Contract No: ________________________
INTERNET BUSINESS SERVICES AGREEMENT
This Agreement is made between
DEXTON ENTERPRISES INC., a Company having its head office at
0000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
("Customer")
AND
BC TEL ADVANCED COMMUNICATIONS, a division of BC TEL
SYSTEMS SUPPORT INC., a company incorporated pursuant to the
laws of British Columbia and having its head office at 2200 -
0000 Xxxxxxxx, Xxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0 ("Supplier")
WHEREAS Supplier wishes to provide and Customer wishes to receive Internet
Business Services subject to and in accordance with the terms of this Agreement,
NOW THEREFORE, this Agreement witnesses that Customer and Supplier agree to be
bound by the General Terms and Conditions and the Exhibits attached to this
Agreement which form an integral part of this Agreement.
This Agreement shall have effect as of the date upon which Supplier receives a
copy of this Agreement duly executed by Customer.
IN WITNESS WHEREOF, Customer and Supplier have executed this Agreement by their
authorized signatories.
DEXTON ENTERPRISES INC.
By: /s/ Xxxxxxxxxxx X'Xxxxx
Authorized Signatory
Name: Xxxxxxxxxxx X'Xxxxx
(Please Print)
Title: VP Corporate Services
Date: September 14, 1999
BC TEL ADVANCED COMMUNICATIONS,
a division of BC TEL SYSTEMS SUPPORT INC.
By: /s/ Xxx XxXxxx
Authorized Signatory
Name: Xxx XxXxxx
Title: AVP Sales, Business Internet &
Internetworking Services
Date: __________________________________________
INTERNET BUSINESS SERVICES AGREEMENT
General Terms and Conditions
1. Definitions
In this Agreement and the Exhibits attached, the following words have
the meanings set out below:
"Customer Equipment" means Customer owned equipment that provides the
interface to Supplier Equipment;
"Customer Particulars Exhibit" means the Exhibit of particulars
respecting Customer attached to this Agreement;
"Customer Sites" means the Customer end-user locations described in
the Customer Particulars Exhibit;
"Effective Date" means the date upon which this Agreement shall have
effect, as specified on page 1 of this Agreement;
"Fees" means, in respect of any Services, the fees payable by Customer
to Supplier in respect of the Services described in each Services
Exhibit;
"Indemnitees" means the persons described in section 8.3 of this
Agreement.
"Service Effective Date" means the date upon which the Services are
available for use by Customer, unless otherwise specified in respect
of a particular Service in a Services Exhibit;
"Services Exhibit" means, in respect of each of the Services provided
pursuant to this Agreement, the Services Exhibit which describes the
Service, the Fees applicable to each Service, the Customer Equipment
required for each Service and the date by which the Services are
available for use by Customer;
"Service(s)" shall mean the services to be supplied to Customer in
accordance with the terms of this Agreement, all as described in the
Services Exhibit;
"Supplier Communication System" means Supplier Equipment and all
Supplier owned software and electronics used to provide Services to
Customer;
"Supplier Equipment" means Supplier's equipment and hardware dedicated
exclusively to the supply of Services to Customer as may be described
in the Services Exhibit; and
"Term" means the term of this Agreement as set out on the Customer
Particulars Exhibit, unless otherwise specified in respect of a
particular Service in a Services Exhibit.
2. Services
2.1 Supplier shall provide the Services in accordance with the terms of
this Agreement. Customer shall receive the Services from Supplier and
comply with the terms of this Agreement.
2.2 Throughout the Term, Customer may request in writing additional
Services or that Services be made available at additional Customer
Sites or that additional access feeds be provided at existing Customer
Sites. If Supplier can accommodate such requests, Supplier shall
provide a quote respecting the Fees applicable for such request and
specify a date by which the requested Services will be available to
Customer.
3. Installation
3.1 Supplier shall be responsible to install and maintain the cabling
required to provide Services to the legal boundary of the properties
upon which the Customer Sites are located. Customer shall be
responsible to obtain at its sole cost all rights-of-way, permissions
and/or third party consents required to permit Supplier to install and
maintain the cabling from such legal boundary to the Customer
Equipment. Customer shall at its sole cost undertake all necessary
preparations required to comply with Supplier's reasonable installation
and maintenance instructions.
3.2 Customer shall ensure that:
(a) all work required to be done by Customer pursuant to section 3.1
shall be done in accordance with all applicable laws and in accordance
with Supplier's instructions; and
(b) all utilities, accesses and building alterations required to
install and service the Supplier Equipment are provided at Customer's
sole cost at least seven days prior to the date the Services are
available for use by Customer.
4. Service Effective Date
4.1 Supplier shall exert all reasonable efforts to ensure that the Services
are available for use by Customer by the date specified in writing by
Supplier to Customer upon Supplier's receipt of a signed copy of this
Agreement from Customer. Customer shall use all reasonable efforts to
complete its obligations set out in section 3.1 in a timely manner.
5. Service Performance
5.1 Supplier shall use all reasonable efforts to ensure the continuous
supply of Services to Customer. Evaluation of the performance of the
Services does not include performance during maintenance windows
reserved to allow installation, system upgrades and to add or
re-configure Customer's end-users and other Customers, unplanned
outages or problems originating from parties other than Supplier or
Supplier's contractors. The maintenance windows will be scheduled,
based on Customer feedback, to minimize the impact on Customer's use of
the Services.
6. Equipment
6.1 Subject to sections 3.1 and 3.2, Supplier shall supply and install
Supplier Equipment at the Customer Sites. Supplier shall lease to
Customer the Supplier Equipment upon the following terms:
(a) Fees include any lease payments for Supplier Equipment and such
shall be deemed terminated on expiry of the Term or termination of this
Agreement or upon removal of Supplier Equipment pursuant to sections
12.1 or 12.2;
(b) Supplier Equipment shall at all times remain the property of
Supplier, notwithstanding that such equipment or any part thereof may
at any time be affixed or attached to real property or any building;
and
(c) Customer shall be liable for any loss, theft or damage to Supplier
Equipment situated on Customer's property, whether such loss, theft or
damage is attributable to the fault of Customer or otherwise, ordinary
wear and tear excepted.
6.2 Customer shall be responsible for the use and compatibility of
equipment or software which is not Supplier Equipment. If Customer uses
equipment or software which is not Supplier Equipment which impairs
Customer's use of the Service, Customer shall remain liable for payment
for the Service. Upon notice from Supplier that the equipment or
software which is not Supplier Equipment is causing or is likely to
cause hazard, interference or service disruption, Customer shall
eliminate the likelihood of hazard, interference or service disruption.
Customer shall, if necessary, pay Supplier to address difficulties
caused by equipment or software which is not Supplier Equipment.
7. Maintenance Obligations
7.1 Subject to section 7.2, Supplier shall at its sole cost maintain
Supplier Communication System in good operating condition provided that
Supplier shall not be responsible for any repair or maintenance caused
by:
(a) Supplier Equipment being used other than for the purposes intended
under this Agreement or being operated other than in accordance with
Supplier's specifications;
(b) catastrophe, accidents or the fault, negligence, misuse, improper
or unauthorized use of Supplier Equipment by Customer, its employees,
agents or contractors;
(c) removal of Supplier Equipment from the locations authorized
pursuant to this Agreement without the Supplier's prior written
consent, such consent not to be unreasonably withheld; or
(d) Customer uses, additions or alterations to Supplier Equipment
without the Supplier's prior written consent, such consent not to be
unreasonably withheld.
7.2 Supplier, its employees, contractors, and agents shall at all times
enjoy reasonable access to any Customer controlled cabling or
facilities which Supplier is obligated in any manner to maintain
including Supplier Equipment and shall be provided a safe environment
in which to perform any work to be undertaken by Supplier in accordance
with this Agreement. Customer shall be responsible for ensuring timely
access by Supplier to each Customer Site. If Supplier is delayed by
Customer in any manner in obtaining reasonable access to each
Customer's Site, the obligations of Supplier shall be waived to the
extent attributable to delayed or prohibited access. Customer shall
upon request reimburse Supplier at Supplier's current labour rates if
such delayed or prohibited access results in travel or waiting time for
Supplier.
