VANILLA TELECOMS TERMS AND CONDITIONS OF SERVICE
1. By signing the Service Order Form you understand and agree to be bound by the Terms and Conditions set forth below, together with any and all Schedules. Further, you acknowledge that upon receipt of a signed Service Order Form, Vanilla Telecoms Limited (‘‘Vanilla’’) will rely upon and commence processing your order and will incur expenses and obligations immediately for which you acknowledge your responsibility and obligations for which you are liable.
2. Vanilla provides IP network connectivity (‘‘Network Services’’). The Network Services that are set forth in the Customer’s Service Order are collectively referred to herein as the ‘‘Services’’. The Customer agrees to pay Vanilla, in full and on a timely basis, any and all subscription, use, and service fees set forth in Customer’s Service Order Form. Vanilla reserves the right, in its sole discretion, to change, modify, add, or remove portions of this Agreement and the Services at any time, including but not limited to upgrades, downgrades, and cancellations due to Customer non-payment. Vanilla may change, suspend, or discontinue any aspect of the Service at any time, including the availability of any Service including but not limited to features, databases, or content with thirty (30) days prior written notice to the Customer’s billing address of such change to occur. Vanilla may impose limits on Services or restrict the Customer’s access to parts or all of the Service without notice or liability. Any notice of such changes will be posted on the Vanilla Web site located at www.vanilla.net.mt.
Should any service be discontinued or negatively changed in nature, the Customer will be offered the possibility to terminate any contract without penalty.
3. Any and all equipment provided by Vanilla to the Customer that is used to maintain such Services must be returned to Vanilla undamaged, upon the expiration or termination of the Agreement, at: 162, Cannon Road, Santa Venera. The Customer agrees to be responsible for any and all loss or damage to the equipment and provide to Vanilla the full replacement cost of such equipment, if the Customer fails to return such equipment in the identical condition as initially provided to the Customer allowing for reasonable wear and tear. The Customer has the sole responsibility to provide the equipment with appropriate and adequate protection against power surges and such other potential damage and harm exclusive of customary wear and tear associated with its assigned use. Any and all such damage to the equipment that results from the Customer’s failure to so provide such protection shall be the Customer’s sole responsibility.
4. The Customer agrees to pay a onetime non-refundable Installation and/or Equipment Fee if such fee is designated in the Service Order Form. On a monthly basis, throughout the Term (as defined below), the Customer agrees to pay Vanilla a Connection Fee and Service Fees as provided in the Service Order Form (the ‘‘Monthly Recurring Charges’’). The Customer agrees and acknowledges that Vanilla is not responsible for rejected Service to the Customer during the order and installation process. In addition, in the event that Vanilla incurs additional outside vendor costs, over and above usual and customary charges in order to provide service to the Customer, which may include but not be limited to, extended wiring charges, alternative business hour service installation charges or emergency service repair charges, the Customer shall be responsible for any and all such charges.
5. The Customer agrees that any renting, selling, or otherwise transferring of Service for the benefit of a third party is strictly prohibited by this agreement and violates applicable law.
6. The Customer agrees to maintain Services for the period set forth in the Service Order Form (the ‘‘Term’’) and thereafter the Term shall automatically renew on a month-to-month basis at the higher of the current Agreement rates or the then current rates published by Vanilla, unless the Customer has otherwise agreed to a longer renewal term. The Term begins upon activation of Customer’s Services (the ‘‘Activation Date’’) and expires no later than the last day of Customer’s Term. The Customer may terminate the Services by providing thirty (30) days written notice prior to the end of the Term or any renewal term period, as the case may be (the ‘‘Termination Notice’’). Any and all notices must be sent to Vanilla on Customer letterhead, by one of the listed contacts on the current Customer Information form on file, ATTN: Customer Care Department, 162, Cannon Road, Santa Venera.
7. In the event that the Customer terminates Services after installation and prior to the end of the Term (‘‘Early Termination’’), the Customer agrees to pay Vanilla within ten (10) business days of date of the Termination Notice a lump sum payment equal to the sum of the remaining monthly recurring charges that would have been payable until the end of the term had the contract run its full course and any Vanilla equipment replacement fees or Data Retrieval costs, if applicable. The Customer agrees to provide Vanilla with thirty (30) days written notice in advance of such early termination.
