UTS INTERNET SERVICES GENERAL TERMS AND CONDITIONS
These General terms and conditions (the “Conditions”) shall govern the relationship between on the one hand United Telecommunication Services N.V. and/or any subsidiary thereof that may (be used to) provide the equipment and/or Internet services mentioned herein, hereinafter to be referred to as “UTS”, and on the other hand the individual or any legal entity that receives the equipment and Internet services mentioned herein, hereinafter to be referred to as the “Customer”.
1. DEFINITIONS
In these Conditions the following definitions shall have the meaning subscribed thereto:
1.1. "Internet" - The world-wide collection of private and public router-based networks that are interconnected via gateways and exchange points, and which all utilize the TCP/IP protocol suite.
1.2. "Territory" - The island of Curaçao.
1.3. "Effective Date" - The day Services are operational at the supplied modem port as agreed upon between parties as registered on the service application form.
1.4. “Services” – the services to facilitate the access and use of the Internet, making use of the equipment as provided by UTS, whether through wireless access and data transport, dial up access and data transport or through the access and data service commonly known as ADSL (short for asymmetric digital subscriber line).
1.5. “Service Agreement” – the agreement between UTS and the Customer by which UTS agrees to provide the Services to the Customer, which agreement may be evidenced by a service’s application form accepted by UTS, through active use of the Services by or on behalf of Customer or otherwise in a format to be determined by UTS.
2. GENERAL
2.1. ABUSE OF SERVICES
Any use of the Services and/or equipment or system resources used to provide the Services otherwise than as intended by the Service Agreement or disrupting the normal use of the Services and/or any system of UTS and/or of other UTS Customers, other users or suppliers is considered to be an abuse of the system resources and provides grounds for intervention, suspension and/or termination by UTS of the Services. Modification, alteration, reverse engineering, de-compilation, disassembly or creation of derived works based on UTS proprietary information or software provided by UTS is an abuse of the Services and provides grounds for intervention, suspension and/or termination by UTS of the Services.. Depending on the nature and severity of the abuse, the Customer may receive an e-mail warning, suspension and/or termination of the Services. Customer will be liable and fully responsible towards UTS and will hold UTS harmless from any claims of third parties for costs and damages of UTS due to abuse as described in this article, in accordance with article 5,
2.2. USE BY MINORS
The Internet is a world-wide network. As such, it contains sites in countries around the world. The information available through the Services may include items of an erotic, abusive or violent nature or other items not appropriate for viewing or possession by minors. As indicated by these Conditions, UTS cannot and does not exercise any control over the information passing through its system, nor is it obliged to do so. It is therefore the duty of the Costumer, user and/or parent or guardian to supervise the use of the Services and the Internet by minors and any responsibility and liability of UTS in this regard whatsoever is excluded.
3. ACCEPTABLE USE POLICY
3.1. PURPOSE
The network on which the Services are provided has been established to:
a. Provide – speed and quality depending on the equipment used and services agreed upon, and furthermore on best efforts basis- high quality high bandwidth networking services to the business community and private users;
b. Promote the use of data-related services in the Territory.
Use of the Services in accordance with these principles and under the further requirements, restrictions and conditions contained herein and as further to be communicated to Customer by UTS, will be considered the Acceptable Use Policy of UTS.
3.2. REQUIREMENTS OF USAGE
a. To respect the privacy of the users of UTS and all networks accessible via UTS.
b. To respect the legal protection provided by copyright, license, and other applicable legal devices to programs, communications, and data.
c. To respect the integrity of computing systems, and to not use UTS and/or its systems to compromise same.
d. To respect common usage of Usenet and E-Mail services.
e. To obtain all required permissions and to comply with all applicable laws, regulations, or conventions including those related to data privacy, international communications, exportation of technical or personal data and intellectual property laws (including copyright and patent law).
f. To promptly notify UTS if one suspects unauthorized use of the network.
g. Not to seek redress from UTS if one is harmed or offended by information products or services found on or received through the Internet.
