Smile General Terms and Conditions
Terms & Conditions
1. INTERPRETATION AND DEFINITIONS
The headings to the clauses of this Agreement are for reference purposes only and shall in no way govern or affect the interpretation of or modify or amplify the terms of this Agreement or any clause hereof.
Unless inconsistent with the context, the expressions set forth below shall bear the following meaning:
“Access” shall mean the access to the Network granted by Smile to the Subscriber, subject to the terms and conditions of this Agreement;
“Access Device” shall mean any device which has been prescribed by Smile as a Smile network compatible medium through which Services may be provided to the Subscriber, such as a SIM, mobile or fixed router, dongle or such other devices (as the case maybe) as may be prescribed by Smile from time to time;
“Activation” shall mean the enabling of the Access Devices by Smile so that it operates on its Network and is usable by the Subscriber for the provisions of Services in terms of this Agreement;
“Agreement” shall mean these terms and conditions together with the relevant Offering, where applicable;
“Coverage Areas” shall mean those geographical areas where Services are accessible to Smile subscribers, as specified by Smile, and as reviewed from time to time by Smile;
“Network” shall mean Smile’s telecommunications network by which the Services are made available by Smile;
“Offering” shall mean the different service and product options that accompanies these terms and conditions;
“Services” shall mean the mobile broadband – voice and internet with its designated features as may be provided and modified from time to time by Smile;
“Service/Product Option” shall mean the specific subscription option chosen by the Subscriber out of the various service/product options made available by Smile in order for subscribers to have access to the Smile Network, which options are based on characteristics such as amount of data and/or the duration of such access;
“Smile” shall mean Smile Communications Nigeria Limited, a company incorporated in accordance with the laws of Nigeria;
“Subscriber” shall mean the person to whom the Services shall be provided in terms of the provisions of this Agreement, as may be specified in the relevant Offering;
“Subscription fees” shall mean the fees payable by the Subscriber for the Services, based on the Service/Product Option selected by the Subscriber.
If any provision in a definition is a substantive provision conferring rights or imposing obligations on either Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision of this Agreement.
Unless inconsistent with the context, an expression which denotes:
- any one gender includes the other gender;
- a natural person includes an artificial person and vice versa; and
- the singular includes the plural and vice versa.
When any number of days is prescribed in this Agreement, the same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which case the last day shall be the immediate following Business Day.
In the event that the day for payment of any amount due in terms of this Agreement should fall on a day which is not a Business Day, then the relevant date for payment shall be the following Business Day.
Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.
Where any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the same meaning as ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in this interpretation clause.
The use of the word “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it. As such, “including” shall mean “including, but not limited to”.
The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of the Agreement, shall not apply.
This Agreement shall be binding on and enforceable by the estates, heirs, executors, administrators, trustees, permitted assigns or liquidators of the Parties as fully and effectually as if they had signed this Agreement in the first instance and reference to any Party shall be deemed to include such Party’s estate, heirs, executors, administrators, trustees, permitted assigns or liquidators, as the case may be.
The expiration or termination of this Agreement in as far as the different service/product options are concerned shall not affect such of the provisions of this Agreement as expressly provided that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
The provision of the Access and the Services, and the supply of the Access Device(s), is subject to the terms and conditions set out herein (and as amended and/or updated by Smile from time to time). The Subscriber acknowledges that s/he or its duly authorized representative or they has/have read and understood the terms and conditions of this Agreement.
Smile grants Access to the Subscriber for the period specified by Smile in its marketing material in relation to the Service/Product Option (the “Period”).
The Subscriber’s Access and this Agreement shall automatically terminate upon expiry of the Period. The Subscriber may extend the Access by renewing his/her/its Access, subject to Access being available at such stage subject to Smile’s terms and conditions as may apply to the Access at that stage.
Smile may at any time terminate this Agreement and the Access upon written notice to the Subscriber, where such notice is relevant otherwise this Agreement and related access may terminate at the expiry of the stated period for the service/product option.
4. NETWORK ACCESS AND SERVICES
Unless otherwise advised by Smile, payment of Subscription Fees shall entitle a Subscriber access to the Network within the area designated by Smile from time to time as the Coverage Area.
Access is subject to the following provisions:
The Subscriber paying all Subscription Fees applicable to the Subscriber’s Service/Product Option;
Services being available in the Coverage Area at any point in time;
The Subscriber complying with all the terms and condition of this Agreement and any other future modifications of or additions to this Agreement by Smile or directives as may be prescribed by Smile from time to time.
Smile shall be entitled to immediately suspend Services and Access if it appears that the Subscriber’s subscription has been exhausted with respect to the duration of the Service Option or has been forfeited for any reason or following breach of any laws relating to the service. Smile may in its absolute discretion give advance notice of suspension or forfeiture to the Subscriber.
The Subscriber may forfeit the Subscriber’s subscription and any amount remaining on the Subscriber’s account if, within the period during which Access is available, the Subscriber fails to use the Services during the stipulated validity period of the relevant offerings, which shall be the lesser of the specified validity period or a cumulative period of 6 (six) months and fails to give notice to Smile of the Subscriber’s intention not to use the Services within the said period.