8. Customer Obligations
8.1 Customer shall at its expense maintain all Customer Equipment. Customer
shall ensure that all equipment used by Customer (excluding Supplier
Equipment) is technically and operationally compatible with Supplier
Equipment and the Supplier Communication System. Supplier shall not be
obligated to connect any Supplier Equipment to any equipment used by
Customer which does not comply with these requirements.
8.2 Customer shall use all reasonable efforts not to do and shall
advise its customers not to do any of thefollowing:
(a) knowingly disclose confidential information, except as required by
law;
(b) knowingly engage in any activity which, in the reasonable opinion
of Supplier, might restrict, inhibit or deny any customer of Supplier
from using or accessing the whole or any part of the Internet; or
(c) knowingly facilitate the communication of any material that
constitutes or encourages conduct that might constitute a criminal
offense, give rise to civil liability, or otherwise violate any
applicable laws and regulations.
8.3 Supplier, its officers, directors, employees, affiliates and suppliers
(collectively, the "Indemnitees") do not assume any liability in
connection with breach by Customer of the foregoing obligations or for
acts or omissions of Customer which occasion direct, indirect,
incidental or consequential damages to Supplier Communication System or
to other third parties and Customer shall indemnify and hold harmless
the Indemnitees for any and all such breaches, acts or omissions.
Customer agrees to defend, indemnify and hold the Indemnitees harmless
from any and all liabilities, costs and expenses, including reasonable
attorneys' fees, related to or arising from:
(a) any violation of this Agreement by Customer;
(b) the use of the Service or the Internet or the placement or
transmission of any message, information, software or other materials
on the Internet by Customer;
(c) negligent acts or omissions of Customer, its officers, employees,
agents or contractors in connection with the installation, maintenance,
use or removal of any equipment or software not provided by Supplier
which is connected to the Services; or
(d) claims for infringement of proprietary rights arising from the use
by Customer of equipment, hardware or software, apparatus or systems
not provided by Supplier in connection with the Service.
9. Limited Software License
9.1 All right, title and interest in and to any software programs forming
part of the Supplier Equipment or Supplier Communication System shall
remain that of Supplier or the licensing party which authorized its use
by Supplier. Customer shall not change or copy such software programs
(except for safeguard or archive copies marked to show Supplier's
ownership) nor make it available to any employees, contractors, agents
or third parties other than those who require it to receive the
Services.
10. Fees
10.1 Customer shall pay Fees commencing on the Service Effective Date and
continuing monthly in advance thereafter throughout the Term.
10.2 All Fees shall be payable no later than 30 days following receipt of an
invoice which shall be deemed accepted by Customer if not disputed
within 30 days of the invoice date. All payments shall be made by
Customer at the address specified by Supplier. Interest on overdue
amounts shall accrue at 21% per annum. For any incomplete calendar
month, Fees shall be adjusted on a daily basis.
10.3 Customer shall pay in addition to the Fees, all taxes, assessments and
government charges including but not limited to Social Service Tax,
Excise Tax, Goods and Services Tax, and any other taxes applicable to
the receipt of the Services excluding taxes on the income of the
Supplier.
11. Renewal of Term
11.1 This Agreement shall be renewed and extended automatically on the same
terms and conditions as are contained in this Agreement except for the
Fees, which shall be set at Supplier's then current rates, unless
either party gives to the other at least 60 days written notice of its
election to terminate the Agreement prior to the expiry of the Term or
any renewal period.
12. Termination and Suspension of Service
12.1 In addition to any other remedies available to Supplier for breach or
default, Supplier may immediately terminate, restrict or suspend the
provision of Services to Customer:
(a) if any Fees payable hereunder are not paid when due; or
(b) if, upon 20 days written notice, Customer fails to comply with any
of its other obligations under this Agreement.
In the event of default or breach by Customer, Supplier may enter
Customer's premises and remove all Supplier Equipment.
12.2 Supplier may immediately deny Customer access to all or part of the
Internet upon notice if Customer engages in any conduct or activities
that Supplier in its sole discretion believes violates this Agreement
or any policy adopted by Supplier from time to time of which notice is
given in advance to Customer including, without limitation, Supplier's
Acceptable Use Policy a copy of which can be obtained from the Internet
address xxxx://xxx.xxxxxxxxxxxxx.xxx/xxx/xxxxx.xxxx. If Supplier denies
Customer access to the Internet because of such a violation, neither
Customer nor its customers shall have any right to:
(a) access through Supplier any materials stored on the Internet; or
(b) access third party services, merchandise or information on the
Internet through Supplier, and Supplier shall have no responsibility to
notify any third-party providers of services, merchandise or
information nor any responsibility for any consequences resulting from
lack of notification.
12.3 If Supplier fails to comply with any of its obligations hereunder and
Customer provides prompt written notice of such failure to Supplier,
Supplier shall have 30 days from receipt of such notice to rectify the
failure. If, at the end of such 30 day period, Supplier has not
remedied the failure, Customer may, within a further ten day period,
elect in writing to terminate Services to the affected Customer Sites.
If Customer does so, Supplier shall terminate Services between those
points and no further Fees shall be applicable in connection with the
discontinued Service from the date of the original written notification
from the Customer to terminate the Service and Supplier shall be
entitled at its sole cost to remove all Supplier Equipment located at
Customer Site.
13. Limitation of Liability
13.1 Customer understands that the Indemnitees do not operate or control the
Internet in any way, and that all merchandise, information and services
offered or made available on the Internet are offered or made available
by third parties who are not affiliated with the Indemnitees. The
Indemnitees do not make any express or implied warranties or
representations whatsoever (including without limitation warranties of
title or non-infringement, or the implied warranties of merchantability
or fitness for a particular purpose) with regard to any merchandise,
information or service provided through the Internet, and they shall
not be liable for any cost or damage arising either directly or
indirectly from any such transaction.
13.2 Under no circumstances shall Supplier, its affiliates or contractors be
liable for any indirect incidental, special, punitive or consequential
damages that result in any way from Customer's use of or inability to
use the Service or to access the Internet or any part thereof, or
Customer's reliance on or use of information, services or merchandise
provided on or through the Service, or that result from mistakes,
omissions, interruptions, deletion of files, errors, defects, delays in
operation, or transmission, or any failure of performance.
13.3 Without in any manner limiting the express limitations contained in
this section, Supplier shall not be liable to Customer for any:
(a) act or omission of a telecommunications carrier whose facilities
are used in establishing connections to points which Supplier does not
directly serve;
(b) disclosure of private communications to parties other than the
intended recipient, or the disclosure of confidential information;
(c) restriction or inhibition imposed by a party other than Supplier
from using or accessing the Internet;
(d) posting, transmittal or receipt over Supplier's communications
system of any material that constitutes or encourages conduct that
might constitute a criminal offense, give rise to civil liability, or
otherwise violate any applicable laws and regulations;
(e) posting or transmittal of any information or software that Customer
is aware contains a virus, worm, cancel bot or other harmful component;
or
(f) infringement of patents or other proprietary rights arising from
combining or using Customer-provided facilities with Supplier Equipment
or the Services.
13.4 The foregoing limitations shall apply to all acts or omissions of
Supplier whether negligent or otherwise which would, but for this
section, give rise to a cause of action in contract and/or tort law.
14. General
14.1 This Agreement shall enure to the benefit of and be binding upon
Supplier and Customer, and their respective heirs, executors,
administrators, successors and permitted assigns. Customer shall not
assign this Agreement without Supplier's prior written consent, such
consent not to be unreasonably withheld.
14.2 This Agreement forms the entire agreement between the parties
concerning the subject matter hereof and supersedes all prior written
and oral agreements between the parties. Any modification of this
Agreement shall not be valid unless reduced to writing and agreed to by
Customer and Supplier.
