The mobile service subscribed to by virtue of these special terms and conditions is provided by ONMOVIL COMUNICACIONES MÓVILES, S.L. (the "OPERATOR"), a company belonging to Grupo GIGAS HOSTING, S.A., with registered office in Alcobendas, Madrid province, Spain, at Avenida de Fuencarral, 44, Edificio Gigas, holder of the tax identification number [NIF] B-88609540, and registered with the Registro Mercantil de Madrid [companies registry of Madrid] at Volume 32784, Folio 221, Section 8, Page M-243505. For further information about the OPERATOR, please call 786 405 07 62
, send an e-mail to info@gigas.com or visit the following web sites: www.gigas.com and www.onmovil.es. In connection with the mobile service, any references to "GIGAS" in the Agreement or in any appendix forming part of the Agreement is to be treated as a reference to the OPERATOR. For any correspondence in relation to the mobile service in question, the CLIENT may contact the OPERATOR's Client Service Department, through any of the following channels: Telephone: 786 405 07 62
, available 24/7. email: info@gigas.com
Description of the Service:
The service forming the subject matter of this Agreement is a mobile telephone service (the "Service"). The Service comprises a network availability service, a service for making and receiving calls, a service for sending and receiving short text messages (SMS), a service for sending and receiving electronic communications, an Internet access service, availability of calls to the 112 emergency telephone number and any other services that the laws and regulations in force establish as mandatory at any time. To use the Service, the CLIENT must use an unlocked, suitable and standard-approved mobile handset, which will be the exclusive responsibility of the CLIENT, as it is not provided by the OPERATOR as part of the Service.
As stated in the GENERAL TERMS AND CONDITIONS OF SERVICE of the OPERATOR, which form part of the Agreement and of which these SPECIAL TERMS AND CONDITIONS also form part, this Service is provided to the CLIENT (whether an individual or a legal entity) within the framework of its/his/her business activity. The OPERATOR’s Service is intended only for business clients and in no case for customers who hold the status of consumers. The service is unavailable to the residential market. Therefore, if the CLIENT discontinues its/his/her business activity, it/he/she must notify such fact to the OPERATOR immediately and request the termination of this Agreement. Termination will take place immediately if the CLIENT loses the status of business client, regardless of whether or not such termination was requested by OPERATOR or by the CLIENT. Under no circumstances may the CLIENT use the Service for a purpose or in a context other than that of its business activity.
The international roaming service is subject to these SPECIAL TERMS AND CONDITIONS (and the rest of the terms and conditions of the Agreement), and to the European Union Roaming Regulation. Use of the roaming service implies agreement by the CLIENT to all notices, rules and instructions made known to the CLIENT by the OPERATOR after the acceptance of these SPECIAL TERMS AND CONDITIONS, as the case may be.
The roaming service will enable the CLIENT, when abroad, to make and receive calls, send and receive SMS, surf the Internet, and use e-mail and phone apps.
To use the international roaming service, such service must be available in the country where the CLIENT intends to use it, and the CLIENT must activate the service. The roaming service may be activated and deactivated at any time by calling the OPERATOR's Client Service Department. The price of the service will depend on the country where the CLIENT is located, except in the case of traffic within countries belonging to the European Union and the European Economic Area, where the price will be determined by the terms and conditions of the CLIENT's own domestic tariff.
The roaming CLIENT must be usually resident in Spain or have stable ties with this country, which imply a frequent and substantial presence, when travelling periodically within the European Union. The "fair use" policy referred to in the European Union Roaming Regulation applies. The OPERATOR reserves the right to:
(1) request from its roaming CLIENTS proof of their usual residence or other stable ties;
(2) apply, upon prior notification, the surcharge, if any, indicated for data roaming traffic within the European Union and European Economic Area that exceeds the data volumes that may be consumed while roaming in accordance with the limits, if any, set out in the Offer;
(3) use fair, reasonable and proportionate mechanisms based on objective indicators to determine whether the CLIENT's European Union and European Economic Area roaming consumption prevails over domestic traffic. Long periods of inactivity of a SIM card linked to predominant, if not exclusive, roaming use, or sequential activation and use of multiple SIM cards by the same CLIENT when roaming, will be deemed an abusive or anomalous use of roaming services.
The OPERATOR will apply observation periods of four (4) months during which it will cumulatively analyse consumption and presence indicators and, if necessary, may notify the CLIENT that the CLIENT’s use of roaming tariffs is considered abusive. The OPERATOR may apply the applicable surcharge from that moment on if within fourteen (14) days after the notification the CLIENT's conduct continues to indicate presence and predominant consumption in the European Union and European Economic Area zone. For all other countries, voice, SMS and data traffic while roaming will be billed at the roaming rates applicable in the country concerned.
