1. The Agreement

This document, including the Terms, forms your agreement with us. You should read it carefully before deciding whether to register and then using mobileSMK. By using mobileSMK, you agree that you have received, read and understood this document, and accept the Terms.

2. Definitions and Interpretation

Additional Services means any additional services added by Post PNG.
Agreement means this agreement including any annexures and schedules.
Bank of Papua New Guinea Approval includes any approvals that have already been set out by the Bank of Papua New Guinea and that may be imposed in the future.
Cash In Transaction means any transaction by which cash is paid or deposited to a Post Office or mobileSMK Agent and an equivalent amount of cash is transferred into a mobileSMK Account, and the net result is a Customer’s mobileSMK Account being credited with value as verified by Post PNG, less any applicable charges deducted by Post PNG.
Call Centre means the access to mobileSMK customer care You can gain by calling 16 007.
Cash Out Transaction means any transaction by which cash is paid out to or withdrawn by a Customer from a Post Office or mobileSMK Agent and an equivalent amount of cash is transferred out of that Customer’s mobileSMK Account, and the net result is the Customer’s mobileSMK Account is debited with value as verified by Post PNG, in addition to any applicable charges deducted by Post PNG.
Confidential Information means information that:
1. is by its nature confidential;
2. is treated by each party as confidential; or
3. each party knows or ought to know is confidential, except information that:
  1. is or becomes public knowledge otherwise than by breach of this Agreement; or
  2. has been independently acquired or developed by a party to this Agreement.
Consequential Loss means and includes: indirect loss and special damages; loss of revenue; loss of profits; loss of business; loss of anticipated savings; loss of goodwill; loss of data; claims of third parties; and loss or costs associated with Clause 17.6.
Customer/User means any subscriber to the mobile operators’ network who registers to receive mobileSMK.
Customer Identification Procedures means those identification and verification procedures which need to be completed to comply with the Proceeds of Crime legislation and Know Your Customer (or KYC) requirements of the Territory.
GST means any value added tax, sales tax or other tax on the supply of goods and services in Papua New Guinea.
mobileSMK means:
1. the virtual money received in lieu of cash;
2. the Post PNG platform and systems necessary to provide the mobileSMK System (Post PNG Platform);
3. the services provided by Post PNG for the issue and redemption of mobileSMK and the transfer of cash (mobileSMK Services);
4. the system which uses the mobileSMK Platform to provide mobileSMK and mobileSMK accounts; and
5. the Transactions outlined in Clause 5b.
Equipment means the mobile phone and SIM card or any other equipment which when used together allows access to mobileSMK.
Fees means the Tariffs and other charges payable by You under this Agreement for use of mobileSMK.
Maximum Amount means the highest threshold You can store in your mobileSMK Account that has been set out by Post PNG, which can be amended from time to time.
Mobile Network Providers means the mobile telecommunications network in Papua New Guinea.
mobileSMK Agent means the authorised entities which can be visited in order to carry out Transactions.
mobileSMK Account means the electronic cash account resident to a Customer’s SIM.
Money Transfer means the transfer of cash from one Customer to another Customer using your mobileSMK platform or to a customer from a Third Party Network.
Party means either You and POST PNG.
Payment of Utility Invoices means the ability to use your mobile phone and the mobileSMK System to pay certain invoices and charges to third parties.
PIN means the four digit identification code chosen by a Customer at the time of activating their account and used to access and operate their mobileSMK.
Post PNG Personnel means employees, officers and agents of Post PNG.
Post PNG means Post PNG Limited and includes the officers, employees, agents and subcontractors of Post PNG.
Pre-paid Recharge means mobile top-up value purchased by Customers from Digicel.
SIM means the subscriber identity module which when used with the appropriate Equipment enables You to use the mobileSMK Services.
Terms means anything set out in this Agreement.
Territory means Papua New Guinea.
Third Party Network means a mobile phone telecommunications network operated in the Territory and has the necessary Bank of Papua New Guinea Approvals to operate similar systems to the mobileSMK System.
Transaction means any transaction described in Clause 5.6.
You/Yours means the Customer/User.

