WORLDLINE FIBERNETICS MASTER SERVICES AGREEMENT
This Master Services Agreement and all Service Schedules hereto form the agreement (“Agreement”) between Fibernetics Corporation, a company incorporated under the laws of the Province of Ontario and having its principal office at 605 Boxwood Drive, Cambridge, Ontario, N3E 1A5, (“Fibernetics”), and the customer (“Customer” or “you”) for the provision and use of the Fibernetics services (the “Services”).
1. SERVICE SUBSCRIPTION
The Customer agrees to subscribe to the Services offered by Fibernetics as set out in the schedules to this Master Services Agreement (the “Service Schedules”). The terms and conditions set out in this Master Services Agreement and the Service Schedules govern the Customer’s use of the Services and the Customer must read and accept these terms and conditions prior to using any of the Services.
BY ACTIVATING OR USING ANY OF THE SERVICES, YOU REPRESENT THAT YOU ARE OF LEGAL AGE IN YOUR PROVINCE OF RESIDENCE TO ENTER INTO THIS AGREEMENT AND THAT YOU, THE CUSTOMER, HAVE READ AND UNDERSTOOD FULLY ITS TERMS AND CONDITIONS.
2. FIBERNETICS FACILITIES
Fibernetics is the owner of all right, title and interest in all facilities, networks, equipment and software provided by Fibernetics or utilized in the provision of the Services (the “Fibernetics Facilities”) or has obtained the right to make the Fibernetics Facilities available for use by the Customer from a third party and the Customer shall have no rights therein.
It is the Customer’s responsibility to provide, prepare and maintain the Customer’s locations, facilities and equipment for the installation of Fibernetics Facilities and for Fibernetics to provide the Services to the Customer. Such provision, preparation and maintenance shall comply with Fibernetics’ specifications and shall be at the Customer’s expense.
In the event that the Customer fails to provide, prepare or maintain the locations, facilities, equipment or network for the installation of Fibernetics Facilities or any Fibernetics Services, or fails to do so in a timely manner as Fibernetics may deem necessary in the circumstances, Fibernetics shall not be liable for any resulting delay in commencing the Services or any service interruption and related damages, and the Customer shall be liable for any additional costs incurred by Fibernetics in order to install or restore the Services.
The Customer shall not, without Fibernetics’ written consent and then subject to such conditions as Fibernetics may require, make any alternation, addition or repair to Fibernetics Facilities or permit access to Fibernetics Facilities by any person not approved by Fibernetics.
The Customer shall be responsible for the security of and any loss or damage to Fibernetics Facilities located on the Customer’s premises.
If, in connection with a particular Service or under a specific Schedule, the Customer purchases any of the Fibernetics Facilities from Fibernetics, the terms and conditions related thereto shall be specified in the Schedule. However, all Fibernetics Facilities remain the property of Fibernetics until Customer has paid for such Fibernetics Facilities in full.
Fibernetics shall bear the expense of maintenance and repairs required due to normal wear and tear to Fibernetics Facilities.
3. INSPECTION AND MAINTENANCE
Fibernetics may, from time to time and without notice to the Customer, upgrade, maintain, or migrate the Services or the Fibernetics Facilities.
In the event Fibernetics determines that it is necessary to interrupt the Services or that there is a potential for Services to be interrupted for the performance of system maintenance, Fibernetics will use reasonable commercial efforts to notify the Customer prior to such interruption.
Fibernetics will use reasonable commercial efforts to schedule system maintenance during non- peak hours (midnight to 6 a.m. local time). In no event shall interruption for system or emergency maintenance constitute a failure of performance by Fibernetics.
In addition to the Fibernetics Facilities which are owned by Fibernetics, for certain Services, Customer may purchase or rent hardware or equipment from Fibernetics (“Equipment”).
The Customer shall cause the Equipment to be operated in compliance with the general operating specifications and standards of the manufacturer, and all applicable laws.
The Customer will not sell, lease or otherwise dispose of the Equipment (or any part thereof) and will keep the Equipment free of all encumbrances. In the case of purchased Equipment, the Customer may sell, lease or otherwise dispose of the Equipment after all amounts owing to Fibernetics have been satisfied.
