TERMS OF USE - Customer

USER AGREEMENT TO TERMS OF USE

These Terms of Use constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“you”) and Digicel (Tonga) Limited or an affiliate of ours (“we,” “us”, “our” or “Digicel”), concerning your access to and use of the B-Hive E-Commerce Platform as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto (collectively, the “Platform”).

These Terms of Use and your use of the Platform are governed by and construed in accordance with the laws of the following jurisdictions (as these apply to you, Digicel, Merchant and a third party vendor) (“Territory”):

Fiji and the courts of Fiji situated in Suva, Viti Levu.
Tonga and the courts of Tonga situated in Nuku’alofa, Tongatapu.

You agree that by accessing the Platform, you have read, understood, and agree to be bound by all of these Terms of Use. If you do not agree with all of these Terms of Use, then you are expressly prohibited from using the Platform and you must discontinue use immediately.

Supplemental terms and conditions or documents that may be posted on the Platform or provided on the Platform by Merchants from time to time are hereby expressly incorporated herein by reference. Digicel reserves the right, in our sole discretion, to make changes or modifications to these Terms of Use at any time and for any reason without prior notice to you.

Digicel will alert you about any changes by updating the “Last updated” date (above) of these Terms of Use, and you waive any right to receive specific notice of each such change.

It is your responsibility to periodically review these Terms of Use to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms of Use by your continued use of the Platform after the date such revised Terms of Use are posted.

The information provided on the Platform is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Digicel to any registration requirement within such jurisdiction or country.

Accordingly, users who choose to access the Platform from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.

The Platform is intended for users who are at least 18 years old. Persons under the age of 18 are not permitted to use or register for the Platform. If you are a minor, you must have your parent or guardian read and agree to these Terms of Use prior to you using the Platform and your parent or guardian are responsible for any and all account activity conducted by you.

INTELLECTUAL PROPERTY RIGHTS

Unless otherwise indicated, the Platform is Digicel’s proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Platform (collectively, the “Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by Digicel or licensed to Digicel, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of Territory and international conventions.

The Content and the Marks are provided on the Platform “AS IS” for your information and personal use only. Except as expressly provided in these Terms of Use, no part of the Platform and no Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without Digicel’s express prior written permission.

Provided that you are eligible to use the Platform, you are granted a limited license to access and use the Platform and to download or print a copy of any portion of the Content to which you have properly gained access solely for your personal, non-commercial use. Digicel reserves all rights not expressly granted to you in and to the Platform, the Content and the Marks.

USER REPRESENTATIONS

By using the Platform, you represent and warrant that:

(1) all registration information you submit will be true, accurate, current, and complete;

(2) you will maintain the accuracy of such information and promptly update such registration information as necessary;

(3) you have the legal capacity and you agree to comply with these Terms of Use;

(4) you are not under the age of 18;

(5) if you are a minor (17 years old and younger), you have received parental permission to use the Platform;

(6) you will not access the Platform through automated or non-human means, whether through a bot, script or otherwise;

(7) you will not use the Platform for any illegal or unauthorized purpose;

(8) your use of the Platform will not violate any applicable law or regulation.

If you provide any information that is untrue, inaccurate, not current, or incomplete, Digicel has the right to suspend or terminate your account and refuse any and all current or future use of the Platform (or any portion thereof).

USER REGISTRATION

You may be required to register with the Platform. You agree to keep your password confidential and will be responsible for all use of your account and password. Digicel reserves the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable or if it infringes someone’s intellectual property rights or otherwise violates these Terms.

You are solely responsible for any activity on your account. If you are sharing an account with other people, then the person whose financial information is on the account will be ultimately responsible for all activity. If you are registering as a business entity, you personally guarantee that you have the authority to agree to this Terms on behalf of the business.

PRODUCTS

Digicel makes every effort to display as accurately as possible the colors, features, specifications, and details of the products available on the Platform. However, Digicel does not guarantee that the colors, features, specifications, and details of the products will be accurate, complete, reliable, current, or free of other errors, and your electronic display may not accurately reflect the actual colors and details of the products.

All products offered by Merchants or third party vendors other than Digicel on the Platform, are subject to the guarantees and warranties of the Merchants or third party vendors and not Digicel. Digicel does not accept any liability arising out of or in connection to products offered by Merchants or third party vendors on the Platform.

All products are subject to availability, and Digicel cannot guarantee that items will be in stock whether such stock is held by Digicel or by Merchants or by third party vendors. Digicel reserves the right to discontinue any products at any time for any reason. Prices for all products are subject to change.

PURCHASES AND PAYMENT

The Platform accepts the following forms of payment: PayPal and MyCash. You agree to provide current, complete, and accurate purchase and account information for all purchases made via the Platform. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that Digicel can complete your transactions and contact you as needed. Sales tax will be added to the price of purchases as deemed required by Digicel or by Merchants or by third party vendors. Digicel may change prices at any time. All payments shall be in Fijian dollars or Tongan pa’anga (as applicable).

You agree to pay all charges at the prices then in effect for your purchases and any applicable shipping fees and storage/warehousing fees/charges and applicable taxes, and you authorize Digicel to charge your chosen payment provider for any such amounts upon placing your order. You are solely responsible for paying any applicable taxes for any purchases you make through the Platform.

Digicel reserves the right to correct any errors or mistakes in pricing, even if Digicel has already requested or received payment. Errors or mistakes in pricing by Merchants or by third party vendors shall be reviewed and addressed by the respective individual Merchant or third party vendor without placing any responsibility or liability on Digicel.

