| The following terms (hereinafter "WIFI terms") regulate the free use (hereinafter "Free WIFI Service") as well as paid use (hereinafter "PayGo WIFI Service", together with the Free WIFI Service the "WIFI Services") of The Cloud Networks Germany GmbH (hereinafter "The Cloud"), Leuchtenbergring 3, 81677 Munich (registered at the District Court Munich (Amtsgericht München) HRB 157224) by customers at selected locally-defined and publicly accessible locations. Reference is made to the Privacy Policy - see section 7 - explaining the handling by The Cloud of personal data of customers. | |
| 1. | Formation of the Contract |
| 1.1 | PayGo WIFI Service: The contractual relationship with The Cloud regarding use of the PayGo WIFI Service is concluded by way of initial entry and confirmation of the customer access data at the online portal (hereinafter "Login") of The Cloud (Offer) and confirmation by The Cloud of the use of the WIFI Services at the landing page (Acceptance). Access details are stated on a (electronic or physical) voucher (hereinafter "Voucher") that the customer can purchase before the initial Login at authorised sales points (for example at the hotel reception, at the cashier, etc) or from the online portal of The Cloud. The Cloud offers Vouchers with different durations of use. |
| 1.2 | Free WIFI Service: The contractual relationship of The Cloud regarding use of the Free WIFI Service is concluded by way of accepting the present WIFI terms at the starting page (Offer) and the confirmation of the use of the Free WIFI Services at the landing page (Acceptance). The contractual relationship of the Free WIFI Service ends automatically without notice of termination either by way of Logout or upon expiry of the fixed contract term. |
| 2. | Services of The Cloud |
| 2.1 | Through its WIFI Services at certain locations The Cloud provides mobile access to the internet for particular technically-compatible devices (for example laptops, smart-phones and tablets) within the technical and operational capabilities. A device is in principle technically compatible if it contains a WIFI-compatible IEEE802.11b/g/n interface, a suitable operating system and internet browser and a corresponding IP network protocol is installed. The use of The Cloud's WIFI Services may require existing proxy settings and a so-called static IP-address on the device to be disabled. Should this be necessary the preset proxy settings on the device will be automatically overwritten for the duration of use of the WIFI Services. |
| 2.2 | The duration of use of a Voucher for The Cloud's PayGo WIFI Service (section 1.1) begins at the first Login and ends upon expiry of the duration of use attributed to the Voucher. |
| 2.3 | The customer can enquire about the current status of the duration of use of the PayGo WIFI Service in the 'Status Window'. The customer can also use WIFI services of third parties on The Cloud's infrastructure, provided that The Cloud has entered into corresponding cooperation agreements with such third parties. The nature and scope of use is determined by the respective terms and conditions of the third party. |
| 2.4 | The Cloud is not obligated to ensure any particular transfer speed during the use of its WIFI Services because this may dependent on, amongst others, network capacity and number of users at the particular WIFI access point. |
| 2.5 | Customers of the Free WIFI Service can not claim performance without malfunction. Therefore, The Cloud shall not be liable in case the Free WIFI Service is interrupted or disrupted without fault by The Cloud, its vicarious agents or legal representatives. Nevertheless, The Cloud will strive to remove such interruption or disruption as soon as possible or work towards its removal. In addition, The Cloud reserves the right to interrupt the Free WIFI Service or the corresponding internet connection after 15 minutes of inactivity at the earliest. |
| 2.6 | The WIFI Services may include a content filter aimed at blocking illegal, immoral or other prohibited content as regulated by Section 5.1. For this purpose particular ports will be blocked. |
| 3. | Security |
| Content transmitted by third parties is not part of The Cloud's WIFI Services and will not be monitored by The Cloud. The Cloud does not assume any responsibility for the security of data and information that the customer transmits during the use of the WIFI Services, nor for whether such data and information contains malware (e.g. viruses, 'Trojans' etc.) or violate any third party rights or the provisions of copyright or criminal law. The data transmitted between the customer's device and the WIFI access point is unencrypted and may possibly be accessed by third parties. | |
| 4. | Pricing for the PayGo WIFI Service |
| The particular gross prices shall apply that were communicated to the customer before conclusion of the contract, either through the authorised sales agent or through The Cloud if the Voucher was purchased through the online portal of The Cloud. | |
| 5. | Duties and Obligations of the Customer |
| 5.1 | The WIFI Services offered by The Cloud may not be misused. The customer is duty-bound, in particular: |
| - | to ensure compliance with the legal provisions of child protection laws as well as national and international copyright laws; |
| - | neither to download nor to distribute illegal or immoral information (for example illegal music or media downloads); |
| - | not to offer, transmit or encourage others to transmit viruses, 'Trojans', junk email, spam email or unsolicited bulk email; |