3.3. SPECIFICALLY ACCEPTABLE USAGE OF THE SERVICES
a. Usage for legitimate private personal or business data communications.
b. Usage for legitimate public data communications as suggested by the charters of USENET newsgroups, and the well-known guidelines generally accepted by the users and news administrators of same.
c. Usage legitimate for research or educational purposes. Usage for other data communications in accordance with applicable laws in the Netherlands Antilles.
3.4. UNACCEPTABLE USES OF THE SERVICES
a. It is not acceptable to use the Services and/or the UTS network for illegal purposes.
b. It is not acceptable to use the Services and/or the UTS network to transmit threatening, by/in the community unacceptable or harassing materials.
c. It is not acceptable to use the Services and/or the UTS network to interfere with or disrupt network users, services or equipment. Disruptions include, but are not limited to, distribution of unsolicited advertisement, inappropriate filing of Usenet Articles, and using the network to make unauthorized entry to any other machines accessible via the UTS Internet connection.
d. It is not acceptable to use the Services and/or the UTS network for the purposes of transmitting "Chain Letters," "broadcasting" messages to third party's mailing lists or non-consenting individuals, nor any other type of use which may or will result in congestion of the Internet or the UTS connecting networks, or which may or would significantly interfere with the connectivity of others.
e. It is not acceptable to use the Services for voice communications and/or as a medium to facilitate voice communications unless agreed upon between Customer and UTS otherwise in writing.
f. It is not acceptable to use the Services and/or the UTS network for illegitimate or illegal purposes.
g. It is prohibited to:
• introduce viruses, worms, harmful code and/or Trojan horses on the UTS network;
• use the Services or UTS network for spamming or flaming to hack or otherwise obtain unauthorized services;
• to delete or alter author attributes or copyrights notice, unless expressly permitted in writing by UTS, the author or owner;
• use the Services or UTS network other than for Customers’ private or own business use. The commercial exploitation, including the selling, distribution, leasing, or otherwise provisioning of the Services (in whole or in part) to third parties or of, data, voice or other services by Customer by means of the Services or UTS network (other than through Acceptable Use of the Services by Customer) is therefore expressly prohibited, unless such commercial exploitation is expressly and specifically permitted and agreed upon in writing by UTS.
3.5. VIOLATION OF POLICY
UTS will review alleged violations of Acceptable Use Policy on a case by-case basis. Violations of policy may result in suspension and/or termination of the Services, the UTS subscription, membership and other network services to Customer. Violations may also result in claims for costs and/or damages of UTS as described in article 2.1.
The actual act of utilization of the Services and/or the UTS network constitutes an agreement to abide by the requirements, conditions, and stipulations of these Conditions.
4. PRICING AND BILLING
4.1. AMOUNTS DUE
a. The amounts due. In case of prepaid use (e.g. through the use of a OneNet Hotspot prepaid card, Tilin cards and/or through the use of funds from a Telefasil account), payments in Antillean Guilders shall be done upfront and usage of the Services is only possible in case of sufficient prepaid funds available.
b. For postpaid services the following is applicable. The amounts due by Customer shall be payable to UTS in Antillean Guilders in case of a Standing Order and in immediately available funds within thirty (30) days of the day the payment is due. Payments of fees for fixed parts of the Services are due on the first day of the month for which the payment has to be made. Payments of fees for variable parts (based on usage) of the Services are due on the first day of the month following the month in which the Services were used. If the Customer in good faith disputes any stated amount, it shall submit to UTS within thirty (30) days following receipt of such disputed statement written documentation identifying the minutes, hours or any other unit of measurement used on the disputed statement and/or rates which are in dispute. The parties shall investigate the matter and upon mutual agreement a credit against future statements may be issued by UTS. However, nothing herein contained will relieve the Customer from its obligation to pay any amount when due in accordance with the statement of UTS.
c. Late Payment/Priority of Payments. Any amounts remaining unpaid after 30 calendar days of receipt invoice shall be subjected to an additional late fee which shall be equivalent to 18% per annum of the overdue balance plus any collection cost. All payments made by Customer shall be applied in the following priority: (i) late fees and interest (article 4.4); (ii) overdue amounts; (iii) remaining balance.
d. Billing Disputes. Customer shall notify UTS of any disputed items within 30 calendar days of receipt of invoice in accordance with article 4.1.a. of these Conditions. Notwithstanding the foregoing, Customer shall remain liable for all charges including disputed items.
