1.1 In this Agreement, unless the context clearly indicates otherwise the following words and expressions shall have the meaning ascribed:
“Agreement” means the contract between the Customer and Aptus Limited (“Aptus”) including these terms and conditions;
“Authorised Installer” shall mean a person or company appointed by Aptus to install, adjust, maintain or repair the Equipment;
“Customer” means the person with whom Aptus has made or is deemed to have made an Agreement;
“Equipment” means the equipment and/or any other item to include all fixtures, fittings, accessories and modifications thereto from time to time provided by Aptus under this Agreement;
“Minimum Subscription Period” means the term commencing on date of installation of the Equipment and ending on the date twelve (12) calendar months thereafter;
“the Parties” means the Customer and Aptus (which latter expression shall include its assignees);
“Premises” means the location at which the Customer receives the Service and where the Equipment is installed;
“Service” means the Internet Protocol (IP) based internet connectivity service provided by Aptus, subject to a licence from Comreg, connecting the Customer to the Internet via Aptus’ network;
“Subscription” means the amount payable by the Customer to Aptus for the Service chosen by the Customer and for the use of the Equipment together with any Value Added Tax and any other taxes (at applicable rates from time to time);
“Subscription Period” means the entire term of this Agreement, which shall automatically continue on a month by month basis after the Minimum Subscription Period unless and until cancelled by either Party in accordance with the terms and conditions set out herein.
2. GENERAL TERMS
Aptus supplies the Service and /or Equipment to and for the use of the Customer on the terms and conditions as set out in this Agreement.
This Agreement contains the entire agreement between the Parties. Neither Party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein. No alteration, cancellation, variation of, or addition hereto by the Customer shall be of any force or effect unless reduced to writing and signed by both Parties to this Agreement.
This Agreement may be suspended or terminated by Aptus for breach of its terms or otherwise in accordance with this Agreement.
No waiver by Aptus of any default on the part of the Customer under this Agreement shall operate or be construed as a waiver by Aptus in respect of any future defaults, whether of a like or different character. In addition, no granting of time or other forbearance or indulgence shall in any way release, discharge or otherwise affect the Customers liability under this Agreement.
Neither party shall be held liable in breach of its obligations under this Agreement (except in relation to continuing obligations to pay the Subscription) nor be liable to the other party for any loss or damage which may be suffered by the other party due to any cause beyond its reasonable control including inter alia any act of God, interruption of power supplies, drought, fire, trade dispute, public health crisis, act or omissions of Government or other circumstances beyond the control of the parties (“Force Majeure”).
If any provision of part of this Agreement is held invalid, illegal or unenforceable for any reason, it shall be severed and the rest of the provisions in this Agreement shall continue as if the Agreement had commenced without that provision or part of that provision.
This Agreement is subject to the laws of Ireland and the Irish courts shall have exclusive jurisdiction over any dispute arising out of or in connection with this Agreement.
3. COMMENCEMENT AND TERM
Subject to cancellation in accordance with the terms and conditions set out herein, the Agreement shall continue for the Minimum Subscription Period and thereafter for the Subscription Period unless and until determined in accordance with these terms and conditions.
4. PROVISION OF THE SERVICE
Aptus will endeavour to maintain constant access to the Service for use by the Customer. However, Aptus cannot be held responsible for accidental non-availability for outages of Service, for unforeseen interruptions to Service or for interruptions outside of Aptus’ control. Should the Service not be available as a result of damage to the Equipment by or through the fault of the Customer, whether inadvertently or intentionally, the Customer shall still be liable for the full Subscription during such relevant period.
Critical network issues and outages should be immediately reported to Aptus and action will be taken to resolve any issues as quickly as is reasonably possible to do so. Aptus Customer Care is available at 059 9158030 during office hours Monday to Friday 9:00AM to 5:30PM excluding public holidays.
5. OPEN ACCESS, NET NEUTRALITY, COMPLAINTS
Aptus operates a fair usage policy which is intended to maintain an equitable balance in internet access for all Customers.