| - | not to use or execute any organisation or application which leads to or can lead to the disruption or change of the physical or logical structure of The Cloud servers, The Cloud networks or other networks; |
| - | not to transfer onto computers of internet users any executable routines (e.g. spyware, dialer, etc) automatically, unauthorised and hidden; |
| - | to transmit data only using the current standards of the TCP/IP protocol family. |
| 5.2 | It is the responsibility of the customer to put in place security arrangements for his software, so that the transfer of data is protected from access by third parties. It is in addition the responsibility of the customer to regularly ensure that he is protected from data loss. |
| 5.3 | The customer shall always terminate the PayGo WIFI Service by logging out. For the Free WIFI Service logout takes place automatically by leaving the WIFI zone. |
| 5.4 | The customer shall indemnify and hold harmless The Cloud as well as its employees, representatives and vicarious agents from any claims of third parties arising through the illegal use of The Cloud's WIFI Services by the customer himself or through a third party within the meaning of section 6 below, or through a breach of the duties and obligations of the customer set out in this section 5. The customer is solely responsible for internet content provided by him or by third parties. In this regard, the customer shall also indemnify and hold harmless The Cloud as well as its employees, representatives and vicarious agents from any claims of third parties. |
| 5.5 | If the customer substantially, persistently and culpably is in breach of the duties incumbent upon him, The Cloud is entitled to take all available and appropriate measures to eliminate the misuse at the expense of the customer. In particular The Cloud is entitled to terminate the access to The Cloud's WIFI Services with immediate effect at the expense of the customer and/or to remove the content and data giving rise to the breach from the server and systems of The Cloud at the expense of the customer. |
| 6. | Use by Third Parties |
| The customer of the PayGo Wifi Service may not give his access data to third parties. Username and password as well as all actions which occur by using the username and password of the customer are confidential and not to be made available to third parties. Access data may only be saved on end devices with encryption. The customer shall inform The Cloud without delay in the event of the loss of access data and any unauthorised third party use of the PayGo WIFI Service. | |
| 7. | Data Privacy |
| 7.1 | Customer's personal data will be collected, used and processed by The Cloud for contractual purposes. The Cloud is regarded as responsible entity under the German Federal Data Protection Act ("Bundesdatenschutzgesetz"). Any personal data collected by The Cloud will be stored electronically. |
| 7.2 | When using the WIFI Services the following data will be collected: |
| • | Time/duration of use |
| • | Place of use |
| • | IP-address of user device |
| • | MAC-address of user device |
| • | Data volume |
| Such data is used for evaluating, error finding (including but not limited to spam and malware) and technically ensuring the provision of the WIFI-Services and will be deleted according to the provisions of data protection law. | |
| 7.3 | On request of the customer, The Cloud will gladly provide free-of-charge information about data stored under his user account or MAC-Address. |
| 7.4 | Customer data may only be accessed by third parties if The Cloud is obliged or authorized under German Data Protection Law to do so, e.g. by a request of an investigative authority or with customer's prior approval. |
| 7.5 | Special Provisions regarding PayGo WIFI Services |
| 7.5.1 | For using the PayGo WIFI Services of The Cloud customer can create an user account on the online portal. Customer has to enter his first and second name, his email address and a user-definable password. For reasons of safety a security question and answer is additionally requested. The user has to keep the password confidential. Minors shall not create a The Cloud user account. When creating the user account mandatory fields are marked with an asterisk. If the customer provides additional data in other fields, such data will be used for contractual and statistical purposes as well as for improving The Cloud's services. |
| 7.5.2 | Payment data, such as credit card data, will be collected by encrypted protocol, are exclusively used for processing the appropriate transaction and deleted thereafter. The customer is free to add devices or active products to his user account or review past transactions. |
| 7.5.3 | User account data will be stored until customer terminates his user account. Then the data will be deleted, unless there are legal obligations for data retention. In such case the data will be blocked from any further use. |
| 7.5.4 | The Cloud may use customer's email address to inform him about own services similar to the ordered WIFI Services except customer has objected to do so when the email address was collected. Customer can withdraw from using his data for advertising purposes irrespective if prior approval is required or not and without any further costs than transmission costs pursuant to the basic rates. |
| 7.5.5 | If customer has agreed to further use of his stock data the agreements have the following wording: |
