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Terms & Conditions
GorillaNET.ca – Terms and Conditions
1. Services
a) “Agreement” refers to the Commercial Services Agreement to which to these Terms and Conditions are attached, these Terms and Conditions, the Acceptable Use Policy, and all schedule(s), if applicable, attached to such Commercial Services Agreement. In consideration for the fees payable by the Customer pursuant to this Agreement (the “Fees”), The Provider shall perform the services indicated on the attached Commercial Services Agreement (the “Services”) at the Customer’s location(s) specified in the Commercial Services Agreement, or on attached schedule(s) (the “Service Sites”).
b) The Provider shall begin performing the Services, on its own network or otherwise, upon installation of the Equipment (as defined in Section 2(a)), or as otherwise agreed to between the parties, and shall continue such performance during the Term (as defined in Section 6), unless any or all of the Services are earlier terminated in accordance with this Agreement.
c) The Provider may, without penalty (and specifically without the penalty set out in Section 5 (c) below), suspend the provision of all or any of the Services to the Customer, for a reasonable length of time, in order to maintain, test or configure the Services or to perform such other work as The Provider may determine is necessary or appropriate. For non-emergency situations, The Provider will provide reasonable prior written notice of suspension of services. Such suspension of services will be done in a reasonable manner so as to minimize the impact to the Customer’s business activity.
d) The parties agree that the scope of Services to be provided may be amended from time to time at the request of or with written authorization of the Customer, and any such amendment shall be deemed to become an integral part of this Agreement. The Customer acknowledges that changes in the scope of Services require The Provider’s consent and may result in additional installation Fees and/or termination charges.
2. Provider’s Equipment
a) The Provider may install such of its wiring, cable, circuits, instruments, and other equipment (“Equipment”) in a Service Site as The Provider determines necessary or appropriate to connect the Service Site to allow The Provider to perform the Services.
b) The Equipment shall be supplied and installed by The Provider up to the Customer demarcation point, as determined by The Provider. The Customer acknowledges that the Equipment shall be maintained and repaired only by The Provider or The Provider’s authorized agents. The Provider may provide additional Services and/or Equipment beyond the Customer demarcation point if requested by the Customer. The Customer acknowledges that such provision will result in additional Fees, in addition to the Fees specified in this Agreement.
c) The Provider is the owner of the Equipment, or has obtained the right to make the Equipment available for use by the Customer from a third party. The Equipment will at all times during and after the Term remain the property of The Provider or such third party, as the case may be, regardless of the manner in which it is installed in or attached at the Service Sites. The Customer shall be responsible for any loss, cost, claim or damage resulting to or from the Equipment for any reason whatsoever including, without limitation, a disappearance or theft, or in connection with its installation, removal, use, maintenance or repair, as well as any loss and/or damage resulting from the Customer’s use of the Services, unless such loss and/or damage is due solely to the negligence or willful misconduct of The Provider.
d) Subject to Section 3(b), the Customer shall not, without The Provider’s prior written consent, make any deletion, addition, correction or other alteration to the Equipment, connect any equipment of the Customer or third party to the Equipment, or permit access to the Equipment by any person(s) not approved by The Provider.
e) If any right, title or interest in and to any of the Equipment is transferred or will be transferred to the Customer and the full purchase price of the Transferred Equipment (the “Transferred Equipment”) is not received by The Provider on or before the date of such transfer, in consideration of The Provider providing such Transferred Equipment, the Customer hereby creates and grants a purchase money security interest (or equivalent security interest) to The Provider in such Transferred Equipment and all proceeds thereof, equal to the value of the Transferred Equipment and Services performed in connection with the installation thereof as security for the prompt and complete payment of all amounts owing to The Provider by the Customer for providing such Transferred Equipment.