14.3 Notwithstanding any other term of this Agreement, neither Party shall
be liable for any delay, interruption or fault in the performance of
its obligations hereunder if caused by acts of God, war, declared or
undeclared, fire, flood, storm, slide, earthquake, power failure,
inability to obtain equipment, supplies or other facilities not caused
by failure to pay the then prevailing prices, labour disputes or any
other similar event beyond the control of the party affected which may
prevent or delay such performance. If any such act or event occurs or
is likely to occur the party affected shall promptly notify the other
party, giving particulars of the event. The party so affected shall use
all reasonable efforts to eliminate or remedy the event, but shall not
be obligated to take any action relating to a labour dispute.
14.4 Supplier reserves the right to refuse to carry out any work at any
Customer Sites which, in Supplier's reasonable opinion is, or may be a
hazardous workplace environment. Supplier shall comply with all of
Customer's safety requirements where applicable, however, any
protective clothing or any other equipment required as a result of
Customer's requirements shall be provided to Supplier at no cost.
14.5 The parties hereto represent that they have full authority to enter
into this Agreement and that no further act or approval is required to
make this Agreement binding other than signature by each party's
authorized signatory. Should any portion of this Agreement be held to
be void in law, this Agreement shall be construed, so far as is
possible, as if such portion had never been contained herein. This
Agreement shall be construed and interpreted in accordance with the
laws of the Province of British Columbia.
14.6 Notice to be provided under this Agreement shall be effectively
delivered if delivered by hand, sent by facsimile transmission, or
forwarded by registered mail to the business address of the other
party, and to the attention of the authorized signatories as described
on the first page of this Agreement. Notice shall be deemed to be
delivered on the date of delivery or the date following facsimile
transmission or if sent by registered mail on the third day after
mailing.
Services Fees
The agreement between Supplier and DEXTON ENTERPRISES INC., consists of the
following services.
Setup or Monthly Fees
Description Onetime Fees
Connectivity Services
BIADSL Internet Connection N/A $550.00
BIADSL Usage Fees N/A $20.00/GB (over 40GB)
Basic Services
Primary Domain Name Services N/A N/A
Primary Mail Services (40 Mailboxes)1 N/A N/A
1 Disk Usage Fee N/A $1.00/MB (10MB - 1GB)
Term of the Agreement: This Agreement shall have effect from and after the
Effective Date and shall continue for a period of 1 year following the "Service
Effective Date".
Service Descriptions
SECTION 1 - CONNECTIVITY SERVICES
Business Internet ADSL (BIADSL) Service
Includes the facilities, facility termination unit, and a customer premise
router with an 10BaseT Ethernet RJ45 connector. The equipment is owned,
installed and maintained by Supplier. Service will be delivered via Supplier
over an existing individual BC TEL Business telephone line.
The business telephone line (1B) is the responsibility of the customer to have
in place before the BIADSL service is installed. The BIADSL service fees do not
include the charges for the business telephone line (1B) which the BIADSL is
installed over, the service (including any fees) is a separate arrangement
between BC TEL and the customer.
The BIADSL Service will have performance levels that are dependent on the
telephone line loop condition where it is installed. The performance will vary
over time as loop conditions vary. As such no specific performance levels in
terms of throughput can be guaranteed by the supplier.
All efforts will be made to qualify the telephone line loop for suitability of
the ADSL service before an order is accepted from a customer. However, it may be
determined during installation at the customer site that the telephone line loop
is unsuitable for the BIADSL service. Under such circumstances the BIADSL
contract will be terminated without penalty and the BIADSL service installation
fee returned to the customer.
Because of the nature of the ADSL technology the BIADSL service cannot be moved
from one location to another. A new service would need to be installed at the
new location.
COMPLEMENTARY SERVICES
The following services are provided at no charge when a Connectivity Service is
purchased.
Simple Mail Transfer Protocol (SMTP) Mail Feed
Supplier will route SMTP traffic to Customer's primary mail server.
Usenet News Server
Supplier provides Customer with access to approximately 25,000 news and
discussion groups through Supplier's Usenet news server. For a one time fee,
Supplier will provide newsgroup filtering services (See section on News
filtering).
IP Address Registration
Every user/computer accessing the Internet must have a unique Internet (IP)
address. Supplier will register/provide Customer with sufficient IP addresses
for Customer's hosts.
A typical IP address is structured as 4 sets numbers separated by periods. (e.g.
131.108.122.204). The first 3 numbers in the address identifies the customer's
network (e.g. 131.108.122), while the last number identify the individual hosts
on the network (e.g. 204). Subnetting of a full class "C" address may be
required.
As representatives of Customer, Supplier will negotiate with Internic to acquire
and justify the requested number of addresses. The number of addresses will be
determined by the Internic and not by Supplier.
Addresses assigned to Customer are the property of Supplier. At the end of the
Term, the assigned IP addresses shall be returned to Supplier.
Secondary Domain Name Server (SDNS)
Supplier will provide secondary Domain Name Server Service for Customer.
SECTION 2 - BASIC SERVICES
Primary Domain Name Server
A Domain Name is the English equivalent of a defined number of class C IP
addresses. For example, xxxxx.xxx is the domain name for a block of 64 IP
addresses.
Supplier will register and maintain the Host Name Lookup Table which associates
Customer's IP address with Customer's host name.
Primary Mail Server
Supplier will administer and store Customer's e-mail on its server. Ten
megabytes of free disk space is provided per mailbox with an additional monthly
charge of $1.00/MB over 10MB.
Contract No: ________________________
INTERNET BUSINESS SERVICES AGREEMENT
This Agreement is made between
ABLE AUCTIONS (1991) LTD., a Company having its head office at
0000 - 000 Xxxxxx, Xxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
("Customer")
AND
TELUS ADVANCED COMMUNICATIONS, a division of TELUS SYSTEMS
SUPPORT INC., a company incorporated pursuant to the laws of
British Columbia and having its head office at 2200 - 0000
Xxxxxxxx, Xxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0 ("Supplier")
WHEREAS Supplier wishes to provide and Customer wishes to receive Internet
Business Services subject to and in accordance with the terms of this Agreement,
NOW THEREFORE, this Agreement witnesses that Customer and Supplier agree to be
bound by the General Terms and Conditions and the Exhibits attached to this
Agreement which form an integral part of this Agreement.
This Agreement shall have effect as of the date upon which Supplier receives a
copy of this Agreement duly executed by Customer.
IN WITNESS WHEREOF, Customer and Supplier have executed this Agreement by their
authorized signatories.
ABLE AUCTIONS (1991) LTD.
By: /s/ Xxxxxxxxxxx X'Xxxxx
Authorized Signatory
Name: Xxxxxxxxxxx X'Xxxxx
(Please Print)
Title: M.I.S. Project Manager
Date: August 16, 1999
TELUS ADVANCED COMMUNICATIONS,
a division of TELUS SYSTEMS SUPPORT INC.
By: /s/ Xxx XxXxxx
Authorized Signatory
Name: Xxx XxXxxx
Title: AVP Sales, Business Internet &
Internetworking Services
Date: August 31, 1999
INTERNET BUSINESS SERVICES AGREEMENT
General Terms and Conditions
1. Definitions
In this Agreement and the Exhibits attached, the following words have
the meanings set out below:
"Customer Equipment" means Customer owned equipment that provides the
interface to Supplier Equipment;
"Customer Particulars Exhibit" means the Exhibit of particulars
respecting Customer attached to this Agreement;
"Customer Sites" means the Customer end-user locations described in
the Customer Particulars Exhibit;
"Effective Date" means the date upon which this Agreement shall have
effect, as specified on page 1 of this Agreement;
"Fees" means, in respect of any Services, the fees payable by Customer
to Supplier in respect of the Services described in each Services
Exhibit;
"Indemnitees" means the persons described in section 8.3 of this
Agreement.
