EXHIBIT 10.17
BUSINESS LONG DISTANCE
SPECIAL FLAT RATE SERVICE AGREEMENT
Applicant: Tele Hub Link Corporation
Address: 0000 xxx Xx. Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxx
X0X 0X0
Initial Term: Four (4) Years
Monthly Commitment Level ($): $35,000.00 / per month
Business Long Distance Services:
[X] Unison(R) [X] AT&T Canada - Toll Free [ ] VRoute(R)
1. PROVISION OF SERVICE
The Applicant requests AT&T Canada Long Distance Services Company ("AT&T
Canada") and AT&T Canada hereby agrees to provide to the Applicant, the AT&T
Canada Long Distance Services (the "Services") set out above, subject to all
terms and conditions set out herein an din accordance with AT&T's Terms of
Service, including all limitation of liability provisions contained therein, as
revised by AT&T Canada from time to time. A copy of the current Terms of Service
is set out on the reverse of this form. The parties may from time to time
execute additional schedules covering such further items as may be agreed upon
and such schedules shall form an integral part of this Agreement.
2. TERM
The Initial Term of this Agreement shall be as set out above. The Initial Term
will commence on the later of the Acceptance Date and the date of the
Certificate of Acceptance required under Schedule A, and shall automatically
renew for successive term(s) equal to the Initial Term, unless either party
shall have given written notice of termination at least 120 days prior to
completion of the Initial Term or any renewal term thereafter.
3. PRICE COMMITMENT/FLAT RATE
Subject to Section 6 below, the Applicant will be charged the rate of 15.45
CENTS/PER MINUTE (the "Flat Rate") with respect to Service usage within Canada
and the U.S. (excluding Mexico), which rate is not subject to any further
discount including time of day. International and Mexico calls will be
discounted in accordance with AT&T Canada's General Pricing Book. All calls will
be rated at 30 second minimum and 6 second increments.
4. BILLING AND PAYMENT
The Applicant will be issued and agrees to pay on receipt, a monthly invoice
based on the Applicant's Service usage at the then applicable rates and
discounts. The Applicant agrees to pay all applicable provincial and federal
taxes.
5. COMMITMENT LEVEL
The Applicant agrees to a first year commitment level (the "First Year
Commitment Level") equal to nine (9) multiplied by the Commitment Level set out
above, which dollar level is based on the Applicant's annual Service usage of
AT&T Canada - Toll-Free, Unison and VROUTE switched voice services.
The Applicant agrees to an annual commitment level (the "Annual Commitment
Level") equal to twelve (12) multiplied by the Commitment Level set out above,
which dollar level is based on the Applicant's annual Service usage of AT&T
Canada - Toll-Free, Unison and VRoute switched voice services.
6. USAGE BELOW COMMITMENT LEVEL
If the dollar value of the Applicant's Service usage in the first year of the
Initial Term is less than the First Year Commitment Level, AT&T Canada may, in
its sole discretion:
(i) invoice the Applicant a deficiency charge equal to the First
Year Commitment Level less the Service usage billed to the
Applicant in respect of that particular year;
(ii) require the Applicant to extend the Initial Term for such
period of time as to recover the Applicant's revenue
shortfalls; or
(iii) increase the Special Flat Rate set out herein.
If the dollar value of the Applicant's Service usage in the second year of the
Initial Term or in any year during any renewal term is less than the Annual
Commitment Level, AT&T Canada may, in its sole discretion:
(i) invoice the Applicant a deficiency fee equal to the Annual
Commitment Level less the Service usage billed to the Applicant
in respect of that particular year;
(ii) require the Applicant to extend the Initial Term for such
period of time as to recover the Applicant's revenue
shortfalls; or
(iii) increase the Special Flat Rate set out herein.
7. RAMP-UP
For the first ninety days of the Initial Term (the "Ramp Up Period"), the
provisions set out in section 6 above, will not apply.
8. CHANGES IN COMMITMENT LEVEL
The Applicant may increase or decrease its Commitment Level at any time during
the Initial Term or any renewal term on 30 days prior written notice to AT&T
Canada, provided that if the new Commitment Level is less than the previous
Commitment Level, the Applicant shall pay to AT&T Canada an amount equal to the
difference between the new Commitment Level and the previous Commitment Level
multiplied by the number of months in the unexpired portion of the Initial Term
or renewal term, as applicable.
9. HARDWARE
Included with the Services, the Equipment described in Schedule 'A' attached
hereto will be provided to the Applicant in accordance with and subject to the
terms and conditions set out therein.
10. TERMINATION AND MIGRATION
The Applicant may terminate this Agreement prior to the end of the Initial Term
or any renewal term on 120 days prior written notice to AT&T Canada, provided
however, that the Applicant shall pay to AT&T a Termination Fee equal to the
Commitment Level set out above multiplied by the number of months in the
unexpired portion of the Initial Term or renewal term as applicable.
If this Agreement is terminated pursuant to this Section 10 in the first year of
the Initial Term, the Applicant shall pay to AT&T Canada immediately upon
receipt of invoice a deficiency charge equal to the amount by which the partial
year commitment level (such partial year commitment level being an amount equal
to the Commitment Level set out above multiplied by the number of expired months
in the particular year as of the effective date of termination, excluding the
Ramp-Up Period) exceeds the Service usage billed to the Applicant in respect of
that particular year. Such deficiency charge is in addition to any termination
fees set out herein.
