outstanding fees or charges through the designated enterprise touchpoints of SMART and effect payment, without need of further demand on or before the Due Date.
3.9 The Subscriber shall be charged SMART's applicable roaming rate and the roaming service activation fee, if any, in the event that the Subscriber avails of SMART's International Roaming Service. The International Roaming Service is active, by default, unless the Subscriber requests otherwise. In case of the latter, the Subscriber shall be responsible for notifying SMART within forty-eight (48) hours before leaving the Philippines. SMART shall not be liable for the failure of roaming partner to provide services in the roaming area.
3.10 The Subscriber agrees that all payments shall be applied first to bills in arrears, including interest and penalties. The balance, if any, will be applied to the current obligation.
3.11 The Subscriber agrees not to transfer this Agreement or any right or interest originating therefrom, to any person or entity without prior written approval from SMART. Pending approval of such transfer, the Subscriber shall remain liable for any all accrued fees and charges.
3.12 The Subscriber agrees that all cheques and other payments shall be made payable directly to SMART/authorized collection partners and any cheque payment made out, or any payment in cash made directly, to any representative or salesman shall be invalid.
4.1 SMART may require an advance payment as a pre-requisite for providing the Service. The advance payment shall bear no interest and shall be applied to the Subscriber’s final bill upon termination of the Service. In case the pre-payment is not sufficient to cover the final bill, SMART shall charge the Subscriber any deficiency. The balance of the advance payment, if any, shall be applied to other lines registered under the Subscriber’s account. If there are no outstanding balances from other lines, the Subscriber may file a written request for refund within ninety (90) days from termination of the Service and the balance of the advance payment shall be refunded to the Subscriber, without interest, within ninety (90) days from approval of the refund.
4.2 The Subscriber shall be charged a nominal fee for the processing of any Service modification requests including, but not limited to, plan downgrade, change in mobile identification number (MIN) or Subscriber Identity Module (SIM) Card, Service reconnection, redelivery of Hardware/SIM.
5.1 The security of the SIM Card and the confidentiality of the Personal Identification Number (PIN) as well as the proper care and maintenance of the SIM Card shall be the Subscriber's sole responsibility.
5.2 SMART, upon notification of lost SIM Card by Subscriber, shall immediately effect barring of outgoing calls / SMS/ data usage. All charges and fees accruing prior to the barring shall remain for the account of the Subscriber. The Subscriber should immediately request for a replacement SIM Card subject to fee, if any.
In case of (a) non-payment of the overdue account; or (b) exceeding the credit limit; or (c) such other cases as may be determined by SMART, SMART reserves the right, without incurring any liability and at the Subscriber's expense, to redirect the Service partially or in full. Upon full compliance with the requirements of SMART, the Service may be restored partially or in full. Failure of the Subscriber to comply with SMART's requirements will give SMART the option to terminate the Service permanently, subject to RA 7925 and its implementing rules, and to charge the appropriate pre-termination fee, if any.
7.1 The Subscriber may request a temporary disconnection of the Service by giving not less than seven (7) days prior written notice to SMART and by settling all amounts due to SMART. Such temporary disconnection shall not constitute a termination of the affected line or this Agreement if it does not exceed six (6) months.
7.2 If the temporary disconnection is for a period of more than six (6) months, SMART reserves the right to terminate the affected line or this Agreement without prejudice to the rights of SMART including the right to recover all amounts due from the Subscriber hereunder including, but not limited to, the pre-termination fee, together with any expense and cost (including legal costs) incurred in recovering such amounts due and no refund of any advance payment will be made to the Subscriber.
7.3 The Subscriber may request for reconnection after a temporary disconnection and the contract term shall be extended for the same duration of the temporary disconnection period. SMART may charge the appropriate reconnection fee, if any.
If the Subscriber or any other person, at the sole discretion of SMART, is found to use the Service including special usage offerings and promotions such as unlimited voice, unlimited SMS and unlimited internet services, for any abusive or fraudulent purpose or illegal activities, or is found to use abusive and/or indecent language to other subscribers or Company staff, 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.
The Subscriber’s right to use the Service is personal to the Subscriber or its Users. The Subscriber or any of its Users shall not engage in the following activities (“Unauthorized Activities”)
8.1 Resale or any commercial use of the Service, without the prior express written consent of SMART;
8.2 Utilization of the Service in bypassing or in activity/is that tend to bypass the SMART network, billing and/or traffic routing;
8.3 Use of the Service in prohibited services like callback, dial back, unauthorized audio text, international and national simple resale (ISR/NISR), international revenue share fraud (IRSF), premium rate service (PRS) fraud, internet fraud, hacking, SMS spamming, SMS flooding, SMS hoax, and other similar services; or
8.4 Tampering, altering, modification, or unauthorized programming of the SIM Card or its digital reference.
8.5 Use of SMART Subscriber Identity Module (SIM) cards with unauthorized types of devices apart from the intended hardware (i.e. smartphones or tablets) For example, SIM cards must not be inserted in portable hotspots and fixed routers. Otherwise, the Company reserves the right to temporarily suspend or terminate its service without prior notice.