The roaming service will be billed via the invoice for the subscription line or charged to the available balance of a prepaid card line. The amount will be due as soon as the invoice is presented for collection. However, for prepaid cards, the consumption of data roaming services within the European Union must be limited to volumes equal to the volume obtained by dividing the total amount, excluding VAT, of the remaining balance available on the card and already paid by the CLIENT at the time of initiating roaming by the maximum regulated wholesale roaming rate referred to in the European Union Roaming Regulation.
The OPERATOR shall invoice the CLIENT for postpaid Services provided on a monthly basis, and the CLIENT expressly agrees by entering into this Agreement that the invoice for each billing period will be sent to the CLIENT in electronic form via e-mail or will be made available in the CLIENT's private area on the website https://gigas.com/panel/login. GIGAS may issue partial invoices prior to the end of the billing period if: (i) the CLIENT exceeds the available credit limit; (ii) there is any suspension or temporary downtime of the Service; (iii) there is a termination of the Agreement; (iv) the CLIENT fails to pay or breaches any other terms of the Agreement; or (v) the CLIENT commits fraud (without prejudice to any other consequences that may arise for the CLIENT in such cases). If, for technical reasons, it were not possible to invoice the CLIENT in the month immediately following the month of accrual, GIGAS may invoice the CLIENT in subsequent months.
Invoices sent or made available to the CLIENT must set out separately the several invoiced items included in the Service, although the CLIENT is entitled to request non-itemised invoices. Specifically, each invoice must indicate the billing period, the fixed monthly fee, other fixed fees, details of all billed communications and any taxes arising from the provision of the Service and any amounts arising from items not included in the Service, such as, if applicable, international roaming charges.
A prepaid CLIENT shall have an account linked to the CLIENT’s subscriber number in which the CLIENT’s available balance will be on record at all times for the use of the Service (the “Account”). The CLIENT may consult the available balance and the details of communications made via the CLIENT’s private area, by calling
786 405 07 62
or by contacting the e-mail address gigasmovil@gigas.com.
To make calls, send messages or make any other use of the Service that entails voice or data traffic at the initiative of the prepaid CLIENT, the CLIENT must have in the CLIENT’s Account such balance as, in accordance with the applicable rates, is necessary to cover the requested traffic (which will be deducted from the CLIENT’s balance once consumed). However, the absence of a sufficient Account balance will not prevent the making of calls to the emergency number 112 or receipt of messages and calls not involving any charge to the CLIENT.
The CLIENT may increase the available Account balance by topping up the CLIENT’s SIM card at any time, as long as the Service remains active. To do so, the CLIENT may choose any of the means of topping up enabled by the OPERATOR as explained on its website.
The amount of each top-up by the CLIENT must be at least €5 and no more than €150 (taxes included).
The CLIENT may instruct the OPERATOR to disconnect the international call services and free access premium rate services by contacting the OPERATOR's Client Service Department as specified in this Agreement or through the CLIENTS's private area of the website www.gigas.com or, if applicable, using the OPERATOR's mobile app. The OPERATOR shall proceed to implement such disconnection within a term of ten (10) days from receipt of the CLIENT’s request. If the OPERATOR conducts the disconnection late for reasons not attributable to the CLIENT, the OPERATOR shall assume any costs arising from the Service to be disconnected that are incurred by the CLIENT beyond the above deadline.
If the OPERATOR temporarily suspends the Service in accordance with the GENERAL TERMS AND CONDITIONS, the CLIENT may still receive calls in Spanish territory other than collect calls and may make calls to 112 or any other emergency number. If the reason for temporary suspension is a delay in payment of any amount owed by the CLIENT, the OPERATOR shall restore the Service on the business day following the day on which the CLIENT notifies the OPERATOR of a payment actually made of the amounts due.
The OPERATOR may temporarily suspend the Service if the CLIENT uses it in any way that is unlawful, improper, malicious or contrary to the requirements of good faith or commits fraud using the Service or breaches this Agreement.
Additionally, if the CLIENT wholly or partly fails to pay any amount owed to the OPERATOR for a period of more than three (3) months from the date the relevant invoice was sent or some of the Services are suspended on two (2) occasions due to non-payment of the relevant invoices, the OPERATOR may, with prior notice to the CLIENT, discontinue the Service finally and, therefore, terminate the Agreement early, without any compensation for the CLIENT and without prejudice to the OPERATOR’s right to recover damages caused by such use.
