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Xplornet Communications Inc. (hereinafter referred to as “Xplornet”) is pleased to provide Xplornet Internet Services (the “Service”) to you on the terms set out below. Please read these Terms of Service carefully before using the Service.
1. INTERPRETATION: Through this agreement the words “we”, “our” and “us” refer to the Owner, Xplornet and the words “you” and “your” refer to the Subscriber indicated on the Xplornet Service Agreement.
2. AGREEMENT: These Terms of Service, your signed Service Agreement and Site Survey, our Internet Use Policy, our Fair Access Policy and all other policies posted on our web site at www.xplornet.com/legal, constitute the entire agreement (the “Agreement”) between you and Xplornet (“Xplornet” or “us” or “we”) with respect to your use of the Service. By establishing an account or using the Service, you agree to be bound by and to use the Service in compliance with the Agreement. We may change, add or remove portions of the Agreement at any time. We will notify you of any changes to the Agreement by a posting on our web site, or by email, postal mail, or other means. Continued use of the Service following notice of the changes means that you agree to and accept the Agreement as amended. If you do not agree to the changes, your sole and exclusive remedy is to stop using the Service and notify us that you are terminating the Agreement.
3. THE SERVICE & SPEED: The Service includes the services specified on your Service Agreement and any other services that Xplornet may provide to you from time-to-time. Xplornet provides the Service on a “reasonable efforts” basis and does not guarantee upload or download speeds. Given the logical and physical design of the Internet network, Xplornet cannot guarantee a specific speed to subscribers when navigating particular sites. There are numerous factors that affect internet speed, including but not limited to the subscriber’s location, weather, Internet traffic, the subscriber’s router capability, the specific technical configuration of the subscribers computer, the status of the subscriber’s computer (i.e. firewall, procedures for optimization, antivirus analysis, backup, etc.) and other factors beyond Xplornet’s control. Xplornet has established a Fair Access Policy to ensure equitable access to the Service for all Xplornet subscribers. This policy establishes a balance in Internet access across high-speed Internet services for all Xplornet subscribers regardless of their frequency or traffic usage. To ensure this equity of usage is maintained among Xplornet subscribers, subscribers may experience some temporary throughput limitation. The Fair Access Policy applies to all Xplornet Service plans.
4. USE OF SERVICE: You are prohibited from using the Service and shall use reasonable efforts to ensure the Service is not used for a purpose or in a manner that is contrary to laws including, without limitation, all copyright, trademark and obscenity laws applicable to any content or information transmitted via the Service.
5. SECURITY: You are responsible for protecting your account and password. Xplornet does not assume any responsibility for the acts or omissions of your use of the Service. You assume total responsibility and risk for access to or use of content and for the use of the Service.
6. CHANGES TO SERVICE: We reserve the right to change the Service, the monthly fees or administrative charges at any time upon 30 days notice. You understand that the facilities used to provide the Service may change from time to time. You also understand that if there is a change in Internet facilities, you may be required to realign and/or relocate your receiving antenna at your own expense in order to continue to receive the Service.
7. TERM: This Agreement will begin upon the activation of the Services and will continue for the minimum number of months specified on your signed Service Agreement. You acknowledge that you may not cancel during this initial term. Upon expiry of the initial term, we will continue to provide the Service to you on the same Service plan (or on a similar Service plan if we no longer offer the same Service plan) and in such an event these Terms of Service will be automatically renewed for successive 1 month periods until terminated in accordance with Section 23. Termination.
9. PAYMENTS: You authorize us to deduct from your bank account (pre-authorized debit) or charge directly to your credit card the amount which is equal to the total due on your bill each month, according to the method of payment you specify when you purchase the Services. If Pre-Authorized Debit (PAD) is chosen as your method of payment and you fail to complete the PAD Agreement, you will be responsible for any additional charges for equipment and equipment retrieval costs plus applicable taxes. The automatic billing will be made each month in advance. We are not responsible for any fees for overdrawn accounts, exceeding credit card limits, or similar expenses resulting from automatic billing. Delinquent accounts may be suspended or cancelled in our sole discretion. However, Fees will continue to accrue until the account is cancelled. We may bill an additional charge to reinstate a suspended account. If you purchase the Service through a reseller who in turn pays us, the reseller must pay all amounts owing for your account. If the reseller fails to pay any amounts due, whether or not you have paid the reseller, your account may be subject to suspension or cancellation until you or the reseller has paid all amounts due. If you have questions regarding your account, you should contact our Customer Care Centre at 1-866-841-6001. All charges are considered valid unless disputed in writing within 30 days of the billing date. Adjustments will not be made for charges that are more than 60 days old.
