General. Your subscription to this service is a residential (i) high speed or (ii) dial-up Internet service provided by Your Service Provider which provides you with access to the Internet (the "Service").
This Service Agreement between Your Service Provider and you sets out duties and responsibilities associated with providing you with the Service through a designated account (the "Account"). You are solely responsible for all access to and use of the Service through your Account. For the purposes of this Service Agreement, "you" means you and every person you authorize to use the Service. By accessing the Service, you agree to the terms and conditions contained in this Service Agreement. If you do not wish to be bound by these terms and conditions, you may not access or use the Service.
If you decide to cancel your subscription to the Service before activation has been completed, pursuant to Section 4 of this Service Agreement you will be charged a cancellation fee to cover the costs that we incur in processing your order.
Use Subject to Service Provider's Policies. You are solely responsible for all access to the Service through your Account. You agree to comply with and use the Service in accordance with Your Service Provider's policies respecting the Service as provided from time to time as well any policies to which you are directed when registering for or using the Service, and with any applicable laws. You agree to hold Your Service Provider, its affiliates and its agents harmless from all liabilities and expenses related to any violation of this Service Agreement by you or any user of your Account, or in connection with your or their use of the Service. While using the Service, you may not post, transmit or otherwise distribute information constituting or encouraging conduct that would constitute a criminal offence or give rise to civil liability, or otherwise use the Service in a manner which is contrary to law or to Your Service Provider's policies or would serve to restrict or inhibit any other user from using or enjoying the Service or the Internet. Without limiting the foregoing, you agree not to use the Service or any equipment provided in connection with the Service, for operation of an Internet Service Provider's business nor for any other non-residential purpose.
Fees and Charges. The Service is provided in accordance with the monthly rates, installation fees, activation fee, bandwidth usage fees and other fees, if any, identified to you upon placing your order for the Service, or as otherwise identified to you by Your Service Provider from time to time. For current rates and fees, go to our web page. Fees and charges for partial months of Service use will be prorated, except upon cancellation of the Service as outlined in Section 4. Separate and additional rates and fees, as specified by Your Service Provider from time to time, may apply to the use of a DSL modem provided by Your Service Provider and required for use of the Service ("Service Modem"). You agree to pay all such fees and charges, including applicable taxes, incurred in connection with the provision of and/or use of the Service, including without limitation the Service Modem, in accordance with the rates and terms established by Your Service Provider for the Service or to which you are directed to review when using the Service.
In the event Your Service Provider fails to bill you or under bills you for a charge, you will not be responsible for paying the previously un-billed or under billed charge except where:
i. in the case of a recurring charge, you are correctly billed within a period of one year from the date the charge was incurred; or
ii. in the case of a non-recurring charge, you are correctly billed within a period of 150 days from the date the charge was incurred.
Amounts not paid when due will bear interest at the lesser of 18% per annum or the maximum amount permitted by law. You must pay for the Service by credit card.
Refund/Cancellation Policies. Your order for the Service will be confirmed and you will have entered into a binding contract with Your Service Provider when (i) you submit your online order and it is accepted by Your Service Provider, or (ii) your phone order is confirmed by email or other form. If you subsequently cancel your order prior to activation of the Service you will be charged a $100 cancellation fee as liquidated damages for preparatory Service rendered by Your Service Provider. If you subscribe to the service on a month-to-month basis and cancel your Service during a billing period, your charges will not be pro-rated for such billing period and your account will be cancelled at the end of the next billing period your charges will be billed until the cancellation date (ex: if you cancel your Service at any time during the month of April, you will be billed up to May 31st ). However, if you migrate to one of the other Internet services offered by Your Service Provider, your charges for the last month of provision of the Service will be pro-rated.
Termination charges will be applicable for early termination of fixed term contracts. If you terminate prior to the end of your fixed term contract you will be charged an early termination charge of $100.00 as liquidated damages ("Termination Charge"). Your Service Provider may waive the Termination Charge if you migrate to another Internet service offered by Your Service Provider with monthly fees no lower than those provided under your fixed term contract and for a duration at least as long as your fixed term contract. If fixed term contracts are not cancelled within 30 days of the expiry of the fixed term, the Service will continue to be provided on a month-to-month basis in accordance with the terms and conditions of this Service Agreement.