Digicel reserves the right to refuse any order placed through the Platform. Digicel may, in our sole discretion, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same customer account, the same payment method, and/or orders that use the same billing or shipping address. Digicel reserves the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers, or distributors.

RETURN/REFUNDS OR CANCELLATION POLICY

All returns, refunds or cancellations are subject to policies held by individual Merchants or by third party vendors on the Platform which Digicel shall ensure is clearly accessible or displayed by Merchants or by third party vendors on the Platform for your ease of reference. Users are advised by Digicel to read and understand these policies by individual Merchants or by third party vendors when transacting with a Merchant or with a third party vendor.

PROHIBITED ACTIVITIES

You may not access or use the Platform for any purpose other than that for which Digicel made the Platform available. The Platform may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by Digicel.

As a user of the Platform, you agree not to:

systematically retrieve data or other content from the Platform to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from Digicel.
make any unauthorized use of the Platform, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited emails, or creating user accounts by automated means or under false pretenses.
use a buying agent or purchasing agent to make purchases on the Platform.
use the Platform to advertise or offer to sell goods and services.
circumvent, disable, or otherwise interfere with security-related features of the Platform, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Platform and/or the Content contained therein.
engage in unauthorized framing of or linking to the Platform.
trick, defraud, or mislead Digicel and other users or Merchants or third party vendors, especially in any attempt to learn sensitive account information such as user passwords.
make improper use of Digicel’s support services or submit false reports of abuse or misconduct.
engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
interfere with, disrupt, or create an undue burden on the Platform or the networks or services connected to the Platform.
attempt to impersonate another user or person or use the username of another user.
sell or otherwise transfer your user profile.
use any information obtained from the Platform in order to harass, abuse, or harm another person.
use the Platform as part of any effort to compete with Digicel or otherwise use the Platform and/or the Content for any revenue-generating endeavor or commercial enterprise.
decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Platform.
attempt to bypass any measures of the Platform designed to prevent or restrict access to the Platform, or any portion of the Platform.
harass, annoy, intimidate, or threaten any of Digicel’s employees or agents engaged in providing any portion of the Platform to you.
delete the copyright or other proprietary rights notice from any Content.
copy or adapt the Platform’s software, including but not limited to Flash, PHP, HTML, JavaScript, or other code.
upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Platform or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Platform.
upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”).
except as may be the result of standard search engine or internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Platform, or using or launching any unauthorized script or other software.
disparage, tarnish, or otherwise harm, in our opinion, us and/or the Platform.
use the Platform in a manner inconsistent with any applicable laws or regulations.

USER GENERATED CONTRIBUTIONS

The Platform may invite you to chat, contribute to, or participate in blogs, message boards, online forums, and other functionality, and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials to Digicel or on the Platform, including but not limited to text, writings, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively, "Contributions").

Contributions may be viewable by other users of the Platform and through third-party websites. As such, any Contributions you transmit may be treated as non-confidential and non-proprietary. When you create or make available any Contributions, you thereby represent and warrant that:

the creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
you are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize Digicel, the Platform, and other users of the Platform to use your Contributions in any manner contemplated by the Platform and these Terms of Use.
you have the written consent, release, and/or permission of each and every identifiable individual person in your Contributions to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of your Contributions in any manner contemplated by the Platform and these Terms of Use.
your Contributions are not false, inaccurate, or misleading.
your Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable (as determined by Digicel).
your Contributions do not ridicule, mock, disparage, intimidate, or abuse anyone.
your Contributions do not advocate the violent overthrow of any government or incite, encourage, or threaten physical harm against another.
your Contributions do not violate any applicable law, regulation, or rule.
your Contributions do not violate the privacy or publicity rights of any third party.
your Contributions do not contain any material that solicits personal information from anyone under the age of 18 or exploits people under the age of 18 in a sexual or violent manner.
your Contributions do not violate any federal or state law concerning child pornography, or otherwise intended to protect the health or well-being of minors;
your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or disability.
your Contributions do not otherwise violate, or link to material that violates, any provision of these Terms of Use, or any applicable law or regulation.

Any use of the Platform in violation of the foregoing violates these Terms of Use and may result in, among other things, immediate termination or suspension of your rights to use the Platform.

CONTRIBUTION LICENSE

By posting your Contributions to any part of the Platform or making Contributions accessible to the Platform by linking your account from the Platform to any of your social networking accounts, you automatically grant, and you represent and warrant that you have the right to grant, to us an unrestricted, unlimited, irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully-paid, worldwide right, and license to host, use, copy, reproduce, disclose, sell, resell, publish, broadcast, retitle, archive, store, cache, publicly perform, publicly display, reformat, translate, transmit, excerpt (in whole or in part), and distribute such Contributions (including, without limitation, your image and voice) for any purpose, commercial, advertising, or otherwise, and to prepare derivative works of, or incorporate into other works, such Contributions, and grant and authorize sublicenses of the foregoing. The use and distribution may occur in any media formats and through any media channels.

This license will apply to any form, media, or technology now known or hereafter developed, and includes our use of your name, company name, and franchise name, as applicable, and any of the trademarks, service marks, trade names, logos, and personal and commercial images you provide. You waive all moral rights in your Contributions, and you warrant that moral rights have not otherwise been asserted in your Contributions.