If this Agreement is terminated pursuant to this Section 10 in the second year
of the Initial Term or in any year during any renewal term, the Applicant shall
pay to AT&T Canada immediately upon receipt of invoice a deficiency fee equal to
the amount by which the partial year commitment level (such partial year
commitment level being an amount equal to the Commitment Level set out above
multiplied by the number of expired months in the particular year as of the
effective date of termination) exceeds the Service usage billed to the Applicant
in respect of that particular year. Such deficiency fee is in addition to any
termination fees set out herein.
11. NON-ASSIGNMENT
Neither party may assign this Agreement without the prior written consent of the
other, except that AT&T Canada may without the
Applicant's consent assign (i) its right to receive payment hereunder; or (ii)
this Agreement to an affiliate.
AT&T LONG DISTANCE SERVICES COMPANY
/s/XXXXX XXXXXX
-----------------------------------
Authorized Signature
XXXXX XXXXXX - XXXXXX MANAGER
-----------------------------------
Name and Title
19/10/98
-----------------------------------
Acceptance Date
APPLICANT - TELE HUB LINK CORPORATION
/s/XXXXXXX XXXXXX
-----------------------------------
Authorized Signature
XXXXXXX XXXXXX - PRESIDENT AND CEO
-----------------------------------
Name and Title
-----------------------------------
Application Date
TERMS OF SERVICE (BUSINESS)
1. GENERAL
(a) For the purposes of these Terms of Service, "Customer" shall mean the
person, firm, corporation or other entity which purchases services and/or
facilities (including equipment) from AT&T Canada.
(b) For the purposes of Sections 14 and 15 of these Terms of Service, "AT&T
Canada" shall include AT&T Canada, any affiliated or subsidiary companies
of AT&T Canada, and the directors, officers, employees, consultants and
agents of all of them.
(c) Services and/or facilities (including equipment) furnished by AT&T Canada
are subject to the terms and conditions contained in:
(i) these Terms of Service (as revised by AT&T Canada from time to time);
and
(ii) any written agreement between AT&T Canada and the Customer which
together constitute the entire agreement between the Customer and AT&T
Canada (the "Agreement").
(d) In the event of any inconsistency between these Terms of Service and any
written agreement between AT&T Canada and the Customer, such written
agreement shall prevail.
(e) Except as expressly provided in the Agreement, no modification of or
amendment to the Agreement shall be effective unless agreed to in writing
by AT&T Canada and the Customer.
(f) No waiver of any part of the Agreement shall be effective unless in writing
and no such waiver shall be deemed a waiver of any other provision in the
Agreement or a continuing waiver unless agreed to in writing by AT&T Canada
and the Customer.
(g) The Agreement shall be governed by the laws of the Province of Ontario and
all federal laws of Canada applicable therein.
2. PROVISION OF SERVICE
(a) The minimum contract period for AT&T Canada services is one (1) month
commencing from the date the service is provided, unless otherwise
stipulated in the Agreement.
(b) If the Customer cancels or delays a request for service after installation
work has started, but before service has started, the Customer shall be
liable for any and all installation
charges, removal costs, and applicable termination fees, and shall pay
same upon receipt of invoice.
(c) In the event that AT&T Canada, at the request of the Customer, incurs
unusual expense in the provision of service to the Customer, for example
and without limitation, for securing rights of way or for special
construction, the Customer shall be liable for such expenses.
(d) To the extent applicable in respect of a service, it is the Customer's
responsibility to provide, prepare and maintain one or more locations for
the installation of the facilities (including equipment) necessary in order
for AT&T Canada to provide service to the Customer. Such provision,
preparation and maintenance shall comply with AT&T Canada's specification
and shall be at the Customer's expense.
3. AT&T CANADA FACILITIES
(a) To the extent that AT&T Canada is furnishing and installing facilities
(including equipment) required to provide a service, AT&T Canada shall bear
the expense of maintenance and repairs required due to normal wear and tear
to such facilities, except that AT&T Canada may charge for the additional
expense incurred when the Customer requires maintenance and repair work to
be performed outside of AT&T Canada's regular working hours.
(b) All AT&T Canada facilities (including equipment) on the Customer's premises
shall remain the property of AT&T Canada, unless otherwise provided, and
shall not be encumbered, loaned, leased or sold by the Customer.
4. AT&T CANADA RIGHT TO ENTER PREMISES
(a) AT&T Canada's agents and employees may, at reasonable hours, enter the
Customer's premises on which service is or is to be provided, to install,
inspect, repair and remove its facilities (including equipment), and to
inspect and perform necessary maintenance in cases of network-affecting
disruptions involving Customer-provided facilities.
(b) Prior to entering the Customer's premises, AT&T Canada shall obtain
permission from the Customer.
(c) Entry is not subject to Sections 4(a) and 4(b) in the event of an emergency
or potential harm to AT&T Canada's network, or where entry is pursuant to a
court order.
(d) In the event that the Customer fails to provide access to AT&T Canada in
accordance with this Section 4, AT&T Canada shall not be liable for any
resulting service interruption and related damages, and the Customer shall
be liable for any
additional costs incurred by AT&T Canada in order to restore the service.
5. MAINTENANCE, INSPECTIONS, TESTS AND ADJUSTMENTS
(a) The Customer agrees that it may be necessary for AT&T Canada to temporarily
suspend service for technical reasons or to maintain its network or
facilities (including, without limitation, as described in Section 5(b)
below). Any such suspension of service shall not be an "interruption" of
service.