"Service Effective Date" means the date upon which the Services are
available for use by Customer, unless otherwise specified in respect
of a particular Service in a Services Exhibit;
"Services Exhibit" means, in respect of each of the Services provided
pursuant to this Agreement, the Services Exhibit which describes the
Service, the Fees applicable to each Service, the Customer Equipment
required for each Service and the date by which the Services are
available for use by Customer;
"Service(s)" shall mean the services to be supplied to Customer in
accordance with the terms of this Agreement, all as described in the
Services Exhibit;
"Supplier Communication System" means Supplier Equipment and all
Supplier owned software and electronics used to provide Services to
Customer;
"Supplier Equipment" means Supplier's equipment and hardware dedicated
exclusively to the supply of Services to Customer as may be described
in the Services Exhibit; and
"Term" means the term of this Agreement as set out on the Customer
Particulars Exhibit, unless otherwise specified in respect of a
particular Service in a Services Exhibit.
2. Services
2.1 Supplier shall provide the Services in accordance with the terms of
this Agreement. Customer shall receive the Services from Supplier and
comply with the terms of this Agreement.
2.2 Throughout the Term, Customer may request in writing additional
Services or that Services be made available at additional Customer
Sites or that additional access feeds be provided at existing Customer
Sites. If Supplier can accommodate such requests, Supplier shall
provide a quote respecting the Fees applicable for such request and
specify a date by which the requested Services will be available to
Customer.
3. Installation
3.1 Supplier shall be responsible to install and maintain the cabling
required to provide Services to the legal boundary of the properties
upon which the Customer Sites are located. Customer shall be
responsible to obtain at its sole cost all rights-of-way, permissions
and/or third party consents required to permit Supplier to install and
maintain the cabling from such legal boundary to the Customer
Equipment. Customer shall at its sole cost undertake all necessary
preparations required to comply with Supplier's reasonable installation
and maintenance instructions.
3.2 Customer shall ensure that:
(a) all work required to be done by Customer pursuant to section 3.1
shall be done in accordance with all applicable laws and in accordance
with Supplier's instructions; and
(b) all utilities, accesses and building alterations required to
install and service the Supplier Equipment are provided at Customer's
sole cost at least seven days prior to the date the Services are
available for use by Customer.
4. Service Effective Date
4.1 Supplier shall exert all reasonable efforts to ensure that the Services
are available for use by Customer by the date specified in writing by
Supplier to Customer upon Supplier's receipt of a signed copy of this
Agreement from Customer. Customer shall use all reasonable efforts to
complete its obligations set out in section 3.1 in a timely manner.
5. Service Performance
5.1 Supplier shall use all reasonable efforts to ensure the continuous
supply of Services to Customer. Evaluation of the performance of the
Services does not include performance during maintenance windows
reserved to allow installation, system upgrades and to add or
re-configure Customer's end-users and other Customers, unplanned
outages or problems originating from parties other than Supplier or
Supplier's contractors. The maintenance windows will be scheduled,
based on Customer feedback, to minimize the impact on Customer's use of
the Services.
6. Equipment
6.1 Subject to sections 3.1 and 3.2, Supplier shall supply and install
Supplier Equipment at the Customer Sites. Supplier shall lease to
Customer the Supplier Equipment upon the following terms:
(a) Fees include any lease payments for Supplier Equipment and such
shall be deemed terminated on expiry of the Term or termination of this
Agreement or upon removal of Supplier Equipment pursuant to sections
12.1 or 12.2;
(b) Supplier Equipment shall at all times remain the property of
Supplier, notwithstanding that such equipment or any part thereof may
at any time be affixed or attached to real property or any building;
and
(c) Customer shall be liable for any loss, theft or damage to Supplier
Equipment situated on Customer's property, whether such loss, theft or
damage is attributable to the fault of Customer or otherwise, ordinary
wear and tear excepted.
6.2 Customer shall be responsible for the use and compatibility of
equipment or software which is not Supplier Equipment. If Customer uses
equipment or software which is not Supplier Equipment which impairs
Customer's use of the Service, Customer shall remain liable for payment
for the Service. Upon notice from Supplier that the equipment or
software which is not Supplier Equipment is causing or is likely to
cause hazard, interference or service disruption, Customer shall
eliminate the likelihood of hazard, interference or service disruption.
Customer shall, if necessary, pay Supplier to address difficulties
caused by equipment or software which is not Supplier Equipment.
7. Maintenance Obligations
7.1 Subject to section 7.2, Supplier shall at its sole cost maintain
Supplier Communication System in good operating condition provided that
Supplier shall not be responsible for any repair or maintenance caused
by:
(a) Supplier Equipment being used other than for the purposes intended
under this Agreement or being operated other than in accordance with
Supplier's specifications;
(b) catastrophe, accidents or the fault, negligence, misuse, improper
or unauthorized use of Supplier Equipment by Customer, its employees,
agents or contractors;
(c) removal of Supplier Equipment from the locations authorized
pursuant to this Agreement without the Supplier's prior written
consent, such consent not to be unreasonably withheld; or
(d) Customer uses, additions or alterations to Supplier Equipment
without the Supplier's prior written consent, such consent not to be
unreasonably withheld.
7.2 Supplier, its employees, contractors, and agents shall at all times
enjoy reasonable access to any Customer controlled cabling or
facilities which Supplier is obligated in any manner to maintain
including Supplier Equipment and shall be provided a safe environment
in which to perform any work to be undertaken by Supplier in accordance
with this Agreement. Customer shall be responsible for ensuring timely
access by Supplier to each Customer Site. If Supplier is delayed by
Customer in any manner in obtaining reasonable access to each
Customer's Site, the obligations of Supplier shall be waived to the
extent attributable to delayed or prohibited access. Customer shall
upon request reimburse Supplier at Supplier's current labour rates if
such delayed or prohibited access results in travel or waiting time for
Supplier.
8. Customer Obligations
8.1 Customer shall at its expense maintain all Customer Equipment. Customer
shall ensure that all equipment used by Customer (excluding Supplier
Equipment) is technically and operationally compatible with Supplier
Equipment and the Supplier Communication System. Supplier shall not be
obligated to connect any Supplier Equipment to any equipment used by
Customer which does not comply with these requirements.
8.2 Customer shall use all reasonable efforts not to do and shall
advise its customers not to do any of the following:
(a) knowingly disclose confidential information, except as required by
law;
(b) knowingly engage in any activity which, in the reasonable opinion
of Supplier, might restrict, inhibit or deny any customer of Supplier
from using or accessing the whole or any part of the Internet; or
(c) knowingly facilitate the communication of any material that
constitutes or encourages conduct that might constitute a criminal
offense, give rise to civil liability, or otherwise violate any
applicable laws and regulations.
8.3 Supplier, its officers, directors, employees, affiliates and suppliers
(collectively, the "Indemnitees") do not assume any liability in
connection with breach by Customer of the foregoing obligations or for
acts or omissions of Customer which occasion direct, indirect,
incidental or consequential damages to Supplier Communication System or
to other third parties and Customer shall indemnify and hold harmless
the Indemnitees for any and all such breaches, acts or omissions.
Customer agrees to defend, indemnify and hold the Indemnitees harmless
from any and all liabilities, costs and expenses, including reasonable
attorneys' fees, related to or arising from:
(a) any violation of this Agreement by Customer;
(b) the use of the Service or the Internet or the placement or
transmission of any message, information, software or other materials
on the Internet by Customer;
(c) negligent acts or omissions of Customer, its officers, employees,
agents or contractors in connection with the installation, maintenance,
use or removal of any equipment or software not provided by Supplier
which is connected to the Services; or
(d) claims for infringement of proprietary rights arising from the use
by Customer of equipment, hardware or software, apparatus or systems
not provided by Supplier in connection with the Service.
9. Limited Software License
9.1 All right, title and interest in and to any software programs forming
part of the Supplier Equipment or Supplier Communication System shall
remain that of Supplier or the licensing party which authorized its use
by Supplier. Customer shall not change or copy such software programs
(except for safeguard or archive copies marked to show Supplier's
ownership) nor make it available to any employees, contractors, agents
or third parties other than those who require it to receive the
Services.
