- The Service shall be provided subject to the provisions of these terms and conditions and the order form.
- It is not technically practicable to provide the Service free from faults and DMT does not undertake to do so. DMT shall, however, use its reasonable endeavors to remedy any fault as soon as practicable.
- The customer shall:
3.1 Provide any technical information related to matters for which the Customer is responsible which is required by the Company in order to provide the Service and comply with any applicable operational requirements or procedures.
3.2 Procure a waiver from the landlord at each Customer premises attesting to the fact that the equipment, products and tools of the Ground segment and any other equipment provided by DMT which may now or later be located at Customer premises is the property of DMT and under its control and possession, and that the landlord shall have no lien, encumbrance or charge whatsoever over the said equipment. This waiver shall provide that the landlord agrees that DMT may enter the premises at any time to retrieve the equipment. Customer shall be liable to DMT for the full replacement value, without depreciation, of any equipment, products or tools supplied by DMT pursuant to these terms and conditions in the event DMT is prevented by the said landlord from retrieving said equipment.
3.3 Provide the Customer Equipment free of Charge.
3.4 Not use or permit the use of services provided hereunder by DMT for any illegal or criminal use. Customer shall comply with all existing laws and government regulations with respect to use of service and with DMT’s acceptable use Policy.
3.5 Ensure that DMT or its subcontractors are given such access to the Customer’s Premises, as are reasonably necessary for the purposes of installing, operating, monitoring, repairing and de-installing the Terrestrial Links.
3.6 Ensure that reasonable environmental conditions for the effective operation of the Terrestrial Links are maintained at the Customer’s Premises and that those parts located on the customer’s Premises are not damaged, tampered with or removed by any person.
3.7 Not knowingly do or omit to do any act, which causes DMT to be in breach of any of its obligations pursuant to any subcontract between DMT and any third party for the supply or maintenance of the Terrestrial Links.
- The customer shall pay the amounts set out in the Order form attached herewith and in the manner stipulated in this terms and conditions.
4.1 If any sum payable by the Customer is not received by DMT in cleared funds within Thirty (30) days of the date on which payment should have been made, upon notification to CUSTOMER, interest shall be charged on such sum at 2% above the base rate of DMT’s bankers on such date. Interest shall accrue on a daily basis and shall be compounded monthly.
4.2 All sums payable under these terms and conditions are exclusive of VAT or any other taxes which may be charged to DMT during the Term and relate to payments for or provision of the Service. Any such charges will be payable by the Customer.
4.3 All sums due under these terms and conditions shall be paid in full without set-off, counterclaim or other deduction unless as mutually agreed by both Parties.
4.4 Any sum falling due on a day which is not a Business Day shall be payable on the immediately following Business Day.
4.5 Both parties may agree to denominate the contract price in Nigerian Naira and in such event the following conditions shall apply;
(1) The parties shall agree the US dollar price based on which the Naira price has been determined using the CBN selling exchange rate on the date of such agreement.
(ii) It is further agreed that in the event of a material change in such CBN exchange rate; without recourse to the Customer, DMT shall automatically adjust the monthly charge payable by the customer to the total of the US dollar price for each site multiplied by the prevailing CBN exchange rate.
(iii) that in such event DMT shall invoice the Customer applying the adjusted monthly sum and the Customer shall be obliged to pay the said adjusted monthly charge until such a time or such times that any further material change occur(s) during the subsistence of this agreement. It is further agreed that the conversion shall be based on the exchange rate on the date of invoicing.
(iv) That Material change in exchange rate means any difference in CBN exchange rate or fluctuation amounting to 5% higher or lower than the initial exchange rate or any further exchange rate applicable or subsisting pursuant to this clause during the term of this agreement.
- In addition to any other right or remedy, either party may terminate the Service so that (save as otherwise provided) both parties are released from all of their obligations pursuant to these terms and conditions with respect to the Service forthwith by notice in writing to the other party if, in relation to the Service, the other party is in breach of any obligation hereunder and (if the breach is capable of remedy) fails to remedy the breach within 30 days after receiving notice specifying the breach and requiring it to be remedied.
5.1 Additionally, DMT may terminate the Service so that (save as otherwise provided) both parties are released from all of their obligations pursuant to these terms and conditions with respect to the Service forthwith by notice to the Customer if:
(i) the Customer fails to pay any sums due to DMT in relation to the Service and fails to remedy the breach within five working days after receiving notice specifying the breach and requiring it to be remedied;
(II) the Customer uses the Service in any way contrary to any regulations that may be applicable;
(iii) The Customer ceases to carry on business;
(iv) the Customer goes into liquidation whether voluntary or compulsory (except voluntary liquidation for the purpose of reconstruction or amalgamation);
(v) an administrative order is made in relation to the Customer
(vi) a receiver (including an administrative receiver) or manager is appointed or an encumbrancer enters into possession of the Customer’s undertaking or assets or any part of them; or
(vii) the Customer enters into any scheme of compromise or arrangement with its creditors.
5.2 The Customer shall equally have the right to terminate the agreement if the conditions outlined in clause 5.1 occur in the affairs of DMT.
- DMT shall consult with the CUSTOMER before determining whether a Service Interruption has occurred and notify the CUSTOMER of the amount of any credit allowance due such credit shall be applied against future use of the Service or a cash refund equal to the amount of the credit if and to the extent that payments for the future use of the Service will be less than the amount of the credit.
