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Internet Service Terms of Use
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1.       Definitions

Affiliate” means a company that controls, is controlled by or is under common control with a Party. “Agreement” or “Master Services Agreement” means these General Terms and Conditions, the

Commercial Summary, the Service Description(s) and all attachments, exhibits and schedules referred to herein.

 

“Billing Month” means a one-month period during which FASTCOM provided Services.

 

“Billing Year” means a one-year period during which FASTCOM provided Services.

 

“Commercial Summary” means the list of all Services, subscribed to by the Customer, along with relevant commercial terms, including but not limited to Rates, Service Term and Minimum Monthly Commitments, which is attached hereto as part of this Master Services Agreement.

 

Confidential Information” means all data and information whether in written, machine readable or other tangible form, or disclosed orally, that is of value to the disclosing Party, is not generally known to competitors of the disclosing Party, and which has been communicated to the other Party. Confidential Information shall include, but not be limited to, Personal Information, information relative to the current or proposed business plans of the disclosing Party, financial information relating thereto, telephone calling pattern information, prices, trade secrets, know-how, formulas, processes, data, network configuration and rights-of-way, drawings, proprietary information, customer lists, and any other non-public information which concerns the business and operations of the disclosing Party to this Agreement. Confidential Information does not include data or information which is or  becomes available to the public through no wrongful act of the receiving Party; which is received from a third party without restriction of confidentiality and without breach of this Agreement; or which is independently developed by the receiving Party without use of Confidential Information of the disclosing Party;

 

Contractor” means any third party from which FASTCOM has acquired any service or facilities used in providing the Services, but does not include another telecommunications carrier whose facilities are used to establish connections to locations not served by FASTCOM.

 

“Contribution Charges” means those charges levied to FASTCOM or its Affiliates by the local exchange carrier (including retroactive charges) in relation to the provision of the Services, as approved by the applicable regulatory agencies.

 

“Dispute” means a dispute between the parties concerning questions of fact, procedures, practices or standards relevant to this Agreement. Failure or inability to pay for services billed to the Customer for services under this Agreement does not constitute a dispute.

 

Improper Use” means a use that causes, or is reasonably likely to cause, damage to the relevant equipment, facilities, connections or network, or which has, or is reasonably likely to have, an adverse effect on the performance of FASTCOM’s network.

 

Intellectual Property” means all rights in trademarks, trade or brand names, service marks, copyrights, designs, inventions, patents, patent, formulas, processes, know-how, technology,  software, computer rights and other intellectual property.

 

 

“Interruption” means the inability to complete network connections or calls due to equipment malfunctions or human errors; Interruption does not include any such inability which arises from: (a) the failure of any service or facilities provided by: (i) Customer; (ii) another telecommunications carrier or another party that is not FASTCOM or its Contractors (such as low dial tone, busy circuits or other capacity shortages or in cases of interconnection); (b) the fault, negligence or willful act or omission of Customer; (c) Improper Use; or (d) the termination or suspension of the Services by FASTCOM, pursuant to this Agreement.

 

Law” means a municipal ordinance or provincial, state or federal law, governmental order, decision or regulation, or order of any court, tribunal or regulatory body, in any jurisdiction, that affects any aspect of this Agreement.

 

Minimum Commitment” or “MC” means the minimum amount of Services that the Customer commits to purchasing, per month or per year, as the case may be. The MC may be expressed in either a dollar amount or a volume commitment. If the MC is a set dollar amount, it is calculated after applying all applicable discounts and before taxes. For the purposes of sections 3 and 13 of these Terms and Conditions, an MC expressed in a volume commitment will be converted to a dollar amount by multiplying the volume commitment by the Rates for the relevant period.

 

Personal Information” means personal information as defined in the Personal Information Protection and Electronic Documents Act, as amended, which is collected, used, disclosed or retained under this Agreement including any information about a Party’s employees or customers.

Rates” means any recurring and one-time charges for Services provided under this Agreement. “Service(s)” means services provided under this Agreement as more particularly described in the attached Service Descriptions.

 

Service Description” means a schedule describing the features of Services subscribed to by the Customer, along with the relevant commercial terms, including but not limited to Rates, Service Term and Minimum Monthly Commitments.

Service Effective Date” means the date on which the Service is available for use by the Customer. “Service Term” means the period during which the Customer subscribes to a Service as set out in the Commercial Summary.

 

“Termination Noticemeans a written notice provided by one party to the other stating that the first party intends to terminate this Agreement. Such notice shall set out the effective date of the termination and the reason for such termination.