8. The Customer agrees to notify Vanilla by email (email@example.com) or telephone 20340000 in the event of a Service Interruption. If the duration of the reported service interruption which may include a continuous or regularly recurring discrepancy between the actual performance of the service with quality of service parameters indicated in these terms and conditions which are in excess of 5 working days from the date of notification, the Customer shall have the right to a refund of this period of service affected by said interruption, Compensation limited to the proportional value of the service subscription for those dates where service not delivered. Upon receipt of the Customer’s notification of Service Interruption, Vanilla will determine: (a) whether Services were unavailable to the Customer; (b) the duration of time for such unavailability; and (c) if any credit to the Customer’s account is appropriate. The Customer agrees that any credit, refund, and/or reimbursement is subject to the discretion of an authorized Vanilla official (‘‘Authorized Credit’’). Such Authorized Credits must be communicated in writing prior to application towards the Customer’s Account, the maximum amount of time for an onsite inspection to determine the cause of the issue will be less than 5 working days, if the problem is out of our and the subscribers control, such as but not limited to building topology Changes, where the client no longer has LOS to one of our towers thus we cannot provide the service or we are unable to rectify the problem before 30 days, the contract termination will automatically be waived and the contract can be terminated without penalties. Maximum installation time for a new connection is 30 days from singing of contract.
9. The Customer agrees that any failure to pay for Services thirty (30) days after the invoice date shall subject the Customer to: (a) a 1.5% late fee charged per month; (b) a €50.00 fee for any and all collection attempts necessary to rectify and/or reactivate any delinquent account and/or Services (the “Collections Fee”); (c) charges for any Vanilla equipment replacement costs, if applicable; and (d) the termination of any and all Services purchased by the Customer under any Agreement with Vanilla. The Customer is required to provide Vanilla with updated and current phone numbers, mobile numbers, email addresses, mailing addresses, and other contact information at all times during the Term. The Customer agrees to assume any and all costs and expenses incurred by Vanilla in connection with collecting any and all unpaid amounts, including, but not limited to, reasonable attorneys’ fees. In addition, any and all returned cheque shall incur a €10.00 returned cheque fee. Vanilla may, in its sole discretion, consider successive returned cheque as failure to pay and therefore shall be subjected to the penalties set forth herein.
10. In the event the Customer selects and is approved for the credit card payment option, the Customer expressly authorizes Vanilla to charge the Customer’s credit card account for outstanding account balances and any future Monthly Recurring Charges that accrue. This authorization remains valid until the Customer provides written notice to Vanilla terminating Vanilla’s authorization. Vanilla may terminate Services for declined credit cards, returned cheques, or any other non-payment to the Customer’s account. The Customer is required to provide Vanilla with updated and current credit card information at all times during the Term.
11. The Customer acknowledges and agrees that Vanilla has the right to engage in the collection and storing of certain personal and business data by Vanilla. This data will be used to provide Services, remains confidential, and will not be used other than in the normal course of Vanilla business. Vanilla may release Customer Data to third parties outside the normal course of Vanilla business only to comply with valid legal requirements. The Customer may request the return of any personal and business data stored by Vanilla by providing a written request within thirty (30) days after the expiration or termination of the Agreement (‘‘Data Retrieval’’).
12. Equipment, hardware, and software not provided and owned by Vanilla are the sole and exclusive responsibility of Customer (the ‘‘Customer Equipment’’). In the event that Vanilla has provided the equipment, Vanilla only acts as a wholesaler and all failures and/or disputes will be governed by the manufacturer’s warranty(s) and policies and are not the obligation or responsibility of Vanilla unless otherwise stated in the Customer’s Service Agreement with Vanilla.
13. The Vanilla and Cempilli logos, and other Vanilla trademarks, service marks, logos, and product and service names are trademarks of Vanilla (the ‘‘Vanilla Marks’’). The Customer and its employees, agents, contractors, and/or representatives agree not to display or use the Vanilla Marks in any manner without Vanilla’s express prior written permission.