Likewise, if during a consecutive period of five (5) months the CLIENT does not make any top-up (for prepaid CLIENTS) or does not make any chargeable consumption (for prepaid CLIENTS), the OPERATOR may suspend or finally discontinue the Service, with no compensation being due to the CLIENT.
On the other hand, the CLIENT may, free of charge, request from the OPERATOR a temporary suspension of the Service for a set period between one (1) month and three (3) months. Such suspension period may not exceed ninety (90) days in a calendar year and, during its validity, the OPERATOR may only bill the CLIENT for 50% of the tariff under the Agreement.
The CLIENT may request prevention of the identification of its line in calls the CLIENT makes or receives – except for those made to the emergency number 112 – or prevention of identification of the originating line in calls it receives. For this purpose, the CLIENT must request the activation of such limitation through the OPERATOR's Client Service Department.
Without prejudice to the service level agreements to which the Service may be subject in accordance with the Agreement, the OPERATOR warrants the continuity and adequacy of the Service to the standards and quality parameters common in the telecommunications and electronic communications sector that are required by the laws and regulations in force and by the technical specifications established by the competent authority, subject to use by the CLIENT of an unlocked, suitable and approved mobile handset and to the availability of sufficient coverage wherever the CLIENT is located at the given time. The CLIENT is informed that for the provision of the Service the OPERATOR uses the network of a Mobile Network Operator outside the OPERATOR's control.
The OPERATOR will not be liable for any damage or loss suffered or benefit not obtained by the CLIENT or any third party directly by reason of failure to provide the Service due to: (i) incorrect operation, defects, faults and/or damage in the handset used by the CLIENT; (ii) loss, alteration and/or total or partial damage to information held on the CLIENT's handset.
The OPERATOR shall indemnify the CLIENT for any temporary downtime in the mobile telephone Service that is directly attributable to the OPERATOR. The amount of the indemnity will be the greater of: (i) the average of the amount billed for the interrupted services during the three (3) months prior to the downtime, prorated according to the time the CLIENT underwent the downtime. If the CLIENT’s subscription is less than three (3) months old, the amount that will apply will be the average invoice of the complete monthly payments made or such amount as would have accrued in a monthly payment estimated in proportion to the period of effective consumption; (ii) five (5) times the monthly subscription fee in effect at the time of the downtime, prorated for the duration of the downtime. However, if the Service downtime were caused by force majeure, the OPERATOR need only compensate the CLIENT with the amount of the subscription fee, prorated for the time the downtime lasted.
The OPERATOR undertakes to compensate the CLIENT when the CLIENT suffers temporary downtime in the mobile data service continuously or discontinuously for a period exceeding six (6) hours from 8:00 am to 10:00 pm. The amount of the compensation will consist of the refund to the CLIENT of the amount of the subscription fee, prorated according to the time the downtime lasted. Determination of the subscription fee for the Internet access service will be in accordance with the terms of the Offer. Payment of indemnities will be made automatically by deduction from the invoice of the billing period following the one in which the downtime occurred, stating the date and duration of the downtime and the amount recoverable by the CLIENT for that reason.
However, the above indemnities will not apply when the amount accrued is less than one euro (€1) or if the downtime occurs for the following reasons: (i) serious breach of the Agreement by the CLIENT; (ii) damage caused to the network by the CLIENT due to connection of handsets not approved under current regulations; or (iii) during the use of an international roaming service. As a rule, to determine which clients were affected by any downtime of the Service, the OPERATOR will consider that the downtime affected those clients that: (i) the OPERATOR has identified as being located in the area of the Service downtime by means of its information systems (or third party network operators), (ii) have their billing address in the affected area or, (iii) have informed the OPERATOR, through the Client Service channels, within ten (10) calendar days from the restoration of the Service, that they were in the affected area at the time of the downtime. In the latter instance, the OPERATOR may verify such circumstance by means of its information systems or those of the network operators on the basis of whose infrastructures or services the Service is provided to the CLIENT.
Some Services may be restricted in terms of Internet bandwidth or speed or use or applications, in which event the OPERATOR shall at the time of formal execution of the subscription inform the CLIENT about the terms and conditions of such services. Quality of Service, including Internet access speed, may be affected by implementation of the network operator's procedures for measuring and managing traffic to avoid exhausting or saturating the network.
Without prejudice to other considerations regarding the secrecy of communications that may be provided for in the GENERAL TERMS AND CONDITIONS, the OPERATOR undertakes to establish the necessary means to warrant to the CLIENT the secrecy of communications sent or received within the framework of the provision of the Service. However, the OPERATOR may directly or indirectly conduct such interceptions as are required by the laws and regulations in force or by the duty of the OPERATOR or the relevant network operator to cooperate with the authorities in events established by law.