At all times, the Customer will use the Equipment only in the manner for which it is designed and as a prudent and careful owner would.
The Customer will bear the risk of loss, destruction or confiscation to the Equipment from the time the Equipment is delivered to the Customer and the Customer is responsible for insuring the Equipment as of the date of such delivery.
Upon termination of this Agreement, or termination of a certain Service hereunder, the rental Equipment related to the Service must be returned to Fibernetics within thirty (30) days from the date of termination, failing which, the Customer will be charged the value of the modem as specified in Schedule A of the Worldline Service Schedule. Returned Equipment must include all original cables and power adapters, must not have any physical damage and must be in good working order.
The Customer may be eligible to rent-to-own their rental modem. Pursuant to Schedule A of the Worldline Service Schedule once a Customer has made full and complete payment for the specified number of months for the Customer’s model of Equipment, the Customer will have the option to retain possession of, and acquire title to and ownership of the rented Fibernetics Equipment.
At the time of subscription, the Customer shall receive or shall be entitled to download the software required to run and operate the Service (the “Software”).
Subject to the terms and conditions of this Agreement, Fibernetics grants to the Customer a non- exclusive, non-transferable, revocable, limited license to use the Software.
The Customer shall have no right to transfer, assign or sublicense the Software.
Restrictions on altering the Software or the code in any way
Except as otherwise specified in this Schedule , the Customer may not: (i) copy the Software, other than one copy which is permitted as a backup; (ii) Modify or create any derivative works of any Software, Service or documentation, including translation or localization (code written to published application programming interfaces or APIs); (iii) Sublicense or permit simultaneous use of the Service by more than one user; (iv) Reverse engineer, decompile, or disassemble or otherwise attempt to derive the source code for any Software related to the Service;(v) Redistribute, encumber, sell, rent, lease, sublicense, or use the Software or the Service in a timesharing or service bureau arrangement, or otherwise transfer the Software or any rights to the Software; (vi) Remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software or Service; or (vii) Publish any results of benchmark tests run on any Software to a third party without Fibernetics’ prior written consent.
Ownership of Software and Service
All right, title and interest in the copyright, patents and intellectual property rights in the Software and the Service or any part thereof remain with Fibernetics or the original owner of such rights, as the case may be.
6. USE OF THE SERVICE
The Customer is responsible for ensuring that the Customer’s computer and systems, home phone, mobile phone, and any other equipment to be supplied by the Customer for the usage of the Service(s) (the “Customer Systems”) meet the minimum system requirements to run the selected Service(s) which can be found on the Service’s website. If the Customer System does not meet these requirements, Fibernetics is not responsible for any connection difficulties or Service delays, deficiencies, interruptions or related damages the Customer may have as a result.
The Customer is responsible for the download and installation of the Software and the Service, where applicable. The Customer acknowledges that all installation and downloads of the Software are at your own risk. Fibernetics is not responsible for and will not be liable for any Customer System, or third party software or system damages or malfunctions that may arise from the installation, download or use of the Software or the Services.
Third Party Software and Downloads
Fibernetics is not responsible for third party software downloads or hardware installed by the Customer which may alter the Service connection, the Customer’s computer configuration or which may prevent or alter internet connection, speed, or service or have any other impact on the Service.
Fibernetics is not responsible for any spyware, malware or virus the Customer contracts on his/ her Customer System from using the internet or the World Wide Web.
Fibernetics assumes no responsibility whatsoever for any internet or email or other connection software the Customer may run on its Customer System. Fibernetics assumes no responsibility for any damages that may result from the use of such software.
Fibernetics offers varying types of support for the Service. The Customer should review the “FAQ” section of the Service’s website to address Service support related questions. Further, the Customer may contact Fibernetics directly with Service related questions at the email or telephone number indicated in the “Contact Us” section of the website.
With respect to Equipment, Fibernetics will offer technical assistance and support for degradation or malfunction due to normal wear and tear to the Equipment rented or purchased from Fibernetics unless otherwise specified.
