In the service agreement the following terms shall have the following meanings:
- The “Customer” is the person or organization listed on the front of the agreement under the section “Customer”.
- NetAccess Systems Inc. with head office at 21 King St W Suite 1500, Hamilton, Ontario, L8P 4W7 is the “Company” offering the service defined on the front of this agreement under “Service Description”.
A Customer is defined per the Service Agreement as follows: “Customer”, for purposes of this Agreement, shall be defined as a single individual, corporation, partnership, or other entity, or any subsidiary or branch office, which operates or resides at a single physical location (street address) and makes use of a device or devices at that single location in order to use the services provided by this Agreement.
Subject to all the terms and conditions herein provided, the Customer hereby requests from the Company and the Company hereby agrees to provide to the Customer a service (the “Service”) comprising the number and type of access/service described in the “Service Agreement” signed by the Customer. The Customer is responsible for all wiring from the installation point specified in the “Service Agreement” to all of the customer’s equipment. Installation will cover normal costs unless otherwise specified in the final quote and technical audit. If additional expenditures are required they will be specified and must be agreed to before this agreement may come into effect.
If equipment is leased from the Company, upon termination of Service, the Customer will, within five business days of termination, make arrangements with the Company for the prompt return of all equipment owned by the Company as part of the service setup. The Customer shall be responsible for any damages to the Company owned equipment in the Customers’ possession.
3. Service Availability
Service Availability is defined by the attached “Service Specific Terms and Conditions”.
Customer is responsible for paying the Company the installation cost and monthly cost stipulated under “Pricing Information” in the Service Agreement.
This agreement guarantees that changes in price for the service will not be put into effect until the end of the agreement or until the customer signs a new agreement. Customer may sign a new contract to secure the best
price offered for the existing or an enhanced service.
6. Terms of Payment
The Customer agrees to pay for the Service at the rates set forth in this Agreement. Accounts are considered to be past due if payment is not received by the 30th day following the date of billing. Payment is due in advanced and based on the payment terms in the Term of the Agreement. Customer shall be invoiced by the company on a monthly, quarterly or annual basis at the beginning of each period and the amount of each
invoice must be fully paid upon receipt. Past due rates bear interest at the rate of 2% per month until full payment thereof and interest therein. Accounts in arrears may be deemed in default by NetAccess Systems Inc. at any time. A $45.00 charge will be incurred on all NSF cheques.
The Customer authorizes the Company to collect payment for overdue accounts, including late payment charges, Damages to the Company’s equipment automatically from either Customer’s VISA / MC account or by way of collection.
The Customer agrees to be responsible for the payment of any collection costs, reasonable attorney’s fees and costs, and other reasonable costs incurred by the Company in connection with the recovery of any amounts due hereunder.
7. Terms of Agreement
The agreement shall become effective upon its acceptance by the Company.
The service commences on the install date and remains in effect for three years, or for the specified term of the agreement.
Unless terminated Thirty (30) Days prior to the anniversary date of the agreement, the agreement shall renew automatically for the same term. The cost will be fixed over the period of the term. All other all Terms and Conditions of this Agreement will continue to apply.
All applicable federal, provincial, and local taxes shall be added to the amounts payable under Section 4 and shall be payable by the Customer to the Company.
9. Excused Performance
The Company shall not be liable for breach of this agreement for a cause beyond its control.
The Company will not be responsible for performance of its obligations hereunder where delayed or hindered by embargoes, strikes, causalities, civil unrest or other events beyond the Company’s control. Should such events continue for more than sixty (60) days, the Company or Customer may terminate this Agreement for the affected Services with no further liability.
Termination of this Agreement, the (Initial Term), for any reason shall not relieve the Customer from any liability, including amounts owing, accrued hereunder prior to the time that such termination becomes effective. Should NetAccess at it’s discretion allow early termination of the Initial Term, the Customer shall pay to the Company, in a single payment, an amount equal to 50% of the contracted rate for the remainder of the term.
In the event Customer terminates this Agreement or any of the Services prior to the end of the term of any renewal term (the Renewal Term), the Customer shall pay to the Company, in a single payment, an amount equal to the difference between the contracted rate and the non-contracted monthly rate for the period that the service was used by the Customer after the Initial Term.
