WAYPORT / An AT&T Company / “End User Agreement”

Wayport end user agreement

Between Wayport A/S, Gersonsvej 7, 2900 Hellerup, Denmark, registered under business no. 26 82 29 63 with the Danish Commerce and Companies Agency ("Wayport"), and the user ("Customer")

1. Terms and Conditions

1.1 Use of Wayport High Speed Internet Access constitutes acceptance of this End-User Agreement and agreement to pay for use of the services as outlined below.

1.2 Wayport agrees to provide Customer with Wayport High Speed Internet Access (wired or wireless local area network conforming to the Wi-Fi standard IEEE 802.11x) and to grant to Customer a non-transferable, non-assignable, non-exclusive license to use the appropriate network provided by Wayport as part of the Wayport High Speed Internet services, from the time of acceptance of this End-User Agreement till the expiry of the internet access service period agreed between Customer and Wayport. Access to the Wayport network and use of Wayport High Speed Internet services and any software furnished to Customer by Wayport is provided subject to the terms and conditions set out below.

1.3 The utilization of any data or information received by Customer from the utilization of the services to be provided by Wayport is at Customer's sole and absolute risk. Wayport specifically disclaims and denies any responsibility for the completeness, accuracy or quality of information obtained through the services to be provided hereby (save intent or gross negligence).

1.4 Wayport shall provide the services with reasonable care and skill. Wayport makes no warranties, whether expressed or implied, for the services or software it is providing and to the extent permitted by law, Wayport hereby expressly excludes all conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity. Wayport also disclaims any warranty of merchantability or fitness for a particular purpose. Wayport will not be responsible for any loss or damages suffered by the Customer as a result of any use of the services, including any direct loss or damage which could not be contemplated by Customer and Wayport at the time of the Customer's use of the services, e.g. for loss of data resulting from delays, non-deliveries, miss-deliveries, service interruptions, errors or omissions, or due to inadvertent release or disclosure of information sent by the Customer. In the event Customer is using the services for commercial purposes, no liability for loss of revenue, profits or other economic loss, or for corruption or destruction of data, arising out of a breach of this End-User Agreement will be accepted by Wayport. Please see clause 1.20. This clause 1.4 does not apply to Wayport's intentional acts or omissions or gross negligence.

1.5 The services furnished by Wayport to Customer under this Agreement may only be used for lawful purposes. Unauthorized transmission or storage of any information, data, or material in violation of any Danish law, other relevant local laws or regulation is prohibited. This includes, but is not limited to, copyrighted material, material, which is obscene, or material protected as a trade secret. Customer agrees to indemnify Wayport and hold Wayport harmless from any claims (including Wayport's legal fees) resulting from Customer's intentional or negligent use of the services which damages Wayport or a third party.

1.6 Any access to other networks connected to Wayport's network must comply with the rules for that other network.

1.7 Customer warrants that (s)he is at least 18 years of age and if not, that its guardian has accepted this End Use Agreement.

1.8 Wayport has the right to suspend or terminate Customer's service at any time, and for any reasonable reasons, without notice. Reasons for suspensions or termination may include, but are not limited to, "spamming" (distribution of unsolicited mass e-mailings which provoke complaints from the recipients), and abusive or threatening communication or solicitation.

1.9 Wayport has the right to delete all data, files or other information that is stored in Wayport's computer systems with respect to Customer's account if Customer's service with Wayport is terminated, for any reason, by either Customer or Wayport. Back-up is the responsibility of Customer. Notwithstanding this clause, Wayport is obliged to comply with data retention legislation where applicable.

1.10 The service cannot be cancelled by the Customer after use of the service has begun. In the event that delivery of the service is faulty due to circumstances which are not beyond Wayport's control, Wayport shall provide Customer with a reasonable refund for Customer's payment in respect of the time period during which the services were unavailable.

1.11 In connection with entering into this End¬-User Agreement, Customer waives its right to withdraw from the End-User Agreement once Customer commences use as Customer expressly accepts commencement of the services before the end of the fourteen (14) day cooling-off period.

1.12 All equipment not purchased from Wayport, but supplied by Wayport for use with Wayport High Speed Internet Access remains the property of Wayport. Upon departure from the premises in which the services was obtained, all such equipment must be returned to Wayport via the hotel reception or by other determined means. Should Customer fail to return equipment within 8 days of departure from the premises in which the services were obtained, Wayport reserves the right to charge the undersigned customer the replacement cost for said equipment on the credit card of record.