Fibernetics will not provide support for third party services, hardware, equipment, software, PC repair services, enhancements, upgrades or modifications that are not purchased, rented or licensed from Fibernetics.
Fibernetics will not in any event be held responsible to correct or fix any problems or errors relating to or caused by the installation, configuration or modification of the Customer’s equipment or system or any components thereof or to incur any costs related thereto.
The fees for the Services shall be set out in the applicable Service Schedule or on the Service’s website.
All fees are subject to change at Fibernetics’ discretion. Where required by law, notification of changes will be sent to you via the email address on file with Fibernetics in your Customer Account.
All fees paid are non-refundable.
9. ACCOUNT INFORMATION, BILLING AND PAYMENT
To subscribe for any Service, the Customer shall register for an account (“Customer Account”) by providing all requested information in the application process for the Service, whether on-line or by phone.
The Customer is responsible for providing accurate information and for updating any information in the Customer Account. Fibernetics reserves the right to suspend or terminate the Customer Account if the Customer provides incomplete or inaccurate information at the time of subscription or any time thereafter.
The fees and charges for the Services, Equipment or any other services or products purchased by the Customer in connection with this Agreement and the Service Schedules (“Charges”), shall be payable by the Customer by credit card (Visa, MasterCard or American Express) or by Pre-authorized debit payments. All Charges are non-refundable.
Charges for one-time purchases that require immediate payment shall be charged at time of purchase and the Customer will be provided with an electronic receipt of payment, where the Customer has provided his/her email address.
Charges for Services with recurring monthly charges shall commence on the date of the initial activation of the Service and the Customer will be billed, in advance for the month, on that same day of the month (eg. 1st), each month. All Services with recurring Charges require pre-authorized payment by credit card or pre-authorized debit payments. The Customer gives Fibernetics authority to charge his/her credit card on any day of the month or bank account on the first of each month and then each successive billing date.
Charges for Services that are usage based, such as long distance charges, or other fees that are not billed in advance, will be charged monthly, in arrears, to the Customer’s credit card or bank account.
The Customer shall notify Fibernetics of any changes to the Customer’s bank account, billing address, credit card number or expiration date. If the credit card or pre-authorized payment is not honoured for any reason, and if alternative billing has not been established, the Customer Account and the Services may be suspended until payment is received. Fibernetics shall not be liable for any costs, damages, delays, interruptions or claims arising from any suspension of any Service caused by non-payment by the Customer.
The Customer is liable for all Charges to the Customer Account, including shipping and handling, applicable taxes, interest on overdue amounts, and charges for returned cheques, none of which are included in the Charges.
All bills and receipts will be sent to the Customer electronically at the current email address provided by the Customer in the Customer Account. The Customer is responsible to keep such email address up to date with Fibernetics.
Any underbilled or unbilled Charge shall be payable by the Customer when correctly billed. Fibernetics may bill for Charges up to one (1) year from the date the Charge was incurred.
Interest will accrue on any amount not paid for thirty (30) days following the billing date, as and from the billing date at a rate of 2% per month (26.82% per annum) or the maximum legal rate, if less.
Additional charges, such as third party charges incurred by Fibernetics for the Customer in connection with the Services are subject to change and Fibernetics reserves the right to pass on such charges to the Customer. In the event Fibernetics, at the request of the Customer, incurs unusual expenses in the provision of a Service to the Customer, for example and without limitation, for special construction, the Customer shall be notified and shall approve such expenses and then shall be liable for such expenses.
If the Customer has any disputes concerning any Fibernetics Charges, it shall make full payment of the undisputed portion of the Charges and shall give written notice to Fibernetics within thirty (30) business days of the billing date, together with any supporting documentation substantiating the disputed amount. After that time, the Customer will be deemed to have agreed to the Charges and will have no right to challenge any element of the Charges. Fibernetics will endeavor to resolve a dispute within thirty (30) business days after Fibernetics receives written notice of the dispute from the Customer. Any dispute resolved in favour of the Customer shall be credited to the Customer’s account on the next invoice following resolution of the dispute. Any disputed amounts determined to be payable to Fibernetics will be due within five (5) business days of the resolution of the dispute. The Customer must pay any undisputed Charges and subsequent Charges in accordance with this Agreement.