10. LATE FEES AND COLLECTION CHARGES: If any rental payment or other amount payable to us is not paid within ten (10) days of its due date, you agree to pay us a late charge of 2.0% per month of the amount which is late, or if less, the maximum amount allowable under applicable law. You also agree to pay us twenty dollars ($20.00) for each check returned for any reason.
11. EARLY CANCELLATION: For Wireless and Satellite Ka-band customers only, at anytime prior to the 30th day following the activation date of the Service, you may cancel this agreement without further obligation on your part and receive a refund of your initial Fees as well as the cost of the standard installation. In the event of such notification and where you are in possession of Rental Equipment, we shall arrange to have an installer attend at your premises and remove all Rental Equipment and return it to us. No refund shall be paid for damaged Rental Equipment nor for any peripheral items such as reflector dishes, cables, tripods, brackets, poles, etc.
In all other cases, for all Xplornet customers, you agree that if you terminate your subscription to the Services prior to the expiration of the initial term, we have the right, in addition to all other amounts due to us pursuant to these Terms of Service, as liquidated damages and not as penalty, to receive from you the lesser of the two amounts: $25 multiplied by the number of full months remaining in the non-cancelable initial term, as specified on your signed Service Agreement or change of Service Form, or a one time charge of $450.
12. SOFTWARE LICENCE: Xplornet grants you a limited, nonexclusive, non-transferable and non-assignable license to install and use the Xplornet software (including software from third-party vendors), associated documentation and any updates (“Licensed Programs”). You will use the Licensed Programs solely in conjunction with the Service and for no other purpose. We may modify the Licensed Programs at any time, for any reason, without providing notice to you. The Licensed Programs are confidential and proprietary information of Xplornet and our licensors and embody trade secrets and intellectual property protected under Canadian copyright laws, other laws, and international treaty provisions. All right, title and interest in the Licensed Programs, including associated intellectual property rights are and will remain with Xplornet and our licensors. You will not translate, decompile, reverse-engineer, distribute, remarket, disassemble or otherwise dispose of the Licensed Programs or any part thereof or make any other unauthorized use of such software.
13. REQUIRED EQUIPMENT: You acknowledge that we have informed you of the recommended minimum computer requirements for the efficient operation of the Service. If you install the Service on a computer that does not meet the recommended minimum computer requirements, you will not be entitled to receive customer support for any issues other than the quality of the signal delivered to your modem. We do not represent or warrant that a non-recommended configuration will enable you to access, operate or use the Service, nor that any such installation will not cause damage to your computers, peripherals, software or data.
14. RENTAL OF EQUIPMENT: Subject to the terms and conditions herein contained and where you are subscribing to Xplornet Internet Services that require the rental of Equipment, you agree to rent the Equipment described above (the “Equipment”) and agree to the terms and conditions of this Agreement (the ” Agreement”). You agree to pay us the rental payments in accordance with the payment schedule outlined. The Agreement will be effective from the date of acceptance by our authorized representative and will begin on the Activation Date indicated on the Xplornet Service Agreement. In the event of termination of this Agreement, the Equipment shall be returned to us and you shall be liable for any rental payments due and owing to the time of termination as well as any damage to the Equipment, normal wear and tear excepted.
16. OWNERSHIP AND TITLE: We are the owner of the Rental Equipment and have title to the Rental Equipment. We may require plates or other markings to be affixed or placed on the Equipment indicating that we are the owner. Other trademarks and proprietary marks on the Equipment are and shall remain the property of the manufacturer. You shall not do anything to infringe upon, harm or contest the validity of the aforesaid trademarks or other marks of the manufacturer. We confirm that it is our mutual intention that the Equipment remains personal property even if it is attached to real property and that you are responsible for any damage caused to any real property by the removal of the Equipment from the real property, either by you or us. You will provide us with your landlord’s consent to the attachment of the Equipment if necessary.