1.13 Wayport provides basic connectivity support, but reserves the right to limit or not offer content support for certain software or operating platforms.

1.14 Wayport High Speed Internet Access is a shared high bandwidth Internet service, and Wayport reserves the right to prohibit or limit uses of the service that could unduly interfere with the provision of service to other customers. Customer agrees not to conduct web services or to operate any type of server through his/her Wayport account.

1.15 This End-User Agreement supersedes all previous representations, understandings and agreements and shall prevail notwithstanding any variance of terms and conditions of any order submitted. Wayport reserves the right to modify this End-User Agreement without notifying Customer in advance, provided that any variation in rates will be notified to Customer prior to Customer's first use of the service following the rate change. Wayport will provide Customer with one month's prior notice of amended terms where appropriate or required by law.

1.16 All repairs and modifications of the Wayport systems shall be made by Wayport or its authorized agents. Customer agrees not to disturb, tamper with, reroute or in any way interfere with any component of the Wayport systems. Customer agrees to repay Wayport any and all damages resulting from any tampering or modification of the Wayport systems and the value of Wayport service, if any, plus reasonable costs and attorney's fees incurred by Wayport in enforcing this provision.

1.17 Wayport is not responsible for problems with the operation of computers and other equipment not provided by Wayport. In the event that Wayport systems repair service is requested for problems, which, in Wayport's reasonable judgement, relate to equipment not provided or installed by Wayport, a service charge may be imposed for support, which amount will be agreed prior to such support.

1.18 Wayport's privacy policy is enclosed as Appendix A to this End-User Agreement.

1.19 This End-User Agreement is subject to Danish law excluding the stipulations of the UN Convention on Contracts for the International Sale of Goods (CISG) and laws on the choice of law, save where subject to local mandatory legislation. Customer can initially file any complaints with Wayport. Wayport will handle disputes within three months from the file of a complaint. If Wayport rejects a complaint from a consumer with regards to a prepaid service, then Wayport will notify the consumer about which regulatory authority Customer can complain to. All other disputes between Customer and Wayport shall be settled by the courts of Denmark at the venue of Wayport, save any dispute between a consumer and Wayport, which may be settled by the courts whereof the consumer has his/her habitual residence. The foregoing shall not preclude Wayport from utilizing any available preliminary remedies, e.g. injunctive relief in any jurisdiction throughout the world.

1.20 In the event that certain clauses of this End-User Agreement are not partly or wholly enforceable under mandatory legislation, e.g. in case of products liability, such clauses shall be enforceable to the farthest extent possible.

1.21 Information on VAT

1.21.1 The general rule is that any VAT will be charged according to the rules stipulated below. It should be noted, however, that there are several exceptions to this general rule which have not been mentioned in this clause.

1.21.2 If the Customer is a company or a private citizen of Denmark, Wayport will charge Danish VAT.

1.21.3 If the Customer is a company or a private citizen of another EU country, the company will not be charged Danish VAT, but the private citizen will be charged Danish VAT.

1.21.4 If the Customer is a company or a private citizen of any country outside the EU, Wayport will not charge any Danish VAT, but the company or the private citizen will maybe have to pay the VAT applicable in the relevant country.

1.21.5 This clause 1.21 on VAT is inserted for information purposes only and does not constitute any advice or promise from Wayport. Wayport does not take on any responsibility for the accuracy or correctness of the information provided in this clause.

1.22 This clause 1.22 is applicable to Customers in Denmark only. Information on Wayport‘s Cash-card:

1.22.1 The Cash-card can be used as payment for Wayport's High Speed Internet Access services and can be purchased at selected venues in which Wayport offers its services.

1.22.2 The Cash-card is sold with a fixed amount available on the card and can be used multiple times. Recharge is not possible. There is no requirement for a minimum credit balance on the Cash-card. The credit balance can not exceed DKK 3,000.

1.22.3 The Cash-card is used by logging on to the Wayport High Speed Internet Access services via the log-in site. The necessary information and codes for applying the card are available on the Cash-card. The instructions for using the Cash-card available on the Cash-card and the log-in site must be followed.

1.22.4 When the Cash-card is used, payment for the time spent online will be charged on a minute-to-minute basis from the Cash-card. If the full amount available on the Cash-card is not used in one session, the Cash-card can be used again at a later time, by logging in again. It is not a requirement that a certain amount is available on the Cash-card. When the whole amount on the Cash-card is spent, the internet session will terminate.