3. Customer Obligations
a) The Customer shall permit The Provider or The Provider’s authorized agents access to the Service Sites at all reasonable times during regular business hours or as otherwise agreed between the parties in order to install, inspect, maintain, repair, replace or remove or perform such other work as The Provider may determine is necessary or appropriate to all or part of the Services and/or Equipment. The Customer shall not place locks or other similar devices on the Equipment that would restrict such access to the Service Sites without providing The Provider access to the Service Sites.
b) The Customer may, at its own expense and with the prior written consent of The Provider, interconnect its own equipment with the Equipment, in accordance with the standards and procedures for interconnection and installation that are provided to the Customer by The Provider from time to time. In such event the Customer shall be responsible for ensuring that all of its interface equipment is compatible, and does not interfere, with the Equipment and the Services.
c) The Customer shall provide such space, shelter and electricity at the Service Sites for the Equipment as The Provider, acting reasonably, determines is necessary or appropriate, including such environmental control systems, lighting and security provisions and all cable services, wiring, modems switching equipment and amplifiers which The Provider, acting reasonably, determines is necessary or appropriate.
d) The Customer shall not interfere with or damage, or permit any other party to interfere with or damage, the Equipment or other operations of The Provider or its customers.
e) The Customer shall not create or permit to exist any liens or encumbrances on the Equipment or unpaid for Transferred Equipment except as approved by The Provider in writing.
f) The Customer will at all times use the Services, Equipment and the Transferred Equipment in accordance with The Provider’s Acceptable Use Policy, as amended from time to time.
g) The Customer shall not use the Services, the Equipment or the Transferred Equipment in any manner not contemplated under this Agreement, including, without limitation, resale of such Services, the Equipment or the Transferred Equipment, without the express written consent of The Provider. Any such unauthorized use shall be considered a material breach of this Agreement. The Customer acknowledges that resellers and sharing groups are required to register with The Provider prior to providing service and that the Customer shall be responsible for such registration.
h) For Customers who have ordered domain name services, the Customer agrees to be bound by any and all rules and procedures established by the internet registration authority issuing the domain name, as amended from time to time, including any dispute resolution rules.
4. Liability
a) The Provider shall not be liable for incidental, consequential, special or indirect damages arising from or in connection with the breach of any provision of this Agreement or any attached schedules, if any, whether or not such damages were foreseeable or The Provider was advised of the possibility of such damages. The aggregate liability of The Provider arising out of or in connection with this Agreement shall not exceed the Fees paid by Customer to The Provider hereunder, excluding all charges for installation and provisioning of Equipment and Transferred Equipment. If requested, the Customer will provide in favour of The Provider a waiver of subrogation from the Customer’s insurer. The limitation of liability set forth in this section shall not apply to claims of personal injury or property damage due to the sole negligence or willful misconduct of The Provider against whom the claim is made. The Provider is not liable for any degradation of service caused by capacity shortages or actions of a third party supplier involved in providing the Service to the Customer.
b) The Services are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance or in which an error or interruption in the Services could lead to severe injury to business, persons, property or environment (“High Risk Activities”). These High Risk Activities may include, without limitation, vital business or personal communications, or activities where absolutely accurate data or information is required. Customer expressly assumes the risks of any damages resulting from High Risk Activities. The Provider hall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Services, directly or indirectly caused by, or proximately resulting from, any circumstances, including, but not limited to, causes attributable to Customer or Transferred Equipment; inability to obtain access to the Service locations; or any events of Force Majeure.
c) In no event shall The Provider be liable for the use of the Equipment, the Transferred Equipment or the Services by the Customer or any third party for unlawful or illegal purposes, or any purpose which is contrary to The Provider’s Terms and Conditions, and/or The Provider’s Acceptable Use Policy, as amended from time to time.
d) The Customer hereby indemnifies and holds harmless The Provider and its agents for any and all losses, damages, costs or expenses (including legal fees) resulting from any allegation, claim or action by a third party arising out of or relating to use of the Equipment, the Transferred Equipment or the Services by the Customer or any third party, for unlawful or illegal purposes, or any purpose which is contrary to The Provider’s Terms and Conditions or The Provider’s Acceptable Use Policy or Industry Canada or the CRTC, as amended from time to time, or for any breach of this Agreement by the Customer.
e) The Provider makes no representations, warranties, conditions or guarantees as to merchantability, fitness for particular purposes or any other representations, warranties, conditions or guarantees regarding the Services, the Equipment or the Transferred Equipment, whether express or implied, in law or in fact, or in writing, except as expressly stated in this Agreement. The Customer acknowledges that it has not relied upon any representation, warranty, condition or guarantee made by The Provider.
f) Without limiting the generality of the foregoing above, The Provider does not represent, warrant, covenant or guarantee that transmissions initiated by the Customer in the course of using the Equipment, the Transferred Equipment or the Services cannot and will not be received or intercepted by persons other than the intended recipients.
