GENERAL TERMS & CONDITIONS FOR INCLUDING APPLICATIONS OF PROVIDERS IN THE ZERO BASED RATING (‘ZBR’) OFFER(S) OF TELENET
This document (the “GTCs”) describes the contractual terms and conditions that will apply if, in accordance with the procedure described herein, Telenet and Provider enter into an agreement for including an Eligible Application of Provider in the ZBR Offer(s) of Telenet to its retail customers. The GTCs, together with the Application Form, the Notification Form and any other relevant (technical) requirements communicated by Telenet to Provider, will form the entire agreement with regards to its subject matter (jointly the “Agreement”). By providing the Application Form to Telenet, Provider expressly renounces any deviating terms or conditions.
The capitalized terms in the Agreement not specifically defined herein, shall have the meaning as defined below:
Business Day: every day except Saturdays, Sundays and Belgian public holidays unless otherwise specified in the Agreement.
Eligible Application(s): open internet applications that are in one or more of the categories of the applications in the ZBR Offer(s) of Telenet, i.e. currently (‘Free G’):
- Audiovisual content applications: open internet applications which mainly provide access to audiovisual content (excluding audio content only) in the form of films, series, programs, sports events, documentaries, etc., but excluding applications providing access to user-generated content, to adult content or containing gambling or betting functionalities.
- Social network applications: social network applications which mainly provide access to interactive and inter-personal communication tools which typically allow members to create public or semi-public profile and list of friends/contacts. They allow to capture, store and share mainly written messages (one-to-one, one-to-group or one-to-many). Such apps may also include other features such as sharing information (for example, posting pictures, video or links), commenting on postings and recommending friends. Applications which are only or mainly directed to sharing user generated audiovisual content are excluded (such as youtube, tiktok, as well as gaming applications or gaming functionalities of social network applications.
Party: Provider or Telenet (jointly: “Parties”).
Provider: a natural or legal person who provides one or more Eligible Applications.
Regulator: BIPT (Belgisch Instituut voor Postdiensten en Telecommunicatie)
Telenet: TELENET BV, a company organized under the laws of the Kingdom of Belgium, having its statutory office at Liersesteenweg 4, 2800 Mechelen, Belgium and registered with the Crossroads Bank for Enterprises under number 0473.416.418, R.L.E. Brussels
ZBR Offer(s): one or more offers of Telenet to its retail customers that (among others) provide that (mobile and/or fixed) internet data traffic for the use of one or more (classes of) open internet applications will not be charged, and such data usage does not count towards the data cap in place on the (mobile or fixed) internet access service. Telenet currently only has ZBR Offers for mobile data usage (currently know under the commercial name “Free G”).
2. MATERIAL CONDITIONS
The Agreement will not come into force and effect unless the Provider can demonstrate that all following cumulative material conditions are complied with in relation to the application that is a candidate for the Agreement (the “Candidate Application”):
.1. The Candidate Application qualifies as an Eligible Application.
2.2. The Candidate Application meets the following requirements:
- the Candidate Application is fully tested and stable;
- the Candidate Application does not constitute any danger to Telenet’s network integrity and security;
- the Candidate Application is uniquely identifiable based on the technical parameters that have to be provided by the Provider to Telenet (see Article 3.2 below for more details);
- the Candidate Application is available at least in the App Store (iOS) and Google Play Store (Android);
- the Candidate Application is not unlawful and does not provide (access to) unlawful content;
- the data usage of the Candidate Application can be identified by Telenet on its network by means of normal and industry standard procedures.
2.3. The Provider owns or has the right to exploit the Candidate Application (including the right to file the Application Form).
3. FORMAL CONDITIONS
In addition to the material conditions, the following cumulative formal conditions apply for the Agreement to come into force and effect in relation to the Candidate Application:
3.1. Provider has provided to Telenet the completed and duly signed Application Form (one form per Candidate Application), which is available on www.telenet.be (the “Application Form”). Telenet can request the Provider to demonstrate its authority to sign and file the Application Form.
3.2. Provider has provided the following technical information, if applicable, in relation to the Candidate Application:
- Name of the application or service
- Application category
- Link to Apple app store
- Link to Google Play store
- a login account to use the service
- Domain name(s) used by the service
- If also other services use the domain name(s), specify the URLs used by this service
- IP addresses used by the service
- Port number(s)
- SNI header (for HTTPS)
- Certificate CN
The type of data and the way in which the Candidate Application is implemented will determine which method can be applied to identify the data and which technical information is needed to identify the data.
3.3. Provider has responded in a satisfactory manner to any reasonable follow-up question of Telenet in relation to the formal and material conditions in relation to the Candidate Application.