1.22.5 The Cash-card is a personal card and only the Customer is entitled to use the card. The Customer is not allowed to pass on information on login and password of the Cash-card to a third party.

1.22.6 There are no other expenses than the purchase price connected with use of the Cash-card.

1.22.7 Wayport is liable for losses sustained by a Customer due to errors in registration or accounting procedures, even if such an error may be incidental. Where a Customer has been informed that a payment transaction has been acknowledged, Wayport is moreover liable for losses sustained by the Customer due to non-completion or inadequate completion of the payment transaction in question. The provision set out in the previous sentence shall, however, not apply if Wayport is able to prove that Wayport has had no possibility of completing the payment transaction due to exceptional, intervening circumstances beyond Wayport's control, which Wayport should not have taken into account when the Customer received the acknowledgement referred to above. Where by a wilful or grossly negligent act the Customer has contributed to the error, the compensation may be reduced or withdrawn.

1.22.8 Where payment has not been made or where is has been delayed in circumstances as those referred to in the first and second sentence of subsection 1.22.7, no other default remedy than a claim for the interest may be invoked for that reason. Where funds have been withdrawn from the Cash-card, payment to the Customer's discharge shall be considered to have been effected.

1.22.9 Wayport bears the onus of proof to show that a loss has not been caused by the circumstances referred to in subsection 1.22.7.

1.22.10 Wayport disclaims any responsibility for any abuse of the Cash-card by third parties.

1.23 This clause 1.23 is applicable to Customers in Germany only. Notwithstanding the previous clauses of the End-User Agreement, the following clauses apply:

1.23.1 If a Customer intends to initiate arbitration proceedings with the Federal Network Agency in Germany in the event of a dispute with Wayport concerning any of the cases specified in § 47a of the German Act on Telecommunication, Customer must file an application to this effect with the Federal Network Agency in Bonn (Bundesnetzagentur), Germany.

1.23.2 According to section 44a of the German Telecommunications Act (Telekommunikationsgesetz, TKG), Wayport's liability as provider of publicly available telecommunications services for pecuniary damage is restricted up to a maximum of EUR 12,500 per end-user. If the liability is caused by one particular action or damage causing event in relation to multiple end-users, then, irrespective of the limitation of liability in sentence 1, Wayport's liability in relation to all claimants collectively shall be limited to EUR 10 million. If the compensation payments due to several claimants on account of the same event exceed the maximum amount payable, the amount of compensation shall be reduced by the ratio of the total of all claims for compensation to the maximum amount payable. The limitations of liability as mentioned in this clause do not apply to Wayport's liability for pecuniary damage caused by intend or by default of payment of damages.

1.23.3 The Customer may cancel the provision of services within two (2) weeks in text form (e.g. letter, fax, e-mail) without stating a reason. The two-week period starts after receipt of this notice in text form but not before the conclusion of this End-User Agreement. In order to meet the cancellation deadline the date of dispatch of the cancellation notice is decisive. The cancellation notice should be sent to Wayport A/S, Gersonsvej 7, 2900 Hellerup, Denmark.

1.23.4 In the event of a valid cancellation, both parties shall be obliged to restore any benefits already received in accordance with legal provisions, and issue any gains (e.g. interest). If the Customer is unable or partially unable to restore the benefits, or only able to restore them in poor condition to Wayport, then the Customer must reimburse Wayport for the corresponding value. The Customer must fulfil obligations for reimbursement within 30 days after dispatch of the cancellation notice. Wayport must fulfil its obligations for restoration within 30 day after receipt of such notice.

1.23.5 According to section 312d para. 3 of the German Civil Code, the Customer's right of cancellation lapses before the end of the cancellation period referenced in clause 1.23.3, if:

a) Wayport has begun performing the services with the express consent of the Customer prior to the end of the two-weeks cancellation period, or
b) the Customer has initiated provision of the Services (e.g. by using the service).

1.24 This clause 1.24 is applicable to Customers in Italy only. Notwithstanding the previous provisions of this End-User Agreement (in particular clause 1.11), if the Customer is a consumer ("Consumer") pursuant to Section 3 of the Legislative Decree no. 206 of September 6, 2005 ("Consumer Code"), the following provisions shall apply:

1.24.1 The Consumer is entitled, at any time and without reason, to cancel this End-User Agreement within ten (10) days from the conclusion of this End-User Agreement and upon written notice to Wayport, provided that:

a) Wayport has not begun performing the services with the express consent of the Consumer prior to the end of cancellation period, or
b) the Customer has not started using the Services.