17. INSURANCE: If you have Rental Equipment you will provide at your expense, property insurance for the Equipment naming us as loss payee. You will provide us evidence of such insurance when requested. If you do not, we may at our option buy such insurance for you and include such insurance costs and our fees to the payment amounts due by you under this Agreement or charge you a monthly risk charge of $7.50 per month.
18. TAXES AND PERFECTION OF SECURITY INTEREST: You will pay, when due, all taxes, fines and penalties relating to the use or our ownership of the Equipment under this Agreement. You agree to pay all taxes and fees in addition to the Fees. If we pay any taxes, fees or penalties for you, you will pay us on demand the amount we have paid on your behalf.
19. WARRANTY FOR RENTAL EQUIPMENT: : For those of you who are renting equipment, we are renting the Equipment to you as is. You acknowledge that we do not manufacture the Equipment. Other than as set forth herein, we make no warranties, express or implied, including warranties of merchantability or fitness for a particular purpose in connection with this Agreement or the Equipment. You agree to continue making payments to us up to the time of termination of this Agreement, regardless of any claims you assert against the manufacturer or supplier. We transfer to you, to the extent possible, for the duration of this Agreement any warranties made by the manufacturer or supplier. We are not liable to you for any loss, cost, expense or damage of any kind caused directly or indirectly by the Equipment or the use, operation, ownership or maintenance of the Equipment or for any loss of business or damages whatsoever or however caused. Notwithstanding the foregoing, we agree to repair or replace, as the case may be, at our expense, any Equipment, which malfunctions under conditions of normal use.
20. INSTALLATION: For subscribers of Xplornet, equipment is highly sophisticated, and Industry Canada regulations for installing and pointing the antenna are very stringent, a professional Xplornet certified installation technician must install the Equipment. Both satellite and wireless subscribers are responsible for all costs and scheduling associated with the installation. You are responsible for all inside wiring necessary to install the service. Installation and use of the Equipment may result in service outages or potential damage to your computer. You are solely responsible for backing up all existing computer files. Xplornet and its employees, agents, contractors, and representatives shall have no liability whatsoever for any damage to or loss or destruction of any of your hardware, software, files, data, or peripherals. You assume responsibility for impacts on or loss of any warranty associated with the opening of your computer for installation. Xplornet does not represent, warrant, or covenant that installation by a third party chosen by you will enable you to successfully access, operate, or use the service, nor that such installation will not cause damage to your computer, data, software, files, or peripherals, in addition, Xplornet shall have no liability whatsoever for any damage, or for the failure to properly install, access, use or operate the equipment or service because of your installation. This limitation of liability is in addition to and in no way limits any and all limitations of liability set forth elsewhere in the agreement.
21. EQUIPMENT LOCATION, USE AND REPAIR: You will keep and use the Equipment only at the location shown on the Xplornet Service Agreement. You agree that the Equipment cannot be moved without advance written permission. Other than as provided herein, you are responsible for keeping the Equipment in good repair, condition and working order. Except for normal wear and tear, you are responsible to protect the Equipment from damage or any kind of loss. We are not responsible for any losses or damage caused by the installation or use of the Equipment, or from any other kind of loss while you have the Equipment.
22. DISCLAIMER AND LIMITATION OF LIABILITY: THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. FURTHER, WE DO NOT WARRANT THAT ANY DATA OR FILES SENT BY OR TO YOU WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD OF TIME. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICE IS WITH YOU. WE MAKE NO EXPRESS WARRANTIES AND WAIVE ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE REGARDING THE SERVICE OR ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH THE SERVICE OR THE INTERNET GENERALLY. NO ADVICE OR INFORMATION GIVEN BY OUR REPRESENTATIVES OR US SHALL CREATE A WARRANTY. XPLORNET SATELLITE AND ITS EMPLOYEES AND AGENTS ARE NOT LIABLE FOR ANY COSTS OR DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM YOUR USE OF THE SERVICE OR THE INTERNET INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, MULTIPLE, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES. IN ANY EVENT, XPLORNET’S CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICE SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU DURING THE PREVIOUS THREE (3) MONTHS. FURTHERMORE, XPLORNET SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM: OTHER USERS ACCESSING YOUR COMPUTER; SECURITY BREACHES; EAVESDROPPING; DENIAL OF SERVICE; ATTACKS; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; YOUR RELIANCE ON OR USE OF THE EQUIPMENT OR SERVICES, OR THE MISTAKES, OMISSION, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSIONS, OR ANY FAILURE OF PERFORMANCE OF THE EQUIPMENT OR SERVICES; THE USE OF THE EQUIPMENT OR SERVICES BY YOU OR A THIRD PARTY THAT INFRINGES THE COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY, OR OTHER INDUSTRIAL OR INTELLECTUAL PROPERTY RIGHTS, PROPRIETARY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY; AND THE USE OF THE EQUIPMENT OR SERVICES BY YOU OR A THIRD PARTY THAT INFRINGES DEFAMATION, PASSING OFF, UNFAIR COMPETITION, OR OBSCENITY LAWS INCLUDING ANY COMMUNICATION TRANSMITTED IN CANADA THAT IS “OBSCENE” AS DEFINED BY THE CANADIAN CRIMINAL CODE.