10. Fees
10.1 Customer shall pay Fees commencing on the Service Effective Date and
continuing monthly in advance thereafter throughout the Term.
10.2 All Fees shall be payable no later than 30 days following receipt of an
invoice which shall be deemed accepted by Customer if not disputed
within 30 days of the invoice date. All payments shall be made by
Customer at the address specified by Supplier. Interest on overdue
amounts shall accrue at 21% per annum. For any incomplete calendar
month, Fees shall be adjusted on a daily basis.
10.3 Customer shall pay in addition to the Fees, all taxes, assessments and
government charges including but not limited to Social Service Tax,
Excise Tax, Goods and Services Tax, and any other taxes applicable to
the receipt of the Services excluding taxes on the income of the
Supplier.
11. Renewal of Term
11.1 This Agreement shall be renewed and extended automatically on the same
terms and conditions as are contained in this Agreement except for the
Fees, which shall be set at Supplier's then current rates, unless
either party gives to the other at least 60 days written notice of its
election to terminate the Agreement prior to the expiry of the Term or
any renewal period.
12. Termination and Suspension of Service
12.1 In addition to any other remedies available to Supplier for breach or
default, Supplier may immediately terminate, restrict or suspend the
provision of Services to Customer:
(a) if any Fees payable hereunder are not paid when due; or
(b) if, upon 20 days written notice, Customer fails to comply with any
of its other obligations under this Agreement.
In the event of default or breach by Customer, Supplier may enter
Customer's premises and remove all Supplier Equipment.
12.2 Supplier may immediately deny Customer access to all or part of the
Internet upon notice if Customer engages in any conduct or activities
that Supplier in its sole discretion believes violates this Agreement
or any policy adopted by Supplier from time to time of which notice is
given in advance to Customer including, without limitation, Supplier's
Acceptable Use Policy a copy of which can be obtained from the Internet
address xxxx://xxx.xxx.xxxxx.xxx/xxxxxxxxxx_xxx.xxxx. If Supplier
denies Customer access to the Internet because of such a violation,
neither Customer nor its customers shall have any right to:
(a) access through Supplier any materials stored on the Internet; or
(b) access third party services, merchandise or information on the
Internet through Supplier, and Supplier shall have no responsibility to
notify any third-party providers of services, merchandise or
information nor any responsibility for any consequences resulting from
lack of notification.
12.3 If Supplier fails to comply with any of its obligations hereunder and
Customer provides prompt written notice of such failure to Supplier,
Supplier shall have 30 days from receipt of such notice to rectify the
failure. If, at the end of such 30 day period, Supplier has not
remedied the failure, Customer may, within a further ten day period,
elect in writing to terminate Services to the affected Customer Sites.
If Customer does so, Supplier shall terminate Services between those
points and no further Fees shall be applicable in connection with the
discontinued Service from the date of the original written notification
from the Customer to terminate the Service and Supplier shall be
entitled at its sole cost to remove all Supplier Equipment located at
Customer Site.
13. Limitation of Liability
13.1 Customer understands that the Indemnitees do not operate or control the
Internet in any way, and that all merchandise, information and services
offered or made available on the Internet are offered or made available
by third parties who are not affiliated with the Indemnitees. The
Indemnitees do not make any express or implied warranties or
representations whatsoever (including without limitation warranties of
title or non-infringement, or the implied warranties of merchantability
or fitness for a particular purpose) with regard to any merchandise,
information or service provided through the Internet, and they shall
not be liable for any cost or damage arising either directly or
indirectly from any such transaction.
13.3 Under no circumstances shall Supplier, its affiliates or contractors be
liable for any indirect incidental, special, punitive or consequential
damages that result in any way from Customer's use of or inability to
use the Service or to access the Internet or any part thereof, or
Customer's reliance on or use of information, services or merchandise
provided on or through the Service, or that result from mistakes,
omissions, interruptions, deletion of files, errors, defects, delays in
operation, or transmission, or any failure of performance.
13.3 Without in any manner limiting the express limitations contained in
this section, Supplier shall not be liable to Customer for any:
(a) act or omission of a telecommunications carrier whose facilities
are used in establishing connections to points which Supplier does not
directly serve;
(b) disclosure of private communications to parties other than the
intended recipient, or the disclosure of confidential information;
(c) restriction or inhibition imposed by a party other than Supplier
from using or accessing the Internet;
(d) posting, transmittal or receipt over Supplier's communications
system of any material that constitutes or encourages conduct that
might constitute a criminal offense, give rise to civil liability, or
otherwise violate any applicable laws and regulations;
(e) posting or transmittal of any information or software that Customer
is aware contains a virus, worm, cancel bot or other harmful component;
or
(f) infringement of patents or other proprietary rights arising from
combining or using Customer-provided facilities with Supplier Equipment
or the Services.
13.4 The foregoing limitations shall apply to all acts or omissions of
Supplier whether negligent or otherwise which would, but for this
section, give rise to a cause of action in contract and/or tort law.
14. General
14.1 This Agreement shall enure to the benefit of and be binding upon
Supplier and Customer, and their respective heirs, executors,
administrators, successors and permitted assigns. Customer shall not
assign this Agreement without Supplier's prior written consent, such
consent not to be unreasonably withheld.
14.2 This Agreement forms the entire agreement between the parties
concerning the subject matter hereof and supersedes all prior written
and oral agreements between the parties. Any modification of this
Agreement shall not be valid unless reduced to writing and agreed to by
Customer and Supplier.
14.3 Notwithstanding any other term of this Agreement, neither Party shall
be liable for any delay, interruption or fault in the performance of
its obligations hereunder if caused by acts of God, war, declared or
undeclared, fire, flood, storm, slide, earthquake, power failure,
inability to obtain equipment, supplies or other facilities not caused
by failure to pay the then prevailing prices, labour disputes or any
other similar event beyond the control of the party affected which may
prevent or delay such performance. If any such act or event occurs or
is likely to occur the party affected shall promptly notify the other
party, giving particulars of the event. The party so affected shall use
all reasonable efforts to eliminate or remedy the event, but shall not
be obligated to take any action relating to a labour dispute.
14.4 Supplier reserves the right to refuse to carry out any work at any
Customer Sites which, in Supplier's reasonable opinion is, or may be a
hazardous workplace environment. Supplier shall comply with all of
Customer's safety requirements where applicable, however, any
protective clothing or any other equipment required as a result of
Customer's requirements shall be provided to Supplier at no cost.
14.5 The parties hereto represent that they have full authority to enter
into this Agreement and that no further act or approval is required to
make this Agreement binding other than signature by each party's
authorized signatory. Should any portion of this Agreement be held to
be void in law, this Agreement shall be construed, so far as is
possible, as if such portion had never been contained herein. This
Agreement shall be construed and interpreted in accordance with the
laws of the Province of British Columbia.
14.6 Notice to be provided under this Agreement shall be effectively
delivered if delivered by hand, sent by facsimile transmission, or
forwarded by registered mail to the business address of the other
party, and to the attention of the authorized signatories as described
on the first page of this Agreement. Notice shall be deemed to be
delivered on the date of delivery or the date following facsimile
transmission or if sent by registered mail on the third day after
mailing.
Services Fees
The Agreement between Supplier and ABLE AUCTIONS (1991) LTD., consists of the
following services.
Site Address : 0000 - 000 Xxxxxx, Xxxxxx, XX X0X 0X0
Setup or Monthly Fees
Description Onetime Fees
Connectivity Services
2, BIADSL Internet Connections N/A $900.00
BIADSL Usage Fees N/A $20.00/GB (over 40GB)
Basic Services
Primary Mail Services (40 Mailboxes)1 N/A N/A
1 Disk Usage Fee N/A $1.00/MB (10MB - 1GB)
Term of the Agreement: This Agreement shall have effect from and after the
Effective Date and shall continue for a period of 1 year following the "Service
Effective Date".