 

2.       Term

 

(1)     Contract Term. You are considered to accept this contract on the earlier of the date: a) you receive a copy of these terms of service; or b) you access or use your FASTCOM services, unless otherwise determined by applicable law.  You understand and agree that you are bound by this contract term, now and in the future.  You must not use your FASTCOM services if you do not agree to this contract.

(2)     Renewal of Service Term. Upon the expiration of a Service Term or subsequent renewal Service Term, as the case may be, the Service Term will automatically renew on a monthly basis unless either Party gives notice of non-renewal at least 30 days before the expiry of the then current Service Term.

 

 

 

3.       Minimum Commitment

 

(1)     Commitment. The MC, if any, for each Service subscribed to by the Customer is set out in the applicable Service Description. If the Customer’s billings in any given Billing Month or Billing Year for any given Service are below its MC for that Service for any reason other than that stated in (2) below, the Customer agrees to pay to FASTCOM the difference between the MC and the amount billed in that Billing Month or Billing Year, as the case may be, as calculated and invoiced by FASTCOM from time to time. If the Service is terminated prior to the expiry of the Service Term, and the Customer has committed to a yearly MC, the MC will be pro-rated to the effective date of termination of the Service and the Customer will be responsible for paying the difference between the pro-rated MC and actual amount billed, in addition to any termination charges set out in Section 13.

 

(2)     Conditions Excusing Shortfall. Customer will not be required to pay the difference between the amount billed and its MC if i) FASTCOM has agreed in writing to waive the MC for a certain number of Billing Months (the “Ramp Period”) as more fully described in the Commercial Summary; ii) FASTCOM has agreed to waive the MC for a certain Billing Month upon 30 days notice by Customer requesting  such waiver; or iii) Customer is unable to meet its MC during a particular Billing Month as a result of FASTCOM’s network unavailability, as more fully described in Section 12(1).

 

4.       Service Use and Limitations

 

(1)     The Customer shall, at all times, use the Services in compliance with all Laws, and all applicable FASTCOM policies, including the Acceptable Use Policy for Internet Access Services, the IP Address Policy and the Privacy Policy (each of which is available at www.fastcom.ca) and shall not use nor permit usage of any Service for any Improper Use.

 

(2)     FASTCOM is not required to provide Services to Customer where: (i) FASTCOM would have to incur unusual expenses which Customer will not pay (for example, expenses for securing rights of way or for special construction); or (ii) necessary facilities, equipment or services are not available due to prohibitions of Law.

 

5.       Equipment and Facilities

 

(1)     Right to Facilities. Except for any toll free and DID numbers assigned to it, the Customer has no proprietary right or interest in, or any right to the use of (aside from use in connection with the Services) any specific type of facility; service; Intellectual Property; equipment, including equipment installed on Customer premises (other than equipment purchased and fully paid for by the Customer or equipment which is leased by the Customer); number; process or code associated with the Services; all right, title and interest to these items (other than toll free numbers) shall remain at all times solely with FASTCOM. IP address space is provided pursuant to FASTCOM’s IP Address Policy, as amended from time to time.

 

(2)     Limited Software License. To the extent that FASTCOM provides software in relation to the Services or associated hardware, FASTCOM grants to the Customer a temporary, non-exclusive and non- transferable license to such software for the sole purpose of enabling the Customer to use such Services or hardware.

 

(3)     FASTCOM Equipment. Upon the termination of a Service, the Customer must return FASTCOM equipment used for the terminated Service in good order, repair and condition, normal wear and tear excepted. If the Customer deliberately, or as a result of a lack of reasonable care, causes loss or damage to FASTCOM’s equipment, the Customer will be responsible for and will be charged for the cost of restoration or replacement.

 

(4)     Equipment leased by the Customer. The Customer’s rights and interests in any equipment leased from or through FASTCOM are set out in the FASTCOM Lease Agreement, which, if applicable, is attached to this Agreement.

 

(5)     Equipment purchased by the Customer.

 

(a)     Any equipment purchase by the Customer from FASTCOM must be made with a purchase order from the Customer in a form acceptable to FASTCOM. Unless otherwise specifically agreed in writing, the terms of this Agreement will prevail over any inconsistent terms in any such purchase order. The delivery of the equipment to the Customer constitutes final delivery and acceptance of the equipment by the Customer; however, title to the equipment does not pass to the Customer until paid for in full.