3. In this Agreement:

the singular includes the plural and vice versa;
headings to clauses are included for the sake of convenience only and shall not affect the interpretation of the clauses to which they relate;
references to any statute or statutory provision include that statute or statutory provision as amended, extended, consolidated or replaced by subsequent legislation and any orders, regulations, instruments or other subordinate legislation made under the relevant statute;
this Agreement shall bind each party’s legal personal representatives, successors and assigns.

4. mobileSMK Account Application and Required Information

Before You can commence using mobileSMK You must register with Post PNG at a Post Office or a registered mobileSMK Agent in the prescribed form.
You must provide to Post PNG or to a mobileSMK Agent all Customer Identification Procedure documents before you may be registered for mobileSMK.
You agree that You:
1. will supply to Post PNG, upon request, any information in order for Post PNG to provide mobileSMK to You;
2. authorise Post PNG to obtain from and provide to any third party in the Territory such information as may be reasonably required for the purpose of providing mobileSMK, including in the resolution of complaints.
3. authorise Post PNG to receive and disclose any information about You to local and international law enforcement or any competent regulatory or governmental agencies to assist in the prevention, detection or prosecution of criminal activities or fraud.
4. authorise Post PNG to receive and disclose any information about You to and from our service providers, dealers, agents, or any other company that may be or become our subsidiary, parent company or partner, for reasonable commercial purposes connected to Your use of mobileSMK, such as marketing and research related purposes.
5. authorise Post PNG to receive and disclose any information about You to facilitate our ability to carry out any activity in connection with a legal, governmental or regulatory requirement;
6. authorise Post PNG to receive and disclose any information about You to our lawyers or auditors or to the applicable court in connection with any legal or audit proceedings (notwithstanding that any such proceedings may be of a public nature).
You must ensure that You provide accurate information to satisfy the Customer Identification Procedures and any of our requests under this Agreement.
Post PNG or a mobileSMK Agent may at its sole discretion decline Your application for mobileSMK.

5. What are the Services?

You can only use mobileSMK subject to the Terms in this Agreement.
When You validly register to Post PNG you may provide the following as mobileSMK:
1. Deposit Transaction
2. Withdrawal Transaction;
3. Money Transfer;
4. Payment of Utility Invoices;
5. Pre-Paid Recharge; and
6. Additional Services.
You must only use the SIM provided to you to access mobileSMK.
Post PNG will use its best efforts to provide mobileSMK and enable You to access the services 24 hours each day, 7 days a week. Post PNG will not be liable to You for interruptions to mobileSMK.

6. Acceptance and Commencement

You are deemed to have accepted these Terms as amended from time to time and which take effect upon your registration of mobileSMK.

7. Your obligations and responsibilities

You will be responsible for all applicable Fees at the applicable rates for any Transaction effected including calls made using the Digicel Network whether those calls were made by You or someone else with or without Your authority or knowledge.
You are solely responsible for any transmitted material and or communication, which is classified as defamatory, illegal or in breach of any copyright and shall indemnify and keep us indemnified against any claims and expenses made against us in respect thereof.
You must not use mobileSMK to commit any offence(s) against the laws applicable in the Territory.

8. Post PNG Obligations

Post PNG will hold all Deposit Transactions and Withdrawal Transactions for Your benefit and You shall be beneficially entitled to such amounts in your mobileSMK Account.
You agree that Post PNG may treat the records of Your mobileSMK Account as conclusive evidence of the amount of mobileSMK at any time standing to the credit of Your mobileSMK Account.
Post PNG is not bound to make any independent investigation of Your beneficial entitlement to the amounts in Your mobileSMK Account.
You further acknowledge that, in relation to any payment to You in respect of your entitlement to amounts, we may act on instructions given by You using your PIN or instructions purported to be given by You using your PIN even if they are actually given by a third party.
You agree that:
1. Post PNG is under no obligation to invest any amounts it holds in Your mobileSMK Account; and
2. to the extent that any interest accrues on Your mobileSMK Account amount, You shall have no beneficial entitlement to such interest and Post PNG shall be entitled to retain such interest to defray the costs and expenses of operating mobileSMK or deal with such amounts as directed under any Bank of Papua New Guinea Approval.

