In this Contract:
- “us”, “we” or “our” means WiFi4all and ”you” or “your” means the Customer. The “parties” means both WiFi4all and the Customer.
- “Acceptable Use Policy” means WiFi4all’s policy for the use of the Service, a copy of which will be available on the WiFi4all Web Page.
- “WiFi4all” means iPhone Telecom Canarias S.L., registered in Spain.
- “WiFi4all Group Company” means a Wifi4all subsidiary, sister company or holding company including a holding company, or a subsidiary of any such holding company.
- “WiFi4all Partner” means a third party that owns or controls a Site which has WiFi4all’s public wifi service installed on it.
- “WiFi4all Web Page” means www.wifi4all.es, www.calls4all.es or such other URL as WiFi4all may from time to time advise.
- “Charges Schedule” means the schedule incorporated into these terms that sets out any terms applicable to the charges that shall be paid by the Customer.
- “Conditions” means the terms of this Contract contained within clauses 1 to 24.
- “Contract” means, in order of precedence, these Conditions, the Service Schedule, the Charges Schedule, the Order Form and/or any terms which are notified to you via the online ordering process on the WiFi4all Web Page.
- “Customer” means the person using the Service. We may accept instructions from another person who we reasonably believe is acting with your authority or knowledge.
- “Fair Use Policy” means the rules for using specific products that you must comply with when using the Service. The policy and the products it applies to can be found on the WiFi4all Web Page.
- “Minimum Period” means the period set out on the Order Form beginning on the Operational Service Date or any other minimum period specified on the Order Form. The Minimum Period shall not apply you purchasing the voucher or per-minute Service.
- “Operational Service Date” means the date when the Service is first made available to you or the date when you first start to use the Service, whichever is the earlier.
- “Order Form” means the paper form signed by both parties for the provision of Service or the online ordering process completed by you for provision of Service.
- “Service” means the service described in paragraph 2 of the Service Schedule to this Contract.
- “Service Schedule” means the schedule incorporated into these terms that set out the Service that shall be provided to you.
- “Site” means each physical location which has the radio access points offering the Service.
2.- Commencement of this contract
This Contract begins on the Operational Service Date, or the date upon which you have completed the online ordering process and/or we have accepted payment for the Service, whichever is the earlier.
3.- Provision of the service and support
- We will provide the Service to the Customer on the terms of this Contract.
- We will use reasonable endeavours to provide the Service by the date agreed with the Customer, but all dates are estimates and we have no liability for any failure to meet any date.
- We will provide the Service with the reasonable skill and care of a competent telecommunications service provider.
- We will use reasonable efforts to provide uninterrupted Service but from time to time faults may occur, which WiFi4all will repair as soon as reasonably practicable.
- Occasionally we may: For operational reasons, change the codes or the numbers used by us for the provision of the Service or the technical specification of the Service, provided that any change to the technical specification does not materially affect the performance of the Service; give you instructions which we believe are necessary for reasons of health, safety, security or the quality of any telecommunications service provided by us to you or any other customer; or temporarily suspend the Service because of an emergency or for operational maintenance or improvements. Service will be restored as soon as reasonably practicable. Before doing any of these things we will give you as much notice as reasonably possible.
In the case of a general network issue we will be working to resolve it as soon as we become aware of a problem. For an issue which needs a local repair (eg a router reconfiguration) we will respond to you as early as possible on the working day after your notification to schedule a remote repair or callout. Charges may apply for a callout where the issue is not the responsibility of WiFi4all.
Phone and email support is available Monday through Friday, 9:00 am to 5:00 pm – excluding weekends and observed Spain Holidays. Support requests will be handled in the order in which they are received.
- The Service will continue for the period of time notified to you on a paper Order Form or during the online ordering process and may vary depending on what type of product you have purchased from us.
- If the product ordered has a Minimum Period as a condition of the contract then upon expiry of the Minimum Period the Service will continue to be provided to you on the terms of this Contract unless terminated in accordance with the Conditions.