(b)     The Customer further acknowledges that, unless otherwise agreed upon, FASTCOM’s obligations with respect to equipment sales under this Agreement are limited to delivery of the equipment and transfer of title only. In the event that the equipment does not perform as represented by the manufacturer or totally fails to function or perform, the Customer will look to the manufacturer for any warranty, guarantee, or other obligation made by the manufacturer in respect of the equipment and to FASTCOM only for reasonable co-operation in the enforcement thereof. The failure or breach of any representation or warranty as to the equipment shall in no way affect any of the Customer’s obligations to FASTCOM under this Agreement. Further, FASTCOM will not be liable for any security breaches suffered by the Customer that may arise from use of firewall leased or purchased by the Customer through FASTCOM.

 

(c)     The Customer agrees that until such time as FASTCOM has received full payment for any equipment sold to the Customer, FASTCOM shall have a first secured interest on the equipment. The Customer will co-operate with FASTCOM to cause proper registration of such security interest over the relevant equipment. Upon FASTCOM’s receipt of full payment for the equipment, FASTCOM will discharge any outstanding security interest on the related equipment.

 

6.       Interconnection

 

(1)     Interconnection. The Customer may choose to interconnect Services with services or facilities of other authorized communications carriers, with underlying carriers, and with private systems where those services and facilities are compatible with general industry standards. Unless expressly agreed to by FASTCOM, Services are not part of a joint undertaking with other such carriers or private systems.

 

(2)     Legal Steps for Interconnection. The Customer is responsible for taking all necessary legal steps for interconnecting its terminal equipment or communications systems with FASTCOM’s equipment, including any interface equipment designated by FASTCOM. The Customer shall secure all licenses, permits, rights of way and other arrangements necessary for such interconnection. The Customer is solely responsible for the cancellation of all interconnection services provided by a third party, and all related charges. FASTCOM has no authority and shall have no liability in connection with any such cancellation, whether or not such cancellation is necessary to the provision of the Services.

 

(3)     Service Extension Construction. Any service extension construction beyond the demarcation point of the FASTCOM network is the responsibility of the Customer and additional charges may apply.

 

7.       Responsibility for Charges

 

(1)     Authority. FASTCOM reserves the right to recognize the name(s) that appear on the account or any list of contact names exchanged by the Parties as the only person(s) authorized to accept, modify or terminate the Services or this Agreement.

 

(2)     Responsibility. Customer is responsible for:

 

  1. Paying all charges for Services, regardless of who incurred them or when they are incurred, including but not limited to (i) calls originating from or made via its telephones or telephone system or the telephones or telephone systems of those to whom the Customer provides service; (ii) calls made using any number, authorization code, long distance telephone card number, or toll free number assigned to Customer or those to whom Customer may provide service; (iii) calls made using any facility used to provide access to FASTCOM’s equipment from the telephone system of either Customer or those to whom Customer provides service; (iv) recycled calls which may be invoiced later than the month after such calls were made; (v) to fraudulent calls and uncollectable end customer accounts; or (vi) monthly-recurring charges for services suspended and/or blocked pursuant to the provisions of this Agreement;
  2. The security of all of its authorization codes, PINs, PANs, access lines, telephone lines or any other means that may be used to access FASTCOM’s network. If Customer deems that there is any fraudulent or illegal usage of the Services so that Customer requires suspension of any and/or all Services, it shall contact FASTCOM’s customer care team in writing. Upon receipt of the written notification, FASTCOM’s customer care team will use commercially reasonably efforts to as soon as possible suspend the Services as requested. Notwithstanding any other provisions herein, the parties agree that FASTCOM shall incur no liability whatsoever for such suspension of Services.

 

(3)     Multiple Locations. Where FASTCOM provides Services to multiple locations of the Customer and/or Affiliates of the Customer, one of the Customer accounts must be designated the “Main Account” in this Agreement and must accept financial responsibility for all associate and Affiliate accounts included under the service arrangement. In the event that an associate or Affiliate account fails to pay FASTCOM, the Main Account shall be liable for all charges incurred pursuant to this Agreement as a result of the associate or Affiliate’s account’s use of Services.

 

8.       Credit Terms and Conditions

 

The Customer agrees to the Credit Terms and Conditions attached hereto as Attachment “A”.

 

9.       Billing and Payment

 

(1)     Invoicing. Unless otherwise stated in this Agreement, FASTCOM will invoice the Customer for Services on a monthly basis, in arrears of the provision of usage-based Services and in advance for all other Services, and according to one of FASTCOM’s set billing cycles. Invoiced amounts are due 15 days after the invoice date, or, if the 15th day after the invoice date falls on a weekend or holiday, then on the last business day prior to the weekend or holiday (the “Due Date”).