4.2. REFUNDS OR DISCOUNTS
Refunds will be given for cancelled accounts only where the account was clearly defective and non-working (the latter not being an effect of unsufficient funds available as mentioned in 4.1.a). In all other cases, unless specifically mentioned otherwise in these general terms and conditions, all payments to UTS are non-refundable. However, UTS will fulfil its obligation under the Service Agreement and these Conditions unless the Service Agreement is terminated as provided in these Conditions.
4.3. TAXES
All charges and installation fees are exclusive of all applicable taxes, including value added tax, sales taxes and duties or levies imposed by any authority, government or government agency (except income tax or corporate taxes attributable to UTS), all of which, if any, shall be assumed and paid promptly when due by Customer.
4.4. In addition to the remedies provided in these Conditions, all amounts due to UTS by Customer that are not paid when due shall accrue interest from the day following the day on which payment was due until paid in full. Interest shall be computed at a rate of 1.5% per month, compounded daily. Further, UTS shall have the right to set off any amounts due by Customer which are not paid when due, against any amounts owed to Customer by UTS or any of its affiliates, if any, pursuant to any other agreement or arrangement.
4.5. UTS reserves the right at any time to require Customer to issue a deposit, irrevocable letter of credit or other form of security acceptable to UTS if a) Customer's financial circumstances or payment history is or becomes unacceptable to UTS; or b) there is a material change in circumstances of Customer's actual or anticipated usage (including but not limited to traffic volume) of the services of UTS. Upon receipt of UTS's written request for a security, the Customer shall have ten (10) business days to provide or implement such security and if Customer fails to comply with such request within said period, then UTS shall be authorized to immediately suspend and/or terminate the Services without further notice.
5. DISCLAIMER OF WARRANTY AND LIMITATIONS OF LIABILITY
5.1. INDEMNIFICATION
The Customer agrees to indemnify and hold harmless, UTS, its officers, directors, agents and employees from and against any lawsuits, claims, damages or liabilities (or actions or proceedings in respect thereof) related to or arising out of any use of the Services through the account of Customer or breach of the Service Agreement or these Conditions and will reimburse UTS, its officers, directors, agents and employees for all legal and other expenses, including reasonable attorney's fees, incurred in connection with investigating, defending, or settling any such loss, claim, damage, liability, action or proceeding whether or not in connection with pending or threatened litigation. UTS disclaims in particular any eventual liability or responsibility in connection with any claim that the access or use of the Services and/or programs through the account of Customer infringes any third party's intellectual property rights.
5.2. UTS cannot and does not guarantee the confidentiality or security of any Customer information, whether stored in the UTS system or machines, in Customer's machines, or elsewhere. All use of the Services and the UTS system is at Customer's own risk. UTS exercises no control whatsoever over the availability of information or over the content of the information passing through its system and specifically denies any responsibility for the accuracy or quality of information obtained or transmitted through it's services. Further, UTS will not be responsible for any loss or inaccessibility, or the consequences of any loss or inaccessibility, of data resulting from delays, non-deliveries, miss-deliveries, service interruptions or disconnections howsoever caused, whether caused by UTS, Customer, or any other person or entity.
5.3. Customer acknowledges that UTS does not operate the Internet in any way whatsoever, and that all merchandise, information, content, and services offered or made available or accessible on the Internet are offered or made available or accessible by third parties with whom Customer shall contract directly for such services. Consequently, UTS offers no warranty, whether express or implied, and makes no representation with regard to any merchandise, information, content, and services offered or made available or accessible on the Internet, and UTS shall not be liable for Customer's reliance on or use of such merchandise, information, content, and services offered or made available or accessible on the Internet.