- In addition to any other right or remedy and without prejudice to the Customer’s obligation to pay the amounts due under clause 4, DMT may suspend the Service on giving 5 working days notice to the Customer if the Customer fails to pay any sum which is dueand payable to DMT under these terms and conditions until such time as the relevant sum is paid in full and the Customer shall not use the Service during the period of such suspension
7.1 In the event of the Service being terminated, the following provisions shall apply:
(i) the customer shall stop using the Service and DMT shall decommission and recover all its equipment installed at Customer site (s)
(ii) in the event of the Service beingterminated by DMT pursuant to clause 5, or that the Customer decides to suspend the service or terminate the contract due to no fault of DMTs before the service expiration date, the Customer will be liable for and shall pay to DMT an Early Termination Settlement Charge amounting to 50% of the remaining service charges for the existing term from the date that transmission ends. The Customer in the case of such suspension or early termination should provide a written notice to DMT thirty days prior to such suspension or termination and pay DMT upon the receipt of an invoice in full the Early Termination Settlement Charge together with all other charges due to DMT at the same time.
(iii) in the event of the Service being terminated other than by DMT pursuant toclauses 5 or 5.2, DMT shall pay the Customer a refund of any outstanding credits due to the Customer pursuant to clause 6 together with a refund of any Service Charges paid by the Customer in advance pursuant to clause 6 with respect to any period for which the Service will no longer be provided, less any sums due from the Customer to DMT for the Service.
- During the Term occasional interruptions of the Service may be required for the repair, maintenance, testing or improvement of DMT’s systems and apparatus and similar matters. To the extent practicable and technically feasible, the Customer shall be given at least 2 days notice of any such interruption. DMT shall use its reasonable endeavours, so far as it is able to influence events, to minimize disruption of the Service.
- DMT’s obligation under these terms and conditions is to provide the Service to the Customer and its liability for any failure to do so is limited exclusively to granting credits or refunds to the Customer as expressly provided in these terms and conditions. The foregoing undertaking is in lieu of all other warranties, expressed or implied, including but not limited to, any implied warranties of merchantability and fitness for a particular purpose.
9.1 In no circumstances shall either party be liable to the other in contract, tort (including negligence or breach of statutory duty) or otherwise for loss (whether direct or indirect) of profits, business, or anticipated savings arising in relation to the Service or for any indirect or consequential loss whatever.
9.2 Without prejudice to the foregoing, DMT’s liability to the Customer in contract, tort (including negligence or breach of statutory duty) or otherwise arising under, by reason of or in connection with the Service or otherwise howsoever for any incident or incidents, whether related or unrelated, shall be limited to an amount equal to the Service Charge for one month plus any credits or refunds provided for in these terms and conditions.
9.3 Each provision of this clause is to be construed as a separate limitation. In the event of any one or more of the provisions of this clause 9 being found to be unenforceable by any court of competent jurisdiction the remaining provisions of the clause shall, to the fullest extent permitted by law, continue to be binding on the parties. Neither party excludes or restricts liability for death or personal injury resulting from its own negligence.
9.4 The Customer acknowledges that DMT may contract with one or more third parties for the provision of the terrestrial circuits comprised in the Terrestrial Links. Where DMT is liable to the Customer under these terms and conditions then if and to the extent that such liability is the direct result of the act or omission of such a third party, DMT shall be liable to the Customer only to the extent that the relevant third party provider is liable to DMT and is limited to credits for interruptions as detailed in Clause 6.
9.5 The provisions of this clause shall be without prejudice to the provisions of clause 5.1. For the avoidance of doubt, nothing in this clause shall have the effect of limiting the amount of the liquidated damages payable to DMT pursuant to clause 5.1 for the termination of the Service.
- These terms and conditions shall be governed by and construed in accordance with the laws of the Federal Republic of Nigeria and the parties agree to submit to the exclusive jurisdiction of the Nigerian Courts.
- The subscriber shall not, without the written express permission of DMT, resell or make available to any third party such services as they might receive from DMT. Only the registered user is authorized to use the service.
- DMT shall be released from the performance of its obligations under this contract to the extent, and for us long as the performance of the contract is impeded by reason of force majeure, which expression for the purpose of this clause means, but shall not be limited to, any circumstances which are beyond the control of DMT including embargoes, national emergencies, insurrection, civil war, riots, strikes, labors disputes, fire, floods or other catastrophes, acts of God, And the act or failure or defect in the performance of the obligation of any governmental authority or organization. DMT shall notify the customer at it earliest convenience after an event of the nature described in this clause above shall have occurred.
- The Customer shall be responsible for providing the following facilities to DMT for use in providing the Service: Rack and rack space for the installation of the radio indoor unit, Air-conditioned room for all equipment installed by DMT and Customer shall ensure the equipment provided by DMT is supported by appropriate and stabilized power and provide a good UPS to be serviced and maintained by the Customer, Carry out proper grounding for its facilities and ensure periodic survey and maintenance of the grounding.
- The following Special Conditions shall apply to the Parties in providing the Service: Customer shall provide free access to the sitesfor DMT’s nominated engineers and technicians, In the event of damage to DMT equipment due to inappropriate or unstabilisedpower, power surge, lightening or grounding defects, Customer shall be solely liable to remedy for any disruption of service ordamage to DMT’s equipment due to lack of or inefficient grounding. DMT shall provide all safety equipment and tools required to carry out any work associated with providing the service.
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