5. ACCESS DEVICE
All risk of loss of or damage to the Access Device transfer to the Subscriber upon the Access Device being delivered to the Subscriber. Accordingly, Smile will have no responsibility or liability whatsoever for any loss of or damage to the Access Device and its accessories. Replacement in the event of loss or damage to Access Device or accessories is at the Subscriber’s cost and at a rate to be determined by Smile. However, this notwithstanding, the SIM provided by Smile shall remain the sole property of Smile at all times material to this Agreement.
If the Access Device is lost, the Subscriber shall immediately report such loss to the Police and to Smile and follow up the report to Smile with a copy of the Police Report relating to the loss of the Access Device
If an Access Device fails to operate within 7 (seven) days from date of being sold to the Subscriber, Smile will replace such Access Device with a similar new product at no cost to the Subscriber, if Smile deems such failure to be an out-of-box failure. Smile provides a 1 (one) year warranty in respect of failures other than the failures contemplated above, which warranty will commence on the date of sale of the original Access Device to the Subscriber and, in the event of such a failure, Smile shall swap the faulty device with a similar product that has been refurbished.
The warranties in clause 5.3 will not apply in the case of damage or failures caused by negligent use, willful misuse, abuse or incorrect use of the Access Device by the Subscriber, acts of God or any other non-device related failures.
6. SUBSCRIBER OBLIGATIONS
The Subscriber shall:
- not use the Services for any improper or unlawful purpose, nor allow others to do so;
- comply with all relevant laws, legislation, regulations and rules relating to use of the Access Device and the Services;
- not act, whether by commission or omission, in any way likely to injure or damage any person, property or the Network or cause the quality of the Network to be impaired or interrupted in any manner and the Subscriber fully indemnifies Smile against any liability, damage or loss arising from any unlawful, illegal or improper use of the Access Device or the Services;
- not access, transmit, store or distribute any data, material or content in violation of any applicable law or regulation or any acceptable use policy of any network or system of Smile or Smile’s third party providers or which infringes on the intellectual property rights of Smile or any third party or violates the privacy of others or which materially affects the quality of Services or other telecommunications services provided by Smile from time to time;
- not utter, publish, access, transmit, store, distribute or create any offensive, obscene, harmful, indecent, illegal, discriminatory, inflammatory or unlawful images or content, data or other material, or any data capable of resulting in offensive, obscene, harmful, indecent, illegal, discriminatory, inflammatory or unlawful images or material;
- not dispatch unwanted commercial advertising or unsolicited messages using personal or corporate e-mail addresses, SMS (Short Message Service), e-mail lists or Usenet discussion groups;
- not overload Smile’s or any other party’s network or systems with a view of impairing such system or network, or attempting to interfere with or denying service to any user or host (e.g. denial of service attacks and/or DNS spoofing attacks);
- not introduce any malware or malicious programs or codes (such as viruses, worms or Trojan horses) into the Network;
- not scan the Network for vulnerabilities without authorization;
- not simulate communications from and/or to the website or other service of another entity in order to collect identity information, authentication credentials, or other information from the legitimate users of that entity’s service (phishing);
- not execute any form of network monitoring (e.g. using a packet sniffer) or otherwise engage in any monitoring or interception of data not intended for the Subscriber without authorization;
- use the Access or Network for any purposes or in any manner which Smile, exercising its reasonable discretion, from time to time determines to be inappropriate or unacceptable;
- notify Smile of any changes in the ownership of the Access Device acquired from Smile or its duly authorized agents by ensuring full compliance with the laws relating to SIM Registration and the requirements of clause 13.8 of these terms and conditions.
- not do anything which may, in Smile’s sole opinion, jeopardize or threaten the operation of the Network or quality of the Services; and
- ensure that all persons, if any who are authorized by the Subscriber to use the Subscriber’s Access Device or the Access or Services provided to the Subscriber by Smile comply with the Subscriber’s obligations set out in this Agreement; and
- be liable for all actions or omissions of such persons when they use the Subscriber’s Access Device or the Access or Services provided to the Subscriber , save for cases where the Subscriber shall have notified Smile of the theft of the Access Device in accordance with these terms and conditions.
7. NO WARRANTIES
Smile does not give or make any warranties, representations or guarantees whatsoever, whether implied or express, in relation to the availability, reliability, accuracy and security of the Access or Services. The Access and Services are provided on an “as is” basis.
8. SUBSCRIPTION FEES AND PAYMENT
The Subscription fees include VAT and other statutory charges, as shall be applicable from time to time.
The Subscriber shall make prompt and timely payment of all Subscription Fees in accordance with the tariffs set by Smile from time to time.
9. INDEMNITIES AND DISCLAIMER OF LIABILITY
The Subscriber uses the Services and the Access at the Subscriber’s own risk. Smile shall not be liable to the Subscriber for any loss, injury, damage, cost, expense or penalty (“Damages”), howsoever caused, suffered by the Subscriber or any other person arising out of or relating to the use of the Services or operation of the Access Device save in as far as these terms and conditions of service shall otherwise state..