9. Provision of Services

You must only store the Maximum Amount prescribed by Post PNG in your mobileSMK Account.

10. Quality of Services

mobileSMK is provided through and using radio transmission. The quality and availability of mobileSMK and related products and services are subject to limitations including radio interference, physical obstruction, atmospheric conditions, network congestion, maintenance, outages, the configuration or limitations of your or your intended recipient’s Equipment, or other operational and technical difficulties.
Post PNG:
1. will always do its best to provide a reasonable quality of service but Post PNG does not warrant that they will be continuously available or fault free and without variance;
2. does not represent or warrant that mobileSMK or related products and services shall be available in all parts of the Territory or in any other country;
3. does not represent or warrant that the operation of mobileSMK or related products and services will be uninterrupted, timely, secure or error-free or that it will meet Your or any other person’s specific requirements. In particular, Post PNG does not represent or warrant that transmission of data shall occur at any particular speed or that all traffic can or shall be transmitted through the mobile network operators.
4. does not accept responsibility for the security of any use of mobileSMK. You use the mobileSMK at Your own risk and You are solely responsible for adopting such appropriate security measures against unauthorized access to and interference with the Equipment or mobileSMK (or associated software/hardware and data) as may be necessary;
5. may modify or suspend mobileSMK and our related products and services wholly or partly, with or without notice, if we, in our sole discretion, reasonably believe it to be necessary or consider that such action is necessary or desirable for the purpose of upgrading, maintaining, modifying or otherwise the mobile network operators or other systems or if such action is required or reasonably requested of us by an authorized authority. We shall attempt to minimize such mobile SMK disruptions but will not be able to guarantee any minimization in each instance.

11. Suspension of Services

Post PNG may suspend mobileSMK or this Agreement without the need for prior written or verbal communication:
1. if any information You supply is found to be false or misleading;
2. if You do not comply with and/or breach any of the Term.
3. if Post PNG has any reasonable cause to believe that You are abusing mobileSMK or are unable to pay for Your use of mobileSMK.
4. if You notify us that Your handset and or SIM are lost;
5. if Post PNG reasonably believes that You have failed to comply with any Terms;
6. if Post PNG has reasonable cause to believe that mobileSMK was obtained fraudulently or fraudulent or improper use of Your handset or SIM card is taking place against us or a third party;
7. if You commit a trespass on the mobile network operators or any Equipment owned by Post PNG.
8. if You conspire to defraud Post PNG or a registered mobileSMK Agent;
9. if, in Post PNG’s sole opinion, You do, fail to do or are about to do any act which could be or is detrimental to the operation of the mobile network operators or mobileSMK.
10. if mobileSMK is rendered to You and in the sole opinion of Post PNG may cause the operation of the mobile operators network to be jeopardized or impaired, or allow others to do any of the foregoing with Your Equipment or any act that does not comply with relevant legislation and regulation;
11. if Post PNG is unable to provide mobileSMK to You;
12. if You do anything which is intended to, or results in or likely to bypass the mobile network operators and or mobileSMK.

12. Termination

These Terms remain in effect until Your use of mobileSMK is terminated by Post PNG.
Post PNG may terminate mobileSMK or this Agreement for any reason at any time. Post PNG will try and notify You in advance but Post PNG is not obliged to do so.
After termination, You cannot make further use of mobileSMK.

13. Fees Payable

Post PNG reserves the right to charge the Fees for Your use of mobileSMK.
The Fees may be amended from time to time, after which You will be notified and such amendments will be deemed to form part of these Terms.
Post PNG reserves the right to notify You of any such change in Fees by notice in writing via an advertisement in the national media, SMS text messaging and/or via its website.
All Fees are exclusive of GST unless otherwise stated.
Despite any termination of this Agreement, You remain liable to Post PNG for any Fees, charges, other liabilities and associated costs in collecting any outstanding amounts, which Post PNG deems payable by you under these Terms.