5. Fees
a) The Fees specified in this Agreement, including any security deposit, shall be paid by the Customer to The Provider in accordance with Section 5(d) herein in full without any right of set-off or deduction. The Customer shall pay The Provider any applicable sales, use, goods and services, value added or similar taxes payable with respect to the Fees, or otherwise arising with respect to this Agreement.
b) Notwithstanding any other provisions herein, The Provider reserves the right to adjust the Fees, both retroactively and on a go-forward basis, to reflect changes in CRTC tariffs, regulatory requirements, taxes, levies and other third party charges.
c) Subject to Section 1(c), when a service interruption occurs for a period of at least four (4) hours in any twenty-four (24) hour period after The Provider’s receipt of written notice from the Customer (which notice is to be given to The Provider’s technical support desk immediately at the time the service interruption occurs), the Customer shall be credited with an allowance equal to one thirtieth (1/30) of the monthly Fee for that particular month applicable to the Service which is rendered useless or substantially impaired, per day of the service interruption. Such allowance will be applied against the Customer’s next monthly Fee. A service interruption means a failure by The Provider to provide the Services (or any particular Service) substantially in accordance with service specifications (set by The Provider from time to time) for reasons other than:
capacity shortages not caused by The Provider;
the failure or non-performance of any service, equipment or facilities provided by anyone other than The Provider;
any act or omission by the Customer including, without limitation, interruptions required to correct interference to a Service caused by equipment of the Customer or a third party connected to or used in conjunction with the Service;
any reasonable period during which The Provider interrupts the performance of the Services in order to perform tests, maintenance or adjustments to the Service facilities or the Equipment or such other work as The Provider may determine, acting reasonably, is necessary or appropriate;
the occurrence of an event of Force Majeure (as defined in Section 9);
interruptions due to power fluctuations or power failure at the Service Sites; or
access cannot be gained to the Service Sites by The Provider.
d) The Provider will invoice the Customer for all installation Fees (and all applicable taxes) forthwith following installation net of any deposit(s) received from the Customer pursuant to this Agreement. The Customer hereby acknowledges that such installation Fees are due and payable immediately upon completion of the work and presentation of applicable invoice and Services will not commence until such payment is received by The Provider. The Provider shall invoice the Customer the monthly Fees (and any applicable taxes) on a monthly basis not less than 15 days prior to the month or period to which it relates. The Customer acknowledges that invoices for monthly Fees (or part month for stub periods) are payable within 15 days of delivery via email to the Customer. A late payment charge of 1.5% per month may be applied to any invoice for which payment has not been received by The Provider by the payment due date printed on the invoice. In the event that a particular Service is commenced on a day other than the first day of a calendar month or terminates on a day other than the last day of a calendar month, the Fee in respect of such Service shall be pro-rated based on a thirty (30) day month.
e) Where payments have been made for charges that should not have been billed, or that were over-billed, the Customer will be credited with the overpayment back to date of the error up to a maximum of one year from the date the error was identified. If the Customer does not dispute the charge within one year of the date of a statement, the right to have the excess credited for the period prior to such statement is lost.
f) The Customer is not responsible for paying previously unbilled or underbilled charges except where the charge is correctly billed within a period of one year from the date it was incurred.
g) As security for the prompt and complete payment of all amounts due under this Agreement, including in respect of any minimum commitment by the Customer, the Customer hereby creates and grants to The Provider a security interest in all of the Customer’s right, title and interest in and to all presently owned or held and after acquired or held personal property, assets and undertaking of the Customer and all proceeds thereof.