Service Descriptions
SECTION 1 - CONNECTIVITY SERVICES
Business Internet ADSL (BIADSL) Service
Includes the facilities, facility termination unit, and a customer premise
router with an 10BaseT Ethernet RJ45 connector. The equipment is owned,
installed and maintained by Supplier. Service will be delivered via Supplier
over an existing individual TELUS Business telephone line.
The business telephone line (1B) is the responsibility of the customer to have
in place before the BIADSL service is installed. The BIADSL service fees do not
include the charges for the business telephone line (1B) which the BIADSL is
installed over, the service (including any fees) is a separate arrangement
between TELUS and the customer.
The BIADSL Service will have performance levels that are dependent on the
telephone line loop condition where it is installed. The performance will vary
over time as loop conditions vary. As such no specific performance levels in
terms of throughput can be guaranteed by the supplier.
All efforts will be made to qualify the telephone line loop for suitability of
the ADSL service before an order is accepted from a customer. However, it may be
determined during installation at the customer site that the telephone line loop
is unsuitable for the BIADSL service. Under such circumstances the BIADSL
contract will be terminated without penalty and the BIADSL service installation
fee returned to the customer.
Because of the nature of the ADSL technology the BIADSL service cannot be moved
from one location to another. A new service would need to be installed at the
new location.
COMPLIMENTARY SERVICES
The following services are provided at no charge when a Connectivity Service is
purchased.
Simple Mail Transfer Protocol (SMTP) Mail Feed
Supplier will route SMTP traffic to Customer's primary mail server.
Usenet News Server
Supplier provides Customer with access to approximately 25,000 news and
discussion groups through Supplier's Usenet news server. For a one time fee,
Supplier will provide newsgroup filtering services (See section on News
filtering).
IP Address Registration
Every user/computer accessing the Internet must have a unique Internet (IP)
address. Supplier will register/provide Customer with sufficient IP addresses
for Customer's hosts.
A typical IP address is structured as 4 sets numbers separated by periods. (e.g.
131.108.122.204). The first 3 numbers in the address identifies the customer's
network (e.g. 131.108.122), while the last number identify the individual hosts
on the network (e.g. 204). Subnetting of a full class "C" address may be
required.
As representatives of Customer, Supplier will negotiate with Internic to acquire
and justify the requested number of addresses. The number of addresses will be
determined by the Internic and not by Supplier.
Addresses assigned to Customer are the property of Supplier. At the end of the
Term, the assigned IP addresses shall be returned to Supplier.
Secondary Domain Name Server (SDNS)
Supplier will provide secondary Domain Name Server Service for Customer.
SECTION 2 - BASIC SERVICES
Primary Mail Server
Supplier will administer and store Customer's e-mail on its server. Ten
megabytes of free disk space is provided per mailbox with an additional monthly
charge of $1.00/MB over 10MB.
Contract No: ________________________
INTERNET BUSINESS SERVICES AGREEMENT
This Agreement is made between
DEXTON ENTERPRISES INC., a Company having its head office at
0000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx Xxxxxxxx ("Customer")
AND
BC TEL ADVANCED COMMUNICATIONS, a division of BC TEL
SYSTEMS SUPPORT INC., a company incorporated pursuant to the
laws of British Columbia and having its head office at 2200 -
0000 Xxxxxxxx, Xxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0 ("Supplier")
WHEREAS Supplier wishes to provide and Customer wishes to receive Internet
Business Services subject to and in accordance with the terms of this Agreement,
NOW THEREFORE, this Agreement witnesses that Customer and Supplier agree to be
bound by the General Terms and Conditions and the Exhibits attached to this
Agreement which form an integral part of this Agreement.
This Agreement shall have effect as of the date upon which Supplier receives a
copy of this Agreement duly executed by Customer.
IN WITNESS WHEREOF, Customer and Supplier have executed this Agreement by their
authorized signatories.
DEXTON ENTERPRISES INC.
By: /s/ Xxxxxxxxxxx X'Xxxxx
Authorized Signatory
Name: Xxxxxxxxxxx X'Xxxxx
(Please Print)
Title: M.I.S. Project Manager
Date: June 15, 1999
BC TEL ADVANCED COMMUNICATIONS,
a division of BC TEL SYSTEMS SUPPORT INC.
By: /s/ Xxx XxXxxx
Authorized Signatory
Name: Xxx XxXxxx
Title: Manager, Business Internet Services
Date: July 2, 1999
INTERNET BUSINESS SERVICES AGREEMENT
General Terms and Conditions
1. Definitions
In this Agreement and the Exhibits attached, the following words have
the meanings set out below:
"Customer Equipment" means Customer owned equipment that provides the
interface to Supplier Equipment;
"Customer Particulars Exhibit" means the Exhibit of particulars
respecting Customer attached to this Agreement;
"Customer Sites" means the Customer end-user locations described in
the Customer Particulars Exhibit;
"Effective Date" means the date upon which this Agreement shall have
effect, as specified on page 1 of this Agreement;
"Fees" means, in respect of any Services, the fees payable by Customer
to Supplier in respect of the Services described in each Services
Exhibit;
"Indemnitees" means the persons described in section 8.3 of this
Agreement.
"Service Effective Date" means the date upon which the Services are
available for use by Customer, unless otherwise specified in respect
of a particular Service in a Services Exhibit;
"Services Exhibit" means, in respect of each of the Services provided
pursuant to this Agreement, the Services Exhibit which describes the
Service, the Fees applicable to each Service, the Customer Equipment
required for each Service and the date by which the Services are
available for use by Customer;
"Service(s)" shall mean the services to be supplied to Customer in
accordance with the terms of this Agreement, all as described in the
Services Exhibit;
"Supplier Communication System" means Supplier Equipment and all
Supplier owned software and electronics used to provide Services to
Customer;
"Supplier Equipment" means Supplier's equipment and hardware dedicated
exclusively to the supply of Services to Customer as may be described
in the Services Exhibit; and
"Term" means the term of this Agreement as set out on the Customer
Particulars Exhibit, unless otherwise specified in respect of a
particular Service in a Services Exhibit.
2. Services
2.1 Supplier shall provide the Services in accordance with the terms of
this Agreement. Customer shall receive the Services from Supplier and
comply with the terms of this Agreement.
2.2 Throughout the Term, Customer may request in writing additional
Services or that Services be made available at additional Customer
Sites or that additional access feeds be provided at existing Customer
Sites. If Supplier can accommodate such requests, Supplier shall
provide a quote respecting the Fees applicable for such request and
specify a date by which the requested Services will be available to
Customer.
3. Installation
3.1 Supplier shall be responsible to install and maintain the cabling
required to provide Services to the legal boundary of the properties
upon which the Customer Sites are located. Customer shall be
responsible to obtain at its sole cost all rights-of-way, permissions
and/or third party consents required to permit Supplier to install and
maintain the cabling from such legal boundary to the Customer
Equipment. Customer shall at its sole cost undertake all necessary
preparations required to comply with Supplier's reasonable installation
and maintenance instructions.
3.2 Customer shall ensure that:
(a) all work required to be done by Customer pursuant to section 3.1
shall be done in accordance with all applicable laws and in accordance
with Supplier's instructions; and
(b) all utilities, accesses and building alterations required to
install and service the Supplier Equipment are provided at Customer's
sole cost at least seven days prior to the date the Services are
available for use by Customer.
4. Service Effective Date
4.1 Supplier shall exert all reasonable efforts to ensure that the Services
are available for use by Customer by the date specified in writing by
Supplier to Customer upon Supplier's receipt of a signed copy of this
Agreement from Customer. Customer shall use all reasonable efforts to
complete its obligations set out in section 3.1 in a timely manner.
5. Service Performance
5.1 Supplier shall use all reasonable efforts to ensure the continuous
supply of Services to Customer. Evaluation of the performance of the
Services does not include performance during maintenance windows
reserved to allow installation, system upgrades and to add or
re-configure Customer's end-users and other Customers, unplanned
outages or problems originating from parties other than Supplier or
Supplier's contractors. The maintenance windows will be scheduled,
based on Customer feedback, to minimize the impact on Customer's use of
the Services.