Except in emergency situations (such as from extreme weather events, upstream provider service difficulties etc) or the very specific circumstances set out in the subsequent paragraphs Aptus does not apply any traffic management or prioritisation measures which could impact on the quality of the Service or on Customers’ privacy or the protection of Customers’ personal data.
However, data caps and bandwidth speeds applicable to Aptus’ Service packages, as set out in the Customer Service Contracts may, if insufficient for Customers’ needs, materially impact Customers’ user experience. In such circumstances, Customers are free to order a package upgrade from Aptus to meet their requirements. In addition, for those Customers who avail of the Aptus’ VOIP Telephone service, Aptus has built in an automatic facility whereby, if a Customer is using its Aptus Service package so heavily as to impact the quality of the Customer’s Aptus Telephone service, then prioritisation measures are effected insofar as necessary to ensure the continued functioning and quality off the Aptus Telephone service.
The full text of Regulation (EU) 2015/2120 (the Open Internet Access Regulations) is to be found at:. https://eurlex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32015R2120&from=EN
Article 4(1) of the Regulation requires Aptus to provide a clear and comprehensive explanation of the minimum, normally available, maximum and advertised download and upload speed of the internet access services in the case of fixed networks and how significant deviations from the respective advertised speeds could impact the exercise of the end-users’ rights. Aptus provides this information about its broadband speeds on its website. Speeds in respect of individual Service packages are set out in the relevant contracts. Furthermore, it is possible that in certain parts of Aptus’ network user experience may not fall within the parameters so described and in any such case, where material (i.e. non trivial), Aptus will notify affected Customers by email of any such differences.
It is Aptus’ sincere hope that any and all problems which may occur can and will be resolved speedily and to Customers’ satisfaction by in the first instance reporting any difficulties to Aptus Customer Care (see above). However, in the event that a Customer feels they wish to make a complaint, details of Aptus’ complaint handling procedures and how to log a complaint are set out in Aptus’ Code of Practice, which is available on Aptus’ website. In certain circumstances and depending on the degree of severity as detailed in Aptus’ Code of Practice (also available on Aptus’ website) Customers may be entitled to compensation and or a refund. In accordance with Article 4(1)(e) of Regulation 2015/2120 Customers’ attention is drawn to the fact that in the event of any continuous or regularly recurring discrepancy between the actual performance of the internet access service regarding speed or other quality of service parameters and the performance indicated in accordance with Article 4 (a) to (d) Customers have other potential remedies available to them both at common law and under consumer protection legislation (for example the right to have defective goods repaired or replaced, to repudiate or to seek rescission of the contract or damages under the Sale of Goods Acts, 1893 and the Sale of Good and Supply of Services Act, 1980.
6. CHANGES TO THE SERVICE OR THE AGREEMENT
Aptus may vary or change the Agreement or any part of the Service, including the level of the Subscription, for any commercial, technical or operational reason and any changes, including any increase in the Subscription, will be notified to the Customer thirty (30) days in advance. In the event of any such alteration the Customer may terminate this Agreement without penalty subject to payment of all Charges due to date. If no notice in writing of such intention to terminate is received prior to the date of implementation of such changes, the Customer will be deemed to have accepted the increase in charges and/or the changes to the Agreement, Service or Subscription as the case may be.
Subject to availability the Customer can upgrade their Service (Subscriptions) with Aptus at any time on the basis that the Customer shall:
.Notify Aptus either by phone of email of their wish to upgrade;
.Complete Aptus’s request for upgrade form online providing the required account details
.Enter into a new 12 month contract for the new Service (Subscriptions)
.Facilitate the upgrading by Aptus of any alternative Equipment that may be required
Where a new Service package is not available in a particular area of Aptus’ network Aptus is under no obligation to deliver the new Service and the Customer will remain on their existing Service and contract agreement.
8. CONTRACT DURATION
The Customer may cancel an order for Service from Aptus at any time within fourteen (14) days from the date the order is first placed by the Customer. A model cancellation form is available at our website under “Legal”, (https://aptus.ie/model-cancellation-form). If a Customer wishes to exercise its right to cancel it must do so in writing via the post or email (firstname.lastname@example.org). Telephonic notification will not be sufficient if written confirmation is not received within the said 14 day period. If on the other hand a Customer’s wishes to have installation and the Service carried out before the expiry of the said 14 day period the Customer should so notify Aptus and Aptus will try to accommodate the Customer in this regard.