The CLIENT is entitled to request inclusion of the CLIENT’s details in subscriber directories, or exclusion from such directories, or omission from the directories of specific CLIENT details. The OPERATOR shall not communicate the CLIENT's data to the authority in charge of sending such information to the companies producing the directories except in case of express request from the CLIENT through the OPERATOR's Client Service Department.
In addition to any other provision regarding the termination of the Agreement set forth in the GENERAL TERMS AND CONDITIONS, termination will apply upon the loss of the status of mobile operator by the OPERATOR or the mobile network operator whose network is used for the provision of the Service. Such ground of termination of the Agreement creates no entitlement of the CLIENT to any indemnity or compensation.
These GENERAL TERMS AND CONDITIONS are an integral part of the Service Agreement signed by the CLIENT with ONMOVIL, a company belonging to GRUPO GIGAS HOSTING, S.A.
The purpose of these GENERAL TERMS AND CONDITIONS is to govern the manner in which the SERVICE will be provided by the OPERATOR to the CLIENT in accordance with the description of the Service set out in Appendix 2 of the Agreement and, if applicable, any supplementary services subscribed to by the CLIENT at any time. The Service covered by these GENERAL TERMS AND CONDITIONS must be provided subject to the legal regime set forth herein and in the applicable laws and regulations.
The OPERATOR may provide the Service through its own network, infrastructure or technology or over those of a third party connectivity, transport or technology provider, and may be provided jointly or separately, depending on the terms and extent of the Service subscribed to by the CLIENT in each specific case.
The CLIENT undertakes to use the Service in accordance with the law, these GENERAL TERMS AND CONDITIONS, the OFFER, the Agreement, honourable conduct, generally accepted good practices, public order and, in general, in accordance with the purpose for which it is provided by the OPERATOR.
The CLIENT undertakes not to use the Service for unlawful purposes or purposes that may harm the rights of third parties or the OPERATOR or that may in any way damage, harm or work to the detriment of the Service, the property or the reputation of the OPERATOR or third parties.
The CLIENT may not commercially exploit the Service and obtain an economic return directly or indirectly from the resale of the Service that forms the subject matter of the Agreement and of these GENERAL TERMS AND CONDITIONS, or of any of the capabilities or functionalities of the Service.
If the CLIENT does make any of the above uses of the Service, the OPERATOR will be entitled to conduct any of the actions set forth in Clause 7 of these GENERAL TERMS AND CONDITIONS, without prejudice to any other actions to which it may be entitled.
The Agreement of which these GENERAL TERMS AND CONDITIONS form part will take effect on the date on which the OPERATOR activates the Service (the "Service Activation Date") and will run for the duration set forth in the OFFER or in Appendix 2. However, as the case may be, the Agreement may be terminated for the reasons and under the terms set forth in Clause 14 of these GENERAL TERMS AND CONDITIONS.
The Service provided will attract the rates and discounts in effect at any given time according to the type of service and/or product chosen by the CLIENT, as set out in the OFFER and/or in Appendix 2. The taxes in force at any given time will apply to these rates. The economic terms and conditions established in this Agreement are incompatible with any promotion, discount or other rate that may be published by the OPERATOR, now or in future, unless otherwise expressly stipulated therein.
The Parties agree that during the term of the Agreement the Charges for the Services must be revised each year (upward or downward) in accordance with the variation of the Spanish headline consumer price index (CPI) for the previous calendar year and with the indices established by the Instituto Nacional de Estadística (Spanish national institute of statistics) or such agency as may replace it for the whole of Spain. Such adjustment must be made annually on 1 February of each year, prorating such rise or decline of the CPI for the first annual period of the Agreement according to the time elapsed from the signing of the Agreement until the following 1 January. If the final indices have not been published by the date on which the review may take place, the provisional indices may be applied if they are known or, failing this, those of the previous year must be relied on until the provisional indices are known. The parties shall make the appropriate adjustments when the other indices are known, and the difference, if any, existing between the final data point and the provisional index that was applied must be paid as a lump sum within the first monthly payment following the date on which the final data point is known.
Without prejudice to any other billing and payment terms that may apply to the Service under the Agreement (and that may include, inter alia and as the case may be, payments by credit card, payments for use of the Service, etc.), as a general rule, the CLIENT shall pay the price of the Service on a monthly basis as provided in this Clause. The CLIENT shall pay to the OPERATOR the registration fees and monthly subscription fees set out in the OFFER or in Appendix 2, as the case may be, monthly and in advance.