Administrative charges may be levied for administration or account processing activities in connection with the Customer Account, including as a result of the following: collection efforts and legal fees related to any unpaid Charges, returned or rejected payments, and restoration of Service.
Fibernetics reserves the right to check the credit history of the Customer. The Customer consents to such credit checks and shall provide all necessary information to complete such credit checks.
Upon notice to the Customer, Fibernetics may assign, change or remove a credit limit on the Customer Account. Services may be suspended, at any time, if the Customer’s outstanding balance for Charges or any other amounts owing to Fibernetics exceed this credit limit. Recurring Charges continue to apply during any suspension of Services.
Fibernetics may require a deposit at any time or impose other payment or credit requirements at any time and on such terms as determined in Fibernetics’ sole discretion. For example, for Services with recurring charges, the Customer will be required to pay the last month’s charges in advance as a deposit. The Customer will not earn any interest on any deposits or other payments held by Fibernetics. If the Customer’s Service is terminated, Fibernetics will apply any deposits or other payments against the outstanding final balance on the Customer Account.
10. Resale and Restrictions on Use
The Customer may make use of the Services solely for his/her own personal, residential use. The Customer shall not transfer or resell the Services, or otherwise make the Services available to third parties for value.
The Customer shall ensure that the Customer and anyone allowed by the Customer to use the Service (collectively, the “End Users”) comply with the terms of this Agreement, the applicable Schedules and Fibernetics’ Acceptable Use Policy which can be found at on the Service Schedule and Service website. The Customer shall be responsible for the End Users’ use of the Services and the content of End User information passing through the Services to the same extent as the Customer would be liable hereunder.
The Customer will not, nor will it permit others or assist others to, tamper with, alter or rearrange the Services or the Fibernetics Facilities required to provide the Services, or otherwise abuse or fraudulently use the Services, including, without limitation, using the Services:
in any manner which interferes with the Fibernetics Facilities or access thereto by other persons;
contrary to reasonable instructions communicated to the Customer by Fibernetics;
for any purpose or in any manner, directly or indirectly, in violation of applicable laws or in violation of any third party rights; or
in a manner to avoid the payment of Charges.
Notwithstanding anything to the contrary herein, if, in Fibernetics’ sole judgment, the Customer or the End Users violate this Article, and such violation or failure to comply poses an immediate threat of harm to or destruction of Fibernetics Facilities or Services, violates existing law or regulation, or puts Fibernetics Facilities or Services at risk with its providers of network services or other customers, Fibernetics shall have the right to immediately take any and all steps reasonably necessary to remove such threat, including but not limited to suspension or termination of the Services immediately and without notice.
The Customer shall indemnify and hold harmless Fibernetics for illegal activities caused by the Customer and End Users using Fibernetics Facilities and/or the Services. Fibernetics shall not: (i) have any obligation or liability to the Customer or any third party for any unlawful or improper use of the Services by the Customer or an End User; nor (ii) have any duty or obligation to exercise control over the use or the content of information passing through the Services.
11. Customer responsibility
The Customer shall be solely responsible for the following:
Maintaining the security and privacy of the Customer’s property and the Customer’s transmissions using the Services, or the Fibernetics Facilities; and
Protecting against any breaches of security or privacy or other risks involved in installing, using, maintaining or changing the Services or the Fibernetics Facilities
Term and Termination
The Services will be provided for the period and pursuant to the terms set out in the applicable Schedules (the “Service Term”). The Schedules will be renewed for the period set out in the applicable Schedule (the “Renewal Period”) on the same terms and conditions set forth therein unless either party gives the other party verbal notice of its intention to terminate the applicable Schedule. This Agreement, as it applies to a Schedule, will continue so long as any Service Term under a Schedule remains in effect.