5.- Connection of equipment to the service
- You must ensure that any equipment: Connected to or used with the Service must be connected and used in accordance with any applicable instructions, safety and security procedures; and attached (directly or indirectly) to the Service is compliant with any relevant legislation.
6.- Access to sites and the Service
- We do not authorise or guarantee access to any of the Sites for you to use the Service or guarantee that Service will continue to be available from a specific Site.
- We cannot guarantee access to the Service at a Site or all areas of the Sites, as the network coverage at the Site will be proportionate to the number of wifi access points, their location and the environment in which they are installed, atmospheric and radio interference and any technical limitations applicable to our equipment or your equipment.
- In order to provide our customer with a positive internet experience, some WiFi4all Partners and WiFi4all may choose to block some website addresses (also known as URLs). If you try to access a blocked website address then the service will not allow you to access that website but will still allow you to access other websites during your internet session.
7.- Use of the Service
- It is your responsibility to obtain and keep in force any licence necessary for you to use the Service in any country in which it is provided.
- The Service must not be used in any way that: Does not comply with the terms of any legislation or any licence applicable to you or that is in any way unlawful; Does not comply with any instructions given under paragraphs 3.5(b) and 5.1 or any other public telecommunications operator or other competent authority, in any country where the Service is provided. WiFi4all is not a replacement to a fixed line service with broadband which carries different levels of service as WiFi4all cannot guarantee a connection and or consistent speeds as outlined in section 6.2.
- You must indemnify us against any claims or legal proceedings which are brought or threatened against us by a third party because the Service is used in breach of paragraphs 8.1 or 8.2.
- We will notify you of any such claims or proceedings and keep you informed as to the progress of such claims or proceedings and have due regard to your representations.
- You will use the Service in accordance with our Acceptable Use Policy and the Fair Use Policy both of which can be found on the WiFi4all Web Page.
- You will not resell, rebroadcast, share or otherwise distribute with third parties any wifi access obtained through a contract with WiFi4all. Such rebroadcast or sharing will be considered a breach of this contract and of WiFi4all’s Acceptable Use Policy and Fair Use Policy and will result in the cancellation of your contract with WiFi4all and expose you to an action for punitive damages.
8.- Intellectual property rights
- Where software is provided to enable you to use the Service, we grant you a non-exclusive, non-transferable licence to use the software for that purpose.
- You will not, without our prior written consent, copy, decompile or modify the software, nor copy the manuals or documentation (except as permitted by law).
- You will sign any agreement reasonably required by the owner of the copyright in the software to protect the owner’s interest in that software.
9.-Intellectual property rights Indemnity
- We will indemnify you against any claims and proceedings arising from infringement of any intellectual property rights through our provision of the Service to you. As a condition of this indemnity you must:
notify us promptly in writing of any allegation of infringement; make no admission relating to the infringement; allow us to conduct all negotiations and proceedings in respect of any such claims and give us all reasonable assistance in doing so (we will pay your reasonable expenses for such assistance); and allow us to modify the Service, or any item provided as part of the Service, as set out in paragraph 9.4.
- The indemnity in paragraph 9.1 does not apply to infringements caused by the use of the Service in conjunction with other equipment, software or services not supplied by us or to infringements caused by designs or specifications made by, or on behalf of you. You will indemnify us against all claims, proceedings and expenses arising from such infringements.
- The limitations and exclusions of liability contained in paragraph 12 do not apply to this paragraph.
- If the Service becomes, or we believe it is likely to become, the subject of a claim of infringement of any Intellectual Property Rights we, at our option and expense, may secure for you a right of continued use or modify or replace the Service so that it is no longer infringing, provided that the modification or replacement does not materially affect the performance of the Service. If the indemnity in clause 9.1 applies and none of the remedies in this clause is available to us on reasonable terms, we may notify you and terminate the Service without liability to you.
- The parties will keep in confidence any information (whether written or oral) of a confidential nature (including software and manuals) obtained under this Contract and will not, without the written consent of the other party, disclose that information to any person (other than, in the case of WiFi4all, the employees of a WiFi4all Group Company or their suppliers, who need to know the information).