6. Termination and Termination Charges
a) This Agreement shall become effective on the date upon which this Agreement is executed by The Provider. The term of Services (“Term”) shall commence on the date the Service is installed and shall continue in full force and effect until the earlier of:
the expiry of the Term specified in the Services Agreement; or,
the termination of the Agreement in accordance with this section.
b) Upon the expiry of the initial Term, this Agreement will be automatically renewed unless either party gives 30 days notice of termination prior to the end of the current term for successive one (1) year terms subject to termination pursuant to Section 6(d) or (e), or, subject to The Provider’s approval, the Customer signing a new Agreement for the Services.
c) Customers being provided Services on a month-to- month Agreement may terminate the Services at any time, subject to a 30-day minimum billing on 30 days written notice.
d) The Provider may suspend or terminate any Service(s) under this Agreement, at The Provider’s discretion, immediately, without further obligation to the Customer in the event of :
any failure by the Customer to pay any Fees, make payments for Transferred Equipment, or other amounts when due hereunder or any breach of this Agreement by the Customer which cannot be resolved or is not resolved to The Provider’s satisfaction within fifteen (15) days of The Provider notifying the Customer of such breach;
any merger, consolidation or similar transaction or acquisition or sale, lease or other transfer of all or substantially all of the assets or voting shares of the Customer, or any other change in the control or ownership of the Customer in respect of which written notification has not been provided to The Provider;
the Customer making or being deemed to have made a general assignment for the benefit of creditors under the Bankruptcy and Insolvency Act (the ”Act”), or if a petition is filed against it under the Act, or if it shall be declared or adjudicated bankrupt, or if an application is made in respect of it under the Companies Creditors Arrangement Act, or if a liquidator, trustee in bankruptcy or receiver institute proceedings against the Customer to be adjudged bankrupt or insolvent or consents to the institution of such appointment or proceedings, or if it admits in writing an inability to pay debts generally as they become due or becomes an “insolvent person” as that term is defined in the Act;
use of the Services and/or Equipment for any illegal or unlawful purposes or any purposes which is contrary to The Provider’s Terms and Conditions or Industry Canada or the CRTC or The Provider’s Acceptable Use Policy, as amended from time to time; or
The Provider being required by law to cease providing Services.
e) The Customer may terminate this Agreement immediately, without further obligation to The Provider, other than the obligation to pay amounts owing for Services provided to the date of such termination, under the following conditions:
by paying immediately to The Provider 60% of the remaining value of aggregate monthly Fees under this Agreement;
by entering into a new Agreement for Services for a term and quantity equal to or greater than the original Agreement;
any other breach of this Agreement by The Provider which cannot be resolved or is not resolved within thirty (30) days of the Customer notifying The Provider of such breach;
in the event of more than four (4) service interruptions described in Section 5(c) in any thirty (30) day period for which the Customer has registered a trouble ticket with The Provider’s technical support desk and for which The Provider’s technical support desk has closed the trouble ticket; or
pursuant to the provisions of Section 9.
f) Upon termination:
The Provider may immediately remove any Equipment or unpaid for Transferred Equipment from the Service Sites and the Customer shall permit The Provider and its agents access to the Service Sites for such purpose;
the Customer shall pay The Provider any and all amounts owed by Customer to The Provider pursuant to this Agreement and all costs (including reasonable legal fees) incurred by The Provider in attempting to protect The Provider’s rights or remedies, or to cause the Customer’s compliance with its obligations pursuant to this Agreement; and,
in the case of termination by The Provider in accordance with Section 6(d), other than 6(d)(v) (unless as a result of the Customer’s actions), the Customer shall pay The Provider all Fee obligations for the remaining portion of the Term.
g) For Services provided by The Provider using DSL or Wireless technology, the Customer understands that the signature of this Agreement does not guarantee availability of the service since availability can only be determined during the provisioning process. If The Provider cannot render the service, The Provider may at its sole discretion either provide another equivalent solution to the Customer or terminate the Service at no charge to the Customer.
7. Assignment
The Customer may not assign any rights or obligations under this Agreement to any third party without the express written consent of The Provider, which consent shall not be unreasonably withheld.
8. Confidentiality
During and after the Term, each party (the “Receiving Party”) shall maintain strictly confidential all information, financial, technical, or otherwise, disclosed by the other party (including the terms of this Agreement) and shall not copy or use any such information except as contemplated by this Agreement. The foregoing shall not apply to information which is or becomes publicly known otherwise than by reason of a breach of this Agreement by the Receiving Party or has been independently developed outside the scope of this Agreement. Where the Receiving Party is required by law to disclosure confidential information, it shall use its best efforts to minimize the extent of disclosure of the confidential information and to obtain an undertaking from the recipient to maintain the confidentiality thereof. Notwithstanding the foregoing, The Provider may disclose the Customer’s confidential information to The Provider’s agents, provided that such agents agree to be bound by confidentiality provisions equivalent to this section.