Upon cancellation or termination, the cancellation fee for any non-returned Service Modem as specified in Section 17 of this Service Agreement will be charged as liquidated damages.
The Service. The Service is accessed through a designated account (the "Account") which will be established for you by Your Service Provider. The Service included in your subscription is identified to you upon placing your order for the Service.
Service Availability. If you order a Residential High Speed Internet Service, you acknowledge and agree that the telephone number check you completed upon placing your order is only a preliminary, geographical check to determine if the Service is available in your geographical area. Due to the nature of the Service technology, Your Service Provider reserves the right to deem the Service unavailable to you up to, including, and after the installation. Your Service Provider assumes no liability whatsoever for any claims, damages, losses or expenses arising out of or otherwise relating to the unavailability of the Service in your geographical area, even where such unavailability occurs after installation of the Service.
Minimum System Requirements & Your Equipment. It is your responsibility to ensure that your computer system meets the current minimum system requirements as stated by Your Service Provider. The minimum system requirements may change. Accordingly, your computer equipment may cease to be adequate to access the Service. In such event, you must either modify your computer equipment to meet the then current minimum system requirements or terminate this Service Agreement in accordance with its terms.
Installation Appointments. In no event will Your Service Provider be responsible for any claims, damages, losses or expenses, including without limitation lost wages or missed work, in the event that an installation appointment for the Service is missed, either by Your Service Provider or by any third party installer. It is your responsibility to create data backups before the installation. Your Service Provider or its agents will not be held responsible for any loss of data.
Performance Levels. Speed is a function of the bottlenecks experienced upon the wider network architecture of the Internet itself. As such Your Service Provider does not guarantee the maximum Service performance (throughput speeds) levels but will make every reasonable effort to ensure the highest possible quality of service is always delivered. You understand that any content that you may access through the Service may be subject to "caching" at intermediate locations on the Internet.
Security and Privacy. Your Service Provider will not be responsible for any corrupted files or viruses which affect the user of the Service. It is your responsibility to safeguard your system, through appropriate means (e.g. using commercially available software), from theft, unauthorized use or system corruption. Any detriment caused to the network as a result of your failure to properly secure your system may result in the immediate termination of your Service. Your Service Provider cannot ensure or guarantee privacy for users of the Service. It is therefore recommended that the Service not be used for the transmission of confidential information. Any such use shall be at your sole risk and Your Service Provider, its affiliates and its agents shall be relieved from all liability in connection therewith.
Service Bandwidth Resale or Redistribution Prohibited. Resale or redistribution of bandwidth or any other part of the Service for any purpose is strictly forbidden. Failure to comply with this condition will result in immediate cancellation of the Service, including your Account, at Your Service Provider's discretion.
IP Address / Host Name. Any IP address assigned to you by Your Service Provider is the property of Your Service Provider at all times. IP addresses will change each time your DSL modem or system is powered off, or any time at the discretion of Your Service Provider without prior notice to you. Your Service Provider assumes no liability whatsoever for any claims, damages, losses or expenses arising out of or otherwise relating to any change in IP Addressing.
Change in Residential Telephone Service. If a change in your local telephone service is requested from your local phone company, it is your sole responsibility to advise Your Service Provider of the changes. This includes moves, regardless of whether your phone number changes or not, changes to your phone number, and any other changes that may occur to your local telephone service. Any applicable cancellation and/or re-installation charges will be charged to your account.
User Information. Your messages may be the subject of unauthorized third party interception and review. An individual with Internet access can cause damage, incur expenses and enter into contractual obligations while on the Internet. All such matters are your responsibility. Your Service Provider has no obligation to monitor the Service. However, you agree that Your Service Provider reserves the right to monitor the Service electronically from time to time and to disclose any information necessary to satisfy any laws, regulations or other governmental request or as necessary to operate the Service or to protect itself or others.