If the CLIENT is a self-employed worker and has subscribed to the Service within the framework of his/her business activity, payments must be made before the 15th day of the month following the month in which such charges were made, by direct debit to the CLIENT’s bank account designated for such purpose.
If the CLIENT is a company or belongs to the residential market, i.e., is a consumer, payments must be made within a maximum period of thirty (30) days from the date on which the OPERATOR issues the invoice, by means of direct debit to the CLIENT’s bank account designated for such purpose.
The OPERATOR shall send or make available to the CLIENT an invoice for the amount due for the Service according to the terms agreed in the Offer and/or in Appendix 2. Moreover, if part of the Service, the CLIENT will be entitled to obtain a specific breakdown of the any supplementary services subscribed to in addition to the fixed telephone service and the Internet access service. The CLIENT may also request that the OPERATOR send to the CLIENT separate invoices for premium rate services, in which event the OPERATOR shall state on the invoice as separate items the fixed telephone service and the premium rate service, identifying the relevant service provider or, if not known to the OPERATOR, identifying the relevant network operator.
Notwithstanding the foregoing, when the total charges billed by the OPERATOR to the CLIENT do not reach the amount of fifteen euros and three euro cents (€15.03), taxes not included, the OPERATOR may roll over the amount to the invoice of the following month until the total of the billed charges reaches such limit, and so on successively.
The invoice must show a breakdown of the charges for use of the Service, which will be composed of the charges incurred by the CLIENT, including, if applicable, registration fees, monthly fees for the following billing period and usage charges for the ended period, in accordance with the prices in effect at that time, and, if applicable, any discounts and promotions applicable to the CLIENT.
If the CLIENT is late in full or partial payment of the amounts of any invoice, such amounts will be deemed overdue debt. The OPERATOR may therefore take such actions for non-payment as it deems fit and charge interest for late payment at a rate equivalent to the statutory interest rate increased by two (2) percentage points. If the Service subscriber and the party responsible for payment are not the same, the OPERATOR may proceed interchangeably against either to recover the total or partial non-payment of an invoice.
The OPERATOR may set a credit limit for the CLIENT when, on reasonable grounds and at the OPERATOR's sole discretion, the OPERATOR deems it appropriate, and may invoice and send for collection any amount that exceeds such limit without having to wait for the end of the billing period set forth in this Agreement.
The OPERATOR may request the posting of collateral in accordance with the laws and regulations in force at any time in the following events:
i) If the CLIENT leaves one or more bills for the Service unpaid or if there is a repeated delay in payment.
ii) If the CLIENT incurs debt for other service contracts with the OPERATOR, whether in force or not at the time of subscribing to the Service. For these purposes, a delay in payment is deemed to occur if payment is made after the voluntary payment period has expired, and a delay is repeated if it occurs more than once within a period of one year. The amount will be determined as the sum of the last three bills invoiced to the CLIENT or, if the Agreement is less than three years old, the amount resulting from multiplying the last bill by three. The posted collateral must be refunded as soon as the OPERATOR is aware of full payment of the amounts due or, as the case may be, when the OPERATOR ascertains an absence of delays in payment for a period of one year.
iii) For a subscription contract where the subscriber provides premium rate services.
iv) If, as an exception, such measure is authorised by the competent government body at the request of the OPERATOR in events of ascertained fraud to ensure compliance with the contract by end users. v) Any event designated by the competent government body.
The OPERATOR shall grant the CLIENT a term of fifteen (15) calendar days to post the collateral. Once this term has elapsed, if any non-payment or delay in payment occurs, the OPERATOR may suspend the Service. Moreover, the OPERATOR may terminate the CLIENT’s subscription and the Service, with no right accruing to any compensation from the OPERATOR, if, after a further period of ten (10) days after a second request, the collateral is not posted.
The collateral will not bear interest and must be refunded when the grounds giving rise to it no longer apply. The posted collateral is exempt from IVA (value-added tax: IGIC in the Canary Islands and IPSI in Ceuta and Melilla).
Any delay in full or partial payment by the CLIENT for a period of more than one month from the presentation of the relevant invoice for collection will entitle the OPERATOR to temporarily suspend the Service, with prior notice to the CLIENT five (5) business days in advance. The OPERATOR may demand from the CLIENT the late payment interest stipulated in Clause 5 above.
The OPERATOR reserves the right to make the continuity of the provision of the Service subject to the CLIENT's prior compliance with the terms of Clause 5 in relation to the CLIENT’s payment obligations for the Service.