9. Force Majeure
a.) If at any time during the Term, The Provider is unable to provide any or all of the Services by reason of the occurrence of an event of Force Majeure (defined in Section 9(b)), The Provider will be excused from the performance of its obligations hereunder, during the continuance of such inability, provided that The Provider provides written notice of the occurrence of the Force Majeure to the Customer within ten (10) days of its occurrence and takes all reasonable measures to prevent or remove the Force Majeure. In the event of the occurrence of an event of Force Majeure, The Provider may provide the Customer with bridge service, if possible, and the Customer may, at its option, terminate the Agreement with written notice if The Provider cannot resume provision of the Services within sixty (60) days of the occurrence of the event of Force Majeure.
b.) “Force Majeure” means a fire, rain, flood, epidemic, earthquake, snowstorm, thunderstorm, lightning storm, ice buildup, quarantine, embargo, or other act of God; explosion, damage or destruction of equipment or facilities; strike, lockout or other dispute with workers; riots, civil disputes, war (whether declared or undeclared) or armed conflict; any municipal ordinance or provincial or federal law, governmental order of regulation or order of any court or regulatory body; the inability to obtain, or any delay in obtaining, local access for any reason whatsoever, fraud control by The Provider which renders continued provision of a Service or the Services under the Agreement impossible, impracticable or illegal.
Terms & Conditions
GorillaNET.ca – Terms and Conditions
a) “Agreement” refers to the Commercial Services Agreement to which to these Terms and Conditions are attached, these Terms and Conditions, the Acceptable Use Policy, and all schedule(s), if applicable, attached to such Commercial Services Agreement. In consideration for the fees payable by the Customer pursuant to this Agreement (the “Fees”), The Provider shall perform the services indicated on the attached Commercial Services Agreement (the “Services”) at the Customer’s location(s) specified in the Commercial Services Agreement, or on attached schedule(s) (the “Service Sites”).
b) The Provider shall begin performing the Services, on its own network or otherwise, upon installation of the Equipment (as defined in Section 2(a)), or as otherwise agreed to between the parties, and shall continue such performance during the Term (as defined in Section 6), unless any or all of the Services are earlier terminated in accordance with this Agreement.
c) The Provider may, without penalty (and specifically without the penalty set out in Section 5 (c) below), suspend the provision of all or any of the Services to the Customer, for a reasonable length of time, in order to maintain, test or configure the Services or to perform such other work as The Provider may determine is necessary or appropriate. For non-emergency situations, The Provider will provide reasonable prior written notice of suspension of services. Such suspension of services will be done in a reasonable manner so as to minimize the impact to the Customer’s business activity.
d) The parties agree that the scope of Services to be provided may be amended from time to time at the request of or with written authorization of the Customer, and any such amendment shall be deemed to become an integral part of this Agreement. The Customer acknowledges that changes in the scope of Services require The Provider’s consent and may result in additional installation Fees and/or termination charges.
2. Provider’s Equipment
a) The Provider may install such of its wiring, cable, circuits, instruments, and other equipment (“Equipment”) in a Service Site as The Provider determines necessary or appropriate to connect the Service Site to allow The Provider to perform the Services.
b) The Equipment shall be supplied and installed by The Provider up to the Customer demarcation point, as determined by The Provider. The Customer acknowledges that the Equipment shall be maintained and repaired only by The Provider or The Provider’s authorized agents. The Provider may provide additional Services and/or Equipment beyond the Customer demarcation point if requested by the Customer. The Customer acknowledges that such provision will result in additional Fees, in addition to the Fees specified in this Agreement.