3.4. Telenet has notified Provider of the acceptance of the Application Form (the “Acceptance”). Telenet will respond to the Application form, i.e. by means of refusal or acceptance of the Candidate Application (including follow up questions) within 20 Business Days, not taking into account the time the Provider takes to respond to the follow up questions. In case of refusal, Telenet will explain the reasons for such refusal. The Acceptance will detail the ZBR Offer(s) in which the Candidate Application will be included. In case of Acceptance, the Agreement will come into force and effect on the date of such Acceptance (the “Effective Data”) in relation to the Candidate Application (such accepted Candidate Application referred to herein as the “Application”).
4. OBLIGATIONS OF THE PARTIES
4.1. As from the Effective Date and during the Term, Telenet will implement, after industry standard test procedures, the Application in the relevant ZBR Offer(s) of Telenet within a period of maximum 3 months, taking into account Telenet’s IT capacity, planning and release procedures and schedules.
4.2. During the Term, Provider will provide to Telenet access to beta versions of the Application (for all available operating systems).
4.3. Apart from including the Application in the relevant ZBR Offer(s) and including the Application in a non-discriminatory manner in the product pages of the ZBR Offer(s) on www.telenet.be, Telenet has no other obligations v-à-v Provider in relation to the Application. In particular, Telenet does not have any obligation to promote to its customers the (use of) the Application (Telenet and Provider can agree (at the parties’ entire discretion) in a separate agreement specific promotion or communication activities), and Telenet does not provide any additional or improved service levels (compared to similar other applications included in the relevant ZBR Offer(s) ) in relation to the availability and performance of the Application.
4.4. During the Term, the parties will cooperate in good faith to address any (technical, regulatory or other) changes (including changes on the Telenet network or changes in (the identification of data usage of) the Application). To the extent possible, the parties will provide reasonable prior notice of any such change.
4.5. Notwithstanding and in addition to Section 4.4., Provider guarantees that at all times during the Term the technical information required for Telenet to identify the data usage of the Application will be correct and up to date. Provider guarantees to inform Telenet of any changes at least 10 (ten) business days in advance. If Provider fails to comply with this Section 4.5, Provider will compensate Telenet for all damages and costs related to Telenet’s inability to correctly identify data usage of the Application (including but not limited to communication to customers and rectification of customer invoices), and Provider will protect and hold harmless Telenet against any claims in this respect.
4.6. Telenet reserves the right to change the ZBR Offer(s) at its own discretion, subject to non-discriminatory treatment of the Application compared to similar other applications included in the relevant ZBR Offer(s).
4.7. Telenet reserves the right to apply any reasonable measures, also in relation to the Application, without being liable v-à-v Provider, to protect its network against integrity and security risks or fraudulent use.
4.8. Except if and to the extent expressly provided herein, Telenet has no obligations in relation to the Application. Provider will protect and hold harmless Telenet against any damages and claims in relation to the Application.
5. TERM AND TERMINATION
5.1. The Agreement is entered into on the Effective Date and will continue for an indefinite term.
5.2. The Agreement can be terminated by Telenet and/or by Provider for convenience at any time by giving 2 months’ prior notice.
5.3. Either party can automatically, without the need of court intervention, terminate the Agreement with immediate effect by written notice to the other party, in any of the following circumstances:
- a material breach by the other Party of any of its obligations under this Agreement, which is not remedied within 30 (thirty) days after written notice of default, except if the breach is not capable of remedy (in which case there will be no remedy period);
- if an event of Force Majeure (as defined herein) causes the suspension of the performance of one or more Services which materially impact the execution of this Agreement for more than three (3) months; or
- the institution by or against the other Party of proceedings in bankruptcy or other similar proceedings, in the event the other Party enters into liquidation (whether voluntarily, by operation of law or otherwise), becomes insolvent or ceases to carry on its business.
5.4. The Agreement will automatically terminate, without the need for (prior) notice, if Telenet ceases the relevant ZBR Offer(s) containing the Application and/or if Telenet changes the relevant ZBR Offer(s) containing the Application to the extent that the Application no longer qualifies as an Eligible Application.
5.5. Telenet has the right to terminate the Agreement with immediate effect by giving notice to Provider if the Regulator no longer requires Telenet to provide access to (one or more of) the relevant ZBR Offer(s) to Provider.
5.6. On the effective date of the termination, all rights and obligations of the Parties under this Agreement will fully and finally come to an end.
5.7. Notwithstanding the foregoing, the rights and obligations in this Agreement explicitly intended to apply after the termination of the Agreement will survive the termination hereof.
6. FORCE MAJEURE
6.1. In this Agreement Force Majeure means any cause beyond a Party’s reasonable control affecting the performance by that Party of its obligations hereunder including, but not limited to, acts of God, epidemics, pandemics, insurrection or civil disorder, war or military operations, national or local emergency, acts or omissions of any government or other public authority, industrial disputes of any kind, fire, flood, lightning, explosion, earthquake, inclement weather, acts or omissions, of persons or bodies beyond the reasonable control of the affected Party.