 

(2)     Invoice Inclusions. FASTCOM’s invoice will include, and the Customer is responsible for, in addition to the Rates, any applicable taxes, any other charges imposed by Law, interest on prior overdue invoices and charges for returned cheques.

 

(3)     Interest. Interest will accrue on any amount not paid by the Due Date, as and from the invoice date at the rate of 3% or $3.00 per month (whichever amount is higher), or such other rate as FASTCOM may, with prior notice, reasonably set from time to time.

 

(4)     Billing Disputes. The Customer must give notice of all invoice inquiries and disputes within 30 days of the invoice date, and, with such notice, provide any supporting documentation. After that time, the Customer will be deemed to have agreed on the contents of the invoice and will have no right to challenge any element of the invoice. Within 5 days of a billing dispute notice, Customer shall provide detail documentation supporting the alleged dispute. Failure to do so shall render the dispute invalid, and Customer shall pay the disputed amount in full according to the payment terms set out herein.  Billing disputes will be settled in accordance with the Dispute Resolution provisions set out in section 18 of this Agreement. The Customer must pay the undisputed portion of an invoice and subsequent invoices in accordance with this Agreement.

 

(5)     Set-off. Where one Party is or becomes a supplier of any goods or services under any agreements or any other arrangements to the other Party or its affiliates, notwithstanding the provisions of any such agreement or arrangement, the other Party, shall be entitled to a right to set- off against any outstanding balance owed by the first Party which remain unpaid more than 30 days from the date of the invoice or which remains unpaid for more than the number of days set out for payment in the relevant Agreement or Arrangement (whichever is shorter) from any amount(s) that the other Party or its affiliates owes the first Party.

 

10.   Permitted Service Suspension

 

(1)     Suspension for Maintenance. The Customer agrees that it may be necessary for FASTCOM to temporarily suspend service for technical or maintenance reasons, the timing of which (other than emergency maintenance) will be agreed upon in advance. The Parties may agree to regularly scheduled maintenance windows for this purpose. Such a suspension of service will not be an Interruption.

 

(2)     Suspension for Non-Permitted Use. Without incurring liability, FASTCOM may immediately and without notice: (i) suspend Services; (ii) cancel a request for Services; or (iii) temporarily block Service(s) to the Customer premises or particular country, if it deems such action necessary to prevent Improper Use, violation of the Acceptable Use Policy, to protect against fraud or the commission of suspected illegal activities, or to otherwise protect its personnel, agents, facilities or services. FASTCOM shall notify the Customer of a suspension under this section either on the day the suspension occurs or, where the suspension occurs after business hours or on a weekend, on the next business day.

 

11.   Right of Access

 

(1)     Emergency Access to Restore Service. The Customer agrees to provide access to its premises immediately upon FASTCOM’s reasonable request at no charge to FASTCOM where FASTCOM requires such access in order to remedy or restore any Service. The Customer must provide such access in order to retain any remedial rights or credits to which it may be entitled in connection with an Interruption.

 

(2)     Other Access. FASTCOM may, upon reasonable notice (minimum of 24 hours), make such inspections, tests, installations and adjustments as it deems necessary for the operation of the Customer or FASTCOM’s network, network equipment or connecting facilities. The Customer agrees to make available to FASTCOM, without charge, such facilities and equipment (including by providing access to the Customer premises) as are reasonably necessary in the circumstances. The Customer must comply with its obligations in this section in order to retain any remedial rights or credits to which it may be entitled in connection with an Interruption.

 

(3)     Identification Required. Upon request, FASTCOM’s agent or employee must show valid FASTCOM identification prior to entering Customer’s premises.

 

12.   Resale.

 

Unless otherwise agreed upon, the Customer shall not resell Services. If the Customer has resold Services without the consent of FASTCOM, FASTCOM shall have the right to (a) suspend Services; (b) terminate this Agreement and (c) apply a premium to all resold Services as more particularly set out in the Service Descriptions.

 

13.   Termination and Suspension of Services.

 

(1)     Termination by FASTCOM. Without incurring liability, FASTCOM may at any time suspend, restrict or terminate any or all Services upon reasonable prior written notice, as set out in parentheses after each ground for termination, if the Customer:

 

(a)     fails to pay any sum, including security deposit, when due (thirsty (30) days for suspension or restriction of Services, forty-five (45) days for termination);

 

(b)     violates any of the provisions of this Agreement (thirty (30) days);

 

(c)     becomes bankrupt or insolvent (no notice required); or

 

(d)     where any Law prohibits FASTCOM from furnishing such Services (the lesser of thirty days or as long as compliance with any such Law allows).