6. Equipment
6.1 Subject to sections 3.1 and 3.2, Supplier shall supply and install
Supplier Equipment at the Customer Sites. Supplier shall lease to
Customer the Supplier Equipment upon the following terms:
(a) Fees include any lease payments for Supplier Equipment and such
shall be deemed terminated on expiry of the Term or termination of this
Agreement or upon removal of Supplier Equipment pursuant to sections
12.1 or 12.2;
(b) Supplier Equipment shall at all times remain the property of
Supplier, notwithstanding that such equipment or any part thereof may
at any time be affixed or attached to real property or any building;
and
(c) Customer shall be liable for any loss, theft or damage to Supplier
Equipment situated on Customer's property, whether such loss, theft or
damage is attributable to the fault of Customer or otherwise, ordinary
wear and tear excepted.
6.2 Customer shall be responsible for the use and compatibility of
equipment or software which is not Supplier Equipment. If Customer uses
equipment or software which is not Supplier Equipment which impairs
Customer's use of the Service, Customer shall remain liable for payment
for the Service. Upon notice from Supplier that the equipment or
software which is not Supplier Equipment is causing or is likely to
cause hazard, interference or service disruption, Customer shall
eliminate the likelihood of hazard, interference or service disruption.
Customer shall, if necessary, pay Supplier to address difficulties
caused by equipment or software which is not Supplier Equipment.
7. Maintenance Obligations
7.1 Subject to section 7.2, Supplier shall at its sole cost maintain
Supplier Communication System in good operating condition provided that
Supplier shall not be responsible for any repair or maintenance caused
by:
(a) Supplier Equipment being used other than for the purposes intended
under this Agreement or being operated other than in accordance with
Supplier's specifications;
(b) catastrophe, accidents or the fault, negligence, misuse, improper
or unauthorized use of Supplier Equipment by Customer, its employees,
agents or contractors;
(c) removal of Supplier Equipment from the locations authorized
pursuant to this Agreement without the Supplier's prior written
consent, such consent not to be unreasonably withheld; or
(d) Customer uses, additions or alterations to Supplier Equipment
without the Supplier's prior written consent, such consent not to be
unreasonably withheld.
7.2 Supplier, its employees, contractors, and agents shall at all times
enjoy reasonable access to any Customer controlled cabling or
facilities which Supplier is obligated in any manner to maintain
including Supplier Equipment and shall be provided a safe environment
in which to perform any work to be undertaken by Supplier in accordance
with this Agreement. Customer shall be responsible for ensuring timely
access by Supplier to each Customer Site. If Supplier is delayed by
Customer in any manner in obtaining reasonable access to each
Customer's Site, the obligations of Supplier shall be waived to the
extent attributable to delayed or prohibited access. Customer shall
upon request reimburse Supplier at Supplier's current labour rates if
such delayed or prohibited access results in travel or waiting time for
Supplier.
8. Customer Obligations
8.1 Customer shall at its expense maintain all Customer Equipment. Customer
shall ensure that all equipment used by Customer (excluding Supplier
Equipment) is technically and operationally compatible with Supplier
Equipment and the Supplier Communication System. Supplier shall not be
obligated to connect any Supplier Equipment to any equipment used by
Customer which does not comply with these requirements.
8.2 Customer shall use all reasonable efforts not to do and shall
advise its customers not to do any of the following:
(a) knowingly disclose confidential information, except as required by
law;
(b) knowingly engage in any activity which, in the reasonable opinion
of Supplier, might restrict, inhibit or deny any customer of Supplier
from using or accessing the whole or any part of the Internet; or
(c) knowingly facilitate the communication of any material that
constitutes or encourages conduct that might constitute a criminal
offense, give rise to civil liability, or otherwise violate any
applicable laws and regulations.
8.3 Supplier, its officers, directors, employees, affiliates and suppliers
(collectively, the "Indemnitees") do not assume any liability in
connection with breach by Customer of the foregoing obligations or for
acts or omissions of Customer which occasion direct, indirect,
incidental or consequential damages to Supplier Communication System or
to other third parties and Customer shall indemnify and hold harmless
the Indemnitees for any and all such breaches, acts or omissions.
Customer agrees to defend, indemnify and hold the Indemnitees harmless
from any and all liabilities, costs and expenses, including reasonable
attorneys' fees, related to or arising from:
(a) any violation of this Agreement by Customer;
(b) the use of the Service or the Internet or the placement or
transmission of any message, information, software or other materials
on the Internet by Customer;
(c) negligent acts or omissions of Customer, its officers, employees,
agents or contractors in connection with the installation, maintenance,
use or removal of any equipment or software not provided by Supplier
which is connected to the Services; or
(d) claims for infringement of proprietary rights arising from the use
by Customer of equipment, hardware or software, apparatus or systems
not provided by Supplier in connection with the Service.
9. Limited Software License
9.1 All right, title and interest in and to any software programs forming
part of the Supplier Equipment or Supplier Communication System shall
remain that of Supplier or the licensing party which authorized its use
by Supplier. Customer shall not change or copy such software programs
(except for safeguard or archive copies marked to show Supplier's
ownership) nor make it available to any employees, contractors, agents
or third parties other than those who require it to receive the
Services.
10. Fees
10.1 Customer shall pay Fees commencing on the Service Effective Date and
continuing monthly in advance thereafter throughout the Term.
10.2 All Fees shall be payable no later than 30 days following receipt of an
invoice which shall be deemed accepted by Customer if not disputed
within 30 days of the invoice date. All payments shall be made by
Customer at the address specified by Supplier. Interest on overdue
amounts shall accrue at 21% per annum. For any incomplete calendar
month, Fees shall be adjusted on a daily basis.
10.3 Customer shall pay in addition to the Fees, all taxes, assessments and
government charges including but not limited to Social Service Tax,
Excise Tax, Goods and Services Tax, and any other taxes applicable to
the receipt of the Services excluding taxes on the income of the
Supplier.
11. Renewal of Term
11.1 This Agreement shall be renewed and extended automatically on the same
terms and conditions as are contained in this Agreement except for the
Fees, which shall be set at Supplier's then current rates, unless
either party gives to the other at least 60 days written notice of its
election to terminate the Agreement prior to the expiry of the Term or
any renewal period.
12. Termination and Suspension of Service
12.1 In addition to any other remedies available to Supplier for breach or
default, Supplier may immediately terminate, restrict or suspend the
provision of Services to Customer:
(a) if any Fees payable hereunder are not paid when due; or
(b) if, upon 20 days written notice, Customer fails to comply with any
of its other obligations under this Agreement.
In the event of default or breach by Customer, Supplier may enter
Customer's premises and remove all Supplier Equipment.
12.2 Supplier may immediately deny Customer access to all or part of the
Internet upon notice if Customer engages in any conduct or activities
that Supplier in its sole discretion believes violates this Agreement
or any policy adopted by Supplier from time to time of which notice is
given in advance to Customer including, without limitation, Supplier's
Acceptable Use Policy a copy of which can be obtained from the Internet
address xxxx://xxx.xxxxxxxxxxxxx.xxx/xxx/xxxxx.xxxx. If Supplier denies
Customer access to the Internet because of such a violation, neither
Customer nor its customers shall have any right to:
(a) access through Supplier any materials stored on the Internet; or
(b) access third party services, merchandise or information on the
Internet through Supplier, and Supplier shall have no responsibility to
notify any third-party providers of services, merchandise or
information nor any responsibility for any consequences resulting from
lack of notification.
12.3 If Supplier fails to comply with any of its obligations hereunder and
Customer provides prompt written notice of such failure to Supplier,
Supplier shall have 30 days from receipt of such notice to rectify the
failure. If, at the end of such 30 day period, Supplier has not
remedied the failure, Customer may, within a further ten day period,
elect in writing to terminate Services to the affected Customer Sites.