6.2. In the event of a Force Majeure, the rights and obligations of the Parties shall be suspended during the term of the Force Majeure.
6.3. Neither Party shall be held liable for failure or delay in performing any of its obligations under the Agreement, if such failure or delay is caused by or results from an event of Force Majeure.
6.4. The affected Party shall promptly notify the other Party of the occurrence of an event of Force Majeure and the estimated extent and duration of its inability to perform its obligations.
6.5. Except if the event of Force Majeure was known to the other Party, the affected Party which fails to promptly inform the other Party of the occurrence of such event shall be held liable for its failure or delay in performing its obligations under the Agreement.
6.6. Upon the cessation of the event of Force Majeure, the affected Party shall promptly notify the other Party of such cessation and resume performance of its obligations.
6.7. The Party affected by Force Majeure shall take all reasonable means to mitigate the effect of such event of Force Majeure.
7.1. Subject to the limitations and conditions contained in this Agreement, each Party hereby agrees to indemnify, defend and hold the other Party and their respective officers, directors, employees and agents, harmless from and against damage that is foreseeable, direct, personal and certain arising out of a breach by such Party of its obligations under this Agreement or under any applicable law.
7.2. Neither Party shall be liable to the other Party in contract, tort or otherwise for any indirect, consequential or immaterial damage arising out of or in connection with the performance of this Agreement, however caused, including but not limited to additional expense, loss of revenue, loss of profits, loss of customers, loss of or damage to data, loss of contracts, loss of time, loss of savings, interruption of business, claim by third parties, loss of business or anticipated savings.
7.3. Except in the event of a protect and hold harmless obligation provided herein, if either Party is held liable under to the other Party, that liability shall be limited to an aggregate amount equal to EUR 5,000.
7.4. Any limitation of liability contained in the Agreement shall not apply in case of fraud or willful misconduct
8. COMMUNICATION, BRANDS AND TRADE MARKS
8.1. Provider grants to Telenet the right to use the brands, trademarks and other distinctive signs used by Provider in relation to the Application for the purpose of informing its customers of the inclusion of the Application in the relevant ZBR Offer(s). Telenet shall comply with reasonable guidelines of Provider (if such guidelines are provided).
8.2. Any communication by Provider in relation to this Agreement or its subject matter shall require the prior consent of Telenet, which shall not be unreasonably withheld.
9.1. Nature of Relationship – The Parties operate on their own behalf, for their own account and at their own exclusive responsibility. The Parties shall not have the right to make any declarations or enter into any commitments on behalf of the other Party without such Party’s prior written consent. The conclusion or performance of this Agreement is not intended to and shall not be interpreted as giving rise to any corporation, association, joint venture or partnership between the Parties.
9.2. Notices - Unless otherwise provided in this Agreement, any agreement, notice, request, instruction or other communication to be given hereunder by any Party to the other Party shall be by (e-mail with delivery receipt) to the following e-mail addresses: D_Regulatory.And.Legal@telenetgroup.be.
9.3. Other agreements and amendments – this Agreement supersedes all prior letters, representations, warranties and agreements whether oral, written or in another form between the Parties, relating to the subject matter of the Agreement.
9.4. No Assignment – no rights or obligations under this Agreement may be assigned by Provider without the prior written consent of Telenet. Provider acknowledges and agrees that Telenet may assign this Agreement to an affiliate or a successor.
9.5. No waiver – No failure of any Party to the Agreement to require, and no delay by any Party to this Agreement in requiring, any other party to comply with any provision of this Agreement shall constitute a waiver of the right to require such compliance. No failure of any Party to this Agreement to exercise, and no delay by any party to this Agreement in exercising, any right or remedy under this Agreement shall constitute a waiver of such right or remedy. No waiver by any Party to the Agreement of any right or remedy under the Agreement shall be effective unless made in writing. Any waiver by any Party to the Agreement of any right or remedy under the Agreement shall be limited to the specific instance and shall not constitute a waiver of such right or remedy in the future.
9.6. Costs – the Parties shall be responsible for their own respective costs in connection with the negotiation and entry into this Agreement.
9.7. Severability – If any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Agreement shall not be affected thereby. To the extent permitted by applicable law, each Party waives any provision of law which renders any provision of this Agreement invalid, illegal or unenforceable in any respect. The Parties shall replace the invalid or non-binding part by provisions that are valid and binding and the legal effect of which, given the contents and purpose of this Agreement, is, to the greatest extent possible, similar to that of the invalid or non-binding part.
9.8. Governing Law – this Agreement is governed by and shall be construed in accordance with Belgian law.
9.9. Jurisdiction – the Courts of Antwerp will have sole jurisdiction for any dispute arising out of this Agreement.