14. How to conduct Transactions?

Post PNG will only assign one PIN which will be linked to Your mobileSMK Account.
You must use Your PIN when using Your mobileSMK Account for any Transaction.
You are responsible for the safekeeping and proper use of:
1. Your Equipment
2. Your PIN
3. Your mobileSMK Account
You must not disclose Your PIN or any details associated with Your mobileSMK Account at any time.
Post PNG may require that You confirm Your details to Post PNG or a registered mobileSMK Agent as You use mobileSMK Account.

15. Privacy and Security

Notwithstanding Post PNG’s efforts to ensure that mobileSMK is secure, You acknowledge that all electronic and telephonic data transfers are potentially susceptible to interception by others. Post PNG cannot, and do not, warrant that data transfers utilizing mobileSMK, or information transmitted to and from You, will not be monitored or read by others.
Post PNG may issue instructions from time to time, intended to ensure the security of mobileSMK. You agree to comply with those instructions.
You acknowledge that Confidential Information may be disclosed:
1. to enforce and apply these Terms;
2. to protect Post PNG’s rights or the rights of others;
3. to effectively and efficiently provide mobileSMK to You;
4. as otherwise permitted or required by law.

16. Varying this Agreement

Post PNG may vary or add to these Terms at any time.
You cannot vary or add to these Terms.
When You are registered for mobileSMK these Terms are deemed to be implied into Your use of mobileSMK.
Your use of mobileSMK after any changes to these Terms will constitute acceptance that You are bound by the amended Terms.
You may request a copy of these Terms at any time by contacting Post PNG or a registered mobileSMK Agent.

17. Exclusion of liability

Post PNG and registered mobileSMK Agents shall not be liable for the loss of cash or unauthorized use of the Transaction confirmation message in a mobile phone that has been lost by the User or has been accessed by an unauthorized User.
Post PNG shall not be liable for any indirect or consequential damage suffered by the User for any defect or failure in the performance of mobileSMK by reason of any mistake, omission, interruption, or delay.
Insofar as it is permissible by law, Post PNG shall not be liable for any injury, loss or damage, whether foreseen or unforeseen, directly or indirectly (and including Consequential Loss) resulting from:
1. any failure, interruption, delay, suspension or restriction in providing mobileSMK to You which is due to a force majeure event set out in Clause 19(e) below;
2. any suspension or non-availability of a part or the whole of the mobileSMK;
3. suspension or termination of this Agreement;
4. any unlawful or unauthorised use of or access to the Equipment, mobileSMK and/or mobile network operators by You or third parties;
5. any claim arising out of any act or omission by You, Your servants or agents or arising out of any reliance placed by such persons on call content;
6. any loss, theft or malfunction of the Digicel SIM Card and/or Your Handset;
7. any claim arising in relation to the provision or non-provision, maintenance or use of telecommunications lines, channels, equipment, networks or services or arising out of calls being dropped or data connections being lost or the failure to connect any call made to or by the Equipment for whatever reason.
Further to above, Post PNG, our associated or affiliated companies, and our and their respective officers, agents, directors, principals, employees, attorneys, underwriters, advisors, successors and assigns will not be liable for or in respect of any effects, claims, actions, proceedings, suits and causes of action (whether at law or in equity and including emotional distress), liens, debts, damages, fatalities, losses or injury (whether property or personal, consequential or otherwise), judgments, liabilities, costs and expenses of every nature kind whatsoever, whether known or unknown, suspected or unsuspected arising out of or in respect to the Equipment, mobileSMK, mobile network operators and/or any electronic or radio systems in equipment, vehicles or aircraft in your vicinity, or of any emissions or transmissions to, from, by or through the mobile network operators and/or Equipment.
If Post PNG offers goods and/or services as agents of any principal provider or providers, or as contractors, Post PNG will accept neither responsibility nor liability to You for the performance, loss of profit, emotional or mental distress or disappointment, or provision thereof by such providers so long as we have identified the providers to you and identified ourselves as agents or contractors.
In the event that Post PNG are liable to You under any rights You may have under any legislation, for which our liability is not able to be excluded, then where our liability is able to be limited, then we choose to limit our liability to replacing the relevant goods or services where it is fair and reasonable to do so.
Post PNG will not at any time, in any circumstances, be liable for any loss or damage whatsoever including but not limited to any loss of data, loss of savings, loss of business, loss of profit, or any other direct, indirect, special or consequential damage, in each case whether arising from negligence, breach of contract, breach of statutory duty or otherwise which is in any way connected with or arises out of Your use of mobileSMK.
Post PNG and Post PNG Personnel will not be liable for any failure to perform their and our obligations if such failure arises from such circumstances reasonably beyond their and our control. These circumstances include, but are not limited to, strikes, lockouts, riots, labour disputes, epidemics, earthquakes, fire, floods and other acts of nature, government action or their agencies, war, sabotage or inability to obtain sufficient labour, fuel or utilities, communication line failures, power failures, power interruptions or shortages, computer or processing systems failure.
Post PNG will not be responsible for delays or failures in accessing mobileSMK, or processing of transactions, or transactions being declined, or by delaying or failing to implement any of Your instructions
Post PNG will endeavour to process all transactions without delay, but expressly disclaim any and all liability for any processing delays, or the consequences of any processing delays, which may occur in any circumstance, whether beyond Our reasonable control, or otherwise.

