|
1.
Customer Obligations
a.
The Customer shall:
i.
for any Customer or third party
provided equipment or software, arrange for the supply, installation and
maintenance of such equipment, if applicable, and ensure that such
equipment or software is installed and maintained according to the
manufacturer's specifications and the customer's specifications, if any;
ii.
understand that service is
available where technology permits.
Rates do not include installation by a technician and costs to correct
internal wiring problems at customers' premises.
iii.
ensure at all times that the
City Telecom Provided Equipment and Customer or third party provided
equipment is stored in a manner and in an environment which conform to the
relevant equipment manufacturer's specifications;
iv.
be responsible for the loss of
and risk or damage the City Telecom Provided Equipment except where caused
by the negligence or wilful misconduct of City Telecom;
v.
provide all necessary
infrastructure, including without limitation, power outlets, grounding and
anti static environments required for the safe and efficient operation and
maintenance of the City Telecom Provided Equipment and the Customer or
third party provided equipment in accordance with Canadian Standards
Association or other specifications or regulations as applicable; and
vi.
permit City Telecom or its Third
Party Providers prompt and safe access to its premises for the purpose of
performing its obligations under the service(s) provided or disconnecting
and removing the City Telecom Provided Equipment.
b.
The Customer, its agents,
employees or representatives shall not commit any act or cause or permit
any act to be committed or provide any services which will conflict with or
affect in any way the provision of the Services by City Telecom.
c.
The Customer agrees not to
tamper with, alter or otherwise rearrange the Services nor shall it permit
or assist others to abuse or fraudulently use the Services including but
not limited to using the Services (i) in any manner which interferes
unreasonably with the Services or City Telecom’s network, or access thereto
by other persons; or (ii) for any purpose or in any manner directly or
indirectly in violation of applicable laws or in violation of any third
party rights.
d.
The Customer shall solely be
responsible for use of the Services by any of its employees, officers,
directors, agents as well as its end users and agrees to take all necessary
measures to ensure that such persons use the Services in accordance with
these terms and conditions. The Customer agrees to comply with (i) the
Internet Use Policy set forth herein, which policy may be amended by City
Telecom from time to time; to the extent the Customer is receiving an
Internet based service, and (ii) any third party software license terms and
conditions in respect of software used by the Customer in connection with
the use of the Services.
e.
The Customer shall be solely
responsible for obtaining necessary licenses and/or authorizations for all
software and equipment, which are not provided by City Telecom. City
Telecom shall not be responsible if any changes in the Services cause
equipment, hardware or software not provided by City Telecom to become
obsolete, require modification or attention, or otherwise affect
performance of same. City Telecom shall provide the Customer with one (1)
month’s notice of such changes.
f.
City Telecom reserves the right
to take all actions, including immediate suspension of the Services, which
it considers necessary to assure compliance with the Customer Obligations.
The Customer will be responsible for all additional costs, liabilities and
expenses incurred by City Telecom resulting directly from a breach by
Customer of this Section.
2.
Warranty
a.
Customer acknowledges that City
Telecom does not warrant uninterrupted or error free Services or the
content, availability, accuracy or any other aspect of any information
including, without limitation, all data, files and all other information or
content in any form or of any type, accessible or made available to or by
Customer or its end users through the use of the Services. City Telecom
shall be permitted from time to time to interrupt the Services in order to
provide maintenance to the Services, as more specifically set out in the
Schedules.
b.
The warranties provided in this
Agreement are in lieu of all other warranties and conditions. The Customer
hereby waives all other warranties and conditions, express, implied or
statutory, including any warranty of merchantability, fitness of a
particular purpose, or availability or reliability of the Services.
3.
Remedies
a.
SUBJECT TO SECTION 4, CITY
TELECOM’S AND THE THIRD PARTY PROVIDERS' TOTAL CUMULATIVE LIABILITY, IF
ANY, TO THE CUSTOMER FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT AND THE PROVISION OF THE SERVICES WILL IN NO EVENT EXCEED THE
TOTAL AGGREGATE MONTHLY CHARGES (NET OF ALL DISCOUNTS AND CREDITS) PAID BY
THE CUSTOMER DURING THE PERIOD SUCH DAMAGES WERE INCURRED, SUCH PERIOD NOT
TO EXCEED THREE (3) MONTHS, FOR THE SPECIFIC SERVICES THAT ALLEGEDLY GIVE
RISE TO THE DAMAGES.
b.
CUSTOMER'S SOLE AND EXCLUSIVE
REMEDIES AGAINST CITY TELECOM IN RESPECT OF THE SERVICES AND THIS AGREEMENT
SHALL BE AS STATED IN THIS AGREEMENT.
4.
Termination
a.