Digicel does not assert any ownership over your Contributions. You retain full ownership of all of your Contributions and any intellectual property rights or other proprietary rights associated with your Contributions. Digicel is not liable for any statements or representations in your Contributions provided by you in any area on the Platform.

You are solely responsible for your Contributions to the Platform and you expressly agree to exonerate Digicel from any and all responsibility and to refrain from any legal action against Digicel regarding your Contributions.

Digicel has the right, in our sole and absolute discretion, (1) to edit, redact, or otherwise change any Contributions; (2) to re-categorize any Contributions to place them in more appropriate locations on the Platform; and (3) to pre-screen or delete any Contributions at any time and for any reason, without notice. Digicel has no obligation to monitor your Contributions.

GUIDELINES FOR REVIEWS

We may provide you areas on the Platform to leave reviews or ratings. When posting a review, you must comply with the following criteria:

(1) you should have firsthand experience with the person/entity being reviewed;

(2) your reviews should not contain offensive profanity, or abusive, racist, offensive, or hate language;

(3) your reviews should not contain discriminatory references based on religion, race, gender, national origin, age, marital status, sexual orientation, or disability;

(4) your reviews should not contain references to illegal activity;

(5) you should not be affiliated with competitors if posting negative reviews;

(6) you should not make any conclusions as to the legality of conduct;

(7) you may not post any false or misleading statements;

(8) you may not organize a campaign encouraging others to post reviews, whether positive or negative.

We may accept, reject, or remove reviews at our sole discretion. We have absolutely no obligation to screen reviews or to delete reviews, even if anyone considers reviews objectionable or inaccurate. Reviews are not endorsed by us, and do not necessarily represent our opinions or the views of any of our affiliates or partners.

We do not assume liability for any review or for any claims, liabilities, or losses resulting from any review. By posting a review, you hereby grant to us a perpetual, non-exclusive, worldwide, royalty-free, fully-paid, assignable, and sublicensable right and license to reproduce, modify, translate, transmit by any means, display, perform, and/or distribute all content relating to reviews.

MOBILE APPLICATION LICENSE

User License

If you access the Platform via a mobile application, then Digicel grants you a revocable, non-exclusive, non-transferable, limited right to install and use the mobile application on wireless electronic devices owned or controlled by you, and to access and use the mobile application on such devices strictly in accordance with the terms and conditions of this mobile application license contained in these Terms of Use.

You shall not:

(1) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the application;

(2) make any modification, adaptation, improvement, enhancement, translation, or derivative work from the application;

(3) violate any applicable laws, rules, or regulations in connection with your access or use of the application;

(4) remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) posted by us or the licensors of the application;

(5) use the application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended;

(6) make the application available over a network or other environment permitting access or use by multiple devices or users at the same time;

(7) use the application for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for the application;

(8) use the application to send automated queries to any website or to send any unsolicited commercial e-mail;

(9) use any proprietary information or any of our interfaces or our other intellectual property in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with the application.

Apple and Android Devices

The following terms apply when you use a mobile application obtained from either the Apple Store or Google Play (each an “App Distributor”) to access the Platform:

(1) the license granted to you for Digicel’s mobile application is limited to a non-transferable license to use the application on a device that utilizes the Apple iOS or Android operating systems, as applicable, and in accordance with the usage rules set forth in the applicable App Distributor’s terms of service;

(2) Digicel is responsible for providing any maintenance and support services with respect to the mobile application as specified in the terms and conditions of this mobile application license contained in these Terms of Use or as otherwise required under applicable law, and you acknowledge that each App Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the mobile application;

(3) in the event of any failure of the mobile application to conform to any applicable warranty, you may notify the applicable App Distributor, and the App Distributor, in accordance with its terms and policies, may refund the purchase price, if any, paid for the mobile application, and to the maximum extent permitted by applicable law, the App Distributor will have no other warranty obligation whatsoever with respect to the mobile application;

(4) you represent and warrant that (i) you are not located in a country that is subject to a government embargo, or that has been designated by the government as a “terrorist supporting” country and (ii) you are not listed on any government list of prohibited or restricted parties;

(5) you must comply with applicable third-party terms of agreement when using the mobile application, e.g., if you have a VoIP application, then you must not be in violation of their wireless data service agreement when using the mobile application;

(6) you acknowledge and agree that the App Distributors are third-party beneficiaries of the terms and conditions in this mobile application license contained in these Terms of Use, and that each App Distributor will have the right (and will be deemed to have accepted the right) to enforce the terms and conditions in this mobile application license contained in these Terms of Use against you as a third-party beneficiary thereof.

SUBMISSIONS

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the Platform ("Submissions") provided by you to Digicel are non-confidential and shall become Digicel’s sole property. Digicel shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you.

You hereby waive all moral rights to any such Submissions, and you hereby warrant that any such Submissions are original with you or that you have the right to submit such Submissions. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your Submissions.

THIRD-PARTY WEBSITES AND CONTENT

The Platform may contain (or you may be sent via the Platform) links to other websites ("Third-Party Websites") as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties ("Third-Party Content").

Such Third-Party Websites and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by Digicel, and Digicel is not responsible for any Third Party Websites accessed through the Platform or any Third-Party Content posted on, available through, or installed from the Platform, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites or the Third-Party Content.