Upon the termination of service the Company may disconnect the service listed on the agreement under “Service Description” and remove from the site all facilities as well as all additional equipment owned by it and the company may claim the immediate payment of all amounts owed to it by the customer. The service shall terminate automatically if the customer is in payment default, commits any act of bankruptcy within the meaning of the Bankruptcy Act (Canada), if any bankruptcy or insolvency proceeding is taken by or against the customer, if the customer makes any agreement for the benefit of creditors, if a receiver takes possession of any of the customers property, if the customer ceases to carry on business in the normal course, if the customer is liquidated or wound-up, or if the Customer fails within 10 days of its receipt of the Company’s notice to such effect, to remedy any breach of this Agreement.
To cancel, the Customer must, thirty (30) days prior to the renewal date of their Service, notify the Company in writing; at head Office: NetAccess Systems Inc. 21 King St W, Suite 1500, Hamilton, ON L8P 4W7
The Company reserves the right to cancel a Customer’s Service within five (5) business days upon providing prior written notice if the Customer breaches this Service Agreement in any way and the Company is not provided an acceptable remedy or plan to remedy the issues causing the breach. Where the breach of this Service Agreement is deemed to cause significant impact to the Company’s business; the Company may suspend the Customer’s service immediately and will provide to the Customer the specific information pertaining to the issue causing the breach : e.g. the nature of the breach, the reasons for considering this issue(s) significant impact to the Company’s business and suggestions on remedy (ies) for curing this breach.
Unless otherwise specified, all equipment listed in the one-time setup cost is purchased and owned by the customer.
Performance and Network Availability is governed by the Company’s SLA and the Bell Nexxia service objectives for Bell Canada Primary Exchange Service through the Bell network. SLAs are service specific.
12. Monitoring and Support
The Company’s services are monitored on a 7 day per week, 24 hour a day basis. The Customer has access to 7 x 24 call response and support escalation.
13. Limitation of Liability
The Company’s sole obligation under this agreement is to furnish the Service. Except as otherwise provided herein, the company makes no representation of any warranties of any nature whatsoever, whether expressed, implied, with respect to the service, including without limitation, any representation or warranty with respect to the network transmission capacity of common carriers or the reliability of the equipment of common carriers or Customer.
The Company’s liability for negligence or the breach of this Agreement shall not in any event be greater that the amount paid by the Customer to the Company over the service period giving rise to the claim.
In no case shall the company be responsible for any indirect damages, including, but not limited to damages resulting from loss of use, loss of profits, lost business revenue or third party damages or under any theory of liability.
The liability of the Company, and its Suppliers, to Customer, if any, for any cause whatsoever and regardless of the form of action, shall be limited to those actually proven as directly attributable to the Company, subject to the following limitations:
(a) the Company shall not be liable under any circumstances for any lost profits or other indirect, special, consequential or punitive damages; and
(b) the Company’s total cumulative liability in respect of all claims hereunder, for any cause whatsoever and regardless of the form of action, shall not exceed the lesser of (i) $5,000, and (ii) monthly charges paid from the date damages were incurred, not to exceed 12 months; and
(c) In no event will the Company, or its Subcontractors be liable for any damages if and to the extent caused by Customer’s failure to perform its responsibilities; and
(d) upon expiration or termination of this Agreement, neither Party may bring an action, regardless of form, arising out of this Agreement more than one (1) year after the cause of action has arisen or the date of discovery of such cause, whichever is later.
The Company limitations on liability in this agreement shall survive the termination of this Agreement.
14. General Provisions
The agreement shall be governed by the laws of the Province of Ontario. It may not be modified except by a written amendment signed by both parties. No waiver of any provisions of the agreement shall be deemed to constitute a waiver of any other provisions (whether or not similar) nor shall such waiver constitute a continuing waiver unless otherwise expressly provided in a writing duly executed by the party to be bound thereby. The customer shall be responsible for all costs and expenses, including reasonable legal fees and disbursements incurred by the Company in connection with any legal collection or other proceeding brought by the Company. Neither the agreement nor any rights thereunder may be assigned by the Customer without the prior written consent of the Company. The conditions of the agreement are intended to be severable. If any provision of the agreement shall be held to be invalid or unenforceable in whole or in part such provision shall be ineffective to the extent of such invalidity or unenforceability without in any manner affecting validity or enforceability thereof or of the remaining provisions hereof or thereof. The parties have requested that the agreement and all documents related hereto be drafted in English.
The Customer shall not assign or transfer this Agreement or its obligations hereunder or any part thereof without the prior written consent of NetAccess.
The Company may assign this Agreement or its obligations hereunder to an Affiliated Company.
This Agreement shall be governed by the Laws of the Province of Ontario and the Laws of Canada applicable therein.