Either Party may, at its option,
terminate this Agreement effective 5 days after notice or prior opportunity
to cure the default if the other party makes or is 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 (and is not removed within thirty (30) days after the filing thereof),
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, custodian, receiver, receiver and
manager, moderator, or any other officer with similar powers shall be
appointed of or for it (and is not removed within thirty (30) days, if such
appointment was not voluntary), or if it shall commit any act of bankruptcy
or institute proceedings 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.
b.
City Telecom may terminate this
Agreement in the event that the Customer is in breach of any material term
of this Agreement (other than a failure to pay an amount when due) and
shall fail to remedy such breach within two (2) days after receiving written
(by email, mail or fax) notice thereof from the City Telecom.
Notwithstanding the foregoing, if the breach is not capable of being
remedied within such two (2) day period, the period in which the breach may
be remedied shall be extended for an additional period of three (3) days,
provided that the Customer has used and continues to use all reasonable
commercial/personal efforts to cure the breach in a timely manner.
c.
City Telecom may terminate this
Agreement in the event the Customer fails to pay any amount payable
hereunder when due and fails to remedy such breach within two (2) days
after receiving written (by email, mail or fax) notice thereof from City
Telecom.
d.
Customer may terminate this
Agreement in the event City Telecom fails to provide the service requested
hereunder when due and fails to remedy such breach within five (5) days
after receiving written (by email, mail or fax) notice thereof from
Customer. The sole remedy for such breach is the value of up to one (1)
months service, unless mutually agreed by both parties.
e.
For the purposes of this Terms
and Conditions, in the event that Customer does not perform its respective
obligations, responsibilities or provide the deliverables agreed to in this
agreement, and such breach is not cured within the two (2) day period
referred to the policies in this Terms and Conditions, City Telecom may, at
its option, immediately terminate this Agreement and all fees under this
Agreement, shall be immediately due and payable to City Telecom.
****
CUSTOMER MUST PROVIDE CITY TELECOM A NOTICE OF CANCELLATION AT LEAST 5
BUSINESS DAYS AHEAD OF THE MONTHLY RENEWAL DATE. IF CUSTOMER CANCEL THE
SERVICE WITHIN THE CONTRACT PERIOD, A $70 EARLY TERMINATION CHARGE APPLY
****
Limitation of Liability
UNDER NO CIRCUMSTANCES WILL CITY
TELECOM OR THE THIRD PARTY PROVIDERS BE LIABLE TO THE CUSTOMER FOR ANY
INDIRECT INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EXPENSES, COSTS,
LIABILITY, LOSS, OR DAMAGE WHATSOEVER, INCLUDING, LOST PROFITS, LOST
REVENUE, LOSS OF DATA, LOSS OF USE OF ANY INFORMATION SYSTEM, FAILURE TO
REALIZE EXPECTED SAVINGS OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER
ARISING IN NEGLIGENCE, TORT, STATUTE, EQUITY, CONTRACT, COMMON LAW, OR ANY
OTHER CAUSE OF ACTION OR LEGAL THEORY EVEN IF CITY TELECOM HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. CUSTOMER AGREES, ACKNOWLEDGES
AND CONFIRMS THAT THE LIMITATIONS OF LIABILITY SET OUT IN THIS SECTION ARE
FAIR AND REASONABLE IN THE COMMERCIAL CIRCUMSTANCES OF THIS AGREEMENT AND
THAT CITY TELECOM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR
CUSTOMER'S AGREEMENT TO LIMIT CITY TELECOM'S AND ITS THIRD PARTY PROVIDERS'
LIABILITY IN THE MANNER, AND TO THE EXTENT, PROVIDED FOR HEREIN.
a.
CITY TELECOM AND THE THIRD PARTY
PROVIDERS ASSUME NO LIABILITY ARISING FROM (i) THE USE OF THE SERVICES
FURNISHED BY CITY TELECOM IN COMBINATION WITH SERVICES, PRODUCTS OR
EQUIPMENT PROVIDED BY CUSTOMER OR ANY THIRD PARTIES AND (ii) THE FAILURE BY
THE CUSTOMER TO PERFORM ITS OBLIGATIONS.
b.
SECTIONS 3 AND 4 OF THIS
AGREEMENT SHALL APPLY EVEN IN THE EVENT OF A BREACH OF CONDITION, A BREACH
OF AN ESSENTIAL OR FUNDAMENTAL TERM, OR A FUNDAMENTAL BREACH OF THIS
AGREEMENT.
INTERNET
USE POLICY
The Customer is solely responsible for use of the
Services by any of its employees, officers, directors, agents and any other
end user of the Services (collectively, the «End Users»). The Customer
agrees to comply, and to ensure that, the End Users comply with the
following policies and procedures associated with the use of the Services
(the Customer and/or End Users are sometimes hereinafter referred to as
«you»).