Inclusion of, linking to, or permitting the use or installation of any Third-Party Websites or any Third-Party Content does not imply approval or endorsement thereof by Digicel. If you decide to leave the Platform and access the Third-Party Websites or to use or install any Third-Party Content, you do so at your own risk, and you should be aware these Terms of Use no longer govern.

You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Platform or relating to any applications you use or install from the Platform. Any purchases you make through Third-Party Websites will be through other websites and from other companies, and Digicel takes no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party.

You agree and acknowledge that Digicel does not endorse the products or services offered on Third-Party Websites and you shall hold Digicel harmless from any harm caused by your purchase of such products or services. Additionally, you shall hold Digicel harmless from any losses sustained by you or harm caused to you relating to or resulting in any way from any Third-Party Content or any contact with Third-Party Websites.

ADVERTISERS

Digicel allows advertisers to display their advertisements and other information in certain areas of the Platform, such as sidebar advertisements or banner advertisements. If you are an advertiser, you shall take full responsibility for any advertisements you place on the Platform and any services provided on the Platform or products sold through those advertisements.

Further, as an advertiser, you warrant and represent that you possess all rights and authority to place advertisements on the Platform, including, but not limited to, intellectual property rights, publicity rights, and contractual rights.

As an advertiser, you agree that such advertisements are subject to Digicel’s standards, and you understand and agree there will be no refund or other compensation for any takedown-related issues.

PLATFORM MANAGEMENT

Digicel reserves the right, but not the obligation, to:

(1) monitor the Platform for violations of these Terms of Use;

(2) take appropriate legal action against anyone who, in Digicel’s sole discretion, violates the law or these Terms of Use, including without limitation, reporting such user to law enforcement authorities;

(3) in Digicel’s sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your Contributions or any portion thereof;

(4) in Digicel’s sole discretion and without limitation, notice, or liability, to remove from the Platform or otherwise disable all files and content that are excessive in size or are in any way burdensome to Digicel’s systems;

(5) otherwise manage the Platform in a manner designed to protect Digicel’s rights and property and to facilitate the proper functioning of the Platform.

By using the Platform, you agree to be bound by Digicel’s Privacy Policy, which is incorporated into these Terms of Use. Please be advised the Platform is hosted in Fiji.

If you access the Platform from the United States of America, European Union, Asia, or any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in Fiji, then through your continued use of the Platform, you are transferring your data to Fiji, and you expressly consent to have your data transferred to and processed in Fiji.

Further, Digicel does not knowingly accept, request, or solicit information from children or knowingly market to children. Therefore, if Digicel receives actual knowledge that anyone under the age of 18 has provided personal information to Digicel without the requisite and verifiable parental consent, Digicel will delete that information from the Platform as quickly as is reasonably practical.

NOTICE POLICY

Notifications

You may notify Digicel using the contact information provided below (a “Notification”).

Please be advised that pursuant to law you may be held liable for damages if you make material misrepresentations in a Notification. Thus, if you are not sure, you should consider first obtaining independent legal advice as you may be liable for damages, including costs and legal fees. Filing a false Notification may constitute perjury.

Digicel (Fiji) Pte Limited

Attn: Legal & Regulatory

Level 3

Digicel House

5 Vuna Road

Nabua

Suva

Viti Levu

Fiji

Digicel (Tonga) Limited

Attn: Legal & Regulatory

Fatafehi Road

Nuku’alofa

Tongatapu

Tonga

We respect the intellectual property rights of others. If you believe that any material available on or through the Platform infringes upon any copyright you own or control, please immediately notify us using the contact information provided above (a “Notification”). A copy of your Notification will be sent to the person who posted or stored the material addressed in the Notification.

Please be advised that pursuant to law you may be held liable for damages if you make material misrepresentations in a Notification. Thus, if you are not sure that material located on or linked to by the Platform infringes your copyright, you should consider first obtaining independent legal advice.

TERM AND TERMINATION

These Terms of Use shall remain in full force and effect while you use the Platform. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF USE, DIGICEL RESERVES THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE PLATFORM (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OF USE OR OF ANY APPLICABLE LAW OR REGULATION. DIGICEL MAY TERMINATE YOUR USE OR PARTICIPATION IN THE PLATFORM OR DELETE YOUR ACCOUNT AND ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.

If Digicel terminates or suspends your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party.

In addition to terminating or suspending your account, Digicel reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.

On termination of your account for any reason, by you or by Digicel, will not affect the availability of some of your Contribution that you posted through the Platform prior to termination. You will also be required to pay any outstanding invoices and bills. If Digicel terminates or suspends your account, you may lose any information associated with your account, including your Contribution.

MODIFICATIONS AND INTERRUPTIONS

Digicel reserves the right to change, modify, or remove the contents of the Platform at any time or for any reason at our sole discretion without notice. However, Digicel has no obligation to update any information on the Platform. Digicel also reserves the right to modify or discontinue all or part of the Platform without notice at any time.

Digicel will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Platform.

Digicel cannot guarantee the Platform will be available at all times. Digicel may experience hardware, software, or other problems or need to perform maintenance related to the Platform, resulting in interruptions, delays, or errors. Digicel reserves the right to change, revise, update, suspend, discontinue, or otherwise modify the Platform at any time or for any reason without notice to you.

You agree that Digicel has no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Platform during any downtime or discontinuance of the Platform. Nothing in these Terms of Use will be construed to obligate Digicel to maintain and support the Platform or to supply any corrections, updates, or releases in connection therewith.