 

Where FASTCOM has given the Customer a notice pursuant to this section, and the Customer remedies the situation which gave rise to FASTCOM’s right of termination before the expiry of the notice period, this Agreement shall not be terminated, but shall continue in full force and effect (without prejudice to FASTCOM’s right to terminate for the Customer subsequent or other breach of this Agreement).

(2)     Termination by Customer. The Customer may terminate this Agreement or a Service at any time by providing FASTCOM with thirty (30) days’ prior written notice, subject to payment of termination charges as set out below in sub-section 13(3).

 

(3)     Termination Liability. If the Customer terminates this Agreement or a Service for any reason other than as permitted under any service level commitments set out in the Service Schedules, or if FASTCOM terminates this Agreement pursuant to sub-section 13(1) (excluding clause13(1)(d) above), the Customer shall pay to FASTCOM, as liquidated damages and not as a penalty, an amount which is equal to the sum of:

 

(a)     100% of the MC for the terminated Service(s) for the balance of the Service Term (prorated, in the case of a yearly MC) calculated from the effective date of termination;

 

(b)     any cost which FASTCOM is liable to continue to pay to third parties for the remainder of the applicable Term, including but not limited to, the gross value of remaining rental costs for any local loops, dedicated access lines, private lines or other lines or equipment, incurred by FASTCOM with the knowledge and/or approval of the Customer for the provision of the terminated Service or Services together with (where applicable) specific development charges associated with capacity increases for voice processing hardware and software incurred by FASTCOM on behalf of the  Customer; 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 FASTCOM in consideration of the Customer’s commitment to the Service Term for such Services.

 

Such termination liability shall be payable on the effective date of any and all terminations.

 

(4)     Substitution or Relocation. The Customer will not be liable for any termination liabilities if, at the same time as it gives FASTCOM a Notice pursuant to subsection (1), the Customer orders a FASTCOM  service with the same or greater functionality and value as the terminated Service (as determined by a FASTCOM Sales Engineer) for the remaining months of the Term. Notwithstanding the previous sentence, the Customer will pay to FASTCOM, in one single payment (as liquidated damages), a lump sum equal to any cost which FASTCOM is liable to continue to pay to third parties for the remainder of the applicable Term, including but not limited to, the gross value of remaining rental costs for any local loops, dedicated access lines, private lines or other lines or equipment, incurred by FASTCOM with the explicit or implicit knowledge and/or approval of the Customer.

 

(5)     Cancellation of Request for Services. The Customer may cancel a request for any Service prior to the intended installation date of such service if it gives FASTCOM fifteen (15) days’ prior written notice and if it pays to FASTCOM all charges incurred by FASTCOM in provisioning the services, including the full amount of charges for any non-cancelable commitments made by FASTCOM to third parties together with (where applicable) specific development charges associated with capacity increases for voice processing hardware and software incurred by FASTCOM on behalf of the Customer, plus a reasonable fee to cover FASTCOM’s administrative costs.

 

(6)     FASTCOM may terminate Services, or any of them, at any time, by providing at least 90 days’ written notice that FASTCOM will no longer be providing the Services being terminated as a standard FASTCOM product or service.

 

14.   Confidentiality and Privacy.

 

(1)     Disclosure. The Parties may disclose to each other certain Confidential Information, either directly, as by verbal or written communications, or indirectly, as by permitting employees of one Party to observe various operations or processes conducted by the other. These disclosures are made upon the basis of each Party’s agreement that, unless specifically authorized in writing by the other, it will, subject to subsection 2,

(a)     use such Confidential Information solely for the purpose of carrying out its obligations under this Agreement;

 

(b)     promptly return to the disclosing Party, upon its request, all tangible material concerning Confidential Information, including all copies and notes, whether such material was made or compiled by the receiving Party or furnished by the disclosing Party; and

 

(c)     take reasonable precautions to protect from disclosure Confidential Information disclosed to it by the other.

 

(2)     Exception. The obligations imposed herein shall not apply to Confidential Information which is disclosed pursuant to Law, provided that if disclosure is requested, the Party being required to disclose the Confidential Information shall provide the other Party with prompt notice of the request to enable the other Party to seek a protective order, and shall take reasonable steps to limit the amount of disclosure.

 

(3)     Injunction. In the event of a breach, or threatened breach, of any of the foregoing provisions, the Parties agree that the harm suffered by the injured Party would not be compensable by monetary damages alone and, accordingly, that the injured Party shall, in addition to other available legal or equitable remedies, be entitled to seek an injunction against such breach or threatened breach.