8.6 Activities that are considered unlawful by the laws of the Republic of the Philippines;
8.7 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.;
8.8 Excessive contribution, where maximum allowable data usage within a billing cycle exceeds up to 60GB beyond the Service’s Anti-Bill Shock feature;
8.9 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, the Company has the right to take necessary actions including, but not limited to, the following:
8.10 SMART may implement network management practices to improve its service, to reduce network congestion, and/or to adapt to technological advancements;
8.11 SMART may downgrade Subscriber’s data speed in case of excessive usage at any point during a billing cycle;
8.12 SMART may obtain and monitor Subscriber’s usage information through reasonable and legal methods; and/or
8.13 SMART may temporarily disconnect, interrupt, or terminate the Subscriber’s data services without prior notice
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 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. 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 sole discretion in the determination of the bypass compensation. In addition to the Unauthorized Activities 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 (“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 and/or Illegal Activities. The Subscriber further authorizes SMART to supply any and all information requested by any law enforcement or government agency/is, or other private entities, the latter within the limits provided or 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.
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 representative in connection with SMART’s performance of the Agreement, shall, among others:
9.1 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;
9.2 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;
9.3 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;
9.4 Implement such measures and systems that will allow data subjects to exercise their right to access under the Data Privacy Act of 2012;
9.5 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;
9.6 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;
9.7 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;
9.8 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;
9.9 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;
9.10 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;
9.11 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;
9.12 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;
9.13 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;
9.14 Promptly inform the Subscriber if, in its opinion, any instructions of the Subscriber violate, or may be construed to violate, any provision of the Data Privacy Act of 2012 or any other issuance of the National Privacy Commission;
9.15 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;
9.16 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;
9.17 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
9.18 Include all the foregoing in the privacy and security policy of SMART.
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 provision or use of the Service including, without prejudice to the generality of the foregoing, any loss, costs, compensation, damage or liability to the Subscriber or third parties caused by:
10.1 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 circumstances beyond SMART's control (including, but not limited to, acts of God, strike, labor disputes, fire, disturbance, action of government, atmospheric conditions, lightning, interference or damage by third parties or any change in legislation);
10.2 any inaccuracy or omission, lack of clarity, interference in, misdirection or destruction of any information transmitted to or from the Subscriber howsoever caused;
10.3 any inaccuracy or omission, lack of clarity, interference in, misdirection or destruction of any information transmitted to or from the Subscriber howsoever caused;
10.4 theft or unauthorized use of the Hardware/SIM Card or any loss, costs, damages, or compensation incurred by or payable to any third party by the Subscriber;
10.5 any inherent defect in the Hardware or any defect or damage to the Hardware resulting from use other than in the normal and customary manner, subject to the warranties provided in sub-clause 2.2; or
10.6 transmission or non-transmission of any illegal, false, misleading, derogatory, libelous, obscene or vulgar messages or information.
11.1 SMART may temporarily suspend or terminate the Service without prior notice if:
11.1.1 The Subscriber fails to pay promptly any amount due and payable hereunder;
11.1.2 The Subscriber commits a breach of any of the terms of this Agreement; or
11.1.3 The Subscriber becomes bankrupt, fails to pay its debts as they fall due or any of its assets becomes subject to any form of winding up, administration, receivership, insolvency proceedings or it enters into any arrangements with its creditor generally.
11.2 Without prejudice to any of the sub-clause 11.1 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.
11.3 Any discontinuation or termination shall be without prejudice to the rights of SMART including the right to recover all amounts due from the Subscriber hereunder including, but not limited to, the pre-termination fee, if applicable, together with any expense and cost (including legal costs) incurred in recovering such amounts due. No refund of any advanced payment will be made to the Subscriber.
11.4 The Subscriber may terminate this Agreement at any time by giving SMART not less than thirty (30) days written notice of such termination, which shall become effective only upon settlement of all amounts due hereunder. Should the Subscriber pre-terminate this Agreement within the minimum contract term provided in the SAF, the Subscriber shall pay the pre-termination fee indicated in the applicable form.