Without incurring liability, Fibernetics may suspend, restrict or terminate any or all Services:
if the Customer fails to pay any undisputed amount when due and has not remedied such breach for a period of ten (10) business days from the due date;
at any time if the Customer breaches a material obligation of this Agreement and/or a Schedule, which would include a violation of the restrictions on use or the Acceptable Use Policy referred to herein;
immediately if the Customer commits an act of bankruptcy or insolvency, is placed into liquidation or receivership, passes a resolution for its winding up (otherwise than for the purpose of amalgamation or reconstruction) or makes any assignment or arrangement for the benefit of its creditors; or
immediately where any law or court order or other authority prohibits Fibernetics from furnishing such Services.
The Customer may terminate this Agreement by verbal notice to Fibernetics:
if Fibernetics breaches a material obligation of this Agreement and has not remedied such breach within thirty (30) business days of receipt of the verbal notice; or;
immediately if Fibernetics commits an act of bankruptcy or insolvency, is placed into liquidation or receivership, passes a resolution for its winding up (otherwise than for the purpose of amalgamation or reconstruction) or makes any assignment or arrangement for the benefit of its creditors;
Upon termination or expiration of this Agreement:
all amounts owing by the Customer shall immediately become due and payable;
the Customer shall immediately cease using the Services;
the Customer shall return to Fibernetics, at the Customer’s expense, and make no further use of, any Fibernetics Facilities or rental Equipment at the Customer’s premises or in the Customer’s control, or any copies of any documentation or material or confidential information relating to the Services in the Customer’s possession or control.
Termination of a Schedule and/or this Agreement through any means for any reason shall not relieve either party of any obligation accrued prior to such termination.
With respect to a Service that has a fixed Service Term, if the Customer terminates the Service under a the Service Schedule or this Agreement, without cause, or if Fibernetics terminates this Agreement or a Schedule for cause, the Customer shall pay to Fibernetics, as liquidated damages and not as a penalty, an amount which is equal to the sum of:
a. the greater of 50% of (i) the average monthly charges for the terminated Service(s) (as determined over the previous three months) multiplied by the number of months remaining in the Service Term from the effective date of termination or (ii) if applicable, the minimum monthly commitment for the terminated Service(s) for the balance of the Service Term (prorated, in the case of a yearly minimum monthly commitment) calculated from the effective date of termination;
b. any cost which Fibernetics is liable to continue to pay to third parties for the remainder of the applicable Service Term incurred by Fibernetics with the knowledge and/or approval of the Customer for the provision of the terminated Service(s); and
c. a lump sum representing the aggregated total of any installation, one-time or monthly recurring charges associated with the terminated Service(s) which have been waived or discounted by Fibernetics in consideration of the Customer’s commitment to the Service Term for such Service(s).
The Customer acknowledges that the termination fees described in this Agreement represent liquidated damages and not a penalty
The Customer does not have property rights in dial numbers and in some cases “IP” numbers or domain names assigned to them. Fibernetics may change such numbers or domain names assigned to the Customer provided that Fibernetics is requested to do so by a legal or regulatory authority, including without limitation, the Canadian Radio-television and Telecommunications Commission (CRTC), the Federal Communications Commission (FCC) or a court order, and provided that Fibernetics promptly notifies the Customer of any such action.
Any software and accompanying documentation provided by Fibernetics to the Customer remains the property of Fibernetics or its licensors. The Customer shall take reasonable steps to protect such software or documentation from theft, loss or damage. The Customer must review and agree to any applicable end user license agreement (provided separately or in a Service Schedule) before installing or using the software or documentation. Unless otherwise provided in the applicable end user license agreement, all software licenses will terminate upon termination of this Agreement.