This Agreement may not be modified except by written amendment agreed to and signed by the Parties involved.
This Agreement and the NetAccess systems Inc. SLA constitute the entire Agreement between the Parties and cancels, replaces and supersedes all existing and prior Agreements and understandings, written or oral, between the Parties with respect to Services.
Failure of a Party to insist upon strict adherence to any Term or Condition hereunder on any occasion, or the waiver of a breach of this Agreement in any instance, shall not deprive the Party of the right hereafter to insist on strict adherence to that Term or Condition or any other Term or Condition hereunder or be construed as a waiver of any subsequent breach, whether or not similar.
Should any provision hereunder be determined to be void, invalid, or otherwise unenforceable by any Court of competent jurisdiction, such determination shall not affect the remaining provisions of this Agreement which shall remain in full force and effect. Customer may not, for commercial purposes, re-market all or any portions of the Services provided under this Agreement, or make all or any portion of the Services available to any Person other than the Customer as defined in section 1.3 as noted on this agreement and without the prior written consent of the Company.
Neither Party shall be an Agent of the other for any purpose and shall have no authority to bind the other in any manner.
15. Acceptable Use Policy
- Customer shall not, nor permit or assist others, to abuse or fraudulently use NAS Network and Services.
- (Where applicable in shared access facilities) Customer’s Use of Service must not interfere with the work of other Network Customers.
- Customer’s Use of Service must not interfere or disrupt the Company’s Network Services.
- Customer’s Use of Service must not be in contravention of Canadian or International Laws.
- Customer’s Use of Service must not be in contravention of the general etiquette; spirit or intent of the Internet as such is made known to the General Public from time to time.
- The Customer while using the Internet, will respect the privacy of others on the Internet, and will not operate in a manner considered being obscene and/or obtrusive.
- The Customer shall assume the responsibility for maintaining the confidentiality of access codes or passwords supplied by the Company for use in connection with Services.
- The Customer shall not send or cause to be sent Unsolicited Commercial Email (spam) to other Internet users. The Customer agrees to pay the Company five dollars ($5.00) per complaint email received (the Spam Penalty) as a result of any spam sent to the maximum of $250.00 per month except where such spam is the result of malicious code (virus spy ware, etc.) unknowingly operating on the Customer’s computer(s).
- The Company reserves the right to inspect all files that reside on the Company’s equipment.
- The Company’s Service is for the customer use only.
Service Specific Terms
Service Terms: Wireless Connectivity
Service Level Agreement (SLA) 4 Hours
- Customers shall provide a 24/7 power source.
- The Customer will be responsible for and pay any cost incurred as a result of damages to any Hardware or Software provided by NAS to maintain the service.
Service Terms: Co-location
Service Level Agreement (SLA) 4 Hours
- Rack-mounted server to be supplied by client.
- Server administration is done by client
- NetAccess to perform basic server maintenance tasks
- Physical access available any time M-F, 9-5. After hours by appointment and subject to an administrative charge.
- Remote access available 24/7
NetAccess Operating Environment includes:
- Cisco routers and switches
- Secure, environmentally controlled, computer room
- UPS with automatic generator failover
- KVM switch connection
- IP addresses as required
- Network cables
- 10/100 MB connection to Cisco switch
- DNS service
- Multi-homed Internet connections
- BGP implementaton
ENVIRONMENTAL FACTORS – NetAccess will locate the server in a standard computer room setup with standard environmental controls and power supplied. Auxiliary power provided by automatic failover to natural gas generator. The server is located within a locked computer room that is monitored by a commercial security service.
SYSTEM ADMINISTRATION – Administration and maintenance of the server operating system and software is the responsibility of the client. NetAccess will provide simple routine operational tasks such as daily rotation of backup tapes at no additional cost. Any additional authorized Technical Support will be charged at $150/hr.
INFRASTRUCTURE – NetAccess will use switches and routers from industry leading suppliers such as Cisco Systems for connection to the client’s server.
SERVER SPECIFICATIONS . Industry standard 19″ computer rack. Any additional peripherals required are to be supplied by the client.
SERVER ACCESS . authorized physical access will be freely available during normal business hours. After-hours access must be arranged in advance and will be subject to an administrative fee based on current rates. Online access is always available at no additional charge.
Service Terms: ADSL
Service Level Agreement (SLA) 48 Hours
NetAccess availability lookup provides a best-effort estimate only of the ADSL services a customer may be able to receive. Due to the nature of ADSL technology, there are factors that can impact the delivery of service including:
- Actual local loop length (the physical route taken by the copper wiring from the central office (CO) to the customer’s site including the distance to the customer’s office within a building).