(b) AT&T Canada may, upon reasonable notice, once during each twenty-four (24)
hour period, make such inspections, tests and adjustments as it may deem
necessary to investigate, modify or maintain the installation or operation
of the Customer's or AT&T Canada's network or connecting facilities. Upon
such reasonable notice, the Customer shall make available to AT&T Canada
such facilities (including by providing access to the Customer's premises)
as may be reasonably necessary in the circumstances. The Customer agrees
that if the Customer does not provide such access in a timely manner, AT& T
Canada shall not be liable for any resulting service interruption and
related damages, and the Customer shall be liable for any additional costs
incurred by AT&T Canada in order to restore the service.
6. RESTRICTIONS ON USE OF SERVICE
(a) Service may be used by the Customer and any person having the Customer's
permission to access it ("Permitted User").
(b) The Customer is solely responsible for the content of any transmissions or
databases (including libraries) using the service, and any other use of the
service, by the Customer or any Permitted User.
(c) The Customer is prohibited from using AT&T Canada's services or permitting
them to be used for illegal purposes (including illegal content) or to
interfere with or disrupt other users of the service or the service itself
(collectively, the "Prohibited Uses"). For the purposes of Internet related
services and applications, the term "Prohibited Uses" shall include,
without limitation, distribution of unsolicited advertising or chain
letters, propagation of computer viruses, and using the service to make
unauthorized entry to any other terminal equipment accessible via the
service.
(d) For the purposes of Internet related services and applications, the
Customer shall ensure that it and any Permitted User observe any user
policies as AT&T Canada may institute from time to time.
(e) For the purposes of Internet related services and applications, the
Customer shall be responsible for ensuring that neither it nor any
Permitted User uses, or knowingly distributes or resells, the services for
use in connection with or for use or resale in hazardous environments
requiring fail-safe controls, such as in the operation of nuclear
facilities, aircraft navigation or communications systems, air traffic
control, life support of weapons systems ("High Risk Activities").
(f) For the purposes of Internet related services and applications, unless
otherwise provided in the Agreement, the Customer shall be responsible for
employing encryption, firewall, certification or other technologies to
secure the Customer's own transactions.
(g) The Customer may not use the service in a manner contrary to the traffic
routing rules established by the CRTC to promote the use of Canadian
transmission facilities within Canada and between Canada and points outside
Canada.
7. RESPONSIBILITY FOR CHARGES
(a) The Customer is responsible for all charges for all services and facilities
(including equipment) furnished to the Customer by AT&T Canada, including
without limitation, all calls and services:
(i) originating from or accepted at its terminal equipment or the
terminal equipment of those to whom the Customer may provide such
service;
(ii) made using any number, calling card number, authorization code,
domain name or toll-free number assigned to the Customer or to those
to whom the Customer may provide such service; or
(iii) made using any facility used to provide access to AT&T Canada's
equipment from the terminal equipment of either the Customer or
those to whom the Customer may provide such service.
(b) Unless there has been deception by the Customer with regard to a charge,
the Customer shall only be responsible for paying a previously unbilled or
underbilled charge where:
(i) in the case of a recurring charge or a charge for an international
long distance message, it is correctly billed within a period of one
(1) year from the date it was incurred; or
(ii) in the case of a non-recurring charge other than for an
international long distance message, it is
correctly billed within a period of 150 days from the date it was
incurred.
(c) The Customer is responsible for any applicable provincial and federal taxes
or similar charges.
(d) AT&T Canada shall only recognize such person(s) as is (are) listed on the
most recent service authorization form provided to AT&T Canada by the
Customer as the sole person(s) authorized to accept, utilize, manage,
modify or terminate services provided by AT&T Canada.
8. PAYMENT AND BILLING
(a) Fixed charges for services furnished by AT&T Canada are payable monthly in
advance. All other charges for services and facilities (including
equipment) furnished by AT&T Canada are billed monthly in arrears and are
due and payable upon receipt of invoice. A late payment charge, as
specified by AT&T Canada from time to time, will accrue upon any amounts
remaining unpaid forty-one (41) days after the date of the invoice.
(b) In exceptional circumstances, as determined by AT&T Canada in its sole
discretion, for example and without limitation, where the Customer has
incurred a significant amount of billable charges or presents an abnormal
risk of loss to AT&T Canada, AT&T Canada may, prior to the normal billing
date, request payment from the Customer on an interim basis for the non-
recurring charges that have accrued, providing the Customer with details
regarding the services and charges in question. In such cases, such charges
shall be considered past due three (3) days after they are incurred or
three (3) days after AT&T Canada demands payment, whichever occurs later.
(c) In extreme circumstances, as determined by AT&T Canada in its sole
discretion, for example and without limitation, where AT&T Canada has
reasonable grounds for believing that the Customer intends to defraud AT&T
Canada, AT&T Canada may request immediate payment from the Customer.
(d) The Customer shall be liable to AT&T Canada for all costs and/or expenses
incurred directly or indirectly, including legal fees, in the collection or
attempted collection of any delinquent charges.
(e) Customers providing AT&T Canada with a cheque or pre-authorized payment
which is returned for insufficient funds, or is otherwise not processed for
payment shall be subject to a processing fee in the amount of $15.00 (or
such other amount as AT&T Canada may set from time to time).