Without detracting from any of the other provisions of this Agreement, Smile shall not be liable for any Damages, whether they are direct, indirect or consequential, in the event that such Damages were caused by any negligent act or omission on the part of Smile, its employee, contractors and/or its agents.
Furthermore Smile shall not be liable for any Damages, howsoever arising, suffered or sustained by the Subscriber or any third party arising, directly or indirectly, out of suspension, interruption or unavailability of the Services or Access.
The Subscriber hereby indemnifies and agrees to defend and hold harmless Smile, its officers, directors, shareholders, employees, contractors, agents, licensors, subsidiaries and affiliates from and against any and all claims, actions, demands, liabilities, losses, damages, expenses and costs (including lawyers’ and legal fees), arising out of or relating to the use of the Services and/or Access by the Subscriber, including any violations of this Agreement, misuse of the Services or Access, use of the Services or Access for illegal or unlawful purposes or the infringement of any intellectual property rights or other rights.
Smile shall in no event be liable to the Subscriber or any third party for any direct, indirect, special or consequential damages, including any lost profits, business interruption, loss of programs or other data, arising from or in connection with actions taken by Smile pursuant to this Agreement.
10. INTERRUPTION OR SUSPENSION OF SERVICES
Smile shall be entitled to suspend or interrupt the Services and/or Access at any time without prior notice:
- to facilitate any modifications, maintenance or remedial work in respect of the Services or the Network by Smile;
- if the Subscriber or any person using the Subscriber’s Access Device or the Services or Access does not comply with or is in breach of any provision of or obligation in this Agreement; or
- if Smile is required to do so by any law or authority.
Smile reserves the right to restrict or terminate at any time without liability on its part the Access, Services and/or this Agreement if Smile (in its sole discretion) determines that the Subscriber is in violation of any provision of this Agreement or Smile’s online policies.
Smile reserves the right to levy a reconnection fee for any reconnection of subscription where it has been interrupted or suspended in the circumstances envisaged in this Agreement. In such event, Smile reserves the right to refuse to reconnect the Subscriber unless the Subscriber furnishes an undertaking, indemnity or security as may be required by Smile or agree to adhere to payment terms which are acceptable to Smile in the circumstances.
11. INTELLECTUAL PROPERTY
Nothing contained in this Agreement or relating to the sale of the Access Device will be constructed as vesting in or transferring to the Subscriber any right, title or interest in the software, or any intellectual property belonging to Smile or any third party.
The Subscriber acknowledges and agrees that a third party owns the intellectual property rights vesting in the Access Device and its accessories. The Subscriber shall not in any way tamper with, modify or decompile or do such things as may affect the intellectual property rights of any third party with respect to the Access Device or the provision and use of the Access or Services.
12. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of Nigeria.
Smile reserves the right to, without prior notice, amend or amplify the terms and conditions of this Agreement or amend the tariffs, services, charges and other essential ingredient of or relating to the Agreement; provided that in the case of increase in tariffs or charges, the Subscriber shall be duly notified of the changes thereafter.
The Subscriber authorizes and grants Smile consent to disclose to any statutory or duly authorized body or person, with or without notice, any private or confidential information which it may obtain in the course of the Subscriber or any other person using the Access Device, Services and/or Access, in accordance with any law or regulation in force in Nigeria at any time.
The Subscriber is entitled to refer any dispute relating to the Services to the Nigeria Communications Commission (NCC) or its delegated representatives.
Smile shall not be bound by and the Subscriber shall not have any claim or right of action arising from any express or implied term, undertaking, representation, warranty, promise or the like which is not included or recorded in this document whether it induced the contract and/or whether it was negligent or not.
The Subscriber shall have no right to rely on any variation, amendment or consensual cancellation of this Agreement or any provision or term hereof nor the settlement of any disputes arising under this Agreement, unless reduced to in writing and signed by Smile. No extension of time, waiver or relaxation or suspension of any of the provisions or terms of this Agreement shall be binding on Smile unless reduced to writing and signed by or on behalf of Smile. Any such extension, waiver or relaxation or suspension which is so given or made shall be construed as relating strictly to the matter in respect of which it was made or given. By accessing Smile services, the subscriber is deemed to have accepted to be bound by these terms and conditions
No extension of time or waiver or relaxation of any of the provisions or terms of this Agreement shall operate as an estoppel against Smile in respect of its rights under this Agreement, save as my be sanctioned or ordered by a court of law or relevant competent regulatory authority.
No failure by Smile to enforce any provision of this Agreement shall constitute a waiver of such provision or affect in any way Smile’s right to require the performance of such provision at any time in the future, nor shall a waiver of a subsequent breach nullify the effectiveness of the provision itself.
Except as provided for in this Agreement, the Subscriber shall not cede any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Smile.
If any clause or term of this Agreement should be invalid, unenforceable, defective or illegal for any reason whatsoever, then the remaining terms and provisions of this Agreement shall be deemed to be severable and shall continue in full force and effect unless such invalidity, unenforceability, defect or illegality goes to the root this Agreement.