For suspension of the Service as a consequence of non-payment by the CLIENT, the OPERATOR shall notify such suspension to the CLIENT at least five (5) days prior to the date on which such suspension is to take place. Non-payment for the main Service will entail suspension of all supplementary services subscribed to under the Agreement. The CLIENT shall refrain from any action that implies a use of the Service or of any related service provided by OPERATOR that is not contemplated under the Agreement. The OPERATOR may immediately suspend the Service without notice in the event of breach by the CLIENT of this obligation. The CLIENT will be liable for any fraudulent activity carried out on the Service that causes or may cause damage or detriment to the OPERATOR or third parties.
If, in the OPERATOR's sole judgement, a negligent or fraudulent act or omission of the CLIENT or, in general, an improper or disallowed use of the Service affects or may affect the correct operation or security of the Service or the network, equipment or infrastructure through which OPERATOR provides the Service, the OPERATOR reserves the right to suspend or discontinue the Service immediately, temporarily or finally, with no right accruing to the CLIENT to receive any kind of indemnity or compensation and without prejudice to the OPERATOR's right to take any action it may be entitled to in defence of its interests.
If the CLIENT has a complaint about the provision of the Service, the CLIENT should approach the Client Service Department by writing to the registered office of Gigas Hosting, S.A. at Avenida de Fuencarral, 44 Edificio Gigas, 28108, Alcobendas, Madrid, by telephone at
786 405 07 62
, or by e-mail to the address info@gigas.com, within one month from the date of awareness of the event giving rise to the complaint.
The OPERATOR shall communicate to the CLIENT the reference number assigned to the claim or complaint raised or incident reported by the CLIENT. The CLIENT may request supporting evidence of the presentation and content of the CLIENT’s complaint.
The making of a complaint by the CLIENT does not have the effect of suspending payment of bills issued by the OPERATOR within the contractually agreed time limits.
The estimated time limit for the Service becoming available will be as indicated in the Offer and/or Appendix 2, provided that a force majeure event does not occur that prevents the operation or installation of the Service and provided that the CLIENT has provided all the necessary technical and operational information and, likewise, has allowed performance of the joint operation tests. If the CLIENT does not communicate to the OPERATOR any dispute or complaint within a period of five (5) calendar days from the Service Activation Date, the CLIENT will be deemed to have silently accepted and fully agreed with the installation, implementation or any other work done for the start-up and provision of the Service.
The OPERATOR will not be responsible for Service downtime if caused by: (i) breach of the Agreement by the CLIENT and, in particular but not exclusively, of these GENERAL TERMS AND CONDITIONS and/or in Appendix 2, in particular in event of fraud or default in payment, which will give rise to the application of the provisions for the temporary suspension or discontinuation of the Service; (ii) damage caused to the network through which the Service is provided due to connection by the CLIENT of terminals the compatibility of which has not been assessed in accordance with the laws and regulations in force or not approved by the OPERATOR; (iii) government or court order; (iv) power outage; (v) misuse by the CLIENT of the Equipment leased by the OPERATOR; or (vi) network maintenance operations.
For the above purposes, the duration of Service downtime will be calculated either from the moment the failure notice is received, or from the moment the OPERATOR logs the incident causing the total or partial Service downtime, to the moment when the Service is restored.
The CLIENT shall notify the OPERATOR using the Client Service telephone number, immediately upon becoming aware, of any faults detected in the Service.
Repair costs must be borne by the OPERATOR, provided that the fault is not attributable to the CLIENT due to negligent use or maintenance or malicious or negligent actions on the network over which the Service is provided or on its equipment or, in general, due to improper use of the Service.
The OPERATOR will be liable to the CLIENT for the proper performance of its obligations under the Agreement within the limits stipulated in these GENERAL TERMS AND CONDITIONS and in the applicable laws and regulations. The OPERATOR will be exempt from liability in any of the following circumstances:
a) the defects observed in the performance of the Agreement are attributable to the CLIENT;
b) such defects are attributable to a third party not involved in the supply of the services under the Agreement and are unforeseeable or insurmountable;
c) the defects are due to force majeure, defined as abnormal and unforeseeable circumstances beyond the control of the party invoking that excuse, the consequences of which could not have been avoided, despite such party having acted with due diligence;
d) the defects are due to an event that the OPERATOR, in spite of having acted diligently, could not foresee, avoid or overcome. Compensation for damages resulting from non-performance or poor performance of the services under in this Agreement will be limited to the total price of the Service subscribed to.