14. The Customer hereby grants Vanilla the right to disclose that it is a Customer of Vanilla and the right to display the Customer’s logo on Vanilla materials including, but not limited to, Vanilla’s Web site and literature. In the event Vanilla decides to use one or all of the Customer’s logos, Vanilla shall adhere to the Customer’s specifications for use of such logo that the Customer has provided to Vanilla. Vanilla shall not acquire any other rights to the Customer’s intellectual property including, but not limited to, trade names, trademarks, product name, logo, case studies, and customer testimonials. The Customer may deny Vanilla the use of such intellectual property by providing thirty (30) days written notice of such a decision on the Customer’s company letterhead. Vanilla hereby grants the Customer the right to display the Vanilla logo on the Customer’s materials including, but not limited to, the Customer’s Web site and literature to publicize that Vanilla is a provider of Services to the Customer. The Customer shall not acquire any other rights to Vanilla’s intellectual property including, but not limited.
15. This Agreement represents the entire agreement between the Customer and Vanilla with respect to the Services provided, superseding all previous communications or agreements regarding such subject matter upon receipt of the Service Order Form. These Terms and Conditions are subject to revision by Vanilla in its sole discretion. Notice by the Customer’s continued service following the date of revision to the Vanilla Web site shall be considered the Customer’s acceptance of the change(s).
16. The Customer understands and acknowledges that Vanilla is not liable for any indirect, incidental, special, punitive, or consequential damages; lost profits, loss of data, loss of hardware or software, loss or liability resulting from computer viruses, Service defects, or security insufficiency arising out of or related to this Agreement, the performance or breach thereof; the Services provided or failure to be provided; or any delay, non-delivery, wrong delivery, or Service Interruption whether or not caused by the negligence of Vanilla or their agents, employees, or any party, even if the party has been advised of the possibility thereof.
17. The Customer’s correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between the Customer and such advertiser. The Customer agrees that Vanilla shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers in connection with the Services.
18. The Customer shall indemnify, defend, and hold harmless Vanilla from any and all claims resulting or alleged to result from:
(a) The Customer’s use of the connection provided by Vanilla and/or any service equipment or software provided by Vanilla;
(b) fault, negligence, or failure of the Customer to perform the Customer’s responsibilities hereunder;
(c) claims against the Customer by any other party;
(d) any act or omission of any party furnishing services and/or products; or
(e) the installation and/or removal of any and all equipment supplied by any person, including, but not limited to, Vanilla.
(f) damage to any equipment or structures owned by the Customer or by third parties resulting from the presence or use of Vanilla’s equipment.
19. Vanilla shall not be liable to the Customer under this Agreement for any failure or delay in performance that is due to causes beyond its reasonable control and without its fault or negligence including, but not limited to, acts of nature, acts of civil or military authority, governmental actions, fires, civil disturbances, interruptions of power, or transportation problems. Vanilla shall also not be liable for any delay or performance failure caused by the Customer’s failure to perform any of its obligations under this Agreement.
20. In order to guarantee our network integrity, and access to all points of the Internet even during peak hours when the traffic is particularly high, Vanilla, whilst respecting the principle of equal treatment of traffic, reserves the right to introduce temporary and non-discriminatory traffic management measures. It is important to emphasise that once traffic leaves Vanilla’s core router, it is impossible for Vanilla to guarantee any service level and ensure that contention ratios – whatever they may be – are respected and delivered.
(a) Vanilla’s services are offered on a best effort basis and all facilities for traffic management, routing as well as the bandwidth itself are shared amongst a number of users. The quality of service may vary according to the number of users online at any one time and cannot be guaranteed.
(b) Quality of service is also dependent on the users’ traffic patterns and Vanilla performs bandwidth management at an application level to ensure that bandwidth is being shared fairly amongst users. This management also ensures fair weighting between various applications to ensure that heavy usage applications such as peer-to-peer downloads do not congest the system in a way that the system becomes unusable for other users. Broadband services continue to be offered as they have always been, on a best effort basis.
(c) Network management procedures and tools that are consistent with industry practice are utilised to ensure that the integrity of the Vanilla network is maintained. In cases when the Vanilla network is at risk of being congested, Vanilla reserves the right to take action it sees fit in order to ensure that the quality of service is not impacted. These actions may result in customers experiencing varied service and performance levels, any such action taken by Vanilla is proportionate to the event or impending event that is or will impact the service, and will only be taken for such time as is necessary to counter this event.
