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Additional General conditions
Article 1 – Definitions
1.1 Defects: faults affecting the operation of the Installation and that are not attributable to an external cause.
1.2 Service: the provision on a permanent basis of a wireless communications system giving access to the broadband internet and all services deriving therefrom (information, publicity, etc.) regardless of whether these are offered by Telenet or by third parties in collaboration with Telenet.
1.3 End-user: the natural or legal person legitimately making use of the Service at the Location(s).
1.4 Installation Date: the proposed date for installation of the Service as determined for each Location in the Order Form.
1.5 Contract: these General Conditions for Telenet Hotspot, the Order Form and all schedules and amendments.
1.6 Practical Modalities: the practical modalities that are described on Telenet’s web site at www.telenethotspot.be. The Customer acknowledges that it is aware of the Practical Modalities and that it has agreed thereto. Telenet is entitled at any time to adapt the Practical Modalities to changed circumstances.
1.7 Location: the space, place and/or premises where the Service is provided.
1.8 Home Page: the web page that the End-users are presented with in the Location(s) before they are able to make use of the Service.
1.9 Equipment: the products listed in the Order Form under the heading ‘Equipment’.
1.10 Installation: installation by Telenet of the Telenet Equipment at the Site.
1.11 Credential Set: username/password provided by Telenet.
Article 2 – Subject-matter
2.1 Telenet shall install the Equipment at the Location(s) (article 3), provide the Service to the End-users at the Location(s) (article 5) and supply maintenance services (article 6) in accordance with the provisions of this Contract.
Article 3 – Installation and Equipment
3.1 Telenet is in charge of installation of the Equipment at the Location (the Installation) and makes same available for the price and in accordance with the conditions laid down in this Contract.
3.2 The Customer provides Telenet with suitable, clean, dry premises at room temperature in which to accommodate the Installation and protect the Equipment in accordance with the relevant applicable provisions.
3.3 The Parties shall endeavour to render the Installation operational as of the Installation Date. However, this date shall in all events be indicative in nature.
3.4 Any change to the Installation must be subject to an additional Order Form. ‘Change to the Installation’ shall be construed as meaning inter alia:
- any expansion or reduction in the capacity of the Installation;
- any move of the Equipment to another location or other premises;
- any partial renewal or change of any kind.
The price referred to in article 3.1 is revised in accordance with the change. The revised price applies as of the month following that in which the change is effected.
3.5 All changes must be ordered in writing from Telenet and/or carried out under Telenet’s supervision.
3.6 For any contract performance that is not expressly covered by the Order Form, a separate invoice shall be issued charging the prices and under the terms applicable at the time of performance. The Customer will be informed in this respect beforehand.
3.7 The Installation is carried out during Telenet’s usual working hours, as set down in the Practical Modalities.
3.8 The Customer guarantees that Telenet has access to the Installation during normal working hours as set down in the Practical Modalities. Furthermore, it shall provide all requisite means to ensure that Telenet at all times has access to all parts of the Installation.
3.9 The Customer is not permitted to connect to the Equipment any equipment other than equipment that is hired or sold to it by Telenet and installed by Telenet, except with Telenet’s express permission.
Article 4 – Warranty on the Telenet Equipment
4.1 Telenet warrants the correct functioning of the Telenet Equipments for the term of the Contract.
4.2 The warranty applies only to equipment supplied, installed and maintained by Telenet. The warranty covers: replacement parts and labour for repairs in the workshop or on site.
4.3 The exceptions listed in article 7 of this Contract are excluded from the warranty.
Article 5 – Services
5.1 Telenet provides the End-user with the Service in the Location(s) via the Equipment under the terms and at the rates applicable at that time. Telenet may at any time revise the price for the Service in line with ruling market conditions.
5.2 The Customer shall not in any way restrict use of the Service by the End-users.
5.3 The content and features of the Home Page are determined in conjunction with the Customer. Telenet is entitled to advertise via the Home Page. The income from such advertising shall inure exclusively to Telenet.
5.4 The Customer pays for provision of the Equipment and the attendant services and/or a subscription charge as indicated in the Order Form.
5.5 The Customer shall have the Equipment maintained exclusively by Telenet. The terms of article 6 – Maintenance – shall apply to the maintenance services.
5.6 The Customer shall actively and optimally promote the Service to the End-users making use of the marketing materials provided by Telenet. The Customer undertakes inter alia that it shall clearly display these marketing materials in the Location. All specific marketing activities by the Customer must first be submitted to Telenet for approval.
5.7 The Customer shall inform Telenet in due time if there are no longer sufficient payment cards available at a given Location.
Article 6 – Maintenance
6.1 Maintenance encompasses the diagnosis, location and repair of Defects in the Equipment and the replacement of defective components. Maintenance is carried out under market terms, unless the Customer has entered into a maintenance contract with Telenet. In that event, the price of maintenance is included in the Customer’s subscription charges.