9. DISPUTES
(a) The Customer shall bring all billing inquiries and disputes to AT&T
Canada's attention within sixty (60) days of the invoice date. Failure to
do so within this period shall be deemed an admission of the accuracy of
the entire contents of the invoice, and shall foreclose any opportunity by
the Customer to challenge the accuracy of any portion of such invoice at a
later date.
(b) To dispute a charge the Customer must call the number specified on the
invoice or contact its assigned Billing Analyst.
(c) The Customer agrees and acknowledges that the undisputed portion of any
disputed invoice and all subsequent invoices shall be paid by the Customer
on a timely basis or the services may be disconnected by AT&T Canada.
10. DEPOSITS
(a) The Customer agrees and acknowledges that AT&T Canada has the right to
require deposits from the Customer where:
(i) the Customer has no credit history with AT&T Canada and will not
provide satisfactory credit information;
(ii) the Customer has an unsatisfactory credit rating with a third party
or with AT&T Canada, as determined by AT&T Canada in its sole
discretion;
(iii) the Customer presents an abnormal risk of loss, as determined by
AT&T Canada in its sole discretion.
(b) AT&T Canada will review the continued appropriateness of deposits on a
regular basis. When service is terminated or the conditions which
originally justified them are no longer present, as determined by AT&T
Canada in its sole discretion, AT&T Canada will refund the deposit with
interest, retaining only any amount then owed to it by the Customer.
(c) Deposits will earn interest in accordance with the monthly savings account
rate of The Bank of Nova Scotia. The monthly interest will be calculated on
the last day of the Customer's monthly billing period, prorated for the
portion of the month the deposit is held by AT&T Canada.
11. CONFIDENTIALITY OF CUSTOMER RECORDS
(a) Unless the Customer consents in writing or disclosure is pursuant to a
legal power, all information kept by AT&T Canada regarding the Customer,
other than the Customer's name, address, listed telephone number, domain
name or "IP" number
is confidential and may not be disclosed by AT&T Canada to anyone other
than:
(i) the Customer;
(ii) a person who, in the reasonable judgment of AT&T Canada is seeking
the information as an agent of the Customer;
(iii) another telecommunications service provider, provided the
information is required for the efficient and cost-effective
provision of telecommunications services and disclosure is made on a
confidential basis with the information to be used only for that
purpose;
(iv) a company involved in supplying the Customer with telephone or
telephone directory related services, or Internet or Internet
directory related services, provided the information is required for
that purpose and disclosure is made on a confidential basis with the
information to be used only for that purpose; or
(v) an agent retained by AT&T Canada in the collection of the Customer's
account, provided the information is required for, and is to be used
only for, that purpose.
12. AT&T CANADA-INITIATED CHANGES IN NUMBERS AND DOMAIN NAMES
(a) Customers do not have any property rights in dial numbers, "IP"numbers or
domain names assigned to them. AT&T Canada may change such numbers or
domain names, provided it has reasonable grounds for doing so and has given
reasonable advance written notice to the Customer in question, stating the
reason and anticipated date of change. In cases of emergency, oral notice
with subsequent written confirmation is sufficient.
13. REFUNDS IN CASES OF SERVICE INTERRUPTION
(a) Where service is interrupted, disconnected, unavailable or delayed, in
respect of services charged on a non-usage basis, AT&T Canada's liability
is limited as follows:
(i) to a refund of charges, on request by the Customer, for service
interruptions of eight (8) or more consecutive hours to terminal
equipment and/or access channels; and
(ii) to a refund of charges, on request by the Customer, for service
interruptions of thirty (30) or more consecutive minutes to
inter-city channels.
(b) Requests for a refund of charges in respect of service interruptions shall
be made by the Customer within sixty (60) days of the date of service
interruption.
(c) For greater certainty, no refunds are payable by AT&T Canada in respect of
services charged on a usage basis, except to the extent that the Customer
is billed for usage during the time the service interruption existed.
14. LIMITATION OF AT&T CANADA LIABILITY
(a) Except with regard to damages to real or tangible personal property, or for
bodily injury or death proximately caused by AT&T Canada's negligence, AT&T
Canada's liability to the Customer or any third party in connection with
the service or the provision or non-provision thereof shall be limited to:
(i) in the case of services, a refund of charges for service
interruption, on request by the Customer, in accordance with Section
13 herein; or
(ii) in the case of equipment, repair or return of the defective
equipment to AT&T Canada for refund, at the sole option of AT&T
Canada.
(b) Without limiting the generality of the foregoing, AT&T Canada shall not be
liable for:
(i) conduct of the Customer or failure of facilities (including
equipment) or connections provided by the Customer;
(ii) defamation or copyright infringement arising from material
transmitted or received over AT&T Canada's facilities;
(iii) infringement of patents arising from combining or using
Customer-provided facilities with AT&T Canada's facilities;
(iv) any act or omission of any connecting carrier, underlying carrier,
local exchange telephone company, local access provider, or acts or
omissions of any other providers of connections, facilities
(including equipment), or service other than AT&T Canada, which are
used by AT&T Canada and/or the Customer;
(v) interruptions, errors, delays or defects in transmission or failure
to transmit caused by an
act of God, fortuitous event, war, insurrection, riot, strike,
walkout, lockout or other labour unrest affecting AT&T Canada or its
suppliers, storm, fire, flood, explosion, lighting, government
restraint, delays in producing supplies, shortages of suitable
labour, equipment or materials, power shortages or interruptions or
any other event beyond the reasonable control of AT&T Canada.
