(Last update - 20.6.2005)
In order to ensure the right of public network and service users specified in Article 39, Item 1, Section b) of the Electronic Communications Law, and to ensure consumer protection, the following specific components are recommended in both written information to be provided prior to the signing of agreements and the agreements themselves.
When service providers consider the information required for a given component to be excessively long or detailed (for example, maintenance services offered or pricing), the agreement may make reference to another document from the service provider with information on the subject in lieu of presenting this information in the agreement. Such documents constitute appendices to the agreement, of which they are an integral part and thus must be supplied together with the agreement?s clauses for purposes of complete transparency.
A) Service provider identity and address
This requirement aims to provide identification of the service provider and a postal address for correspondence.
In this context, the provisions of Article 171 of the Portuguese Companies Code (Código das Sociedades Comerciais) must be observed, in which companies must clearly specify their business name, company type, headquarters, the commercial registry office where the company is registered, the company?s corresponding registration number and references to company liquidation proceedings (when applicable) in all agreements.
For purposes of increased transparency, service providers must also include their telephone number (customer service), email address and website in agreements.
It is important to note that the agreement must contain a clause specifying the communication and notification method(s) between the parties in cases where applicable laws and regulations do not specify a particular means.
It is also recommended that the agreement state that, by mutual agreement of the parties, the addresses shown in the agreement constitute legal domiciles for summons and notifications, and that any changes in address or legal domicile must be notified in writing.
B) Services provided, service quality levels and required time for start-up connections
a. Services provided
The agreement must specify the services provided. The following are included in this component:
- Description of the services offered, as well as additional services, service facilities and associated features.
- Conditions under which the company may offer the service ? conditions under which the company provides service to customers, such as whether the service is available in the customer?s area, if connectivity tests will be done to determine whether the service can be provided, etc. In such cases, the agreement must inform the customer of the method for requesting reimbursement of any costs incurred and ending the agreement in the event that the service cannot be provided.
- Potential restrictions resulting from the service in terms of the subscriber?s ability to access other services/features (for example, inability to access the Internet when linked to a given telephone service, etc).
- Geographic area of coverage
- Conditions for accessing and using the service ? way in which the service will be provided.
b. Service quality levels
The agreement must place utmost importance on the service provider?s duty to provide regular and uninterrupted service.
The agreement must clearly establish the quality levels which the service provider is committed to upholding with its customers, i.e. the minimum service quality levels to which the customer has rights, thus entitling the customer to paid compensation or reimbursement when they are not met.
Given that service providers have voiced uncertainties with regard to service quality parameters, ICP-ANACOM has suggested some parameters in Appendix I. This does not necessarily preclude service providers from including additional indicators which they may deem relevant, nor does it rule out the possibility of ICP-ANACOM eventually instituting specific quality parameters under the terms of Article 40 of the Electronic Communications Law for the purpose of publishing comparable, clear, complete and up-to-date service quality information for end users.
In the event that the service provider does not wish to offer or otherwise agree to uphold a given level of service quality, this must be clearly stated in the agreement.
c. Required time for start-up connection
The agreement must specify the maximum amount of time in which the service provider will make the initial service connection.
In this regard, it is recommended that service providers quantify parameter a) in Appendix I.
C) Types of maintenance services offered
The agreement must specify maintenance services offered by the operator as well as the parties? obligations in this regard.
The agreement must include the following in relation to maintenance services:
- Obligation of the company providing the service to deal with faults and to maintain and repair the infrastructures and equipment it uses to provide the service
- Obligation of the company to agree with the subscriber on the date and amount of time needed for repairs whenever access the place of installation is necessary for these repairs
- Minimum quality level offered in terms of repair time for faults. In this regard, it is recommended that service providers quantify parameter c) in Appendix I.
- Minimum quality level offered in terms of time limit for confirming receipt of repair service requests
D) Pricing specifications and means of obtaining up-to-date information on all applicable pricing and maintenance fees
This information must provide end users with a means of determining how service fees will be billed and collected, along with orientation on how to obtain up-to-date information on applicable service rates. To this end, the agreement must include the following information with regard to pricing:
- Type and levels of prices applicable to the service in question
- Payment methods for services
- Installation or reinstallation cost for the services in question
- Minimum monthly (or other) payment, if applicable
- Maintenance fees, if applicable
- Equipment rental fees, if applicable
- Circumstances in which discounts/credits may be offered
- Peak versus off-peak schedules, if applicable
- Pricing for these schedules
- Place and method for obtaining up-to-date pricing information
- Service disconnection fees, if applicable, itemizing costs to restore to pre-installation status
The rate schedule applicable on the date the agreement is signed, constituting an appendix to the agreement.
E) Duration of the agreement and its terms of service/contractual renewal, suspension and termination
The agreement must specify conditions for its duration, renewal and termination, such as:
- Duration of the agreement
- Minimum retention time (customer loyalty period), if applicable
- Minimum advance notice for termination or cancellation of the agreement by either party
- Grounds for termination of the agreement by the parties
- Penalty or penalty calculation method for cancellation of the agreement prior to the completion of its specified term
- Terms and conditions for renewal of the agreement
- Terms and conditions for suspension and termination of the agreement, including the company?s obligation to restore the customer?s facilities to their previous state, if applicable
To ensure that subscriber services are effectively disconnected/deactivated in the event of termination of the contract, it is recommended that service providers quantify parameter d) in Appendix I.