14. NO WARRANTY
FIBERNETICS DOES NOT GUARANTEE ERROR-FREE OR UNINTERRUPTED OPERATION OF THE SERVICES NOR SHALL IT BE LIABLE FOR ANY FAILURE, BREAKDOWN, INTERRUPTION OR DEGRADATION IN A SERVICE OR IN THE NETWORK OR ANY OTHER NETWORK OR CONNECTION INVOLVED IN THE PROVISION OR USE OF SERVICES WHATEVER THE CAUSE OF SUCH FAILURE, BREAKDOWN, DEGRADATION OR INTERRUPTION AND HOWEVER LONG IT LASTS. NEITHER FIBERNETICS NOR ANY OF ITS AFFILIATES, EMPLOYEES, AGENTS OR REPRESENTATIVES MAKES ANY WARRANTIES, REPRESENTATIONS ,CONDITIONS OR GUARANTEES OF ANY NATURE WHATSOEVER REGARDING ANY SERVICE, PRODUCT EQUIPMENT OR FIBERNETICS FACILITIES PROVIDED BY FIBERNETICS TO THE CUSTOMER, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO: (I) FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY WITH RESPECT TO THE SERVICES; (II) NETWORK TRANSMISSION CAPACITY; (III) THE SECURITY OF ANY TRANSACTION; (IV)
THE FAULT TOLERANCE OF THE SERVICES OR THE SUITABILITY OF SAME FOR HIGH RISK ACTIVITIES; OR (V) THE RELIABILITY OR COMPATIBILITY OF THE FIBERNETICS FACILITIES AND EQUIPMENT OR SOFTWARE OF THIRD PARTIES WHICH MAY BE UTILIZED BY FIBERNETICS IN PROVIDING, OR BY THE CUSTOMER IN USING, THE SERVICES, AND ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED, ARE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, HEREBY EXCLUDED. THE CUSTOMER ACKNOWLEDGES THAT IS HAS NOT RELIED UPON ANY REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE MADE BY FIBERNETICS.
15. Limitation of Liability
For the purposes of this Article 15 and Articles 16 and 17 , “Fibernetics” shall include Fibernetics, any affiliated or subsidiary companies of Fibernetics, and the directors, officers, employees, consultants, contractors and agents of all of them.
Except with regard to direct damages to real or tangible personal property, or for bodily injury or death proximately caused by Fibernetics’ negligence, Fibernetics’ entire liability to the Customer, the End Users or any third party in connection with the Services(s), the Equipment and Fibernetics Facilities or the provision or non-provision thereof is limited to the Customer’s proven direct damages, such amount not to exceed per claim (or in the aggregate during any three (3) month period) the amount paid by the Customer for one month of the affected Service (s)) (such amount to be based on average monthly charges paid by the Customer over the six (6) months prior to the month in which the damages was incurred or the length of the Agreement, whichever is less).
Without limiting the generality of the foregoing, Fibernetics shall not be liable for:
a. defamation or copyright or trademark infringement or the violation of any third party rights arising from the use of the Services or material transmitted or received over Fibernetics’ network;
b. infringement of patents arising from combining or using Customer or End User equipment with the Services or Fibernetics Facilities;
c. any act or omission of any connecting carrier, underlying carrier, local exchange telephone company, local access provider, or acts or omissions of any other providers of connections, facilities (including equipment), or service other than Fibernetics’, which are used by Fibernetics, the Customer or the End Users under this Agreement;
d. delays with respect to the installation of Services or the transfer of existing Services;
e. capacity shortages not directly caused by Fibernetics;
f. any unauthorized use of the Services;
g. Service interruptions, errors, delays or defects in transmission or failure to transmit caused by power fluctuations or power failure at the Customer’s or the End Users’ location(s);
h. Service interruptions, errors, delays or defects in transmission or failure to transmit caused by Fibernetics in the performance of system or emergency maintenance under Section 5.2 hereof; or
i. Service interruptions, errors, delays or defects in transmission or failure to transmit caused by an act of God, fortuitous event, war, insurrection, riot, strike, walkout, lockout or other labour unrest affecting Fibernetics or its suppliers, storm, fire, flood, explosion, lightning, government restraint, delays in producing supplies, shortages of suitable labour, equipment or materials, power shortages or interruptions or any other event beyond the reasonable control of Fibernetics.