(c) UNDER NO CIRCUMSTANCES SHALL AT&T CANADA BE LIABLE FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, RELIANCE, OR SPECIAL DAMAGES, INCLUDING WITHOUT
LIMITATION DAMAGES OR HARM TO BUSINESS, LOST PROFITS, LOST SAVINGS, OR LOST
REVENUES WHETHER OR NOT AT&T CANADA HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
(d) These limitations of liability shall apply regardless of the form of
action, whether in contract, warranty, strict liability, or tort, including
without limitation negligence of any kind, whether active or passive, or
any combination thereof, and shall survive failure of an exclusive remedy.
15. LIABILITY OF THE CUSTOMER
(a) The Customer shall be liable for all damages caused to AT&T Canada and AT&T
Canada facilities (including equipment) by the Customer or
Customer-provided facilities, or by the failure of the Customer to provide
access in accordance with Sections 4 and 5 herein.
(b) The Customer shall defend, indemnify and hold harmless AT&T Canada from and
against all damages, liabilities, obligations, losses, injuries, claims,
demands, penalties, costs and expenses (including reasonable legal fees and
disbursements) arising from any and all claims by any person, including
without limitation any Permitted User, based on the content of any
transmissions by the Customer or any Permitted User using the service, or
any other use of the service by the Customer or any Permitted User,
including specifically the Prohibited Uses. The foregoing indemnity shall
not apply to claims against AT&T Canada for direct damages to real or
tangible personal property, or for bodily injury or death, proximately
caused by AT&T Canada's negligence, and shall survive the termination or
expiration of the Agreement.
16. WARRANTIES
(a) THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, WHETHER OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE, WITH
RESPECT TO ANY SERVICE, PRODUCT OR EQUIPMENT PROVIDED BY AT&T CANADA TO THE
CUSTOMER, INCLUDING WITHOUT LIMITATION, THOSE RELATING TO: (A) NETWORK
TRANSMISSION CAPACITY; (B) WHETHER DATA WILL BE TRANSMITTED IN AN
UNCORRUPTED FORM; (C) THE SECURITY OF ANY TRANSACTION; (D)
THE FAULT TOLERANCE OF THE SERVICE OR THE SUITABILITY OF SAME FOR HIGH RISK
ACTIVITIES (AS DEFINED HEREIN); OR (E) THE RELIABILITY OR COMPATIBILITY OF
THE EQUIPMENT OR SOFTWARE OF THIRD PARTIES WHICH MAY BE UTILIZED BY AT&T
CANADA IN PROVIDING, OR BY THE CUSTOMER IN USING, THE SERVICE.
17. TERMINATION
(a) AT&T Canada may terminate or suspend the Customer's service upon reasonable
written notice in the event that:
(i) the Customer fails to pay its account when due;
(ii) the Customer breaches any term or condition of these Terms of
Service or any other agreement pertaining to the service to which it
is a party;
(iii) the Customer fails to provide or maintain a reasonable deposit or
alternative when requested to do so in accordance with these Terms
of Service;
(iv) the Customer fails to provide AT&T Canada access to the Customer's
premises or facilities (including equipment) as required by Sections
4 or 5 herein;
(v) the Customer fails to comply with the terms of a deferred payment
agreement;
(vi) the Customer is suspected of using the service for fraudulent
purposes;
(vii) the Customer is an insolvent person within the meaning of the
BANKRUPTCY AND INSOLVENCY ACT (Canada) or commits or threatens to
commit any act of bankruptcy; or
(viii) the commencement of any proceeding or the taking of any step by or
against the Customer for the dissolution, liquidation or winding-up
of the Customer or for any relief under the laws of any jurisdiction
relating to bankruptcy, insolvency, reorganization, arrangement
compromise or winding- up, or for the appointment of one or more of
a trustee, receiver, receiver and manager, custodian, liquidator or
any other person with similar powers with respect to the Customer.
(b) Prior to suspension or termination, except where continuation of service
represents an abnormal risk of loss to AT&T Canada or the Customer is
suspected of using the service for fraudulent purposes, as determined by
AT&T Canada in its sole discretion, AT&T Canada shall provide the Customer
with at least forty-eight (48) hours notice, stating:
(i) the reason for the proposed suspension or termination and the amount
owing (if any);
(ii) the scheduled suspension or termination date;
(iii) the reconnection charge; and
(iv) the telephone number of an AT&T Canada representative with whom any
dispute may be discussed.
(c) Except with Customer consent or in exceptional circumstances, suspension or
termination shall occur only on Business Days between 8 a.m. and 4 p.m.,
unless the Business Day precedes a non-business day, in which case
disconnection may not occur after 12 noon. For the purposes of these Terms
of Services, "Business Day" shall mean any day other than Saturday, Sunday
or any statutory holiday in the Province of Ontario.
(d) Notwithstanding the termination or suspension of the Customer's service,
the Customer shall be liable for all charges incurred up to the date of
suspension or termination.
(e) In the case of prepaid services that have been suspended, unless suspension
occurs during the minium contract period, AT&T Canada shall make a daily
pro rata allowance based on the monthly charge for such services.