No Liability for Content. Be aware that some content, products or services ("Content") available with or through the Service may be offensive to you or may not comply with applicable laws. You understand that neither Your Service Provider nor any of its affiliates attempt to censor or monitor any such Content. You understand, however, that such Content may be subject to "caching" at intermediate locations on the Internet when being accessed through the Service. You assume total responsibility and risk for access to or use of such Content and for use of the Internet. Your Service Provider and its affiliates assume no liability whatsoever for any claims or losses arising out of or otherwise relating to access to or use of such Content.
You Can Best Control the Risk and Therefore Are Responsible. The rates and fees charged by Your Service Provider reflect the allocation of risk herein and the limited recourse to Your Service Provider provided for in this Service Agreement. Your Service Provider will not assume any responsibility for your acts or omissions or those of any individual who uses your Account, including without limitation responsibility for any charges you incur when making purchases or conducting other transactions with the Service. As between Your Service Provider and you, you are better able to put in place physical and procedural impediments to the inappropriate use of and to supervise your Account. Account and password protection shall be your responsibility. Any detriment that is caused to the network as a result of a failure to properly secure your computer system may result in the termination of the Service.
The Service Modem.
- A DSL modem is required for use of the Residential High Speed Internet Service. As outlined in Section 3 of this Service Agreement, separate and additional charges, as may be specified by Your Service Provider from time to time, may apply to the use of a DSL modem provided by Your Service Provider for use of the Service (the "Service Modem"). The Service Modem (if provided by Your Service Provider) will always remain the property of Your Service Provider. As such, if the Service is cancelled or terminated for any reason, the Service Modem and other hardware delivered to you, must be returned to our offices at your own cost. We recommend that you return the Service Modem and hardware via Canada Post or courier. You will need to maintain your receipt from Canada Post or the courier as proof of return If the Service Modem is not received within 15 days of your date of cancellation of the Service, a cancellation fee, as outlined in paragraph (c) below, will apply.
- You agree to use and maintain the Service Modem (if provided by Your Service Provider), and all other hardware and software delivered to you, in compliance with the applicable operating instructions provided by Your Service Provider, its agents and/or suppliers, as applicable. You also agree to return such materials, at your own risk, in good repair and working order. Until returned to and received by Your Service Provider, you bear the entire risk of theft of, damage to or destruction of these materials. All of your obligations in respect of the Service Modem, and all other hardware and software delivered to you, will survive the expiration or termination of this Service Agreement to the extent required for their full observance and performance.
- With respect to the Service Modem, the following non-refundable cancellation fee will apply:
i. if the Service Modem is returned in accordance with paragraph (a) above, no cancellation fee will apply, provided a receipt is obtained from Canada Post or the courier, if requested;
ii. if the Service Modem is not returned in accordance with paragraph (a) above, a cancellation fee of $250.00 will apply.
18. Limited Warranty. The Service, Service Modem and any software or other deliverables provided by Your Service Provider, its agents and/or suppliers are provided "as is" and "as available" without warranties or conditions of any kind. You are responsible for the use and compatibility of the Service with any equipment, software, services and/or other materials not provided by Your Service Provider ("Third Party Equipment and Services"). Your Service Provider disclaims all responsibility for determining compatibility between the Service and any Third Party Provided Equipment and Services. Neither Your Service Provider, its affiliates, agents and/or suppliers warrant the performance, availability, uninterrupted use or operation of the Service or any deliverable provided under this Service Agreement. The entire risk as to the availability, quality and performance of the Service or any deliverable provided under this Service Agreement is with you. Further, neither Your Service Provider nor its affiliates warrant that any data or files sent by or to you will be transmitted, transmitted in uncorrupted form or transmitted within a reasonable period of time, that such data or files will not be intercepted, that other users will not gain access to any of your computer equipment, or that any Content or other material accessible through the Service is free of viruses or other harmful components, or will not be subject to "caching" at intermediate locations on the Internet when being accessed through the Service.
YOUR SERVICE PROVIDER MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO THE SERVICE, HARDWARE, SOFTWARE OR ANY OTHER DELIVERABLES PROVIDED HEREUNDER, OR ANY MERCHANDISE, INFORMATION, CONTENT OR SERVICE PROVIDED ON THE INTERNET AND ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED ARE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, HEREBY EXCLUDED.