1.
Rules. While using the Service, you may NOT:
a.
post, transmit or otherwise
distribute information constituting or encouraging conduct that would
constitute a criminal offense or give rise to civil liability, or otherwise
use the Service in a manner which is contrary to law or would serve to
restrict or inhibit any other user from using or enjoying the Service or
the Internet;
b.
post or transmit messages constituting
"spam", which includes but is not limited to unsolicited e-mail
messages, inappropriate postings to news groups, false commercial messages,
mail bombing or any other abuse of e-mail or news group servers;
c.
post or transmit any information
or software which contains a virus, "cancelbot", "trojan
horse", "worm" or other harmful or disruptive component; or
d.
upload or download, post,
publish, retrieve, transmit, or otherwise reproduce, distribute or provide
access to information, software or other material which: (i) is
confidential or is protected by copyright or other intellectual property
rights, without prior authorization from the rights holder(s); (ii) is
defamatory, obscene, child pornography or hate literature; or
(iii) constitutes invasion of privacy, appropriation of personality, or
unauthorized linking or framing.
2.
Your Equipment. It is your responsibility to ensure that your computer
system meets the minimum requirements stated by City Telecom as being
necessary to use the Service. From time to time, the computer equipment
required to access and use the Service may change. Accordingly, your
computer equipment may cease to be adequate to access and use the Service.
3.
You Can Best Control the Risk
and Therefore Are Responsible.
City Telecom will not assume any responsibility for your acts or omission.
Account and password protection will be your responsibility.
4.
Monitoring. City Telecom has no obligation to monitor the Service.
However, in order to protect itself and its subscribers, City Telecom will
be entitled to electronically monitor the Service from time to time and
disclose any information concerning the End User required by the Customer
or that is necessary to satisfy any law, regulation or lawful request. City
Telecom will not intentionally monitor or disclose any private e-mail
message unless required by law. City telecom reserves the right to refuse
to post, or to remove any information or materials, in whole or in part,
that it determines, in its sole discretion, are unacceptable, undesirable,
or in violation of these policies.
5.
Content. You acknowledge that some content, products or services
available with or through the Service («Content») may be offensive or may
not comply with applicable laws. You understand that neither City Telecom
nor any of its affiliates attempt to censor or monitor any Content. You
also acknowledge that neither City Telecom nor any of its affiliates have
any obligation to monitor your use of the Service and, except as provided
herein, have no control over such use. You assume total responsibility and
risk for access to or use of Content and for your use of the Service. City
Telecom and its affiliates assume no liability whatsoever for any claims or
losses arising out of or otherwise relating to your access to or use of
Content.
6.
Privacy. City Telecom cannot guarantee privacy. Your messages may
be the subject of unauthorized third party interception and review. City
Telecom therefore recommends that the Service not be used for the
transmission of confidential information.
7.
E-mail. Sending unsolicited, e-mail messages, including,
without limitation, commercial advertising, mailing lists and informational
announcements is prohibited. Users will not use another site's mail server
to relay mail.
8.
Usenet. Users shall not post ten (10) or more messages similar
in content to Usenet or other newsgroups, forums, e-mail mailing lists or
other similar groups or lists. Users will not post any Usenet or other
newsgroup, forum, email mailing list or other similar group or list
articles which are off-topic according to the charter or other
owned-published FAQ or description of the group or list.
9.
System and Network Security. Users are prohibited from violating any system or
network security measures including but not limited to engaging in
unauthorized access or use of City Telecom's or a third party's network,
data or information. Users are unauthorized to monitor City Telecom’s or
third party's data, systems or network traffic. Users are prohibited to
interfere with service to any user, host or network including without
limitation, mail bombing, flooding, and deliberate attempts to overload a
system and broadcast attacks. Users are prohibited to forge any TCP-IP
packet header or any part of the header information in an e-mail or
newsgroup posting.
VIOLATION OF ACCEPTABLE USE
POLICY
City Telecom considers the above practices to constitute
abuse of its service. Therefore, City Telecom' terms and conditions of
service prohibit these practices. Engaging in one or more of these practices
may result in termination or suspension of the offender's account and/or
access to City Telecom's services. Nothing contained in this policy shall
be construed to limit City Telecom' actions or remedies in any way with
respect to any of the foregoing activities. City Telecom reserves the right
to take any and all additional actions it may deem appropriate with respect
to such activities, including without limitation taking action to recover
the costs and expenses of identifying offenders and removing them from the
City Telecom service, and levying cancellation charges to cover City
Telecom' costs. In addition, City Telecom reserves at all times all rights
and remedies available to it with respect to such activities at law or in
equity.
|