- This paragraph 10 will not apply to:any information which has been published other than through a breach of this Contract; information lawfully in the possession of the recipient before the disclosure under this Contract took place; information obtained from a third party who is free to disclose it; and information which a party is requested to disclose and, if it did not, could be required by to do so by law.
- This paragraph 10 will remain in effect for 2 years after the termination of this Contract.
11.- Charges and Deposits
- The charges for the Service will be calculated in accordance with the Charges Schedule. Unless otherwise stated, charging will begin on the Operational Service Date. Charges for use of the Service will be calculated in accordance with the details recorded by, or on behalf of us.
- All charges will be invoiced and paid in euro currency unless otherwise stated in the Charges Schedule. IGIC or any other applicable in country sales, use tax or like charge in a country where the Service is provided, which is payable by the Customer will be added to our invoices as appropriate.
- All prepaid charges must be paid in advance of the commencement date and time of the purchased service. With respect to postpaid charges the Customer will pay the charges within 14 days of the date of our invoice. If we do not receive payment by the due date, then we may either charge you (at our option) an automatic late payment charge of €10.00 or daily interest on late payments at a per annum rate equal to 7% above the base lending rate of the European Central Bank for the period.
- If you do not pay a bill, we may instruct a debt collection agency to collect payment (including any interest and/or late payment charges) on our behalf. If we instruct an agency, you must pay us an additional sum. This will not exceed the reasonable costs we have to pay the agency, who will add the sum to your outstanding debt on our behalf.
- As part of our credit management procedures, we may, at any time: Require you to pay a deposit or provide a guarantee as security for payment of future bills by the means requested by us; and/or carry out a credit vet of you. You agree to provide us with any information that we may reasonably require for this.
12.- Limitation of liability
- Unfortunately, we cannot guarantee that the Service or the Equipment we provide will never be faulty.
- We do not guarantee that the Service will be compatible with all hardware and software which you use.
- We shall not be liable for suspending the Service in accordance with clause 3.5 of the Conditions.
- Neither you nor we exclude or restricts yours or our liability for death or personal injury caused by yours and our own negligence or the negligence of our employees or agents acting in the course of their employment or agency or for fraudulent misrepresentation or to any extent not permitted by law.
- Unless otherwise expressly stated in the Contract neither party shall be liable to the other in contract, tort (including negligence), breach of statutory duty or otherwise for any direct loss of profit, revenue, time, anticipated savings or profit or revenue, opportunity, data, use, business, wasted expenditure, business interruption or for any other direct loss which may arise in relation to the Contract whether or not you or us were advised in advance of the possibility of such loss or damage.
- Except as described in paragraphs 12.1 and 12.2, we will not pay you more than 125% of the charges you paid us or €1000 (whichever is the greater) in compensation (even if we have been negligent) in any 12-month period unless the Contract says otherwise.
- Each part of this clause operates separately. If any part of a clause is held by a Court to be unreasonable or inapplicable the rest of the clause shall continue to apply.
- Except for website address blocking described in paragraph 6.3, you accept that we have no control over the information transmitted via the service. We have no obligation to compensate you for such information and such use.
13.- Matters beyond the reasonable control of either party
- If you or us are unable to perform or are delayed in performing any obligation under the Contract because of something beyond its reasonable control including act of God, lightening, flood, exceptionally severe weather, epidemic, pandemic, fire, explosion, war, civil disorder, industrial disputes, or acts or omissions of local or central government or other competent authorities, or beyond the reasonable control of its suppliers, neither of the parties will have liability to the other for the failure of delay in performing.
- In the event of: A refusal or delay by a third party to supply a telecommunications service to WiFi4all and where there is no alternative service available at reasonable cost; or the imposition of restrictions of a legal or regulatory nature which prevent WiFi4all from supplying the Service
then Wifi4all will have no liability to the Customer for failure to supply the Service.
- If any of the events detailed in paragraphs 13.1 or 13.2 continue for more than 3 months either party may serve notice on the other terminating this Contract.