18. RESALE AND SHARING
(a) The following definitions apply for the purposes of this Section 18;
CIRCUIT: A voice grade analogue channel or a 64 Kbps (DS-0)
CIRCUIT GROUP: A group of equivalent Circuits.
CRTC: Canadian Radio-television and Telecommunications Commission.
TELEPHONE COMPANY: Any company providing local exchange service.
(b) Except by special agreement, AT&T Canada services may not be used for the
subsequent resale or lease on a commercial basis, with or without adding
value, of a telecommunications service to users other than the Customer;
(c) Resellers and sharing groups are required to register with AT&T Canada and
the CRTC prior to receiving service.
(d) Resellers and sharing groups may not use AT&T Canada services to originate
competitive public switched interexchange voice services where prohibited
by the CRTC.
(e) The provision of interexchange services by resellers and sharing groups,
using only local services, is subject to the application of the
contribution charges specified in the Telephone Company tariffs, applied to
each interconnecting Circuit within a Circuit Group of the reseller or
sharing group, in each central office.
19. CONTRIBUTION CHARGES
(a) Contribution charges shall apply for each interconnecting Circuit within a
Circuit Group, each overseas access Circuit within a Circuit Group, and
each Canada-U.S.A. Circuit provided by AT&T Canada to a reseller or a
sharing group at terms and conditions specified in the general tariffs for
resale and sharing of the Telephone Companies within whose territories each
of the above-mentioned Circuits are located.
20. EXEMPTIONS
(a) Where an interconnecting circuit, a Canada-U.S.A. Circuit or an overseas
access Circuit is used to provide a dedicated voice or data service, a
local service, or a joint-use interexchange data service, the contribution
charges specified in Section 18(f) above shall not apply, provided that the
reseller or the sharing group applies to the CRTC on a case by case basis
and provides evidence satisfactory to the CRTC that by reasons of the
technical, economic or operational characteristics of the service, it is
unlikely that the connections will be used significantly for joint-use
interexchange voice.
SCHEDULE "A"
EQUIPMENT SCHEDULE
1. GENERAL - This is a Schedule to a Service Agreement (the "Agreement") made
as of _______________ between AT&T Canada Long Distance Services Company
("AT&T Canada") and TELE HUB LINK CORPORATION which Schedule sets out the
terms and conditions relating to the Equipment (as defined below) provided
to the Applicant with the Services under this Agreement. The reference in
this Schedule to "this Agreement" is made to the aforementioned Agreement,
including the Schedule thereto and the Terms of Service. Capitalized terms
used herein and not otherwise defined herein shall have the meanings given
to them in the Agreement.
2. EQUIPMENT DESCRIPTION - The quantity and descriptions of the equipment,
accessories and software bundled with the Services and provided to the
Applicant in accordance with the terms of this Schedule are set out below
(such equipment, accessories and software described below, together with
all replacements, parts, cables, repairs, additions and accessories
incorporated therein or affixed thereto, are collectively referred to
herein as the "Equipment"): One (1) Predictive Dialer - 20 seats, One (1)
Option 11 PBX, Thirty (30) Call Centre Workstations.
The said replacements, parts, cables, repairs, additions and accessories
shall (whether or not purchased by AT&T Canada or Leasetec Canada Ltd.) be
considered part of the Equipment for all purposes and, when installed in or
attached to the Equipment (unless otherwise agreed), be or become the
property of Leasetec Canada Ltd.
The Applicant acknowledges that the Equipment is leased by AT&T Canada Ltd.
pursuant to a lease agreement dated _____________________ , 1998 (the
"Leasetec Lease" and the leased Equipment is subject to the terms and
conditions of Leasetec Lease.
3. REPRESENTATIONS AND WARRANTIES - The Applicant acknowledges that it has
made the selection of each item of Equipment based on its own judgment and
expressly disclaims any reliance upon statements made by AT&T Canada. Each
item of the Equipment is of a size, design and capacity selected by the
Applicant and the Applicant is satisfied that the same is suitable for its
purposes. AT&T CANADA MAKES NO EXPRESS OR IMPLIED WARRANTIES, STATUTORY OR
OTHERWISE, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF USE WITH RESPECT TO THE EQUIPMENT AND HEREBY DISCLAIMS THE SAME.
The Applicant shall look solely to the equipment supplier for any and all
claims related to the Equipment. The Applicant understands and agrees that
neither supplier nor any salesperson or other agent of supplier is an agent
of AT&T Canada. No salesperson
or agent of supplier is authorized to waive or alter this Agreement and no
representation by supplier shall in any way affect the Applicant's duty to
pay the amounts due and perform its obligations under this Agreement. AT&T
Canada hereby assigns to the Applicant, for and during the Initial Term
(and any renewals or extension thereof), any warranty on the Equipment
provided by the supplier. AT&T Canada and the Applicant agree that all
limitations on remedies and liability contained in this Agreement represent
a reasonable allocation of risks that is part of the fundamental bargain
between the parties. The Equipment shall be deemed conclusively to have
been delivered to the Applicant in good and efficient working order and
repair and the Applicant shall be deemed conclusively to have accepted
delivery for all purposes.
4. MAINTENANCE - The applicant shall as soon as practicable enter into a
maintenance agreement with the manufacturer of the Equipment or its
authorized third party agent on the manufacturer's or such third party's
standard form (the "Maintenance Agreement") and shall maintain in force
such Maintenance Agreement for the Initial Term, any renewals or extensions
hereto or until such time as the Equipment is returned to AT&T Canada. The
Applicant shall not itself perform any maintenance on the Equipment and
shall not permit any third party other than the manufacturer or its
authorized third party agent to perform such maintenance, without prior
written consent of AT&T Canada.