 

(4)     Personal Information. FASTCOM is authorized to have access to and to make use of Personal Information for the term of this Agreement as is appropriate for the performance by FASTCOM of its obligations hereunder. However, the Customer will be the controller of its Personal Information for purposes of all applicable laws relating to data privacy, trans border data flow and data protection (collectively, the “Privacy Laws”), and nothing in this Agreement will restrict or limit in any way the Customer’s rights or obligations as controller of Personal Information for such purposes. Without limiting the foregoing, the Customer acknowledges and agrees that it has obtained all necessary authorizations and consents required under Privacy Laws to permit FASTCOM to process Personal Information in providing the Services.

 

(5)     FASTCOM has responsibilities prescribed by applicable Privacy Laws as a processor of Personal Information, and has a privacy policy to protect all Personal Information, available at www.fastcom.ca, which the Customer should review.

 

15.   LIABILITY OF FASTCOM

 

(1)     LIMIT ON LIABILITY. THE PARTIES AGREE THAT:

 

(a)     THE AMOUNTS PAYABLE TO FASTCOM UNDER THIS AGREEMENT ARE BASED UPON THE VALUE OF THE SERVICES AS WELL AS THE SCOPE OF LIABILITY SET FORTH IN THIS AGREEMENT AND ARE UNRELATED TO THE VALUE OF THE PROPERTY OR BUSINESS OF CUSTOMER OR THIRD PARTIES (SUCH AS CUSTOMERS OF CUSTOMER);

 

(b)     EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, FASTCOM MAKES NO EXPRESS OR IMPLIED WARRANTY OR CONDITION, WHETHER OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE, WITH RESPECT TO ANY SERVICES, PRODUCT OR EQUIPMENT PROVIDED TO CUSTOMER BY FASTCOM;

 

(c)     IF FASTCOM SHOULD BE FOUND LIABLE FOR LOSS, DAMAGE OR INJURY DUE TO THE OPERATION OR FAILURE OF SERVICES OR EQUIPMENT IN ANY RESPECT, IT SHALL NOT BE LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS) AND IN ANY EVENT, ITS LIABILITY SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL CHARGES FOR THE SERVICES/EQUIPMENT IN QUESTION FOR THE BILLING MONTH DURING WHICH THE OPERATION OR FAILURE OCCURRED; AND

(d)     THE PROVISIONS OF THIS SECTION SHALL APPLY IF LOSS, DAMAGE OR INJURY IRRESPECTIVE OF CAUSE OR ORIGIN, RESULTS, DIRECTLY OR INDIRECTLY, TO PERSON OR PROPERTY FROM PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS IMPOSED BY THIS AGREEMENT OR FROM THE NEGLIGENCE, ACTIVE OR OTHERWISE, OF FASTCOM, ITS AGENTS OR EMPLOYEES.

 

(2)     FASTCOM SHALL HAVE NO LIABILITY WHATSOEVER TO CUSTOMER OR ANY THIRD PERSON ARISING FROM THE FAILURE, FOR ANY REASON, TO ACTIVATE ANY SERVICES ON THE ACTIVATION DATE REQUESTED BY CUSTOMER.

 

(3)     FASTCOM SHALL NOT BE LIABLE FOR AND FASTCOM SHALL BE INDEMNIFIED AND HELD HARMLESS BY CUSTOMER AGAINST, ALL CLAIMS, DEMANDS, LOSSES OR LIABILITIES, INCLUDING BUT NOT LIMITED TO, FEES AND EXPENSES OF COUNSEL, ARISING OUT OF ANY OF THE FOLLOWING:

 

(a)     CLAIMS FOR LIBEL, SLANDER, HARASSMENT, ILLEGAL, IMPROPER OR UNAUTHORIZED USE OF THE SERVICES OR RELATED FACILITIES BY ANY PERSON, INFRINGEMENT OF COPYRIGHT OR UNAUTHORIZED USE OF ANY TRADE-MARK, TRADE NAME OR SERVICE MARK, ARISING FROM THE MATERIAL, DATA, INFORMATION OR OTHER TRANSMISSIONS OF CUSTOMER OR ITS CUSTOMERS USING FASTCOM’S FACILITIES OR SERVICES;

 

(b)     CLAIMS FOR INFRINGEMENT OF INTELLECTUAL PROPERTY (INCLUDING PATENTS, TRADE-MARKS AND COPYRIGHT) ARISING FROM COMBINING OR CONNECTING FASTCOM’S SERVICES, EQUIPMENT OR FACILITIES WITH SERVICES, EQUIPMENT, FACILITIES AND SYSTEMS OF CUSTOMER OR CUSTOMER’S CUSTOMERS;