14.- Escalation and dispute resolution
- We will try to work through any disputes that you may have with us. However, if we cannot do this, you may refer the matter to any relevant service which sorts out disputes.
15.- Cancelling this Contract
- At the end of your purchased contract period WiFi4all can cease to provide you with service. You can continue your contract by purchasing a renewed contract on the then current terms or by continuing your existing contract on a month by month basis until you give a full contract month of notice in writing to WiFi4all stating your wish to terminate.
- If either party ends this Contract during the Minimum Period you will pay us the early termination charges set out in the Charges Schedule. This clause will not apply if: You give notice to end the Contract within three months of us notifying you of an increase to the charges or changes to the Conditions in either case to your significant detriment; or we end the Contract during the Minimum Period for convenience; or the Contract ends because either clause 9.4 or 13.3 applies.
16.- Breaches of this Contract
- Either party may terminate this Contract: Immediately on notice if the other party commits a material breach of this Contract, which is capable of remedy, and fails to remedy the breach within a reasonable time of a written notice to do so; or immediately on notice if the other party commits a material breach of this Contract which cannot be remedied; or on reasonable notice if the other party is repeatedly in breach of this Contract and fails to remedy immediately on notice if the other party is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of their creditors, or goes into voluntary (otherwise than for reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over their assets, or if the equivalent of any such events under the laws of any of the relevant jurisdictions occurs to the other party.
- If we are entitled to terminate this Contract under paragraph 16.1, we may, on giving prior notice where practicable, suspend the Service without prejudice to such rights. Where the Service is suspended under this paragraph you must pay the charges for the Service until this Contract is terminated.
- If this Contract is terminated by us during the Minimum Period because of an event specified in paragraph 16.1 you must pay us, without prejudice to any other rights we may have, the termination charges specified in the Charges Schedule.
- If either party delays in acting upon a breach of this Contract that delay will not be regarded as a waiver of that breach. If either party waives a breach of this Contract that waiver is limited to that particular breach.
17.- Changes to this contract
- WiFi4all can change this Contract (including the charges, acceptable use policy or fair use policy) at any time and will publish any change in line with clause 17.2. It is the responsibility of the Customer to check the WiFi4all Web Page at regular intervals to see if the contract terms have changed.
- Unless otherwise stated in the Service Schedule, WiFi4all will publish any changes to this Contract (including the charges) online at the WiFi4all Web Page, and/or in accordance with clause 20, as follows: for changes that are to the Customer’s significant detriment, at least 28 days before the change is to take effect; and for all other changes, at least one day before the change is to take effect.
18.- Transfer of rights and obligations
Neither party may transfer any of its rights or obligations under this Contract, without the written consent of the other, except that we may transfer its rights or obligations (or both) to a WiFi4all Group Company without consent.
19.- Entire agreement
- This Contract contains the whole agreement between the parties and supersedes all previous written or oral agreements relating to its subject matter.
- The parties acknowledge and agree that: They have not been induced to enter into this Contract by any representation, warranty or other assurance not expressly incorporated into it; and in connection with this Contract their only rights and remedies in relation to any representation, warranty or other assurance are for breach of this Contract and that all other rights and remedies are excluded.
- The provisions of paragraphs 19.1 and 19.2 shall not affect the parties’ rights or remedies in relation to any fraud or fraudulent misrepresentation.
- Unless otherwise stated in this Contract, notices given under this Contract must, except for notices given under paragraphs 3.5 and 17.1, be in writing and delivered to the following addresses: to us at the address shown on the invoice or any address which we provide to you for this purpose; to you at the address to which you asks us to send invoices or the address of the Site or your primary email address or in addition if you are a limited company, its registered office.
- You must inform us immediately if there is any change to any of the contact information you provided to us.
If any provision of this Contract is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of its provisions will continue in full force and effect as if this Contract had been executed with the invalid, illegal or unenforceable provision omitted.
22.-Law and Jurisdiction
This Contract is governed by the law of Spain and both parties submit to the exclusive jurisdiction of the Spanish courts.