5.4. UTS does not restrict access to any destinations within the Internet network; however, Customer acknowledges that other Internet service providers may, from time to time, filter or restrict access to other destinations within the Internet network, and Customer agrees that UTS shall have no liability for any such action by such third party Internet service provider.
5.5. IN NO EVENT SHALL UTS BE LIABLE TO THE CUSTOMER FOR CONSEQUENTIAL, SPECIAL OR INDIRECT LOSSES OR DAMAGES SUSTAINED BY CUSTOMER OR ANY THIRD PARTIES IN USING THE SERVICES OR ACCESSING THE INTERNET HOWSOEVER ARISING AND WHETHER UNDER CONTRACT, TORT OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, THIRD PARTY CLAIMS, LOSS OF PROFIT, LOSS OF CUSTOMERS, OR DAMAGE TO REPUTATION OR GOOD WILL)
5.6. UTS shall not be liable to Customer for any loss or damage sustained by Customer, its customers or end users, by reason of any failure in or breakdown of UTS's communication facilities or those of Customer or third parties associated with providing the regarding services, or for any interruption, or degradation of the services whatsoever shall be the duration or the cause of such failure, breakdown, interruption or degradation.
5.7. Subject to the foregoing provisions of this Article, in the event of an incident of service outage on the transmission facilities provided by UTS for connectivity to the Internet, UTS shall endeavor to provide restoration procedures then in effect.
5.8. THE SERVICES ARE PROVIDED ON AN "AS IS" AND ON A “BEST EFFORTS” BASIS. UTS MAKES NO WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR TITLE, USABILITY, CONDITION, NON-INFRINGEMENT, COMPATIBILITY, SECURITY, OR ACCURACY AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6. ASSIGNMENT
6.1. The Customer may not assign or transfer the Service Agreement in whole or in part without the prior written consent of UTS. UTS may assign or transfer the Service Agreement in whole or in part to any affiliated entity or successor in the interest of UTS, whether by merger, consolidation, transfer of all or its assets or otherwise. The Customer will be notified in writing 30 days prior to such assignment or transfer.
7. FORCE MAJEUR
7.1. UTS shall not be liable to the Customer for any losses or damages, either direct, indirect or otherwise sustained. by reason of any failure in or breakdown of the services or facilities herein provided for, or any interruption of the service, whether caused by act of God, insurrection of civil disorder, war or military operations, national or local emergency, acts of any governmental authority, industrial disputes, fire, inclement weather, or other causes beyond the reasonable control of UTS.
8. TERMINATION
8.1. TERM AND TERMINATION
a. Except for an otherwise specified term and possible renewal clause as may be agreed upon in the Agreement, for instance in connection with the (prepaid) nature of the Services used, the Term of the Service Agreement will be 2 year, commencing on the Effective Date of the Service, and will be automatically renewed at the anniversary date for the same period.
b. The Service Agreement may be terminated by either party by providing to the other party hereto a prior written notice of termination of one (1) month before the end of the Term.
c. Notwithstanding the above set forth in article 8.1 sub a and sub b, UTS may terminate the Service Agreement immediately and without notice in the event of any of the following:
• If the Customer is in default in the payment of any amount due;
• if the Customer is declared bankrupt or judicially determined to be insolvent or fallen into a situation of suspension of payments;
• If any representation or warranty made herein by Customer shall prove at any time to be materially incorrect as of the date made.
8.2. TERMINATION ON VIOLATION
UTS may terminate the Service Agreement in whole or in part and discontinue any or all levels of service under the Service Agreement at its discretion at all times. In the event of such termination or discontinuation, Customer's account will be refunded on a pro-rato basis, with the exception of a termination by UTS based on a violation of any article of these Conditions. Customers in violation of any article of these Conditions will forfeit an amount equal to one month of service or the remainder of the available credit for their account(s), whichever is less. However, under no circumstance will the Customer be entitled to a credit or refund if, at the time of termination based on a violation by Customer, Customer will not have used the Services for the minimum period of one year, and no termination based on a violation by Customer will relieve the Customer from its obligation to pay for this minimum usage, as well as the fees due if UTS or the Customer would have terminated the Service Agreement in accordance with the notice provisions contained in these Conditions.