6.2 Maintenance can be carried out remotely or on site at the Customer’s premises.
6.3 Major Defects are Defects that seriously compromise the functioning of the Equipment; this includes the absence of a connection with the internet or faults in the hardware.
6.4 Minor Defects are all Defects that are not Major Defects.
6.5 Maintenance is carried out during normal working hours, as set down in the Practical Modalities.
6.6 Each request for intervention shall be made as set down in the Practical Modalities.
6.7 Telenet undertakes that it will remotely monitor the Equipment of the Customer and will take action as described in the Practical Modalities.The Customer guarantees that Telenet has always a remote access to the the Equipment. The customer also guarantees to continously keep the Equipment on electricity power (24h/24 & 7 days/ 7)
6.8 Telenet undertakes that it will exercise due and reasonable care in carrying out or procuring the carrying-out of all works required to remedy Defects occurring in the context of normal use of the Equipment. Telenet further undertakes to deploy all reasonable means to remedy the Defect as quickly as possible.
Article 7 – Exceptions
Regardless of whether the Customer has a maintenance contract, the following costs shall be borne by the Customer at the relevant rates applying at the time of supply:
a) the costs of recommissioning and/or the renewal of Equipment that has become defective owing to external causes, such as (but without prejudice to the generality): (i) climatological, atmospheric or weather conditions, (ii) actings on the part of the Customer or of third parties, (iii) electricity or communications network interruptions, (iv) radiation or vapours;
b) the costs of the purchase and installation of climate-control appliances;
c) fees and levies of any kind, such as levies on inter alia electricity consumption;
d) charges for:
- all work carried out outside normal working hours (see Practical Modalities),
- all work carried out further to the Customer’s taking over an existing Location;
- all work necessitated by a network operator or service provider or prescribed by the BIPT and/or the national and/or European authorities;
- all work carried out in connection with changes or adjustments for which the manufacturer and/or the installer cannot be held liable,
- all work further to any change made by the Customer or by a third party that is not authorised by Telenet;
e) the costs of shipping equipment to Telenet for repair or replacement, including all and any costs as a result of damage or loss during shipment.
Article 8 – Payments due by the End-user
8.1 The End-user shall pay Telenet for the Service via the Customer or via the Home Page. Each invoice issued by Telenet is deemed payable on the date on which the invoice is issued, i.e. the ‘Tax Point’ and, unless otherwise provided on the invoice or in writing accepted by Telenet, is payable within 30 calendar days of the Tax Point (the ‘Due Date’), net and without discount. The invoices also mention “settlement of third party services cf. VAT Circular 50/2009”. These third party services are billed and collected by Telenet, but for any complaints the Customer has to contact the third party itself.
8.2 For each Wireless Internet Access Card that the Customer sells, it receives the payment fixed in the Order Form. This payment is annually reviewable in accordance with market conditions. The Customer is not allowed to sell any Wireless Internet Access Card and/or Credentials Set that he has received for free from Telenet. The Customer assumes the sole and entire responsibility for and warrants Telenet against any violation of this provision, included amongst others all negative effects arising from a breach of tax regulations.
Article 9 – Exclusivity
9.1 The Equipment may throughout the term of the Contract exclusively be used for the purposes of offering the Telenet Service.
9.2 The Customer may not offer, or procure the offer of, any competing services to the public at the Location for such time as the Contact is operative.
9.3 Telenet may make the Equipment at the Locations available to End-users that have contracted with operators other than Telenet. Telenet may for such purposes enter into agreements with such other operators in its own name and for its own account. In this connection, it is also permissible for the address details of the Location to be included on the web site or in other publications of Telenet or of operators with which Telenet enters into an agreement.
Article 10 – Severability
Termination of the Contract in respect of one or more Locations shall not in any event entail the end of the Contract in respect of the other Location(s). All the provisions of the Contract shall continue to apply mutatis mutandis to the remaining Location(s).
Article 11 – Whole agreement
The Order Form and these General Conditions for Telenet Hotspot constitute the Contract. The Contract constitutes the whole agreement and supersedes any prior written or verbal arrangement, agreement, offer, correspondence or any prior proposal regarding the subject-matter of the Contract. Adjustments or changes to this Contract may only be made in writing.
Article 12 – Liability
12.1 The Customer is inter alia responsible for (i) providing suitable, lockable premises that adequately protect the Equipment against external factors; (ii) prior to the installation, identifying the exact location of all visible and non-visible electricity, gas and water conduits at the Location; (iii) obtaining the necessary planning permission and other official permits required for the Installation; (iv) obtaining all permissions from common and joint owners, tenants, landlords, life-tenants and other parties holding rights over the Location; (v) exercising general supervision over compliance with the rules of public order and decency by End-users making use of the Service at the Location, albeit without acquiring knowledge of the specific content of the communications that are effected by the End-user. The Customer shall hold Telenet harmless in this regard.