c) The Provider is the owner of the Equipment, or has obtained the right to make the Equipment available for use by the Customer from a third party. The Equipment will at all times during and after the Term remain the property of The Provider or such third party, as the case may be, regardless of the manner in which it is installed in or attached at the Service Sites. The Customer shall be responsible for any loss, cost, claim or damage resulting to or from the Equipment for any reason whatsoever including, without limitation, a disappearance or theft, or in connection with its installation, removal, use, maintenance or repair, as well as any loss and/or damage resulting from the Customer’s use of the Services, unless such loss and/or damage is due solely to the negligence or willful misconduct of The Provider.
d) Subject to Section 3(b), the Customer shall not, without The Provider’s prior written consent, make any deletion, addition, correction or other alteration to the Equipment, connect any equipment of the Customer or third party to the Equipment, or permit access to the Equipment by any person(s) not approved by The Provider.
e) If any right, title or interest in and to any of the Equipment is transferred or will be transferred to the Customer and the full purchase price of the Transferred Equipment (the “Transferred Equipment”) is not received by The Provider on or before the date of such transfer, in consideration of The Provider providing such Transferred Equipment, the Customer hereby creates and grants a purchase money security interest (or equivalent security interest) to The Provider in such Transferred Equipment and all proceeds thereof, equal to the value of the Transferred Equipment and Services performed in connection with the installation thereof as security for the prompt and complete payment of all amounts owing to The Provider by the Customer for providing such Transferred Equipment.
3. Customer Obligations
a) The Customer shall permit The Provider or The Provider’s authorized agents access to the Service Sites at all reasonable times during regular business hours or as otherwise agreed between the parties in order to install, inspect, maintain, repair, replace or remove or perform such other work as The Provider may determine is necessary or appropriate to all or part of the Services and/or Equipment. The Customer shall not place locks or other similar devices on the Equipment that would restrict such access to the Service Sites without providing The Provider access to the Service Sites.
b) The Customer may, at its own expense and with the prior written consent of The Provider, interconnect its own equipment with the Equipment, in accordance with the standards and procedures for interconnection and installation that are provided to the Customer by The Provider from time to time. In such event the Customer shall be responsible for ensuring that all of its interface equipment is compatible, and does not interfere, with the Equipment and the Services.
c) The Customer shall provide such space, shelter and electricity at the Service Sites for the Equipment as The Provider, acting reasonably, determines is necessary or appropriate, including such environmental control systems, lighting and security provisions and all cable services, wiring, modems switching equipment and amplifiers which The Provider, acting reasonably, determines is necessary or appropriate.
d) The Customer shall not interfere with or damage, or permit any other party to interfere with or damage, the Equipment or other operations of The Provider or its customers.
e) The Customer shall not create or permit to exist any liens or encumbrances on the Equipment or unpaid for Transferred Equipment except as approved by The Provider in writing.
f) The Customer will at all times use the Services, Equipment and the Transferred Equipment in accordance with The Provider’s Acceptable Use Policy, as amended from time to time.
g) The Customer shall not use the Services, the Equipment or the Transferred Equipment in any manner not contemplated under this Agreement, including, without limitation, resale of such Services, the Equipment or the Transferred Equipment, without the express written consent of The Provider. Any such unauthorized use shall be considered a material breach of this Agreement. The Customer acknowledges that resellers and sharing groups are required to register with The Provider prior to providing service and that the Customer shall be responsible for such registration.
h) For Customers who have ordered domain name services, the Customer agrees to be bound by any and all rules and procedures established by the internet registration authority issuing the domain name, as amended from time to time, including any dispute resolution rules.
4. Liability
a) The Provider shall not be liable for incidental, consequential, special or indirect damages arising from or in connection with the breach of any provision of this Agreement or any attached schedules, if any, whether or not such damages were foreseeable or The Provider was advised of the possibility of such damages. The aggregate liability of The Provider arising out of or in connection with this Agreement shall not exceed the Fees paid by Customer to The Provider hereunder, excluding all charges for installation and provisioning of Equipment and Transferred Equipment. If requested, the Customer will provide in favour of The Provider a waiver of subrogation from the Customer’s insurer. The limitation of liability set forth in this section shall not apply to claims of personal injury or property damage due to the sole negligence or willful misconduct of The Provider against whom the claim is made. The Provider is not liable for any degradation of service caused by capacity shortages or actions of a third party supplier involved in providing the Service to the Customer.