Limitation of Liability. In the event of any breach by Your Service Provider, its affiliates, suppliers, or agents, including any breach of a fundamental term or any negligence, your exclusive remedy shall be to receive from Your Service Provider payment for actual and direct damages to a maximum amount equal to the fees paid hereunder by you to Your Service Provider during the last two months immediately preceding the relevant breach. Other than the foregoing remedy, under no circumstances shall Your Service Provider, its affiliates or its agents be liable to you or any third party for:
- any direct, indirect, special, or consequential damages, including, without limitation, loss of profits and loss of business opportunities that result in any way from this Service Agreement, including your use of the Service or access to the Internet, or any part thereof, or your reliance on or use of information, services or merchandise provided on or through the Service, or that result from mistakes, omissions, interruptions, deletion or corruption of files, errors, defects, delays in preparations, or transmission, or failure of performance, or
- any losses or expenses (including legal fees) arising out of, or in connection with any allegation, claim, suit or other proceeding based upon a contention that the use of the Service by you or a third party through your Account infringes the intellectual property rights or contractual rights of any third party.
In addition, Your Service Provider, its affiliates or its agents are not liable for:
- any act or omission of a telecommunications carrier whose facilities are used in establishing connections to points which Your Service Provider does not directly serve;
- defamation or copyright infringement arising from material transmitted or received over Your Service Provider's or its affiliates facilities; or
- infringement of patents arising from combining or using customer- provided facilities with Your Service Provider's or its affiliates facilities.
Termination and Account Suspension. This Service Agreement may be terminated by you upon notice by e-mail or courier to Your Service Provider. Your Service Provider may suspend or restrict the Service, at any time without notice, or terminate this Service Agreement if:
- the operations or efficiency of the Service is impaired by the use of your Account or the Service; or
- any amount is past due from you to Your Service Provider; or
- there has been or is any breach of any term or condition of this Service Agreement.
In the event of an Account suspension for any of the above reasons, a service charge (in the amount of $200.00) will be applied to your Account. If there is or has been an inadvertent misuse of your Account which impairs the operations or efficiency of the Service, Your Service Provider reserves the right to suspend your Account until the problem has been corrected, without any reduction in your rate for the Service. If your Account is suspended and the outstanding problem has not been resolved within 30 days from your last bill date, the Service may be disconnected. If so, the applicable installation fee will apply if you wish to resume your subscription to the Service.
Your Service Provider shall have no responsibility to notify any third party providers of services, merchandise or information of such termination or suspension. Any termination of this Service Agreement shall not relieve you from any amounts owing or other liability accruing hereunder prior to the time that such termination becomes effective.
Information. You hereby acknowledge that Your Service Provider and its affiliates may retain and use any information, comments or ideas conveyed by you relating to the Service (including any products and services made available on the Service). This information may be used to provide you with better service. Your Service Provider will send you Service related information on a regular basis via e-mail addressed to your parent e-mail address. You agree to review all Service related information. Your continued use of the Service following delivery of any such information means that you accept and agree to comply with such information.
Miscellaneous. This Service Agreement, including any and all documents and Your Service Provider's policies referenced herein, constitute the entire agreement and understanding between Your Service Provider and you pertaining to the subject matter hereof and shall supersede and replace all prior agreements, understandings and representations, written or oral, regarding such subject matter. Your Service Provider failure to insist upon or enforce strict performance of any provision of this Service Agreement shall not be construed as a waiver of any provision or right. If any of the provisions contained in this Service Agreement are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such determination shall not affect the remaining provisions contained herein. Where any provision of this Service Agreement conflicts with an applicable tariff, the tariff shall supercede this Service Agreement only in respect of the conflicting provision. This Service Agreement shall be governed by and construed in accordance with the laws of the province or territory in which your designated billing address is located and the federal laws of Canada applicable therein. Your Service Provider may assign its rights and obligations under this Service Agreement to any affiliated entity without your prior written consent. The parties have required that this Service Agreement and all documents relating there to be drawn up in English. Les parties ont demandé que cette convention ainsi que tous les documents qui s'y rattachent soient rédigés en anglais.