Unless otherwise provided for in these terms and conditions, if the Customer terminates this Agreement before the end of the Minimum Subscription Period the Customer must immediately pay the entire balance of the Subscription due for the rest of the Minimum Subscription Period.
After the Minimum Subscription Period expires the Agreement may be terminated by either Party giving the other Party one calendar month’s prior notice. The Customer must pay the Subscription up to the end of the said notice period.
9. PAYMENT OF CHARGES
The Customer agrees to be bound by these terms and conditions and to pay the Subscription for the Service for which the Customer has contracted, monthly and in advance by direct debit. Full details of all Aptus’ current charges can be obtained by visiting the Aptus Tariff Card available on our website.
This Agreement may be suspended or terminated by Aptus at any time for breach of its terms, including any failure on the part of the Customer to pay the Subscription in the amount and manner agreed and in relation to which Aptus reserves the right to apply an administration charge of €10 for each and every such payment failure event.
10. SUPPLY AND MAINTENANCE OF THE SERVICE
The Customer agreed to provide Aptus and its agents with all such information and co-operation as may be reasonably required from time to time in order to enable Aptus to provide the Service. Specifically, the Customer agrees that:
.it shall, at its own cost, ensure that the Premises are suitable for the installation, use and accommodation of the Equipment;
.if the Customer is not the owner of the Premises at which the Equipment will be installed, it will provide the owner’s written consent to installation of the Equipment to Aptus and inform the owner of Aptus’ ownership of the Equipment. In addition the Customer agrees to the owner of the Premises being notified by Aptus of its rights in respect of the Equipment;
.access shall be granted to the Premises to allow for installation (and subsequently for repair and maintenance) of the Equipment. Should the Customer fail to grant access to the Premises, the Customer shall be responsible for any reasonable costs associated with the labour time lost, and Aptus shall not be responsible for any nonprovision of Services as a consequence;
.All risk of loss and damage in and to the Equipment shall from the date of delivery to the Customer vest with the Customer.
.The Customer shall take reasonable care in the use of the Equipment and shall at its own cost and expense maintain the Equipment in proper working order and protect it from loss and damage. However, Aptus shall, at its own cost, remedy any damage to the Equipment caused by faulty workmanship or defects in the Equipment, provided that the Equipment was installed by Aptus or by an Authorised Installer approved by Aptus.
11. OWNERSHIP OF THE EQUIPMENT
The Equipment is and shall remain the property of Aptus and the Customer shall not be entitled to acquire ownership during or after termination of this Agreement. In the event of a cancellation the Customer is obliged to facilitate the return of any Equipment to Aptus, by post to Aptus’ office in the case of modems/wireless access points and telephone equipment and in the case of the exterior antenna/wireless transmission equipment by permitting Aptus to remove same. In the event of any Equipment not being returned to/made available for removal by Aptus within 14 days of the cancellation of the Customer’s order, the Customer shall be charged by Aptus and shall pay to Aptus such sum as is set out on Aptus’ Tariff Card (available on our website) as being the charge payable in respect of the non-return of any Equipment. If any part of the Equipment is lost, stolen or damaged, irrespective of the cause, the Customer shall immediately notify Aptus on becoming aware of any such event.
12. TRANSFER TO OTHER PREMISES
The Customer shall promptly notify Aptus in writing if the Customer wishes the Equipment is to be moved to another location other than the Premises. Aptus provides no warranty in relation to the provision of the Service to or at any such other location. Aptus assumes no liability whatsoever if it cannot provide the Service thereat and in such a case the Subscription shall terminate upon the date upon which Aptus is given access to de-install the Equipment PROVIDED THAT if this occurs prior to the expiry of the Minimum Subscription Period, the Customer shall remain liable in full for the charges due in respect of the remainder of the Minimum Subscription Period.
The Customer shall not move the Equipment from the site or location of its installation by or on behalf of Aptus nor make any alternation or modification to the Equipment without Aptus’ prior written consent. In addition, the Customer will keep the Equipment free from the claim of third parties and from attachment and shall not alienate, transfer or encumber the Equipment either in part or as a whole or allow any lien to arise in respect thereof.