1.24.2 Cancellation notice shall be sent by registered letter or by telegram, telex, fax and e-mail, provided that it is confirmed by registered letter. Cancellation notice shall be sent to Wayport A/S, Gersonsvej 7, 2900 Hellerup, Denmark.

1.24.3 In the event of a valid cancellation, both parties shall be obliged to restore any benefits already received in accordance with the terms and conditions of this End-User Agreement. Wayport shall reimburse the Consumer any fees already paid within thirty (30) days from receipt of cancellation notice. If the Consumer is unable or partially unable to restore the benefits, or only able to restore them in poor condition to Wayport, then the Customer must reimburse Wayport for the corresponding value.

1.25 This clause 1.25 is applicable to Customers in Sweden only. Notwithstanding the previous provisions of this End-User Agreement (in particular clause 1.11), if a consumer uses the service, the following provisions shall apply:

1.25.1 The Customer may cancel the provision of services within two (2) weeks without stating a reason. The two-week period starts after receipt of this notice in text form but not before the conclusion of this End-User Agreement. In order to meet the cancellation deadline, the date of dispatch of the cancellation notice is decisive. The cancellation notice should be sent to Wayport A/S, Gersonsvej 7, 2900 Hellerup, Denmark.

1.25.2 In the event of a valid cancellation, both parties shall be obliged to restore any benefits already received in accordance with legal provisions, and issue any gains (e.g. interest). If the Customer is unable or partially unable to restore the benefits, or only able to restore them in poor condition to Wayport, then the Customer must reimburse Wayport for the corresponding value. Wayport must fulfil its obligations for restoration within 30 day after receipt of such notice.

1.25.3 According to Chapter 2 section 4 of the Distance and Doorstep Sales Act (Sw. Distans och hemförsäljningslag (2005:59)) the Customer's right of cancellation lapses before the end of the cancellation period referenced in clause 1.25.1 if:

1.26 This clause 1.26 is applicable to Customers in France only.

1.26.1 Clause 1.8 shall not apply. Instead, the following shall apply: Wayport has the right to suspend or terminate Customer's service at any time, and for any reasonable reasons. Wayport will notify the Customer with a notice of 1 hour prior to such suspension or termination. If the Customer does not accept such suspension, the Customer can terminate the Agreement in the conditions set forth in clause 1.10. Reasons for suspensions or termination may include, but are not limited to, "spamming" (distribution of unsolicited mass emails which provoke complaints from the recipients), and abusive or threatening communication or solicitation. Wayport has the right to delete all data, files or other information that is stored in Wayport's computer systems with respect to Customer's account if Customer's service with Wayport is terminated, for any reason, by either Customer or Wayport. Back-up is the responsibility of Customer. Notwithstanding this clause, Wayport is obliged to comply with local data retention legislation.

1.26.2 Clause 1.10 shall not apply. Instead, the following shall apply: The service period is from the time the Customer clicks the "CONNECT" button to authorise payment for the Wayport High Speed Internet Access (where payment is required) until the expiration of the chosen internet access time period. The service can be terminated by the Customer after use of the service has begun with a prior notice of 1 hour if the delivery of the service is faulty or after notification by Wayport of the suspension of the service, being in both cases, no refunds will be given for partial periods within the time period purchased by the Customer unless the delivery of the service is faulty during this partial time period. In the event that delivery of the service is faulty due to circumstances for which Wayport is responsible, Wayport shall provide the Customer with a refund for the Customer's payment in respect of the time period during which the services were unavailable.

1.27 This clause 1.27 is applicable to domestic and small business Customers in the United Kingdom only.

1.27.1 Clause 1.19 shall apply subject to the following amended complaints procedure: If Wayport and the Customer are unable to resolve a complaint satisfactorily, Wayport will issue a "deadlock" letter so that the Customer may make a complaint through Otelo, an independent alternative dispute resolution scheme. Wayport can provide the Customer with details of this service. Alternatively if more than 8 weeks has passed since the Customer first made the complaint, please contact the Otelo alternative dispute resolution scheme directly. The contact details are as follows: Otelo, PO Box 730, Warrington, WA4 6WU, United Kingdom; telephone: 0330 440 1614 or 01925 430 049; e-mail: enquiries@otelo.org.uk; web site: http:// www.otelo.org.uk.