8.3. NOTICE OF TERMINATION
Except for termination of prepaid Services, notice of termination of the Service Agreement must be given by written means. Notice of termination will be effective when received, but in any case three (3) days after the date it has been sent. Any notice given by UTS or Customer will terminate the agreement at the end of the payment period, taking the notice provisions contained in these Conditions into account.
9. MISCELLANEOUS
9.1. EQUIPMENT AND ACCESS
Except for the situation where the Services applied for by Customer under the Service Agreement consist of wireless Internet access and data transport, to receive the requested Services Customer at its own expense needs to have an active telephone landline.
9.2. The costs of all equipment and services necessary to access the UTS network and use the Services are for the Customer. Services will be provided at the modem or router port. UTS is not responsible for setup, configuration, compatibility, proper functioning or programming of computers, modems, routers or any other third party equipment not provided by UTS. The Customer agrees to comply with all applicable laws, rules and regulations relating to the communications means by which the Customer obtains access to the Services.
9.3. The failure of UTS to insist upon or enforce strict performance by a Customer of any provision of these Conditions shall not be construed as a waiver of any provision or right.
9.4. The charges for fault repair or replacement of a modem, router or other equipment provided by UTS to Customer to access and use the Services are for the account of UTS unless the fault is a result of action or omission by Customer.
9.5. Connectivity and the Services are provided for Customer’s personal private or business use and are additionally authorized for use by Customer's employees or household members only. Resale of this connection or the Services is strictly prohibited. Use of the connection or the Services by an unauthorized person or entity is prohibited and shall be ground for termination of the Service Agreement unless such use is specifically allowed in a Multiple Address Assignment Plan agreement. All persons and entities using the connection provided by UTS to Customer bear the same responsibilities as Customer under the Service Agreement, but Customer shall remain fully responsible for any authorized or unauthorized person or entity's use of the connection, equipment and Services supplied by UTS to Customer according to the Service Agreement and these Conditions..
9.6. The Service Agreement and these Conditions shall be governed, construed and interpreted in all respects in accordance with the laws of the Netherlands Antilles or the Laws that will be applicable in Curaçao due to a change of the Political Structure of the Netherlands Antilles, and shall be subject to exclusive jurisdiction of the courts of the Netherlands Antilles with its seat in Curacao.
10. BUNDLED VOICE AND/OR OTHER SERVICES
10.1 Bundled with a DSL Services account, voice and other services may be delivered upon written agreement between UTS and Curomer. Bundled voirce services are delivered through a separate UTS VoIP Account. Use such bundled services is subject to the general conditions of UTS regarding such other bundled services.
10.2 A UTS VoIP Account bundled with the Services will only automatically be charged with calling minutes by UTS if Customers’ DSL Services account as used under this Services Agreement is current with payment. Customer acknowledges that agreed services bundled with the Services as covered by these Conditions may only be available for use by Customer if Customer is not in default with due payments for the Services and UTS has excercised its rights to discontinue the Services. In such cases, UTS will not be liable whatsoever to Customer, whether in contract or in tort, for any costs, direct or indirect damages, resulting from Customers’ inability to use the bundled services.
11. DEVIATION
11.1 Subject to article 11.2, it is only possible to deviate from the Service Agreement and these Conditions by written agreement between UTS and the Customer.
11.2 UTS may unilateraly modify these Conditions, amplify them, and/or modify the fees or prices offered or agreed to, as well as discontinue or change the Services (hereinafter: the Changes), upon one (1) month written notice to the Customer. If the Customer does not agree with such Changes,, Customer has the right to terminate the agreement by written notice to UTS before such Changes take effect. Failing to terminate in time or by continued usage of the Services, the Customer shall be deemed to have agreed to all Changes.
12. COLLISION GENERAL TERMS
12. General terms and conditions of a Customer do not apply to the Service Agreement or these Conditions, and the applicability thereof is herewith expressly excluded.