13. INDEMNITY AND LIMITS OF LIABILITY
Excepting in the cases of personal injury and or death the Customer hereby indemnifies Aptus against all claims made against Aptus for loss, damage or injury to any person or property occasioned by or arising from the use of the Service or the Equipment by the Customer.
Aptus will not be liable for any unforeseen, consequential or indirect loss, loss of profits, business, revenue, contracts or anticipated savings, wasted expense, financial loss, lost or destroyed data, liability to third parties or for damage or compensation for loss of use of the Service.
Aptus shall not be liable for failure to comply with undertakings under this Agreement if hindered from doing so by something outside Aptus’ reasonable control such as but not limited to lightning, flood or severe weather conditions, fire or explosion, civil disorder, epidemics, pandemics, terrorist activity, war, actions of local or national government or industrial disputes, performance of leased or rented telecommunications services or network or other operators and or the internet.
In no event shall Aptus be liable to the Customer for damage suffered by the Customer as a consequence of acts or omissions of third parties. The Customer acknowledges that it accesses the Internet at its own risk and that Aptus has no responsibility for any goods, services, information, software or other materials accessed by the Customer while using the Service.
14. ASSIGNMENT AND DELEGATION
The Customer shall not be entitled to assign and shall not cede any of its rights nor delegate any of its obligations hereunder without the prior written consent of Aptus. Aptus shall be entitled to transfer to any third party at its absolute discretion all or any of its rights under this Agreement, including its rights of ownership in the Equipment, either absolutely or as collateral security. In addition, Aptus shall be entitled to delegate all or any of its obligations under this Agreement to any third party at its absolute discretion. In the event of any such assignment/cession by Aptus, Aptus shall notify the Customer of the identity and contact details of the assignee/transferee in writing as soon as possible and in no event later than 30 days after the event in question. In no circumstances shall any such assignment or transfer by Aptus be regarded as a cancellation notice or termination event regarding contracts with Aptus customers.
Each of the Parties chooses, for the purposes of the giving of any notice, the serving of any process and for any other purposes arising from this Agreement, their respective addresses as set forth in the contract for the relevant Service package. The Customer agrees to provide Aptus with its current addresses and contact details as part of the terms and conditions of this Agreement and to update its contact email addresses as necessary as part of the terms and conditions for the provision of the Service.
The Customer agrees that all notice services on the Customer pursuant to this Agreement may, at the discretion of Aptus, be addressed to the Customer by email or by post.
Aptus also reserves the right to contact the Customer via the email address nominated regarding any service enhancements, upgrades, installation appointments/updates, pricing changes and/or general information in respect of the operation of the Service.
16. SPECIFIC TERMS AND CONDITIONS
Customers may not use the Service to carry out any unlawful, illegal or improper purpose or activity and agree that they shall not do so including inter alia in order to:
(a) resell or provide access to the Service or to any other Aptus service to any third parties or parties not located on the same premises, without the prior express written consent of Aptus. Breach of this provision may result in immediate suspension of the Service;
(b) restrict or inhibit any other user from using the Internet;
(c) post or transmit any unlawful, threatening, abusive, libellous, defamatory, vulgar, obscene, indecent, pornographic, profane, hateful, bigoted or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, national or international law, including without limitation export and import control laws and regulations;
(d) post or transmit any information or software that contains a Trojan, worm, virus or other harmful component;
(e) post, publish, transmit, reproduce, distribute or in any way exploit any information, software or other material forming part of the Service for commercial purposes;
(f) upload, post, publish, transmit, reproduce, or distribute in any way, information, software or other materials in which others have a proprietary right, or derivative works without first obtaining the permission of the copyright owner or rights holder as the case may be;
(g) upload, post, publish, reproduce, transmit or distribute in any way any component of the Service or derivative works, as are copyrighted as a collective work under European, Irish or International copyright laws;
(h) remove or alter copyright management information including, without limitation, name or identification information of the author or owner, copyright note or terms & conditions for use of a work;
(i) avoid, bypass, remove, deactivate or circumvent by any means, any process or system such as copy protection systems that are intended to protect the rights of a copyright owner;
(j) send unsolicited e-mail that causes complaints from the recipients of the unsolicited e-mail;
(k) send large quantities of unwanted or unsolicited e-mail to individual e-mail accounts (also known as “spamming” or “mailbombing’);
(l) make any unauthorized attempt to gain access to any account or computer resource not belonging to the Customer (also known as spoofing’);
(m) obtain or attempt to obtain service by any means or device with intent to avoid payment;
(n) knowingly engage in any activities that will cause a denial of service (DoS) (e.g. synchronized number sequence attacks) to Aptus itself or any Aptus Customers or end-users, or any other person;
(o) use the Service or Aptus’ products or services to interfere with the use of Aptus’ network by other customers or authorized users or any other person;
(p) violate the law or aid another in any unlawful act
(q) use the Service in such a way as to impair or degrade the operation or performance of the Service and/or Aptus’ network, including but not limited to abusive or excessive use.