UNDER NO CIRCUMSTANCES SHALL FIBERNETICS BE LIABLE FOR ANY LOSS, COST, CLAIM OR DAMAGE (INCLUDING, BUT NOT LIMITED TO, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, LOST SAVINGS, LOST PROFITS, DAMAGES FOR HARM TO BUSINESS, ANTICIPATED REVENUE OR LOST REVENUE OR THE LOSS OF ANY DATA/INFORMATION) SUFFERED OR INCURRED BY THE CUSTOMER OR ANY THIRD PARTY (INCLUDING, BUT NOT LIMITED TO THE END USERS) AND ARISING OUT OF ANY FAULTS, INTERRUPTIONS OR DELAYS IN THE SERVICES OR OUT OF ANY INACCURACIES, ERRORS OR OMISSIONS IN THE INFORMATION CONTAINED IN THE SERVICES WHETHER OR NOT FIBERNETICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Fibernetics will not be liable for any damages arising out of or relating to: facilities, equipment, software, applications, services or content provided by the Customer, the End Users or third parties; unauthorized access to or theft, alteration, loss or destruction of the Customer’s, the End User’s or third parties’ applications, content, data, programs, information, network or systems by any means (including without limitation viruses); or any act, omission or failure of the Customer.
In no event shall Fibernetics be liable for the use of the Services by the Customer, the End Users or any third party for unlawful or illegal purposes.
These limitations of liability shall apply regardless of the form of action, whether in contract, warranty, strict liability, or tort, including without limitation negligence of any kind, whether active or passive, or any combination thereof, and shall survive failure of an exclusive remedy.
16. Liability of the Customer
For the purposes of this Article and Articles 16, 17 [?] and 18, “Customer” shall include the Customer and any affiliated or subsidiary companies of the Customer, and the directors, officers, employees, consultants, contractors and agents of all of them.
The Customer shall be liable to Fibernetics for all damages caused to real or tangible personal property, or for bodily injury or death caused by the Customer or an End User.
UNDER NO CIRCUMSTANCES SHALL THE CUSTOMER BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, OR SPECIAL DAMAGES, INCLUDING DAMAGES FOR HARM TO BUSINESS, LOST PROFITS, LOST SAVINGS OR LOST REVENUES, WHETHER OR NOT THE CUSTOMER HAS BEEN ADVISED OF SUCH DAMAGES.
The Customer shall defend, indemnify and hold harmless Fibernetics from and against all damages, liabilities, obligations, losses, injuries, claims, demands, penalties, costs and expenses (including reasonable legal fees and disbursements) arising from any and all claims by any person, including without limitation any End User, based on: the content of any transmissions by the Customer or any End User using the Services; the use of the Service by the Customer or any End User, including without limitation, in contravention of the restrictions outlined in Article 4; the Customer’s or a End User’s facilities or connections provided by the Customer or a End User; or the breach by the Customer or any End User of any term, condition or warranty of the Agreement.
18. Confidentiality of information & Privacy
Unless the Customer provides express consent or disclosure is required pursuant to a legal power, all information kept by Fibernetics regarding the Customer, other than the Customer’s name, address, and listed telephone number, is confidential and may not be disclosed by Fibernetics to anyone other than
a. the Customer;
b. a person who, in the reasonable judgment of Fibernetics, is seeking the information as an agent of the Customer;
c. another telephone company, provided the information is required for the efficient and cost-effective provision of telecommunication service and disclosure is made on a confidential basis with the information to be used only for that purpose;
d. a company involved in supplying the Customer with telephone or telephone directory related services, provided the information is required for that purpose and disclosure is made on a confidential basis with the information to be used only for that purpose;
e. an agent retained by Fibernetics to evaluate the Customer’s creditworthiness, to assist in the collection of the Customer’s account, or to perform other administrative functions, provided the information is required for and is to be used only for that purpose;
f. a law enforcement agency whenever Fibernetics has reasonable grounds to believe that the Customer has supplied false or misleading information or is otherwise involved in unlawful activities;
g. a public authority or agent of a public authority, for emergency public alerting purposes, if a public authority has determined that there is an imminent or unfolding danger that threatens the life, health or security of an individual and that the danger could be avoided or minimized by disclosure of information; or
h. an affiliate, agent or contractor of Fibernetics involved in supplying the Customer with telecommunications and/or broadcasting services, provided the information is required for that purpose and disclosure is made on a confidential basis with the information to be used only for that purpose.