 

(c)     CLAIMS BY THOSE TO WHOM CUSTOMER PROVIDES SERVICES OR FROM WHOM THE CUSTOMER MAY ACQUIRE SERVICES, EQUIPMENT OR FACILITIES FOR USE IN CONJUNCTION WITH FASTCOM’S SERVICES;

 

(d)     ANY AND ALL BUSINESS PRACTICES OF CUSTOMER OR CUSTOMER’S CUSTOMERS; OR

 

(e)     DAMAGE TO BUSINESS OR PROPERTY OR INJURY TO OR DEATH OF ANY PERSON, OCCASIONED BY OR IN CONNECTION WITH ANY ACT OR OMISSION OF CUSTOMER OR OF ANY PERSON UTILIZING CUSTOMER’S CODES, SERVICES, EQUIPMENT OR FACILITIES WITH OR WITHOUT THE CONSENT OR KNOWLEDGE OF CUSTOMER.

 

16.   Events Which Excuse Performance

 

A Party which, indirectly or directly, defaults or delays in its performance of its obligations under this Agreement, other than payment obligations, as a result of a force not within the reasonable control of such party shall not be liable under this Agreement for the default or delay.

 

17.   Relationships.

 

The relationship between FASTCOM and Customer is that of independent contractors. Neither this Agreement nor the provision of Services by FASTCOM creates, nor shall be deemed to create, an agency, partnership, joint understanding or joint venture between FASTCOM and Customer. 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, FASTCOM. No agents or employees of other participating carriers shall be deemed to be agents or employees of FASTCOM.

 

18.   Dispute Resolution

 

(1)     Informal Resolution. Prior to initiating arbitration pursuant to subsection 18(2), the Parties shall first attempt to resolve any Dispute informally and confidentially, in the following way:

(a)     upon the written request of a Party, each Party shall appoint a designated representative whose task it will be to meet for the purpose of attempting to resolve the Dispute;

 

(b)     the representatives shall meet as often as they feel necessary to discuss the issue and negotiate in good faith in an effort to resolve the Dispute without the necessity of any formal proceeding; and

 

(c)     the specific format of the discussions shall be left to the discretion of the designated representatives, but may include the preparation of agreed-upon statements of facts or written statements of position. In the case of a Dispute with respect to billing, the Customer may require an in-depth review of the disputed amount.

 

(2)     Arbitration. If a Dispute cannot be resolved informally, it shall be determined by arbitration. Either Party may give written notice to the other of its desire to submit the Dispute to arbitration stating with reasonable particularity the subject matter of the Dispute. Within 5 business days after receipt of such notice, the Parties shall appoint a single arbitrator with appropriate experience to arbitrate the Dispute. If the Parties are unable to agree upon an arbitrator, the Parties shall apply to a court of competent jurisdiction to appoint an arbitrator and the Parties agree to be bound by such appointment. The costs of the arbitration shall be paid as determined by the arbitrator. Notwithstanding anything to the contrary contained in the Arbitration Act, the award of the arbitrator shall be final and binding upon the Parties and all persons claiming through or under them.  Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction, and execution or other legal process may issue upon such judgment. The Parties and all persons claiming through or under them attorn to the jurisdiction of the arbitrator and to the jurisdiction of any court in which judgment may be entered. Arbitration may not be waived except upon mutual written agreement between the Parties.

 

19.   Notices.

 

Any notice, request, demand, consent or other communication provided or permitted under this Agreement shall be in writing and shall be deemed to be sufficiently given if personally delivered, sent by facsimile, or sent by registered mail postage prepaid, to the Party for which it is intended at its address set out in the Commercial Summary. Any notice so given shall be deemed to have been received on the date on which it was delivered in person, or sent by facsimile, or if sent by registered mail only (which method of service shall not be a valid form of providing notice during a postal  strike), 5 business days after the notice was sent.

 

20.   General

 

(1)     Enurement/Assignment. This Agreement is binding upon and shall enure to the benefit of the Parties and their respective successors, administrators, personal representatives and permitted assigns; provided, however, that the Customer shall not assign or transfer its rights or obligations under this Agreement without the prior written consent of FASTCOM. Such consent will not be unreasonably withheld or delayed.