| With respect to The Cloud's Newsletter: "I herewith agree that my stock data (first and second name as well as email address) will be used by The Cloud to provide me with updates and merchandising of The Cloud and its affiliated companies on a regular basis but no more than once a week. At any time I can withdraw from this agreement for the future." |
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| With respect to Location Partners: "I herewith agree that my stock data (first and second name as well as email address) will be forwarded to the appropriate location partners, including the franchisors or operators of the location where I use the WIFI Services, to provide me with advertising news on a regular basis but no more than once a week. At any time I can withdraw from this agreement for the future." |
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| 7.6 | Contact information for data protection For questions about the collection, processing and use of your individual-related data, for information, correction, blocking or deletion of data as well as for withdrawal of given approval, please contact info@thecloud.eu |
| 8. | Liability |
| 8.1 | The Cloud shall be liable without limitations for wilful intent. This also applies for the duty to provide compensatory damages for all culpable loss of life, physical injuries or damage to health. Beyond that, The Cloud is only liable for simple negligence if an essential contractual obligation has been breached. Essential contractual obligations are obligations that have to be provided to customers to accomplish the purpose of the contract, which are condition sine qua non for the fulfilment of the contract and of which an infringement prejudices the fulfilment the customer regularly relies and may rely on. In cases solely of damage to property, the liability of The Cloud is limited to a maximum of EUR 12,500 to a single customer. If the obligation to provide compensation arises through a single action or a single injurious event against multiple customers and does not result by intention of The Cloud, the obligation to provide compensation, irrespective of the limitation of liability in respect of single customers, is limited to a maximum of EUR 10 million (hereinafter "the maximum limit"). In the event that the compensation to be paid to multiple aggrieved customers arising out of the same event exceeds the maximum limit, the damages will be reduced in the ratio of the sum available for all damages claims up to the maximum limit. |
| 8.2 | The Cloud is not liable for damages caused by force majeur, and for unforeseeable, intermittent disruptions to the WIFI Services outside the control of The Cloud, in particular because of strikes, lock-outs, official orders, outage of communication networks and for such damages that the customer could have avoided by observing his responsibilities and obligations, particularly through a timely and proper protection of data. In such cases The Cloud will take all reasonable steps to remedy at the earliest opportunity such disruptions respectively disruptions to the WIFI Services, or to take steps to effect such remedies. |
| 8.3 | Insofar as the liability of The Cloud is, through the aforementioned contractual provisions, excluded or limited, this also applies to the liability of the employees and representatives and vicarious agents of The Cloud. |
| 8.4 | The obligation to provide compensation arising out of product liability law, as well as for fraud or bad faith or by way of a guarantee, remains unaffected. |
| 9. | Other |
| 9.1 | The contractual relationship between The Cloud and its customers is governed by the Laws of Germany. |
| 9.2 | Oral side agreements do not apply. |
| 9.3 | Claims of the customer arising from this contract may only be assigned to third parties with the prior written agreement of The Cloud. |
| Right of Withdrawal in Distance Contracts You may withdraw from this contract in writing within 14 days (e.g. letter, fax, email) but without needing to state the reasons. The time limit begins to run from the receipt of this notice in written form, but in any event not before the making of the contract and also not before we have fulfilled our duties to provide information pursuant to Article 246 § 2 in connection with § 1 Paragraph 1 and 2 EGBGB as well as our duties pursuant to § 312 (g) Paragraph 1 Section 1 BGB in connection with Article 246 § 3 EGBGB. The timely dispatch of the withdrawal suffices to ensure compliance with the withdrawal deadline. The withdrawal must be sent to: The Cloud Networks Germany GmbH, Leuchtenbergring 3, 81677 München or via email: support@thecloud.eu. |
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| Consequences of withdrawal In the event of an effective withdrawal both sides shall return any benefits received including, as the case may be, emoluments (e.g. interest). If you cannot return, or can only partially return, the benefits received from usage (e.g. use benefits), or only in a deteriorated condition, compensation for loss of value will be payable to us. This may mean that you will have to meet the contractual payment obligations for the period up until the withdrawal. The obligation to make this payment must be made within 30 days of sending your notification of withdrawal. The time limit begins for you with the sending of your notification of withdrawal and for us with its receipt. |
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| Important Notice Your right of withdrawal expires early if the contract is fulfilled by both sides at your express wish, before you have exercised your right of withdrawal. |
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| END OF INSTRUCTIONS FOR THE RIGHT OF WITHDRAWAL |