GOVERNING LAW

These Terms of Use and your use of the Platform are governed by and construed in accordance with the laws of the Territory applicable to agreements made and to be entirely performed within Territory.

DISPUTE RESOLUTION

Option 1: Any legal action of whatever nature brought by either you or us (collectively, the “Parties” and individually, a “Party”) shall be commenced or prosecuted in Territory and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in such courts located in Territory (as applicable).

Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are excluded from these Terms of Use. To the extent permitted by the law in the Territory, in no event shall any claim, action, or proceeding brought by either Party related in any way to the Platform be commenced more than 1 year after the cause of action arose.

Option 2: Informal Negotiations

To expedite resolution and control the cost of any dispute, controversy, or claim related to these Terms of Use (each a "Dispute" and collectively, the “Disputes”) brought by either you or Digicel (individually, a “Party” and collectively, the “Parties”), the Parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least 60 days before initiating arbitration. Such informal negotiations commence upon written notice from one Party to the other Party of the Dispute.

Binding Arbitration

If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration.

The arbitration fees and share of arbitrator compensation shall be governed by the arbitrator.

The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so.

Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in Territory (as applicable), and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in the Territory. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are excluded from these Terms of Use.

To the extent permitted by the law in the Territory, in no event shall any Dispute brought by either Party related in any way to the Platform be commenced more than 1 year after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.

Restrictions

The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.

Exceptions to Informal Negotiations and Arbitration

The Parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (c) any claim for injunctive relief.

If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.

CORRECTIONS

There may be information on the Platform that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. Digicel reserves the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Platform at any time, without prior notice.

DISCLAIMER

THE PLATFORM IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE PLATFORM WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE PLATFORM AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, WARRANTIES OF TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AS WELL AS ANY WARRANTIES IMPLIED BY A COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. DIGICEL MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE PLATFORM’S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THIS PLATFORM AND DIGICEL WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE PLATFORM, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE PLATFORM, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE PLATFORM BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE PLATFORM. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE PLATFORM, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND DIGICEL WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

LIMITATIONS OF LIABILITY

IN NO EVENT WILL DIGICEL OR OUR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE PLATFORM, EVEN IF DIGICEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, DIGICEL’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE LESSER OF THE AMOUNT PAID, IF ANY, BY YOU TO DIGICEL DURING THE 12 MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING OR US$200.00.

INDEMNIFICATION

You agree to defend, indemnify, and hold Digicel harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable legal fees and expenses, made by any third party due to or arising out of: (1) your Contributions; (2) use of the Platform; (3) breach of these Terms of Use; (4) any breach of your representations and warranties set forth in these Terms of Use; (5) your violation of the rights of a third party, including but not limited to intellectual property rights; or (6) any overt harmful act toward any other user of the Platform with whom you connected via the Platform.

Notwithstanding the foregoing, Digicel reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Digicel, and you agree to cooperate, at your expense, with Digicel’s defense of such claims. Digicel will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.

USER DATA

Digicel will maintain certain data that you transmit to the Platform for the purpose of managing the performance of the Platform, as well as data relating to your use of the Platform. Although Digicel performs regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Platform.

You agree that Digicel shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against Digicel arising from any such loss or corruption of such data.

ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES

Visiting the Platform, sending Digicel emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications Digicel provides to you electronically, via email and on the Platform, satisfy any legal requirements that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY DIGICEL OR VIA THE PLATFORM.

You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.

MISCELLANEOUS

These Terms of Use and any policies or operating rules posted by Digicel on the Platform or in respect to the Platform constitute the entire agreement and understanding between you and Digicel. Digicel’s failure to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision.

These Terms of Use operate to the fullest extent permissible by law. Digicel may assign any or all of our rights and obligations to others at any time. Digicel shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control.

If any provision or part of a provision of these Terms of Use is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Use and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between you and Digicel as a result of these Terms of Use or use of the Platform.

You agree that these Terms of Use will not be construed against Digicel by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms of Use and the lack of signing by the parties hereto to execute these Terms of Use.

CONTACT DIGICEL

In order to resolve a complaint regarding the Platform or to receive further information regarding use of the Platform, please contact Digicel at customercare@digicelgroup.com.

GENERAL TERMS & CONDITIONS - Merchant

1. THE PLATFORM

Digicel shall provide the Merchant access to and use of Digicel’s e-commerce platform “B-Hive” (“Platform”) according to the Merchant Agreement and these general terms and conditions.

2. DIGICEL’S ACCEPTANCE OF THE MERCHANT

Digicel shall vet a Merchant and enable, in its sole discretion, a Merchant to access and trade on the Platform.

3. PLATFORM FRAUD AND RISK CONTROLS

All transactions processed by Digicel on the Platform (“Transaction”) will, from time to time, be screened and Digicel may take action as it sees fit to limit the visibility of your shop, listings or ads where we see unusual orders or activity or where we otherwise believe that your actions or shop may result in buyer disputes, chargebacks, increased risk of fraud or other claims.
Digicel does not guarantee the prevention of fraudulent Transactions.
Digicel reserves the right to reject or cancel Transactions that Digicel has reasonable grounds to suspect to be fraudulent or involving other criminal activities.

4. PROVIDING MERCHANT SUPPORT

If the Merchant experiences problems with the Platform, it may contact Digicel for assistance. Digicel may investigate and notify the Merchant of the severity of the problem and use reasonable commercial efforts to remedy the problem, if possible. Digicel will notify the Merchant upon the resolution of any request.