The OPERATOR shall adopt the measures prescribed by the laws and regulations in force to assure the secrecy of communications throughout its network. The OPERATOR is exempt from liability if such communications were revealed to third parties for reasons not directly attributable to the OPERATOR.
The Agreement or, as the case may be, a specific Offer, will be terminated, with the consequent final discontinuation of the Service, for the general reasons admitted in law and, especially, but not limited to, for the following reasons:
i) Non-payment or delay in payment for the Service for a period of more than three months or if the CLIENT has not cured such breach within ten (10) days from receipt of a written demand by the OPERATOR. The OPERATOR may demand, in addition to the unpaid amounts and interest, the amounts that would have accrued up to the originally intended date of expiry of the Agreement or of any of its extensions, and may recover any damages caused.
ii) Temporary suspension on two occasions of the Service due to default in payment for the services.
iii) The following are also grounds of termination of this Agreement:
a. Discontinuation for any reason of one of the parties’ business or main line of activity or substantial alteration of the nature of its business, or dissolution, liquidation or closure of a party or transfer of the entirety of its assets.
b. Termination of the Agreement by either of the parties as a result of a serious or repeated breach by a party (other than payment of amounts due under this Agreement) of any of its Clauses, provided that such breach is not cured, if curable, within a period of twenty (20) days following a written demand for such cure from the other party.
Termination of the Agreement will not exempt the CLIENT from its obligations to pay any amounts accrued up to the time of the termination of the Agreement for the Service rendered until the date indicated for the effective termination.
Upon termination of this Agreement for any of the reasons set forth in this Clause, the CLIENT shall immediately return, at its own expense, the OPERATOR's Equipment. However, the OPERATOR may retain the CLIENT's Equipment by way of a pledge until the CLIENT has paid all amounts due, for which purpose the CLIENT expressly authorises the OPERATOR to do so.
If the CLIENT fails to honour the lock-in commitment agreed in the Offer or in Appendix 2, as the case may be, either by reason of early termination of the Agreement or by partial cancellation of the committed Services, the CLIENT shall pay the OPERATOR the sum of the monthly payments of each Service that would have accrued up until the end of the agreed lock-in period, either in relation to all the Services or to those subject to partial cancellation. Independently of the above, early termination of the Agreement or partial cancellation of Services without just cause at the unilateral discretion of the CLIENT will not entail the refund of any amount by the OPERATOR.
In addition to the provisions of the previous paragraph, if the CLIENT terminates the Agreement without just cause before the activation of the Services, the CLIENT shall pay to the OPERATOR, as an indemnification, any expense incurred by the OPERATOR until the date on which the CLIENT reliably communicates to the OPERATOR its intention to terminate the Agreement.
The OPERATOR may modify this Agreement for the following reasons: (i) changes in the technical characteristics of the equipment or networks, (ii) technological changes affecting the Service, (iii) changes in the economic conditions existing at the time of subscription to the Service, (iv) market changes and/or (v) any other circumstance that the OPERATOR considers appropriate. The OPERATOR shall notify the CLIENT one (1) month prior to the date on which the modification is to become effective. In such events, the CLIENT may terminate the Agreement without penalty, while any other commitments made by the CLIENT will remain intact.
Identity of the controller of personal data: ONMOVIL COMUNICACIONES MÓVILES, S.L. (the “OPERATOR”), Alcobendas, Madrid, at Avenida de Fuencarral, 44, Edificio Gigas, postcode 28108, holder of tax identification number B-88609540 and registered with the Companies Registry of Madrid at Volume 32784, Folio 221, Section 8, Page M-243505.
If the CLIENT is a corporation, the OPERATOR shall process such data of its representative as is strictly necessary for the maintenance, performance and monitoring of the Services rendered under the Agreement. The lawful basis for such processing is the fulfilment of the contractual relationship. The CLIENT's representative’s data will be retained for as long as such relationship remains in effect and, once it is terminated, until any liabilities arising from it expire. The data of the signatory of the Agreement may be communicated to government bodies in the events provided for by law, and to the Spanish police forces and the Centro Nacional de Inteligencia [Spanish national intelligence centre] by virtue of Ley 25/2007, de 18 de octubre, on the retention of data relating to electronic communications and public communications networks. The OPERATOR will be the recipient of the data, although it may transfer certain data to third parties for the proper provision of services (such as suppliers who provide services to the OPERATOR so that the latter can provide services to the CLIENT).