(d) Vanilla reviews individual subscriber upload and download usage and behaviour relative to average customer use of the network for each product. In the case of congestion caused by abusive use of the service or activities which impair other customers from accessing the network, Vanilla may intervene by notifying the customer of the abusive behaviour. Where traffic is repeatedly abusive Vanilla reserves the right to stop provision of the service, any Action taken on bandwidth management will be in the form of Traffic shaping or Traffic Limiting will not impact the privacy of end-users, all bandwidth management is done automatically by the systems.
(e) The technology used to provide service is in Vanilla’s sole discretion.
21. Vanilla shall provide the customer with a connection speed that reflects the Fixed Services which is being subscribed to. The connection speed is the speed at which data is transferred between the customer’s computer and Vanilla’s network. The connection speed will always be greater than the download speed, which is the speed at which data is transferred from the internet to the end user’s equipment, download speed is dependent on internet and network congestion.
22. Accepts methods of payment are Cash, cheque, Paypal and Visa/Mastercard.
23. Emergency services, such as 112 are available over the Cempilli platform, however an internet connection is required for the service to work.
24. Customers are given access to our self-care user portal and are responsible for ensuring that the details contained in this portal are correct and up to date at all times. Itemized billing for the Cempilli platform can be obtained by using the https://selfcare.vanilla.net.mt portal.
25. All VOIP services are prepaid unless previously agreed in writing. It is the responsibility of the customer to ensure that they have sufficient funds to make and receive calls as well as pay any monthly recurring charges including line and number rental charges. If insufficient funds prevent the renewal of these charges, the customer account may be suspended automatically and any numbers may be unallocated. Vanilla carries no responsibility for any damages to the customer should numbers be disconnected due to insufficient funds in their account.
26. Persons wishing to port to the Vanilla network from another network must fulfil all our porting requirements including completing the necessary forms and providing requested documentation.
27. Should an existing Vanilla customer initiate porting of a number attached to a Vanilla account, the customer should ensure that all the required documentation is supplied to their new operator to facilitate porting. Some international numbers might not be possible to port.
28. If a customer is granted post-paid status, then any termination of account or porting out of any services may only take place after ALL outstanding charges are paid in full. Should the agreed credit terms be exceeded all services may be suspended until the account is brought back in order.
29. Should a customer opt to negotiate a specific rate or bundle, then these rates would be subject to a 2-year contract. Such contracts would be subject to an early termination fee that would be equal to half the sum of the monthly rentals of the unused period between the contracted 2-year period and the date of early termination.
30. As our services are delivered over IP (Internet protocol), the Customer understands that should there be any technical disruption in the customer’s internet service (whether provided by Vanilla or by any other ISP), their telephony service might face quality degradations or total outage until these technical issues with their internet service are overcome.
31. All our services are governed by a fair usage policy. If it becomes apparent that a customer is making unreasonable or automated use of their telephone line, Vanilla reserves the right to terminate services being supplied to the customer after giving 24 hours warning.
32. This Agreement shall be governed under the laws of Malta. The Customer and Vanilla hereby agree that the Maltese Law Courts shall determine any dispute arising between them.
THE CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT VANILLA IS NOT LIABLE FOR ANY DAMAGES RESULTING FROM ANY FAILURE OR DELAY DURING INSTALLATION AND PROVIDING SERVICES. VANILLA MAKES NO GUARANTEES OR PROMISES WITH REGARD TO THE EXACT DATE OF THE COMPLETE INSTALLATION AND OPERATIONAL STATUS OF THE CUSTOMER.
SERVICES PROVIDED BY VANILLA ARE “AS IS.” VANILLA MAKES NO WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR ANY WARRANTY REGARDING THE RELIABILITY OR SUITABILITY FOR A PARTICULAR PURPOSE OF ITS SERVICES. VANILLA ASSUMES NO RESPONSIBILITY FOR ERRORS OR OMISSIONS IN THEIR SERVICES AND DOCUMENTS ASSOCIATED WITH SERVICES BY REFERENCE OR LINKS. REFERENCES TO THIRD PARTIES, THEIR SERVICES, AND THEIR PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED. VANILLA SERVICES AND DOCUMENTS ASSOCIATED WITH SERVICES COULD INCLUDE TECHNICAL OR OTHER INACCURACIES OR TYPOGRAPHICAL ERRORS.