5. MERCHANT’S OBLIGATIONS

In order to enable Digicel to comply with the laws of the Territory (“Applicable Law”), including but not limited to anti-terrorism, financial services, anti-tax evasion and anti-money laundering laws and regulations imposing Know Your Customer (“KYC”) requirements, the Merchant must, before entering into the Agreement, and thereafter on Digicel’s first request, provide information:

about itself as registered with the Registrar of Companies/Business in the Territory,
its solvency,
its activities,
the Merchant products/services,
any and all regulatory licences and registrations required to sell Merchant’s products/services.

The Merchant warrants unconditionally that all data it provides to Digicel under this Clause 5(a) is correct and up to date, and undertakes to provide Digicel with at least five (5) Business Days prior written notice of any material change to any part of the data.
If the Merchant fails to provide the data requested in Clause 5(a), Digicel reserves the right to suspend the Merchant’s use of the Platform until such data is provided.
The Merchant agrees that Digicel may run further checks on Merchant’s identity, creditworthiness and background by contacting and consulting relevant registries and governmental authorities or any other relevant sources and, where relevant, the Merchant will cooperate with Digicel in running these checks.
The Merchant is and remains solely responsible to ensure that the Merchant’s products/services sold are compliant with Applicable Law and by listing a product for sale on the Platform you understand and agree that you are responsible for complying with all Applicable Laws and regulations for the products you list for sale including required labels and warnings; and

The Merchant shall be responsible for ensuring they have all necessary rights to their content and they are not infringing or violating any third party’s rights by posting on the Platform.
Digicel’s acceptance of the Merchant should not be interpreted as an advice or opinion as to the legality of the Merchant’s products/services, and/or of Merchant’s intended use of the Platform.

The Merchant shall comply with the applicable payment scheme rules and is strongly advised to regularly review current payment scheme rules (and in particular card scheme rules) and the Applicable Law as applicable to its products/services and business practices to ensure its compliance.
Where Digicel becomes aware of and/or receives any notice of a potential exposure to a fine or penalty related to any Merchant behaviour, the Merchant will on Digicel’s first request provide all reasonable co-operation to help investigate the relevant circumstances and remedy the relevant violation, notwithstanding all other rights and remedies Digicel might have in such situation.

The Merchant guarantees not to copy, capture or intercept information relating to customer payment instruments such as card numbers, MyCash details.
The Merchant shall immediately notify Digicel if any information relating to customer payment instrument is breached or compromised.
The Merchant must notify Digicel in writing immediately if it believes there has been or will be an error, or misappropriation or unauthorized use of the Platform. The Merchant must give Digicel all the information in its possession as to the circumstances of any errors and/or misappropriation or unauthorized use of the Platform and take all reasonable steps to assist Digicel in any investigation to be conducted.

6. REFUNDS

The Merchant must disclose to all customers the description of the refund, return and cancellation policy as provided in Schedule B of the Agreement.
Digicel reserves the right to refuse to execute a refund if it is prohibited by the Applicable Law or does not meet the conditions of this Agreement.

7. MERCHANT SERVICE FEES

The Merchant shall pay to Digicel all applicable fees set out in the Pricing Schedule in Schedule A of the Agreement or as notified to the Merchant by Digicel from time to time without any deductions, set-off or withholding on account of any tax of any country or any other government charge, duty, impost or other deduction or withholding whatsoever. If the Merchant is compelled to make any deduction or withholding on any account, the Merchant must pay such additional sums as necessary to ensure that Digicel receives the total amount as stated in the Pricing Schedule.
Digicel may share your personal or transactional information with third-party service providers such as PayPal or MyCash for purposes related to payments processing.
If Digicel receives notice that a Merchant’s content or activity violates a third party’s service agreement, Digicel may at its sole discretion take action against the Merchant’s account. Such actions may include cancelling a transaction, disabling listings from Merchant’s account, suspending or terminating Merchant’s selling privilege or removing certain payment methods.
As a security measure, Digicel may impose transaction limits on Merchants.

8. TAXES

Unless stated otherwise, all Digicel’s fees, charges and other payments to be made are exclusive of Goods and Services or Value Added Tax (VAT), and any other applicable taxes or levies under any Applicable Law, for which the Merchant will be separately liable.
It is the Merchant’s responsibility to determine what, if any, taxes apply to the sale of its products and services and/or the payments it receives in connection with its use of the Platform (“Taxes”). It is solely the Merchant’s responsibility to assess, collect, report, or remit the correct tax to the relevant tax authority. Digicel is not obligated to, nor will Digicel, determine whether Taxes apply, and will not calculate, collect or remit any Taxes to any tax authority arising from any Transaction, and this remains strictly Merchant’s liability.
If there is any change in the Applicable Law or in its interpretation occurring after the commencement date which may affect Digicel’s ability to pay taxes, then Digicel may, on a reasonable basis, change the provisions of these terms in whatever Digicel believes appropriate, to reflect the additional tax burden, government charges or relief.

9. CONFIDENTIALITY

For the purposes of this clause, confidential information includes all material, non-public, business-related information, written or oral, disclosed or made available between Digicel and the Merchant, directly or indirectly and through any means of communication (“Confidential Information”).