The signatory of the Agreement may request access to his/her personal data, and rectification, erasure or portability of the data, and may request the restriction of the processing or object to it, by writing, with an enclosed photocopy of his/her ID card or valid identity document, to the following address: ONMOVIL, Client Service Department, Alcobendas, Madrid, Avenida de Fuencarral, 44, Edificio Gigas, Código Postal 28108. The envelope should bear the legend “Data Protection.” Alternatively, the data subject may contact the Data Protection Officer at ONMOVIL COMUNICACIONES MÓVILES, S.L., by writing to the e-mail address dpo@onmovil.es or calling the telephone number 91 737 32 73.
If the CLIENT is an individual, the terms and conditions set forth in the OPERATOR's Data Protection Policy apply. The Policy is available at: https://www.onmovil.es.
If as a result of the provision of the Service under this Agreement the OPERATOR must act as processor with respect to personal data for which the CLIENT is the controller, the parties expressly agree to submit to the terms conditions of the data processing engagement, which, in compliance with applicable regulations, is available at https://www.onmovil.es
If in the context of the Services the OPERATOR provides the CLIENT with a free basic firewall, it will be the responsibility of the CLIENT to configure basic firewall functionalities on its Cloud Servers so as to manage access to the Service from separate locations. Configuration of the firewall is fully customisable by the CLIENT, so the OPERATOR is not responsible for the proper operation of the firewall.
If the Service includes a Fortinet Advanced Firewall, the CLIENT states that it is aware that the licences for the firewall are annual, so the subscription has a minimum duration of one (1) year, with successive annual renewals, until cancelled. The renewal costs of this service may vary. The OPERATOR shall notify the CLIENT of such changes in advance, and the CLIENT may choose not to renew the specific service without penalty. If such service is cancelled for any reason before the end of the subscription period in effect, the CLIENT will be bound to pay the remaining monthly fees to the OPERATOR until the end of the unelapsed subscription period.
The OPERATOR is expressly exempted from any liability that might arise from the content hosted or transmitted by the CLIENT and/or by third parties using the Service. The CLIENT shall fully assume all civil, criminal or any other manner of liability that may arise in relation to such content and/or, in general, from the use of the OPERATOR's Service. The OPERATOR reserves the right to suspend or finally cancel the Service if it detects any activity contrary to the law, morality or public order in relation to such content and/or the use of the Service. The OPERTATOR will give notice to the relevant authorities and make available the CLIENT's data as requested by the judicial or government authority, with no right to compensation accruing to the CLIENT.
The CLIENT is solely and exclusively responsible for the safe custody of passwords created to access its administration area of the Service to prevent access by any unauthorised third party. The CLIENT must have original software licences as necessary for the provision of the Service by the OPERATOR. The OPERATOR may at any time request that the CLIENT prove its ownership of such licences. The OPERATOR is not responsible for the consequences that breach of this obligation by the CLIENT could create facing third parties. In this regard, the CLIENT shall bear in mind that, although not all software requires a licence, it is possible that the software that the CLIENT wishes to install using the Service does require an original licence. The CLIENT assumes responsibility for having its software properly licensed in accordance with the requirements of each supplier and for complying with the respective agreements and/or conditions of use. The CLIENT shall defend and hold the OPERATOR harmless against any claim, complaint, fine, sanction and/or third-party action arising from the CLIENT's breach of its obligations under this Clause.
The CLIENT expressly states that: (a) the funds used in the transactions under this Agreement are not the proceeds of nor are to be used to engage in any unlawful activity; (b) it complies with the general and particular rules on control and prevention of money laundering; (c) it has adopted measures, codes of conduct and other requirements for the prevention of money laundering and terrorist financing; (d) in the course of the activity under this Agreement, the CLIENT shall use all efforts to strictly comply with all the rules of precaution and prevention of money laundering and terrorist financing; (e) the CLIENT shall maintain documentary records of all the rules, procedures and manuals that it creates internally for the prevention and control of money laundering to perform the above obligations.
The Parties acknowledge that this Agreement is entered into in reliance on the above statements and, if either of the Parties becomes aware by any means that any such statement has ceased to be valid with respect to the other Party, or if a Party refuses to provide a statement of similar import regarding new courses of conduct codified as unlawful, then the interested Party will be deemed to be entitled to immediately and unilaterally terminate this Agreement for just cause, and no indemnification will be payable.
These GENERAL TERMS AND CONDITIONS will be governed by and construed in accordance with Spanish law.
The parties agree that any litigation, dispute, issue or claim as to the existence, validity, performance or interpretation of this Agreement will be subject to the jurisdiction of the courts of the city of Madrid, expressly waiving any other jurisdiction to which they may be entitled or, if the CLIENT’s status is that of a user, to the courts having jurisdiction at the CLIENT’s location in Spain.
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