23. TERMINATION: Either you or we may terminate this Agreement at any time after the initial term upon written notice given to the other party. If you should fail to pay the Fees or to pay any other amount owed to us at the times and in the amounts specified, or otherwise breach these Terms of Service, we may terminate the Services without notice and without any liability whatsoever. Reactivation of the Services may result in a reactivation charge payable by you as established by us. If we are prevented from providing the Services by any law, regulation, requirement, notice or ruling issued in any form whatsoever by judicial or government authority, or decide to cease offering the Services, you acknowledge and agree that we may immediately cease providing the Services without any liability to you.
24. ASSIGNMENT: You have no right to sell, transfer, assign or sublease the Rental Equipment or this Agreement. We may sell, assign or transfer this Agreement or the rights in the Rental Equipment. You agree that if we sell, assign or transfer this Agreement, the new owner will have the same rights or benefits we have now. You agree that the rights of the new owner will not be subject to any claim, defense or setoff that you may have against us.
25. CUSTOMER’S WAIVER: To the extent not prohibited by law or statute, you hereby waive the benefit of all provisions of all applicable conditional sales, regulatory, credit or other statutes and all regulations made there under in any applicable jurisdiction which would in any manner affect, restrict or limit our rights and remedies under this Agreement. To the extent permitted by law, you hereby waive any right to receive copies of any financing statements or financing change statements filed in connection with this Agreement.
26. SEVERABILITY: Any provision of this Agreement, which is unenforceable shall be ineffective to the extent of such unenforceability without invalidating the remaining provisions of this Agreement.
27. BINDING NATURE: This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns.
28. MISCELLANEOUS: Your obligation to pay the Fees and other sums and all other obligations hereunder shall be absolute and unconditional and are not subject to any abatement, setoff, defense or counterclaim for any reason whatsoever. Any change in any of the terms and conditions of this Agreement must be in writing and signed by us. You agree that any delay or failure to enforce our rights under this Agreement does not prevent us from enforcing any right at a later time. All of our rights and indemnities will survive the termination of this Agreement. You acknowledge receipt of a copy of this Agreement.
29. GENERAL: The laws of the province in which you are using the Service exclusively govern this Agreement. We may sell, assign, or transfer your account to a third party without notice to you. You may not assign or transfer the Service without our written consent.
30. TERMS OF PROMOTIONAL OFFERS: Periodically Xplornet will offer limited time promotional offers as an incentive to subscribe to the Service. These incentives may include free or discounted installation, reduced monthly access charges, a gift accompanying a new subscription for Service, or other promotional incentives. If you decide to take advantage of a promotional offer be aware that you are obligated to maintain the associated Xplornet Service subscription for a minimum period of one year. If you fail to maintain the Service subscription that accompanied the applicable promotional offer you will incur a penalty. The particulars of the penalty can be found on the Xplornet website, www.xplornet.com under the menu labeled “Special Offers”. If a promotional gift is offered to you in exchange for subscribing to our Service be advised that the gift will only be available while quantities last. Xplornet reserves the right to substitute any gift with one of equal or greater value. If you receive a promotional gift and cancel your service prior to the end of your Term of Service you are required to compensate Xplornet for the value of the promotional gift received. This penalty is in addition to any applicable early cancellation charges outlined in Section 11 and applies anytime during your contractual term.