The Parties shall:

use the Confidential Information only for the purposes of this Agreement;
not disclose Confidential Information to any third party apart from their legal advisers, unless legally required or specifically authorized under this Agreement, without the prior written consent of the disclosing party;
protect and safeguard Confidential Information against unauthorized disclosure and access to a standard that it applies to its own confidential information and in any case with reasonable skill and care.

10. REMEDIES

The parties to this Agreement acknowledge that in the event of an actual, impending or threatened breach of any term of this Agreement, damages may be an inadequate remedy and therefore, without limiting any other remedy available at law or in equity, an injunction, specific performance or other forms of equitable relief or monetary damages or any combination thereof shall be available to the non-breaching party without the need to give security or undertakings as to damages.

11. DATA PROTECTION AND PRIVACY

By accepting this Agreement the Merchant acknowledges that it has read and understood the content of Digicel’s Privacy Policy (https://www.digicelgroup.com/en/privacy-policy.html).

12. TERM AND TERMINATION

a) The Agreement is effective upon the date the Merchant accepts and signs the Agreement, by electronic means or otherwise, and except where explicitly agreed otherwise in the Agreement, the Agreement is entered into for an indefinite period until it is terminated without cause: (i) by Digicel by giving three (3) months’ prior written notice to the Merchant; or (ii) by the Merchant by giving three (3) months’ prior written notice to Digicel.

b) Digicel has the right to terminate the Agreement immediately without notice and for convenience and/or to suspend the provision of any service to the Merchant immediately upon written notice in part, or in whole, if:

The provision of Merchant products/services is reasonably suspected by Digicel to be in breach of the Applicable Law (including but not limited to anti-money laundering and terrorist financing legislations); or
The Merchant infringes or is suspected of infringing intellectual property rights, copyrightable works, patented inventions, trademarks and trade secrets, or is suspected of selling counterfeit and/or knockoff products/items/goods;
The Merchant materially changes the type of the Merchant products/services without obtaining Digicel’s prior written permission to use the Platform for the new or changed services/products, or it is discovered by Digicel that the Merchant provided substantially misleading and/or false information about the products/services; or
The Merchant becomes insolvent or subject to any form of insolvency, administration or is wound up.

In the event of a breach of any term of this Agreement by the Merchant that is remediable, including failure to pay in accordance with the Pricing Schedule and Payment Terms, Digicel will provide the Merchant five (5) days written notice to rectify breach, and if the breach continues, Digicel may immediately terminate this Agreement subject to its rights under clause 10.

13. REPRESENTATIONS AND WARRANTIES

The Merchant represents and warrants to Digicel that:

(a) it, shall not, directly or indirectly, mischaracterise or disparage any of Digicel or its representatives; (b) it shall not use the Platform in connection with any illegal or fraudulent business activities; (c) it is a validly organised and validly existing legal entity (whether a company, business, individual) in good standing under the laws where its principal office (or resident, as applicable) is located and shall inform Digicel immediately should this change; (d) it has obtained and shall maintain any and all licences, permits and registrations required under the Applicable Law to conduct its business in all jurisdictions where it sells the Merchant products/services, and shall inform Digicel immediately should this change; (e) it has the power to execute, deliver and perform this Agreement, and this Agreement is duly authorized, and will not violate any provisions of law, or conflict with any other agreement to which such party is subject; (f) to the best of its knowledge, there is no action, suit or proceeding at law or in equity now pending or threatened by or against or affecting the Merchant which would substantially impair its right to carry on its business as now conducted or adversely affect its financial condition or operations; (g) its directors, shareholders and ultimate beneficial owners have never been convicted of a criminal offence and are not currently subject of any investigation relating to any criminal offence, and the Merchant undertakes to inform Digicel immediately should this change; (h) its directors, shareholders and ultimate beneficial owners are not listed on any of financial sanction lists and the Merchant undertakes to inform Digicel immediately should this change.

14. INDEMNITY, LIABILITY AND LIMITATION OF LIABILITY

In any case where damages, costs and expenses are asserted against the Merchant by third parties who claim that they are the owner of any intellectual property (IP) rights regarding our software and/or systems Digicel shall indemnify the Merchant without delay for these third-party claims, including Merchant’s reasonable costs of its legal defence, and offer the Merchant the necessary assistance in its legal defence. Digicel reserves the right to assume exclusive defence and control of any matter for which Digicel is required to indemnify you.
The Merchant shall indemnify and hold Digicel and its subsidiaries, affiliates and officers, agents, partners and employees harmless from any claim, loss, damage, liability or demand(including reasonable legal fees) brought against Digicel by any third party (expressly including the payment schemes and their claims for payments of assessments and related costs) arising out of: (i) Merchant’s or its employees' or agents' breach of the terms of the Agreement, (ii) Merchant’s or its employees' or agents' breach of the Applicable Law and/or of the payment scheme rules applying to the Platform used by Merchant.
The Merchant shall indemnify and hold Digicel and its subsidiaries, affiliates and officers, agents, partners and employees harmless from any losses related to third party IP right infringements, and any other losses, claims, actions, injuries, liabilities, fines, penalties or expenses (including reasonable legal costs) arising out of or in connection with this Agreement.

15. LIMITATION OF LIABILITY

To the fullest extent permitted by the Applicable Law, Digicel’s total liability or the total liability of the Digicel Group Companies (and our and their respective employees, directors, agents and representatives) arising out of or in connection with this Agreement, whether in contract or in tort or other legal theory, shall not exceed the total amount of the Merchant service fees as set out in the Pricing Schedule in connection with the Merchant’s use of the Platform during the twelve (12) months period immediately preceding the event giving rise to the claim for liability.