In no circumstances does or will Aptus be liable or accept liability for any illegal use of the Service by a Customer and/or to the extent that Aptus is held so liable the Customer concerned agrees to indemnify and make Aptus whole in respect of any such liability.
Except for information, products or services clearly identified as being supplied by Aptus (such as on its website), Aptus does not operate or control any information, products or services on the internet. The internet contains unedited materials that Customers may find offensive or objectionable and Customers access such materials at their own risk. Aptus has no control over and accepts no responsibility for these materials. Customers may wish to utilize software designed to limit access to certain material on the internet. Customers are also solely and entirely responsible for their own cybersecurity and the protection of their internet connected devices and applications.
Aptus may take any action it deems appropriate without notice to protect the Service and its facilities for provision of the Service. If Aptus denies Customer access to Service pursuant to this section, the Customer will have no right (1) to use the Service to access any materials stored on the Internet, or (2) to use the Service to access third party services, merchandise or information on the Internet and Aptus will have no responsibility to notify any third-party providers of services, merchandise or information nor any responsibility for any consequences resulting from any such lack of notification.
If a Customer wishes to make purchases on the Internet, it may be asked by Aptus or the merchant from whom they are making the purchase to supply certain information, including credit card or other payment mechanism information. Unless Aptus is a party to such a transaction however, Aptus disclaims any and all liability for any failure or duplication of such a transaction as a result of any cause whatsoever, including disruption of the Service for any cause whatsoever.
Aptus shall have no liability or responsibility for any direct, indirect, incidental, or consequential damages suffered by any Customer in connection with their use of or inability to use the Service including, but not limited to, damages from loss of data resulting from delays, non-deliveries, mis-deliveries, or service interruptions, or due to inadvertent release or disclosure of information sent by them even if the same is caused by Aptus own negligence. Aptus specifically disclaims any responsibility for the accuracy or quality of information obtained through its Service.
Any network address assignments issued by Aptus (i.e., Class C address Internet Protocol numbers) are the property of Aptus and are considered to be loaned to its customers. In the event service with Aptus is discontinued for any reason, such IP addresses will revert to Aptus.
17. PERSONAL DATA
Aptus respects and protects its Customers’ right to privacy in accordance with Data Protection legislation. Any information obtained by Aptus through an application for the Service may be accessed and used by Aptus for the purposes of performing its obligations under this Agreement and for administration, risk assessment, market research, marketing, debt recovery and credit checking purposes, accurate billing and efficient operation of the Service. The Customer shall be deemed to have given consent for the use of their information for such purposes. For full details of how Aptus uses the information it collects, and under what circumstances Aptus discloses information, please read the Aptus Privacy Statement on the Aptus website at https://aptus.ie/privacy-policy/ which is hereby incorporated into and forms part of this Agreement.
18. APTUS PHONE – GENERAL TERMS AND CONDITIONS
Aptus’ tariffs for the Aptus Phone service, as amended from time to time, also form part of the Agreement. Aptus reserves the right to alter such tariffs and shall notify the Customer of any increase in price by notice in writing and /or via email and/or on the customer bill 30 days in advance of the effective date. Customers can access Aptus’ current Aptus Phone tariffs and charges on the Aptus’ website.