5. LOCATION AND USE - The Equipment shall be located and used only at the
following designated location:
0000 Xxx Xx. Xxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxx X0X 0X0
The equipment may only be relocated by the Applicant upon written request
and written consent thereof from AT&T Canada and at the Applicant's
expense. Any relocation of the equipment must be performed by the
manufacturer at the Applicant's expense. The Applicant shall cause the
Equipment to be operated carefully by duly qualified personnel only in
compliance with AT&T Canada's and/or manufacturer's recommendations and
with all applicable laws and regulations. The Applicant shall use the
software provided with the Equipment solely in conjunction with the
Equipment and shall not in any way alter or modify such software or copy
same without obtaining prior proper written consent from AT&T Canada.
6. OWNERSHIP - Title to the Equipment shall remain vested in Leasetec Canada
Ltd. and shall not at any time pass to the Applicant. Title to any software
included as part of the Equipment shall, at all times, remain vested with
the supplier thereof and shall not pass to the Applicant. The applicant
agrees not to remove any ownership identification on the Equipment or to
encumber the Equipment or allow it to become
attached or joined to an immovable. The Equipment shall at all times remain
personal or movable property.
7. LOSS OR DAMAGE- The Applicant assumes the entire risk of loss, theft,
destruction or damage to the Equipment or any part thereof due to any cause
whatsoever during the Initial Term, any renewal term and until the
Equipment is returned to AT&T Canada.
8. INSURANCE - The Applicant shall obtain and maintain in force during the
Initial Term, any extension or renewal thereof and until the Equipment is
returned to the possession of AT&T Canada, at its own expense, property
damage and liability insurance, as well as insurance against loss or damage
to the Equipment, including without limitation, loss by fire (including
extended coverage), theft, collision and such other risks as are
customarily insured by "all risks" policies on comparable equipment and by
prudent operators of such equipment in such amounts, in such form and with
such insurers as shall be satisfactory to AT&T Canada. In any event, such
insurance coverage shall not be less than the greater of (i) full
replacement value of the Equipment or (ii) the total of all payments to be
made under the Agreement plus the expected fair market value of the
Equipment at the end of the Initial Term to be determined at the sole
discretion of AT&T Canada. Each insurance policy will name AT&T Canada and
Leasetec Canada Ltd. as additional insured and as loss payee thereof, and
shall contain a clause requiring the insurer to give AT&T Canada and
Leasetec Canada Ltd. at least thirty (30) days prior written notice of any
cancellation or alteration. The Applicant shall furnish AT&T Canada and
Leasetec Canada Ltd. upon request with evidence of such insurance coverage.
The Applicant further agrees to give AT&T Canada and Leasetec Canada Ltd.
prompt notice of any damage to or loss of the Equipment or any part
thereof.
9. INDEMNITY - The Applicant or the third party with possession and use of the
Equipment (to which the Lessor has consented) does hereby assume liability
for, and does hereby agree to indemnify, protect, save and keep harmless
AST&T Canada and Leasetec Canada Ltd. and their respective agents and
mandataries, employees, officers and directors from and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions,
suits, costs, expenses and disbursements.\, including legal expenses, of
whatsoever kind or nature, imposed or assumed by, incurred by or asserted
against AT&T Canada in any relating to or arising out of this Agreement or
any items of Equipment, including without limitation the manufacture,
order, acceptance or rejection, purchasing, ownership, delivery,
installation, lease, pose\session, use, importation, condition, sale,
relocation, return or other disposition of the Equipment (including,
without limitation, any claim relating to any latent and other defects
whether or not discoverable by the Applicant, any
claim in tort for strict liability and any claim for patent, trademark,
design or copyright infringement). The Applicant agrees to give AT&T Canada
prompt notice of liability hereby indemnified against. This paragraph shall
be in full force and effect fro the date of execution of this Agreement
even if the Initial Term has not yet commenced. The indemnities contained
in this paragraph shall continue in full force and effect notwithstanding
the expiration or termination of this Agreement and shall be payable on
demand. The applicant shall pay to AT&T Canada any amounts arising
hereunder forthwith upon demand.
10. EVENTS OF DEFAULT - In addition to the events of default set out elsewhere
in the Agreement which entitle AT&T Canada to exercise its right to
terminate, AT&T Canada may terminate or suspend the Services or terminate
this Agreement upon reasonable written notice in the event that:
(i) all or a part of the Equipment is, or is in imminent danger of being
confiscated, attached, sequestered or seized legal process; or
(ii) Applicant creates or permits any lien or encumbrance on the
Equipment and fails to remove same within five (5) days hereof.
The Applicant shall be in default with respect to the performance of its
obligations herein as a result of mere lapse of time regarding such
performance without the necessity of any notice or demand on the part of
AT&T Canada.
11. REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT - Upon the occurrence of any
of the events of default which entitle AT&T Canada to exercise its right to
terminate set out in this Agreement, including without limitation, Section
10 above, at any time thereafter, provided such event of default is then
continuing, AT&T Canada may, in its sole discretion, terminate this
Agreement or cancel any and all Schedules which reference this Agreement
and/or exercise one or more of the following remedies: (a) AT&T Canada may
enter upon the premises where the Equipment is located and take possession
of the Equipment without demand or notice wherever the same be located,
without any court order or other process of law, the Applicant hereby
waiving any and all damages in good faith, deem fit; and (b) in addition to
any other right or remedy which it may have at law or in equity, give
notice to the applicant that it intends to proceed forthwith to the
recovery of liquidated damages, which as between the parties hereto, shall
be conclusively deemed to be a genuine pre-estimate of the damages suffered
by AT&T Canada in the circumstance and not a penalty and which liquidated
damages shall be calculated by determining the present value of the total
of all amounts due or to become due under the Agreement to the expiration
of the Initial Term or any extension or renewal term thereof at a rate of
six (6%)
per cent per annum, including without limitation all costs incurred by AT&T
Canada, its assignees or agents in enforcing the terms of this Agreement
plus the expected fair market value of the Equipment at the end of the
Initial Term or any extension or renewal of the Initial Term which shall be
determined on the basis of and shall be the aggregate amount which would be
obtainable at the expiration of the Initial Term or any extension or
renewal of the Initial Term in an arms-length transaction between an
informed and willing buyer/user and an informed and willing seller under no
compulsion to sell.
The foregoing remedies shall be in addition to any other rights which AT&T
Canada may have by law or under this Agreement.
12. RETURN OF EQUIPMENT - Upon the expiration or termination of the Initial
Term or any renewal or extension thereof for any reason, the Applicant
shall, at the Applicant's risk and expense, return the Equipment to AT&T
Canada to its address at 000 Xxxxxxxxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxx X0X 0X0 or to a location designed in writing by AT&T Canada in
North America, in good repair, condition and working order. Without
otherwise limiting the Applicant's obligations hereunder, the Applicant
shall arrange, at its expense, to have the Equipment de-installed by the
manufacturer. Such Equipment shall be suitable for re-certification by the
manufacturer or its authorized third party agent thereof and the Applicant
shall assume any costs incurred to have the manufacturer re-certify the
Equipment for manufacturer's maintenance. The Equipment shall be
re-certified prior to the end of the Initial Term or any extension or
renewal term thereof.
13. TIME OF THE ESSENCE - NOTICES - Time shall be of the essence of this
Agreement. Any notices and demands or permitted to be given or made
hereunder shall be given or made in writing and delivered personally or by
regular mail to the party to whom it is addressed at the address set forth
in this Agreement or to such other address as either party may hereafter
substitute by written notice given in the manner prescribed in this
paragraph.
13. INSPECTION BY AT&T CANADA - Upon request by AT&T Canada, the Applicant
shall at all reasonable times during business hours make the Equipment
available to AT&T Canada for inspection at the place where the Equipment is
located and shall make the Applicant's records pertaining to the Equipment
available to AT&T Canada for inspection.
14. WAIVER BY THE APPLICANT - To the fullest extent permitted by law, the
Applicant hereby waives (i) the provisions of Articles 1848 and 1849 of the
Civil Code of Quebec, (ii) the
Limitation of Civil Rights Act of Saskatchewan, and (iii) the Distress Act
of Manitoba.
15. FINANCIAL INFORMATION - The Applicant represents and warrants that any
financial information submitted to AT&T Canada herewith or at any other
time is true and correct. The Applicant hereby authorizes AT&T Canada to
conduct a personal investigation and to obtain any information required
related to this Agreement from any source to which AT&T Canada may apply
and each source is hereby authorized to provide such information. Further,
the Applicant shall furnish to AT&T Canada its financial statements within
10 days upon request of AT&T Canada prepared in accordance with accounting
principles consistent with such prior statements. The Applicant shall also
furnish such other information as AT&T Canada may from time to time
reasonably request.
16. CONFLICT - In the event of any conflict between the terms of this Schedule
and the terms set out elsewhere in the Agreement or the terms of any other
agreement(s) entered into by and between the Applicant and AT&T Canada
relating to the Equipment, the terms of this Schedule shall prevail and
control over such other provisions or agreements.
17. VALIDITY AND ENFORCEABILITY - The Applicant and AT&T Canada hereby agree
and acknowledge that the validity and enforceability of this Schedule is
expressly conditioned upon (i) the execution of the Leasetec Lease and (ii)
the receipt by AT&T Canada of the consent from Leasetec Canada Ltd. to the
possession and use by the Applicant of the Equipment pursuant to this
Schedule. The Applicant and AT&T Canada further agree that immediately upon
the execution of the Leasetec Lease by a duly authorized representative of
Leasetec Canada Ltd. and the receipt by AT&T Canada of the aforementioned
consent, this Schedule and the obligation of the Applicant and AT&T Canada
hereunder will immediately become valid, binding and enforceable
obligations of AT&T Canada and the Applicant.
DATED this 14th day of October, 1998.
TELE HUB LINK CORPORATION
Address: 0000 xxx Xx. Xxxxxxx Xxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxx
X0X 0X0
Signature: /s/XXXXXXX XXXXXX
---------------------
Per: Xxxxxxx Xxxxxx
President and Chief Executive
Officer
AT&T CANADA LONG DISTANCE SERVICES
COMPANY
Address: 000 Xxxxxxxxxx Xxxxxx Xxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxx
X0X 0X0
Signature: /s/XXXXXX XXXXXX
---------------------
Per: Xxxxxx Xxxxxx
President, Business Services