If Customer does so, Supplier shall terminate Services between those
points and no further Fees shall be applicable in connection with the
discontinued Service from the date of the original written notification
from the Customer to terminate the Service and Supplier shall be
entitled at its sole cost to remove all Supplier Equipment located at
Customer Site.
13. Limitation of Liability
13.1 Customer understands that the Indemnitees do not operate or control the
Internet in any way, and that all merchandise, information and services
offered or made available on the Internet are offered or made available
by third parties who are not affiliated with the Indemnitees. The
Indemnitees do not make any express or implied warranties or
representations whatsoever (including without limitation warranties of
title or non-infringement, or the implied warranties of merchantability
or fitness for a particular purpose) with regard to any merchandise,
information or service provided through the Internet, and they shall
not be liable for any cost or damage arising either directly or
indirectly from any such transaction.
13.2 Under no circumstances shall Supplier, its affiliates or contractors be
liable for any indirect incidental, special, punitive or consequential
damages that result in any way from Customer's use of or inability to
use the Service or to access the Internet or any part thereof, or
Customer's reliance on or use of information, services or merchandise
provided on or through the Service, or that result from mistakes,
omissions, interruptions, deletion of files, errors, defects, delays in
operation, or transmission, or any failure of performance.
13.3 Without in any manner limiting the express limitations contained in
this section, Supplier shall not be liable to Customer for any:
(a) act or omission of a telecommunications carrier whose facilities
are used in establishing connections to points which Supplier does not
directly serve;
(b) disclosure of private communications to parties other than the
intended recipient, or the disclosure of confidential information;
(c) restriction or inhibition imposed by a party other than Supplier
from using or accessing the Internet;
(d) posting, transmittal or receipt over Supplier's communications
system of any material that constitutes or encourages conduct that
might constitute a criminal offense, give rise to civil liability, or
otherwise violate any applicable laws and regulations;
(e) posting or transmittal of any information or software that Customer
is aware contains a virus, worm, cancel bot or other harmful component;
or
(f) infringement of patents or other proprietary rights arising from
combining or using Customer-provided facilities with Supplier Equipment
or the Services.
13.4 The foregoing limitations shall apply to all acts or omissions of
Supplier whether negligent or otherwise which would, but for this
section, give rise to a cause of action in contract and/or tort law.
14. General
14.1 This Agreement shall enure to the benefit of and be binding upon
Supplier and Customer, and their respective heirs, executors,
administrators, successors and permitted assigns. Customer shall not
assign this Agreement without Supplier's prior written consent, such
consent not to be unreasonably withheld.
14.2 This Agreement forms the entire agreement between the parties
concerning the subject matter hereof and supersedes all prior written
and oral agreements between the parties. Any modification of this
Agreement shall not be valid unless reduced to writing and agreed to by
Customer and Supplier.
14.3 Notwithstanding any other term of this Agreement, neither Party shall
be liable for any delay, interruption or fault in the performance of
its obligations hereunder if caused by acts of God, war, declared or
undeclared, fire, flood, storm, slide, earthquake, power failure,
inability to obtain equipment, supplies or other facilities not caused
by failure to pay the then prevailing prices, labour disputes or any
other similar event beyond the control of the party affected which may
prevent or delay such performance. If any such act or event occurs or
is likely to occur the party affected shall promptly notify the other
party, giving particulars of the event. The party so affected shall use
all reasonable efforts to eliminate or remedy the event, but shall not
be obligated to take any action relating to a labour dispute.
14.4 Supplier reserves the right to refuse to carry out any work at any
Customer Sites which, in Supplier's reasonable opinion is, or may be a
hazardous workplace environment. Supplier shall comply with all of
Customer's safety requirements where applicable, however, any
protective clothing or any other equipment required as a result of
Customer's requirements shall be provided to Supplier at no cost.
14.5 The parties hereto represent that they have full authority to enter
into this Agreement and that no further act or approval is required to
make this Agreement binding other than signature by each party's
authorized signatory. Should any portion of this Agreement be held to
be void in law, this Agreement shall be construed, so far as is
possible, as if such portion had never been contained herein. This
Agreement shall be construed and interpreted in accordance with the
laws of the Province of British Columbia.
14.6 Notice to be provided under this Agreement shall be effectively
delivered if delivered by hand, sent by facsimile transmission, or
forwarded by registered mail to the business address of the other
party, and to the attention of the authorized signatories as described
on the first page of this Agreement. Notice shall be deemed to be
delivered on the date of delivery or the date following facsimile
transmission or if sent by registered mail on the third day after
mailing.
Services Fees
The agreement between Supplier and DEXTON ENTERPRISES INC., consists of the
following services.
Setup or Monthly Fees
Description Onetime Fees
Power & Space Services 100Mbps Port (12")2 $500.00 $450.00
Power & Space Services Additional Rack Space (24") 2 $200.00
2Server Park Usage Fees
N/A N/A (0GB - 2GB)
N/A $25.00/GB (2GB - 5GB)
N/A $20.00/GB (6GB - 10GB)
N/A $15.00/GB (10GB+)
Term of the Agreement: This Agreement shall have effect from and after the
Effective Date and shall continue for a period of 1 year (s) following the
"Service Effective Date".
Service Descriptions
SECTION 1 - HOSTING SERVICES
Power and Space Services
Supplier will provide one network access, secured rack space and 110V AC power
for one Customer owned server (system unit only). Connectivity between customer
equipment housed in the Server Park and the destination network will be provided
via 10 Mbps or 100 Mbps Ethernet connections. Customers who purchase the 100Mbps
option must select from a range of Virtual Circuit Peak Information Rates (10,
20, 30, 50, 100Mbps) for connections between the Server Park and the destination
network. Each customer machine will receive its own switched Ethernet port on a
local Ethernet switch. Additional Ethernet ports are available as an option in
both 10Mbps and 100Mbps configurations.
Customer workstation must fit within a standard 19" or 23" cabinet enclosure and
take no more than 12" of vertical space. Additional space within the enclosures
is available as an option in increments of 12".
For Intel based PC servers that require monitor, keyboard and mouse connections,
a matrix switch port will be provided by supplier which simulates physical
monitor/keyboard/mouse connections to allow resets and power cycling to occur
without incurring boot up system errors.
Customer equipment located within the BCTAC Server Park will be housed in a
secure and monitored machine room environment. Access to this environment is
restricted to BCTAC service personnel responsible for support and installation
activities within the Server Park. To maintain this secure environment for all
machines located there, physical access to the machine room environment will not
be permitted to customers under any circumstances. Customer access to equipment
is available utilizing the following mechanisms.
Customer Supplied Remote Access Software: Customers may remotely access
equipment stored in the server park utilizing IP based utilities
installed on their equipment. Programs such as TELNET, FTP, RSHELL,
SSH, X-Windows or other remote control applications may be used to
administer or copy files to their servers. Applications of this type
must be installed and supported by the customer.
Remote Console Access: For customers with Power & Space servers which
have console ports for system control and administration, BCTAC can
provide secured console access. Utilizing Internet attached terminal
servers, protected by Security Dynamics SecurID one-time password
cards, BCTAC can provide separate terminal server ports to connect to
console ports of Customer equipment. Remote Console Access is an
optional service which may be purchased in concert with Power and Space
services.
Physical Access: Although direct physical access to the Server Park
equipment room is not permitted, access to the Server Park is available
through a reception desk at the facility.
This desk may be used to drop off equipment for installation or pick up
equipment for repair. In addition, customers that wish to have
diskettes or CD's mounted within their servers may bring them to the
reception office during normal business hours and request that they be
installed in their equipment.
The reception desk is available during normal business hours. Access
to the facility after these hours may
require the payment of an additional escort fee.
Customer is responsible for insuring and maintaining equipment residing on
Supplier's premise. Supplier is not liable for any loss, theft or damage to
Customer's equipment residing on Supplier's premise.
Outside of environment control, power availability and network access, the
operational status of Customer equipment residing on Supplier's premise is the
responsibility of Customer.
Server Park services include a monthly fee for port and rack space in addition
to network usage fees.