For certain Services that are provided in conjunction with a specified branding partner, Fibernetics may share information with the branding partner in order to offer customers products and services that they may find attractive. In the Service Schedule, the Customer shall be informed about the branding partner and the Customer’s consent shall be sought for the collection, use, and disclosure of the Customer’s personal information by and between Fibernetics and the branding partner (and their respective affiliates, agents and contractors) for the following purposes:
• to provide a positive customer experience, and deliver, bill for, and collect payment for products and services;
• to understand Customer requirements and preferences and make information available regarding products and services offered by Fibernetics, the branding partner and their affiliates, agents and contractors;
Force Majeure. Fibernetics will not be liable to the Customer by reason of any failure in performance under this Agreement (other than a failure to pay money) if such failure arises out of causes beyond the reasonable control of Fibernetics, provided Fibernetics makes reasonable efforts to limit or remedy such effect. Such causes may include, but are not limited to, acts of God, acts of the public enemy, acts of civil or military authority, fires, strikes, unavailability of energy source, delay in transportation, riots or war.
Notice. Any communication required to be given under this Agreement must be given in writing and either delivered personally, or sent by prepaid registered post, overnight and/or express courier, or facsimile or other electronic communication to the person at the relevant address detailed as follows:
605 Boxwood Drive Cambridge, ON N3E 1A5
Fax No.: 519-772-5014 Email: [email protected]
The Customer: as set out in the applicable Schedule
or to such other person or address as notified in writing by a party from time to time. Any notice or other communication is deemed to be received:
a. if delivered personally or by overnight and/or express courier, on delivery;
b. if sent by prepaid registered post, five (5) business days after the date of posting unless actually received earlier;
c. by facsimile or electronic communication, the day following transmission.
Governing Law. This Agreement shall be governed by the laws of Ontario and the laws of Canada applicable therein, without reference to its principles of conflict of laws, and the parties shall attorn to the jurisdiction of the Courts of Ontario for all matters arising under this Agreement.
Entire Agreement. This Agreement together with all schedules attached hereto from time to time contains the entire contractual arrangements between the parties with respect to the subject matter of this Agreement and supersedes all other communications, negotiations, correspondence, arrangements, understandings, or representations, oral or written, between the parties relating to same.
Severability. Any provision of this Agreement that is unenforceable at law will be ineffective to the extent of such unenforceability without invalidating the remaining provisions of this Agreement. It is the intention of the parties that any provision found to be illegal or unenforceable should not be terminated but should be amended to the extent necessary to render it valid and enforceable.
Relationship of Parties. The relationship between Fibernetics and the Customer is that of independent contractors. Neither this Agreement nor the provision of Services by Fibernetics creates, nor shall be deemed to create, an agency, partnership, joint understanding or joint venture between Fibernetics and the Customer. The Customer does not have, and will not hold itself out as having, any authority to act for or create any obligation of, or make any representation on behalf of or in the name of, Fibernetics. No agents or employees of the Customer shall be deemed to be agents or employees of Fibernetics.
Waiver. No failure by Fibernetics to exercise any right under this Agreement or to insist upon full compliance by the Customer with its obligations under this Agreement will constitute a waiver of any provision of this Agreement.
Assignment. The Customer may not assign this Agreement without the prior written consent of Fibernetics. This Agreement will be binding upon, and will enure to the benefit of, the parties and their respective successors and permitted assigns.
Order of Preference. In the event of conflict between this Agreement and any other Schedule attached hereto by reference, the terms and conditions of the applicable Schedule will prevail to the extent of the conflict.
This Agreement has been drawn up in the English language at the express request of the parties.
The terms of this Agreement, including fees, charges, features, content or any other aspects of a Service, may change at any time and without prior notice. The Customer is responsible for frequently reviewing this Agreement posted on Fibernetics’ web site to obtain timely notice of any such changes.
Contacts and Questions?
If you have any questions about this Agreement, please e-mail Fibernetics at [email protected].