Fair Use Policy for Double Play
General:
If you, Customer, have subscribed to our Double Play package service, (“Double Play”) this Fair Use Policy applies to you and by subscribing to Double Play you accept and agree to this Fair Use Policy.
The services provided under the Double Play are herein after, together and each sepeartly, also referred to as the “Services”.
This Fair Use Policy is implemented as part of the terms and conditions governing your Double Play package services agreement with UTS/Setel.
Fair usage may be treated on a case by case basis, depending on the technical circumstances.
As Customer you shall refrain from excessive usage of the Services that may disturb and/or disrupt the use of UTS/Setel services by others and/or disproportionate load on the network.
If UTS/Setel consideres your usage of the Services excessive and beyond normal and fair use, you will receive a warning and if excessive use is continued UTS and Setel together and each separately have the right to immediately terminate the Double Play package service agreement and/or offer you another package or service under the terms and conditions applicable to such other package or service. Furthermore UTS/Setel shall have the right to invoice you, Customer, for the use of the Services, or the parts thereof, that is considered excessive usage against the regular tariffs applicable for ADSL Internet and fixed line home phone service.
As Customer Customer you are not allowed i) to sell to or share with third parties the Services, or parts thereof, ii) to distribute or in any other way use the Services, or parts thereof, for business purposes iii) to develop commercial activities through use of the Services or parts thereof.
In the event that any of the services provided by UTS/Setel to its customers is or might get disturbed as a consequence of Double play and or anything else, you as a UTS/Setel customer will have the obligation to accept and follow up on instructions given by UTS/Setel.UTS/Setel are not liable for possible financial consequences thereof.
ADSL Internet
Some of our broadband customers use file sharing software and download large files like music and videos. This uses up lots of network capacity leaving less available for you. If they're doing this at peak times, it could mean that the speed of your broadband service will be affected.
If you don't use file sharing software or download large files from the Internet it's unlikely you'll ever be affected by this policy. If you do, we ask you to do so considerately, perhaps by downloading outside the peak hours of 6pm to midnight. Don’t forget that media streaming, including the streaming of internet radio, contributes to your use of bandwidth and may, if left permanently on, cause you to be in breach of this policy.
If you only occasionally have very high usage on your ADSL internet, we're unlikely to be concerned. If your ADSL internet usage exceeds what we deem fair and reasonable for our residential customers and our residential service, we'll contact you to give advice and recommendations on how to reduce usage.
If high usage of your ADSL internet remains happening regularly, we may either have to reduce the transmission speed of your ADSL internet broadband while we continue to keep an eye on your usage, or suspend your ADSL internet service and/or possibly close your ADSL internet account without further prior notice and/or terminate the Double Play package service agreement.
Unlimited Local On Net Calls
These terms are designed to make sure the quality of your home phone service is maintained and that you make fair use of the Unlimited Local On Net Calls.
The Setel home phone service consists of a line rental service and/or a call service, which enables you to make telephone calls carried over the Setel Network.
The Double Play package with Unlimited Local On Net Calls enables you to make local telephone calls from your UTS/Setel Fixed Line number as identified in the Double Play package service agreement (“Fixed Line”), to another UTS/Setel fixed line number on the network of UTS/Setel on Curacao, with the exception of Out of Scale and Scope calls.
Your usage of the Fixed Line is subject at all times to limitations on the outgoing calls.. As Customer you shall refrain from excessive usage of the Fixed Line. The following is considered excessive usage; however it is not limited thereto: placing long telephone calls, for example by leaving the line open, and/or placing such large numbers of short telephone calls that the use of the UTS/Setel services by others may be disturbed, and/or consumption by you deviates from the average usage of UTS/Setel residential retail customers.
In case the outgoing calls made with your Fixed Line exceed the average usage of UTS/Setel residential retail customersyou will receive a warning. If after this warning said outgoing calls still exceed the usage as stated above, you will contravene this Fair Use Policy and constitute an abuse of the Service which may result in suspension of your service and/or possibly close your Fixed Line immediately without further notice and/or terminate the Double Play package service agreement.