16. SEVERABILITY

If any provision of this Agreement is found by any court or a competent public body or authority to be illegal, invalid or unenforceable:

such illegality, invalidity or unenforceability shall not affect the other provisions of this Agreement, which shall remain in full force and effect; and
if such provision would cease to be illegal, invalid or unenforceable if some part of the provision were modified or deleted, the provision in question shall apply with such minimum modification or deletion as may be necessary to make it legal, valid and enforceable.

17. ENTIRE AGREEMENT

The parties agree that the Agreement and the General Terms & Conditions constitutes the entire agreement between them, and supersedes all other prior agreements, arrangements, understandings or representations between them, whether oral or written, other than any securities or written pledges, undertakings or assurances which the Merchant may have previously given to us as a condition precedent or in anticipation of the Agreement.

18. NOTICES AND CONSENT TO ELECTRONIC COMMUNICATIONS AND ELECTRONIC SIGNATURE CONSENT

Any notice or other official communication given to a party under or in connection with the Agreement shall be in writing and in the English language, and (in the case of (i), (ii) and (iii) as follows) addressed to that party at its registered office address or such other address as that party may have specified to the other party in writing in accordance with this clause and shall be: (i) delivered personally, (ii) sent by pre-paid first class post or other next working day delivery service, (iii) delivered by a commercial courier, (iv) emailed to the email address specified in writing or as set out in The Platform, (v) published in The Platform, or (vi) published on Digicel’s website. All notices to Digicel in relation to this Agreement shall be delivered to the attention of the Chief Executive Officer at the registered address indicated in this Agreement or any other address that Digicel may have specified to the Merchant in writing in accordance with this clause.
A notice or other communication shall be deemed to have been received: (i) if delivered personally, when left at the address; (ii) if sent by pre-paid registered post or other next working day delivery service, at 9.00 a.m. on the second Business Day of the recipient after posting; (iii) if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; (iv) if sent by email, one Business Day after the transmission; (v) if published in The Platform, after Merchant’s logged into The Platform or received a notification about this publication in The Platform via any notice means; or (vi) if published on our website, 24 hours after it is posted.
The Merchant confirms that it has internet access and has an email account to receive notices, communications and information relating to the Platform. The Merchant agrees to the receipt of electronic communications and notices by email, by posting of the information on Digicel’s website, or posting of the information in The Platform. Such communications may pertain to the Platform delivered by Digicel, changes in laws or rules impacting the service or other reasons, such as amendment of this Agreement. The Merchant may request a copy of any legally required disclosures (including this Agreement) from us and we will provide this to the Merchant in a form which allows it to store and reproduce the information (for example, by email) and the Merchant may terminate its consent to receive required disclosures through electronic communications by contacting Digicel. We may charge the Merchant a records request fee to provide this information. We reserve the right to terminate this Agreement if the Merchant withdraws its consent to receive electronic communications.

19. WAIVER

A waiver of any right or remedy under this Agreement or under Applicable Law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.

20. DISPUTE RESOLUTION

Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are excluded from these General Terms & Conditions. To the extended permitted by the law in the Territory, in no event shall any claim, action, or proceeding brought by either Party related in any way to the Platform be commenced more than 1 year after the cause of action arose.

Option 2: Informal Negotiations

To expedite resolution and control the cost of any dispute, controversy, or claim related to these General Terms & Conditions (each a "Dispute" and collectively, the “Disputes”) brought by either you or Digicel (individually, a “Party” and collectively, the “Parties”), the Parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least 60 days before initiating arbitration. Such informal negotiations commence upon written notice from one Party to the other Party of the Dispute.

Binding Arbitration

The arbitration fees and share of arbitrator compensation shall be governed by the arbitrator.

To the extended permitted by the law in the Territory, in no event shall any Dispute brought by either Party related in any way to the Platform be commenced more than 1 year after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.

Restrictions

Exceptions to Informal Negotiations and Arbitration

21. GOVERNING LAW AND JURISDICTION

This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the Territory.
Each party irrevocably agrees that the courts of the Territory shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims), provided always that we shall not be limited to the forum of England and Wales for the enforcement of any judgment relating to this Agreement and shall have the right to bring the relevant action in any jurisdiction where the Merchant is incorporated or may have assets.

21. FORCE MAJEURE

Digicel shall be relieved from our obligations under this Agreement insofar as we were prevented from undertaking our obligations under this Agreement by reason of force majeure. For this clause to apply, circumstances such as the following shall be considered as reasons of force majeure: fire, flooding, earthquake and other natural disasters; industrial actions; terrorism or vandalism (including computer virus and hacking); mobilisation; war; riots; civil unrest; requisition; sanctions, currency exchange restrictions; any law or any action taken by a government or public authority including without limitation failing to grant a necessary licence or consent; revolt; interruption or failure of utility service; government or statutory restriction, local or international disease outbreaks, public health emergencies; and more generally circumstances beyond our control and preventing us to meet our obligations. In the event it is not reasonably possible to resume performance with a period of 3 months after the force majeure event, Digicel may terminate this Agreement.

END.

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20. DISPUTE RESOLUTION

Option 2: Informal Negotiations

Binding Arbitration

Restrictions

Exceptions to Informal Negotiations and Arbitration