b) The Services are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance or in which an error or interruption in the Services could lead to severe injury to business, persons, property or environment (“High Risk Activities”). These High Risk Activities may include, without limitation, vital business or personal communications, or activities where absolutely accurate data or information is required. Customer expressly assumes the risks of any damages resulting from High Risk Activities. The Provider hall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Services, directly or indirectly caused by, or proximately resulting from, any circumstances, including, but not limited to, causes attributable to Customer or Transferred Equipment; inability to obtain access to the Service locations; or any events of Force Majeure.
c) In no event shall The Provider be liable for the use of the Equipment, the Transferred Equipment or the Services by the Customer or any third party for unlawful or illegal purposes, or any purpose which is contrary to The Provider’s Terms and Conditions, and/or The Provider’s Acceptable Use Policy, as amended from time to time.
d) The Customer hereby indemnifies and holds harmless The Provider and its agents for any and all losses, damages, costs or expenses (including legal fees) resulting from any allegation, claim or action by a third party arising out of or relating to use of the Equipment, the Transferred Equipment or the Services by the Customer or any third party, for unlawful or illegal purposes, or any purpose which is contrary to The Provider’s Terms and Conditions or The Provider’s Acceptable Use Policy or Industry Canada or the CRTC, as amended from time to time, or for any breach of this Agreement by the Customer.
e) The Provider makes no representations, warranties, conditions or guarantees as to merchantability, fitness for particular purposes or any other representations, warranties, conditions or guarantees regarding the Services, the Equipment or the Transferred Equipment, whether express or implied, in law or in fact, or in writing, except as expressly stated in this Agreement. The Customer acknowledges that it has not relied upon any representation, warranty, condition or guarantee made by The Provider.
f) Without limiting the generality of the foregoing above, The Provider does not represent, warrant, covenant or guarantee that transmissions initiated by the Customer in the course of using the Equipment, the Transferred Equipment or the Services cannot and will not be received or intercepted by persons other than the intended recipients.
5. Fees
a) The Fees specified in this Agreement, including any security deposit, shall be paid by the Customer to The Provider in accordance with Section 5(d) herein in full without any right of set-off or deduction. The Customer shall pay The Provider any applicable sales, use, goods and services, value added or similar taxes payable with respect to the Fees, or otherwise arising with respect to this Agreement.
b) Notwithstanding any other provisions herein, The Provider reserves the right to adjust the Fees, both retroactively and on a go-forward basis, to reflect changes in CRTC tariffs, regulatory requirements, taxes, levies and other third party charges.
c) Subject to Section 1(c), when a service interruption occurs for a period of at least four (4) hours in any twenty-four (24) hour period after The Provider’s receipt of written notice from the Customer (which notice is to be given to The Provider’s technical support desk immediately at the time the service interruption occurs), the Customer shall be credited with an allowance equal to one thirtieth (1/30) of the monthly Fee for that particular month applicable to the Service which is rendered useless or substantially impaired, per day of the service interruption. Such allowance will be applied against the Customer’s next monthly Fee. A service interruption means a failure by The Provider to provide the Services (or any particular Service) substantially in accordance with service specifications (set by The Provider from time to time) for reasons other than:
d) The Provider will invoice the Customer for all installation Fees (and all applicable taxes) forthwith following installation net of any deposit(s) received from the Customer pursuant to this Agreement. The Customer hereby acknowledges that such installation Fees are due and payable immediately upon completion of the work and presentation of applicable invoice and Services will not commence until such payment is received by The Provider. The Provider shall invoice the Customer the monthly Fees (and any applicable taxes) on a monthly basis not less than 15 days prior to the month or period to which it relates. The Customer acknowledges that invoices for monthly Fees (or part month for stub periods) are payable within 15 days of delivery via email to the Customer. A late payment charge of 1.5% per month may be applied to any invoice for which payment has not been received by The Provider by the payment due date printed on the invoice. In the event that a particular Service is commenced on a day other than the first day of a calendar month or terminates on a day other than the last day of a calendar month, the Fee in respect of such Service shall be pro-rated based on a thirty (30) day month.
e) Where payments have been made for charges that should not have been billed, or that were over-billed, the Customer will be credited with the overpayment back to date of the error up to a maximum of one year from the date the error was identified. If the Customer does not dispute the charge within one year of the date of a statement, the right to have the excess credited for the period prior to such statement is lost.
f) The Customer is not responsible for paying previously unbilled or underbilled charges except where the charge is correctly billed within a period of one year from the date it was incurred.
g) As security for the prompt and complete payment of all amounts due under this Agreement, including in respect of any minimum commitment by the Customer, the Customer hereby creates and grants to The Provider a security interest in all of the Customer’s right, title and interest in and to all presently owned or held and after acquired or held personal property, assets and undertaking of the Customer and all proceeds thereof.
