EXHIBIT 10.1
MetroNet 1-888-8METNET
COMMUNICATIONS
VPOP SERVICE AGREEMENT
THE CUSTOMER AND METRONET AGREE THAT METRONET WILL PERFORM, FOLLOWING RECEIPT OF
APPROPRIATE CREDIT APPROVAL FOR CUSTOMER, CERTAIN SERVICES FOR THE CUSTOMER, ALL
IN ACCORDANCE WITH THIS SERVICE AGREEMENT AND THE TERMS AND CONDITIONS ON THE
OPPOSITE SIDE OF THIS FORM.
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BILLING INFORMATION SERVICE SITES
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Yes IC Communications Site A 00 Xxxx Xxxxxxx Xxxxx
#000
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00 Xxxx Xxxxxxx Xxxxx #000 Site B 555 W. Hostings $1560
Vancouver
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Xxxxxxx Xxx. X0X 0X0 Site C
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Xxxxx Xxxxx Site D
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Tel: 000-0000 Fax: 000-0000
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ORDER SPECIFICATIONS
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SITE SERVICE ACCESS TERM MONTHLY* INSTALL
FEE FEE*
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Home Gateway Access Ethernet 5 years $25 per port
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MODEM PORTS CITY MONTHLY* INSTALL
NUMBER OF FEE FEE*
PORTS
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230 CALGARY $75 per port $25 per port
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230 EDMONTON $75 per port $25 per port
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230 MONTREAL $75 per port $25 per port
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unlimited TORONTO $75 per port $25 per port
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unlimited VANCOUVER $75 per port $25 per port
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000 XXXXXX $75 per port $25 per port
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000 XXXXXX $75 per port $25 per port
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230 WINNIPEG $75 per port $25 per port
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230 QUEBEC CITY $75 per port $25 per port
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000 XXXXXXXXX/XXXXXXXX $75 per port $25 per port
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TOTAL
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SPECIAL INSTRUCTIONS
60 month contract. Flat pricing of $75.00 including backhaul via ATM/TLS.
THE TERMS AND CONDITIONS ON THE OPPOSITE SIDE OF THIS SERVICES AGREEMENT AND ALL
ATTACHED SCHEDULES ARE AN INTEGRAL PART OF THIS SERVICES AGREEMENT, ARE
ENFORCEABLE AND BINDING, AS BETWEEN METRONET AND THE CUSTOMER AND HAVE BEEN READ
BY THE CUSTOMER PRIOR TO EXECUTION OF THIS SERVICES AGREEMENT. THIS SERVICES
AGREEMENT IS NOT BINDING UNLESS AND UNTIL IT HAS BEEN SIGNED BY AN AUTHORIZED
OFFICER OF EACH PARTY.
METRONET COMMUNICATIONS GROUP INC. CUSTOMER
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X. Xxxxxx CMZ Yes IC Communications
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/s/ Xxxxxxx Xxxxxx /s/ Xxxxx X. Xxxxx
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Xxxxxxx Xxxxxx Director Xxxxx X. Xxxxx President
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Dec. 15/98 15th Dec. 98
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BACKGROUND INFORMATION (FOR INTERNAL USE ONLY)
1. THE SERVICES
(a) MetroNet shall perform the Services during the Term such that they are
accessible by the Customer at the Customer's location(s) specified on the
opposite side of this form or on any attached schedule(s) (the "Service
Sites"). MetroNet reserves the right to perform the Services on its own
network, when available, without notice to the Customer.
(b) MetroNet may install such wiring, cable, circuits, instruments, equipment
and other plant (collectively, as pertains to a Service Site) as are
necessary to connect each of the sites to MetroNet's telecommunications
network and to permit performance of the Services.
(c) MetroNet shall begin performing the Services upon installation, or so soon
thereafter as reasonably agreed to between the parties, and continue the
performance during the term, unless Services are earlier terminated in
accordance with this Services Agreement.
(d) MetroNet may provide the Customer with such equipment (the "Equipment") to
provide the Customer access to the Services at the Service Sites. The
Equipment shall be supplied and installed by MetroNet up to the Customer
Demarcation Point, as defined by MetroNet. The Equipment shall be maintained
and repaired only by MetroNet or MetroNet's authorized agents. MetroNet may
provide additional services and/or equipment beyond the Customer Demarcation
Point for Fee(s), in addition to the Install Fee(s) and Monthly Fee(s),
specified on the opposite side of this form or on any attached schedule(s).