In the case of service suspension due to non-payment, the agreement must include adequate advance notification to the subscriber, who must be informed of the reason for suspension and available courses of action to avoid suspension. The company providing the service is responsible for proving that this advance notification was sent.
The method used to make this advance notification must be indicated in the agreement.
For prepaid services, the agreement must establish a method for the customer to know with sufficient lead-time that an account balance is approaching ?0? and that its corresponding services will soon be disconnected if funds are not added to the account.
The applicable regime for contractual modifications must also be included in the agreement along with the following information:
- Minimum advance notice to inform the subscriber of modifications to contractual terms prior to the date they go into effect
- Notification method
- Right of the subscriber to terminate the agreement without penalty in the event that the contractual modification is not accepted, including the time limit for communicating this termination to the service provider and the notification method for doing so
- Method of obtaining most recent version of the agreement
If the agreement in question involves remote services and uses remote communication methods (agreements signed remotely), or if it is proposed and completed at the subscriber?s residence without a specific prior order from the subscriber (agreements signed at the place of address), the agreement must specify the subscriber?s right to cancel the agreement within the fourteen days following the date it was signed per Decree Law no. 143/2001 of 26 April. The agreement must also state that this right is exercisable by means of a registered letter with acknowledgment of receipt within this time limit communicating to the service provider the subscriber?s desire to cancel the agreement.
F) Subscriber compensation or reimbursement systems in the event that the agreement?s designated service levels are not met
Compensation or reimbursement must be specified for the eventuality that any of the agreement?s designated service levels are not met.
In the event of service interruption/suspension, customer reimbursement must be specified in the amount of the subscription cost proportional to the percentage of monthly hours of service interruption/suspension, notwithstanding additional compensation that may apply. In terms of non-subscription services, the reimbursement amount may be calculated using the average consumption of the last 3 months.
G) Method to pursue the dispute resolution process under the terms of Article 107 of Law no. 5/2004 of 10 February
The agreement must clearly define the method by which end users may pursue the dispute resolution process, with reference to the following:
- The claim must be submitted to the company providing the service
- Available channels for submitting claims
- Time limit for submitting claims
- Maximum time limit for company to acknowledge receipt of claims
- Maximum time limit for responding to claims. In this regard, it is recommended that service providers quantify parameter e) in Appendix I.
- Claims resolution procedure
- Subscriber option to submit disputes arising from the interpretation or application of the agreement to legal arbitration or mediation processes, if applicable
H) Conditions for billing
The following information must be clearly provided with regard to billing:
- Itemization of components comprising the detailed billing statement for subscribers who request it
- Method of issuing bills and billing frequency (including any available customer options)
- Time period between the date bills are sent to the customer relative to their due date
- Cost (if any) of certain types of bills
- Standard billing format (including any available customer options)
- Itemization of components comprising individual bills
- Payment methods
- Consequences of payment delinquency
I) Specific subscriber requests concerning the appearance of personal information in directories and the inclusion of this same information in directory assistance, involving transmission to third parties or otherwise, under the terms of personal data protection legislation
The agreement must allow subscribers to specifically assert their requests concerning the appearance of personal information in directories and the inclusion of this same information in directory assistance, involving transmission to third parties or otherwise, as well as allow subscribers the option to prohibit the appearance of this information.
The agreement must also state that failure to fill in the field reserved for the subscriber?s request concerning the appearance of personal information in directories and directory assistance corresponds to a request to be excluded from directories and directory assistance.
J) Obligation to guarantee personal data and privacy protection in the specific domain of electronic communications in accordance with applicable legislation on personal data and privacy protection
In order to ensure fulfilment of this obligation, agreements must indicate the following:
- Identity of entity responsible for data handling, or its representative
- Purpose of data handling and data recipients
- If data handling is intended for purposes other than those described in Article 6 of Law no. 67/98 of 26 October, space must be reserved in the agreement (form) allowing the data owner to specifically and unmistakably grant consent and have the option to prohibit data handling
- Existence of, and conditions for, exercising the right to access and correct data under the terms of Law no. 67/98 of 26 October
- Consequences of failing to provide mandatory data, with clear indications of mandatory versus optional data
- Space for subscribers to indicate which data is to be included in public directories under the terms of Article 13, Item 2 of Law no. 41/2004 of 18 August
- Space for subscribers to grant specific consent for any use of public directories beyond searching for the location of persons based upon their name and, if necessary, a minimum of other identifying elements
- Information on types of traffic data handled under the terms of Article 6, Items 2 and 4 of Law no. 41/2004 of 18 August, the duration and purpose of this handling, and information on its potential release to third parties for the purpose of providing value-added services as defined in Article 2, Item 1, Section f) of the aforementioned law. Data handling for the purposes specified in Item 4 requires consent from the corresponding subscriber or user.
- If location data are processed, information on the types of data handled under the terms of Article 7, Item 4 of Law no. 41/2004, the duration and purpose of this handling, and information on its potential release to third parties for the purpose of providing value-added services as defined in Article 2, Item 1, Section f) of the aforementioned law. Handling of these types of data requires consent.
K) Indication that subscriber data may be recorded in the database specified in Article 46 of the Electronic Communications Law, if applicable.
L) Indication of time limit for advance notice of service discontinuation and means of notification to the user.
M) Indication of ICP-ANACOM approval of the agreement.