Aptus Phone Customers will be charged monthly in advance for the applicable monthly standard package charges of the Aptus Phone service. Applicable Value Added Tax shall be stated clearly in the bill. As some usage takes longer to rate, the Customer may be billed for charges incurred in a prior billing period together with any other non-standard package additional phone charges incurred in the previous billing period.
Should a Customer disagree with any charges shown on their bill, the Customer must raise their query with written confirmation with Aptus within 30 days of receipt of the bill out of which the issue arises.. If the charges are incorrect, Aptus shall amend and re-issue the bill with a new date for payment. Otherwise the full amount remains due.
Other than in a case of manifest error by Aptus, all charges shall be calculated by reference to the data recorded or logged by Aptus and Aptus’s determination in respect thereof is final.
19. APTUS PHONE GENERAL USE OF SERVICE
Aptus Phone Customers undertake not to use the Aptus Phone service for any improper, immoral or unlawful purpose, nor cause any nuisance by the use of the service, nor allow others to use the service for any of the foregoing purposes. Similarly, Aptus Phone Customers undertake not to use the service for the transmission of any material which is, may be or is intended to be a hoax or is of a defamatory, offensive, abusive, obscene or menacing nature; or for the infringement of intellectual property rights or trade secrets of another party; or for the processing of automated personal data as defined in current Data Protection legislation.
Aptus Phone Customers shall also ensure that all persons having access to the service comply with the terms and conditions herein stated.
Aptus Phone Customers shall comply with all reasonable instructions given by Aptus in relation to the use of the service and shall indemnify Aptus against all liabilities, claims, damages, losses, expenses and proceedings howsoever arising from or in any way connected with the use of the service.
20. USE OF APTUS PHONE SERVICE
In respect of Unlimited Local, National and UK landline calls – free calls are conditional upon disconnecting before the 60th consecutive minute and re-dialling. Calls lasting longer than 60 minutes are chargeable calls. A call connect fee of 4 cent applies to all call and thereafter calls are billed in minute increments. Fair usage applies. Aptus deems fairs usage to be:
.Local and National Calls – Not to exceed 50 hours per month
.UK landline Calls – Not to exceed 50 hours per month
.Total of Local, National and UK Landline calls shall not exceed 100 hours per month.
Exceeding Fair Usage limits will result in billing at Aptus standard Local, National and UK landline rates.
21. APTUS PHONE LIABILITY
In relation to the Aptus Phone service Aptus shall not be liable for any delay, failure, interruption, or deterioration therein, howsoever arising.
Aptus shall make reasonable efforts to prevent unauthorised access to the service by third parties but shall have no liability to the Customer for any unauthorised access to the Customer’s equipment.
Aptus shall not be liable for any loss or damage of any kind caused by the failure of the service or Equipment due to the incompatibility with the service of equipment supplied by the Customer. Neither shall any third party, with whom Aptus or any of its affiliates have entered into arrangements for the provision of services, networks, equipment, way leaves or rights of passage, have any liability to the Customer, howsoever arising, as a result of the failure, interruption or delay connected with or involving any of the aforementioned.
Aptus shall not be liable to the Customer or any third party in contract, tort or otherwise for any financial loss whatsoever or for any indirect or consequential loss howsoever arising in relation to the use of the Service or the Equipment or any failure or error or default by Aptus in the provision thereof, or otherwise in connection with this Agreement.
Aptus shall have no liability under this Agreement for the acts and omissions of other telecommunication operators.
Aptus shall not be liable for claims arising out of a breach in the security or privacy of messages transmitted using the service.
This clause shall continue to apply notwithstanding termination of this Agreement.
22. APTUS PHONE EMERGENCY CALL
Emergency calls to 112, and 999 will be directed to the emergency services but Aptus provides no guarantee in respect of the reliability of these calls. Customers should be aware that power outages are likely to render computer equipment and Internet connectivity non-functional and therefore impede use of the service for emergency calls. It is accordingly recommended by Aptus that Customers do not rely on the Aptus Phone service in cases of emergency and have a backup phone in the case of an emergency.