18. Transaction Records

You may obtain a balance enquiry for Your mobileSMK Account only by accessing the balance through your mobileSMK account which requires Your PIN.

19. Your Death

In the event of your death the monies standing to the credit of your mobileSMK account will be, subject to sub – paragraphs b., c. and d. herein paid to the person(s) identified on the Registration Form as your nominated beneficiary/beneficiaries.
The person(s)nominated as your beneficiary/beneficiaries will be required to provide the death certificate and a Statutory Declaration confirming Your Death and must satisfy all our requirements regarding proof of identification that they are in fact your nominated beneficiaries to monies in your mobileSMK account.
Post PNG is under no obligation to pay the monies until it is fully satisfied on the identity of the Beneficiary.
Post PNG will not pay the mobileSMK monies in under 1 month of receiving the formal request from the Beneficiary in order that other competing claims can be received and evaluation.

20. General Terms

Entire agreement
1. This Agreement constitutes the entire Agreement between the parties as to its subject matters.
Severability
1. Part or all of any provisions of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining provisions of this Agreement remain in force.
Waiver
1. Waiver of any provision of or right under this Agreement must be in writing signed by the party entitled to the benefit of that provision or right and is effective only to the extent set out in any written waiver.
Governing law
1. This Agreement is governed by the law applicable in Papua New Guinea and You submit to the exclusive jurisdiction of the courts of Papua New Guinea.
Force Majeure
1. Each party shall be excused from the punctual performance of any of its obligations under this Agreement and such obligations shall be extended for a period reasonable under the circumstances if the performance is prevented or delayed by any cause beyond such Party’s reasonable control which, without in any way limiting the generality of the foregoing, shall include acts of God, riots, wars, accidents, industrial disputes, embargo or requisition (acts of government), or delays in performance of its personnel, agents, or contractors caused by any such circumstances as referred to in this Clause 18.5. In case of force majeure, the affected Party shall promptly notify the other Party in writing and furnish it with all relevant information thereto,
Indemnity
1. You will indemnify and agree to keep Post PNG indemnified against all claims, losses, expenses, damages that DFL may sustain or incur as a result, whether directly or indirectly of:
  1. any breach by You of the Terms; or
  2. any negligent act or omission or misconduct by You.
Survival
1. Clauses 7, 8(e), 13(e), 15(c), 17 and 19 survive the termination (for whatever reason) of this Agreement.