 

(2)     Unenforceable Provisions. If any part of this Agreement is invalid or not enforceable under applicable law, the Parties together shall determine within 20 days whether the remaining parts of this Agreement can continue to operate without the scope and intention of this Agreement being materially altered. If the Parties agree that the scope and intention of this Agreement: (i) would be materially altered following the removal of the invalid or unenforceable part, this Agreement shall immediately terminate; or (ii) would not be so altered, then this Agreement shall continue to operate without the application of the invalid or unenforceable part. If the Parties cannot agree as to whether the Agreement would be so altered, the Parties shall follow the Dispute Resolution procedure set out in this Agreement to resolve the issue.

(3)     Entire Agreement. This Agreement sets forth the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes and replaces all previous discussions, negotiations and agreements. This Agreement may only be amended upon written agreement between the Parties.

 

(4)     Governing Law. This Agreement and the rights and obligations of the Parties thereunder shall be governed by, and construed in accordance with, the laws of the province of Ontario.

 

(5)     Language of Agreement. FASTCOM and the Customer confirm that they wish to have this Agreement written in English only. Les Parties aux présentes confirment leur volonté que cette Convention soit rédigée en langue anglaise seulement.

 

(6)     Order of Precedence. In the event of a conflict between the various components of this Agreement, the following order of precedence will apply: (1) Lease Agreement (if applicable); (2) Commercial Summary; (3) Service Descriptions; and (4) these General Terms and Conditions.

 

(7)     No Waiver. No waiver of any term or provision or of any breach or default will be valid unless in writing and signed by the Party giving such waiver, and no such waiver will be deemed a waiver of any other terms or provision or of any subsequent breach or default of the same or similar nature.

 

(8)     Authority. FASTCOM shall recognize the name(s) that appear on this Agreement or any list of contact names exchanged by the parties as the only person(s) authorized to accept, modify or terminate the Services or this Agreement.

 

(9)     Validity of Agreement. This Agreement shall not be binding on FASTCOM unless it has been signed by an Executive Vice President or a more senior executive officer of FASTCOM.

 

(10)    Article 2125 and 2129 Waiver. Notwithstanding any provision of any other agreement between them, the parties specifically waive application of Articles 2125 and 2129, Civil Code of Quebec. Termination of this or any other agreement between the parties, and any liability arising from this termination, will be determined in accordance with the intention expressed by the parties.

 

FASTCOM – Master Services Agreement – Credit Terms and Conditions

 

 

Attachment A – Credit Terms & Conditions

 

FASTCOM reserves the right to examine the credit record and the financial condition of all prospective and existing customers at any time throughout the duration of the agreement and may require prepayment, security or a guarantee as a precondition to providing or continuing services.

 

  1. At the time of the customer’s application for services, FASTCOM will assign a credit limit and payment terms.

FASTCOM reserves the right to, from to time, adjust the credit limit and terms as its sole discretion and will notify the customer of any adjustments made. Adjustments may require prepayment, security or a guarantee.

 

  1. Without FASTCOM’s prior approval, any outstanding amounts (including unbilled charges) for services, shall not at any time exceed the customer’s credit limit. Notwithstanding any other provisions in these terms and conditions, any unpaid charges exceeding the credit limit shall become due and payable by the customer immediately. FASTCOM will notify the customer, should the unpaid charges exceed the credit limit. Should the customer fail to pay the unpaid charges exceeding the credit limit and if the invoices are not paid according to the assigned payment terms, FASTCOM may at its sole discretion and without incurring liability, block or discontinue the customer’s service.

 

  1. Returned cheques (NSF or Stop Payment) will be assessed a $25 administrative fee.

 

  1. Returned cheques will require a certified replacement and FASTCOM at its sole discretion may require prepayment, security or a guarantee for continuation of services. Any customer whose service has been blocked or discontinued for non-payment of amounts to FASTCOM or for exceeding its credit limit, will be required to make appropriate payment to FASTCOM (including accrued interest) before service is restored. In addition FASTCOM may require prepayment, security or a guarantee from the blocked or discontinued customer wishing to re-establish service.

 

  1. Failure by the customer to provide or maintain the required prepayment, security or a guarantee shall constitute a default under this agreement, permitting FASTCOM to terminate the agreement without further notice to the customer.

 

  1. In the event that FASTCOM is required to initiate legal proceedings, or incur third party costs, to collect any amounts due to FASTCOM for services, equipment or facilities (including taxes, interest, contribution and other charges), or to enforce any judgment obtained against the customer, or for the enforcement of any other provision of the agreement or applicable law. The customer shall be liable to for all reasonable costs incurred by FASTCOM in such proceedings and enforcement actions, including legal fees and expenses (on a solicitor and client basis), collection agency fees or payments and court costs in addition to all amounts due for services.