In addition, the Customer must exercise custody over the Equipment as a reasonable person would care for his own property and protect same to such a degree as corresponds at least to the protection that the Customer affords its own equipment. Should the Customer fail in this duty, all maintenance costs and repair costs necessitated as a result of failure to heed same shall fall to be borne by the Customer ; (vi) The Customer provides the competent authorities/Telenet with all the information the Customer/Telenet needs to fulfil its obligations resulting from the Act of 30 June 1994 relative to the protection of privacy from wire-tapping, examination and recording of private communications and telecommunications; the Act of 28 November 2000 relative to computer crime; and any other applicable legislation relative to wire-tapping, identification and observation, … that the Customer/Telenet requires to comply with. The Customer assumes the entire liability and holds Telenet harmless in this regard.
12.2 The Parties are conscious that use of the Installation may be affected by external factors, such as (but without prejudice to the generality) physical and atmospheric conditions, appliances used by the Customer or by the End-user, networks of other communications suppliers, interconnection problems, etc. These factors may affect the connection or the quality thereof. Telenet takes all reasonable measures to restrict the effect of such factors but is not liable if a connection cannot be made or cannot be maintained or if the quality of the Service is thereby compromised. Telenet is not liable for any effect caused by or failure in the Customer’s equipment.
12.3 Without prejudice to the liability provisions contained in this Contract, the parties’ liability is subject to the ordinary rules of law, albeit that Telenet shall not be liable to compensate the Customer, even in cases of serious negligence, for indirect or consequential damages, except in the case of wilful acts.
Other than in cases of death or personal injury, the amount of compensation and interest that Telenet shall be liable for to the Customer is limited to 50,000 euros per claim per annum.
Article 13 – Term, suspension and early termination of the Contract
13.1 The Contract comes into effect on the date of signature of an Telenet Hotspot Order Form and remains in effect for so long as Telenet Hotspot Service is supplied to the Customer. The duration of each Telenet Hotspot Service is laid down in the Order Form. The Party wishing to terminate an Telenet Hotspot Service must serve notice of that wish on the other Party by recorded delivery letter at least three (3) months before the lapse of the then current period. Failing such notice, the Telenet Hotspot Service is tacitly extended for successive periods of one (1) year each.
13.2 In the event of an act of God (such as loss of any registration, notification, permission or permit or the refusal of any permit), performance of the Contract for the Locations affected by the act of God is suspended. Should the act of God obtain for longer than 30 calendar days, either Party is entitled to rescind the Contract in respect of the Locations that are affected by the act of God, whereby no compensation shall be due by either Party to the other as a result hereof.
13.3 The Customer may terminate the Contract early without being liable in any compensation to Telenet (i) where a Defect renders any enjoyment of the Service impossible for an uninterrupted period of more than 30 calendar days or (ii) where Telenet breaches any of its essential obligations by virtue of this Contract and such breach is not remedied within 20 calendar days of a written notice of default.
13.4 Telenet may terminate the Contract early without being liable in any compensation to the Customer (i) where the Customer breaches any of its essential obligations by virtue of this Contract and such breach is not remedied within 10 calendar days of a written notice of default; (ii) at any time upon giving six months’ written notice; (iii) if the Customer in any manner is or becomes an associated company (within the meaning of section 11 Companies Code) of an operator of electronic communications networks and/or an offeror of electronic communications services that compete with the services of Telenet or of any undertaking associated with Telenet; (iv) where, following conduct of a site survey, it is apparent that the costs of installation of the Equipment would be greater than the costs of an average Installation.
13.5 In the event of wrongful early termination of the Contract by the Customer or in the event of termination by Telenet on the ground of a breach of contract by the Customer, the Customer shall for each Location pay liquidated damages calculated as follows, without prejudice to any greater amount of damages: the number of months by which the Contract is terminated early divided by the scheduled term of the Contract in months, multiplied by the Installation Costs per Location. ‘Installation Costs’ shall be deemed to be the actual costs that Telenet has incurred for the installation and for rendering the Locations operational.
13.6 After termination of the Contract, Telenet shall remove the Equipment from the Location. Telenet shall endeavour in this regard not to cause damage to the Location. However, Telenet is not responsible for restoring the Location to its original state.
Article 14 – Transfer and subcontracting
14.1 The Customer may not in any way or form assign the rights and obligations resulting under this Contract to third parties without the prior, written consent of Telenet.
14.2 By contrast, Telenet may assign this Contract (in whole or in part) as it sees fit to its associated undertakings (for example by way of merger, demerger, contribution of a line of business or take-over). Telenet may also engage third parties in the performance of this Contract (for example by subcontract).
Article 15 – Applicable law and jurisdiction
This Contract is subject to Belgian law. Any dispute resulting from this Contract is subject to the exclusive jurisdiction of the courts of the judicial district Antwerp, division Mechelen.