6. Termination and Termination Charges
a) This Agreement shall become effective on the date upon which this Agreement is executed by The Provider. The term of Services (“Term”) shall commence on the date the Service is installed and shall continue in full force and effect until the earlier of:
b) Upon the expiry of the initial Term, this Agreement will be automatically renewed unless either party gives 30 days notice of termination prior to the end of the current term for successive one (1) year terms subject to termination pursuant to Section 6(d) or (e), or, subject to The Provider’s approval, the Customer signing a new Agreement for the Services.
c) Customers being provided Services on a month-to- month Agreement may terminate the Services at any time, subject to a 30-day minimum billing on 30 days written notice.
d) The Provider may suspend or terminate any Service(s) under this Agreement, at The Provider’s discretion, immediately, without further obligation to the Customer in the event of :
e) The Customer may terminate this Agreement immediately, without further obligation to The Provider, other than the obligation to pay amounts owing for Services provided to the date of such termination, under the following conditions:
f) Upon termination:
g) For Services provided by The Provider using DSL or Wireless technology, the Customer understands that the signature of this Agreement does not guarantee availability of the service since availability can only be determined during the provisioning process. If The Provider cannot render the service, The Provider may at its sole discretion either provide another equivalent solution to the Customer or terminate the Service at no charge to the Customer.
7. Assignment
The Customer may not assign any rights or obligations under this Agreement to any third party without the express written consent of The Provider, which consent shall not be unreasonably withheld.
8. Confidentiality
During and after the Term, each party (the “Receiving Party”) shall maintain strictly confidential all information, financial, technical, or otherwise, disclosed by the other party (including the terms of this Agreement) and shall not copy or use any such information except as contemplated by this Agreement. The foregoing shall not apply to information which is or becomes publicly known otherwise than by reason of a breach of this Agreement by the Receiving Party or has been independently developed outside the scope of this Agreement. Where the Receiving Party is required by law to disclosure confidential information, it shall use its best efforts to minimize the extent of disclosure of the confidential information and to obtain an undertaking from the recipient to maintain the confidentiality thereof. Notwithstanding the foregoing, The Provider may disclose the Customer’s confidential information to The Provider’s agents, provided that such agents agree to be bound by confidentiality provisions equivalent to this section.
9. Force Majeure
a.) If at any time during the Term, The Provider is unable to provide any or all of the Services by reason of the occurrence of an event of Force Majeure (defined in Section 9(b)), The Provider will be excused from the performance of its obligations hereunder, during the continuance of such inability, provided that The Provider provides written notice of the occurrence of the Force Majeure to the Customer within ten (10) days of its occurrence and takes all reasonable measures to prevent or remove the Force Majeure. In the event of the occurrence of an event of Force Majeure, The Provider may provide the Customer with bridge service, if possible, and the Customer may, at its option, terminate the Agreement with written notice if The Provider cannot resume provision of the Services within sixty (60) days of the occurrence of the event of Force Majeure.
b.) “Force Majeure” means a fire, rain, flood, epidemic, earthquake, snowstorm, thunderstorm, lightning storm, ice buildup, quarantine, embargo, or other act of God; explosion, damage or destruction of equipment or facilities; strike, lockout or other dispute with workers; riots, civil disputes, war (whether declared or undeclared) or armed conflict; any municipal ordinance or provincial or federal law, governmental order of regulation or order of any court or regulatory body; the inability to obtain, or any delay in obtaining, local access for any reason whatsoever, fraud control by The Provider which renders continued provision of a Service or the Services under the Agreement impossible, impracticable or illegal.
End of Terms and Conditions