- Changes in wire gauge between the CO and the customer’s site.
- Physical quality of the local loop.
- Interference caused by other services contained in the same binder group.
All precautions are taken by NetAccess to ensure accuracy of service; however, due to the abovementioned unpredictable factors, the ADSL availability lookup should not be used to guarantee any ADSL type or speed to you the customer. After the service availability has been confirmed and installed, on-site testing of the ADSL circuit ‘sync’ speed to NetAccess facilities will determine actual speed.
Service Terms: Digital Phone Service(s) 9-1-1 / E911
THIS SECTION CONTAINS IMPORTANT PROVISIONS, INCLUDING THOSE REGARDING 9-1-1 SERVICE
Description: Voice over IP (VoIP) services allow you to make or receive telephone calls over the Internet to or from the public switched telephone network. The nature of VoIP telephone calls, while appearing similar to traditional telephone calling services, create unique limitations and circumstances, and you acknowledge and agree that differences exist between traditional telephone service and VoIP telephone services, including the lack of traditional 9-1-1 emergency services.
9-1-1 service: Because of the unique nature of VoIP telephone calls, emergency calls to 9-1-1 through your VoIP service will be handled differently than traditional phone service. The following provisions describe the differences and limitations of 9-1-1 emergency calls, and you hereby acknowledge and understand the differences between traditional 9-1-1 service and VoIP calls with respect to 9-1-1 calls placed to emergency services from your account as described below.
Placing 9-1-1 calls: When you make a 9-1-1 emergency call, the VoIP service will attempt to automatically route your 9-1-1 call through a third-party service provider to the Public Safety Answering Point (“PSAP”) corresponding to your address of record on your account. However, due to the limitations of the VoIP telephone services, your 9-1-1 call may be routed to a different location than that which would be used for traditional 9-1-1 dialing. For example, your call may be forwarded to a third-party specialized call centre that handles emergency calls. This call centre is different from the PSAP that would answer a traditional 9-1-1 call which has automatically generated your address information, and consequently, you may be required to provide your name, address, and telephone number to the call centre.
How your information is provided: The VoIP service will attempt to automatically provide the PSAP dispatcher or emergency service operator with the name, address and telephone number associated with your account. However, for technical reasons, the dispatcher receiving the call may not be able to capture or retain your name, phone number or physical location. Therefore, when making a 9-1-1 emergency call, you must immediately inform the dispatcher of your location (or the location of the emergency, if different). If you are unable to speak, the dispatcher may not be able to locate you if your location information is not up to date.
Correctness of information: You are responsible for providing, maintaining, and updating correct contact information (including name, residential address and telephone number) with your account. If you do not correctly identify the actual location where you are located, or if your account information has recently changed or has otherwise not been updated, 9-1-1 calls may be misdirected to an incorrect emergency response site.
Disconnections: You must not disconnect the 9-1-1 emergency call until told to do so by the dispatcher, as the dispatcher may not have your number or contact information. If you are inadvertently disconnected, you must call back immediately.
Connection time: For technical reasons, including network congestion, it is possible that a 9-1-1 emergency call will produce a busy signal or will take longer to connect when compared with traditional 9-1-1 calls.
9-1-1 calls may not function: For technical reasons, the functionality of 9-1-1 VoIP emergency calls may cease or be curtailed in various circumstances, including but not limited to:
Failure of service or your service access device – if your system access equipment fails or is not configured correctly, or if your VoIP service is not functioning correctly for any reason, including power outages, VoIP service outage, suspension or disconnection of your service due to billing issues, network or Internet congestion, or network or Internet outage in the event of a power, network or Internet outage; you may need to reset or reconfigure the system access equipment before being able to use the VoIP service, including for 9-1-1 emergency calls; and changing locations – if you move your system access equipment to a location other than that described in your account information or otherwise on record with NetAccess.
Alternate services: If you are not comfortable with the limitations of 9-1-1 emergency calls, NetAccess recommends that you terminate the VoIP services or consider an alternate means for accessing traditional 9-1-1 emergency services.
Inform other users: You are responsible for notifying, and you agree to notify, any user or potential users of your VoIP services of the nature and limitations of 9-1-1 emergency calls on the VoIP services as described herein.
Liability: Customers are advised to review this section with respect to NetAccess’ limitations of liability (as appropriate to each company).