11.5 I understand that Smart has the right to recover any amounts provided, such as, but not limited to:
11.5.1 Any subsidy provided by Smart to the Subscriber;
11.5.2 The value of the service unit; and
11.5.3 The value of any additional concessions given by Smart (i.e. free use of Smart products and services).
The Subscriber shall indemnify SMART against all liabilities, losses, damages, costs, charges, expenses (including legal costs) incurred by or brought against SMART arising directly or indirectly out of or in connection with any breach of the Subscriber's obligations hereunder.
The Subscriber acknowledges that it has not relied on any warranty, express or implied with regards to the Service provided hereunder.
The venue of all suits from this Agreement and of other suits directly or indirectly arising from the relationship between SMART and the Subscriber shall be exclusively in the proper courts in Makati City. The Subscriber hereby expressly waives claims to any other venue.
Complaints against SMART or its agents should be brought to the attention of the designated enterprise touch points of SMART.
16.1 TRANSFER OF OWNERSHIP/MIGRATION/DOWNGRADE
16.1.1 The Subscriber agrees that any transfer of ownership or migration or plan downgrade or cancellation/termination/disconnection of the Service can only be made without charges after expiration of the lock-in period from activation date of the corporate lines and Service and shall be subject to SMART’s approval. Otherwise, corresponding charges specified in the applicable Smart Enterprise Service Application Form or Smart Enterprise Retention Form and/or other related subscription contracts shall apply, if any.
16.1.2 The Subscriber further agrees to submit the required transfer documents and to fully settle the outstanding balance before any changes (e.g. transfer of ownership or migration, plan downgrade or cancellation/termination/disconnection of the Service) can be made. Any transfer of ownership or migration to individual account without submission of the required transfer documents will still make the Subscriber liable for all charges including, but not limited to, airtime charges.
16.2 For SIM only Subscriptions (if applicable)
16.2.1 This Agreement wholly applies for Corporate SIM-only Subscriptions. The Subscriber shall be fully responsible for the charges and possible legal circumstances in the event of Fraudulent and Unauthorized Use of the SIM by Users.
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 each of their applicable laws.
As a condition precedent to the execution of this Agreement, the parties agree to exchange their relevant Corporate Governance policies for review to ensure that entering into this Agreement will not conflict with, violate or contravene any of these policies. To the extent applicable to the implementation of this Agreement, the parties will comply with their respective internal business rules or Corporate Governance policies. In this connection, the parties shall [a] advise or inform each other about any violation, whether actual or potential, by any person of their respective and/or each other’s policies in relation to this Agreement; [b] address or resolve such violation in accordance with their own internal business rules or Corporate Governance policies; and, [c] inform the other party of the action taken thereon. In the event that this Agreement is later found to be violative of the internal business rules or Corporate Governance policies of either party, the parties shall negotiate in good faith to amend and revise this Agreement to make it compliant with the internal business rules or Corporate Governance policies found to have been violated.
The parties finally agree that any dispute, breach or violation of this provision shall be dealt with, remedied and/or resolved in accordance with the appropriate provisions of this Agreement on dispute settlement.
The parties finally agree that any dispute, breach or violation of this provision shall be dealt with, remedied and/or resolved in accordance with the appropriate provisions of this Agreement on dispute settlement.
18.1 This Agreement shall be governed and construed in accordance with the laws of the Philippines.
18.2 This Agreement together with SMART's records shall be final and conclusive evidence of any dispute between SMART and the Subscriber.
18.3 SMART reserves the right at its absolute discretion to modify, delete or add to any of the regulatory-affecting terms of this Agreement by giving notice in writing to the Subscriber. All other terms may be modified with the written consent of the Subscriber.
18.4 This Agreement constitutes the entire agreement between SMART and the Subscriber and supersedes all previous agreements (if any) between the parties, and the Subscriber acknowledges that in agreeing to enter into this Agreement it has not relied on any representation warranty or other assurance (including any that may have been made by any authorized agent or dealer of SMART) except those set out in this Agreement.
18.5 SMART's right shall not be prejudiced or restricted by any concession, indulgence or forbearance extended to the Subscriber.
18.6 No waiver by SMART of any breach shall operate as a waiver of any other subsequent breach.
18.7 All notices under this Agreement shall be in writing and sent to the registered office of SMART or the address of the Subscriber as stated in the Service Application Form or such other address which may be notified to SMART in writing from time to time.
18.8 Any complete or partial invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability for any other purpose of the remaining provisions.
18.9 Interest on all amounts outstanding to SMART shall accrue at the rate of 2% per month.
18.10 In case it will be necessary to use a lawyer or collection agency, the Subscriber shall pay 25% of the amount due as the collection or attorney's fees, in addition to billing for the Service, penalty and surcharges.