(e) The Customer acknowledges that, MetroNet is the sole and exclusive owner of
all right, title and interest in the Equipment, or has obtained the right to
make the Equipment available for use by the Customer from a third party. The
Equipment will at all times remain the property of MetroNet or such third
party, as the case may be, regardless of the manner in which it is installed
in or attached at the Service Sites. The Customer may not mortgage, sell,
transfer, lease, encumber or assign all or part of the Equipment to any
third party. The Customer shall be responsible for any loss, cost, claim or
damage caused to or by the Equipment from any cause whatsoever including,
without limitation, a mysterious disappearance or theft, or in connection
with its installation, removal, use, maintenance or repair, unless such loss
or damage is due to the negligence or willful misconduct of MetroNet.
2. MAINTENANCE, TESTING AND CONFIGURATION OF THE SERVICES
(a) MetroNet may, without penalty (and specifically without the penalty set out
in Section 6 below), suspend the provision of the Services to the Customer,
for a reasonable length of time, in order to maintain, test or configure the
Services.
(b) The Customer shall bear the expense of any repair or replacement or
maintenance service to the Equipment which is not due to reasonable wear and
tear or negligence of MetroNet and MetroNet reserves the right to change for
unnecessary service calls requested by the Customer. The Customer shall,
promptly upon the receipt of the MetroNet invoice therefore, pay any related
labour charges, at the then current hourly rates for service calls, any
related repair charges which MetroNet pays to third parties in connection
therewith, the cost of any parts, equipment or other required plant work and
all other related expenses.
(c) MetroNet's Customer Care Center shall be the sole contact for reporting
trouble with respect to the Services. The telephone number is 1-888-8METNET
or 0-000-000-0000 or such other number as may be communicated by MetroNet to
the Customer. On receipt of a trouble report, MetroNet shall initiate
maintenance action. Following correction of the trouble, MetroNet shall
complete the trouble ticket and inform the Customer that Service has been
restored.
3. CUSTOMER RESPONSIBILITIES
(a) Access, Space & Equipment. - In order to enable MetroNet to provide the
Services, the Customer shall provide or cause to be provided to MetroNet, at
each Site at no cost to MetroNet and in a timely manner:
(i) any easements, rights of access and rights of way over property
owned or controlled by the Customer or on the property or in the
building in which such Site(s) is(are) located, required
for the installation, operation and maintenance of the Equipment.
When special construction work is necessary at the request of the
Customer, or when MetroNet is required by a competent authority to
move any poles, conduits, plant, wiring, circuits, instruments,
equipment, fixtures and facilities, MetroNet may, in its sole
discretion, require the Customer to pay the cost thereof.
(ii) adequate space for Equipment, including access to the Site for the
installation, operation and maintenance of the Services. The
location of any Equipment to be installed at a Site shall be
determined by MetroNet in consultation with the Customer;
(iii) all necessary cable conduit on the Customer's premises, as
required. Additional charges may apply for such cable conduits;
(iv) suitable Equipment shelter at each Site, including the required
environmental control systems, lighting and security provision
according to MetroNet specifications;
(v) any electrical outlets and conditioned electrical power required
at each Site, and payment for the consumption thereof in
connection with the installation, operation and maintenance of the
Services;
(vi) any cable, wiring, modems, switching equipment or amplifiers
required to interface each service with the Customer's
communication equipment at each Site;
(vii) the wiring list for the interface cables to MetroNet
communications equipment;
(viii) an on-site contact and the telephone number at the Site by which
MetroNet will be able to contact the Customer by telephone; and
(ix) any information pertaining to the Customer's network or equipment
which, in the sole discretion of MetroNet, is required for
MetroNet to provide the Services to the Customer hereunder.
(b) The Customer shall not place locks or other similar devices on the Equipment
that would restrict access by MetroNet in accordance with Section 3(a).
(c) The Customer shall not re-arrange, disconnect remove or otherwise tamper or
interfere with the communications services or other operations of MetroNet
or its other customers or the Equipment and shall not connect, attach or use
so as to operate in conjunction with the Equipment any equipment, apparatus,
or device which is not provided by MetroNet, or approved in writing by
MetroNet whether physically, by induction or otherwise and shall not permit
any person to do any of the foregoing to the extent any of the Equipment are
located on the Customer's premises or under the Customer's control. Any
equipment, apparatus or device not provided by MetroNet must be removed by
the Customer upon request by MetroNet for testing and trouble analysis.
(d) The Customer shall not interfere with or damage the communications services,
Equipment or other operations of MetroNet or its other customers.
(e) The Customer shall use its best efforts to not create or permit to exist any
liens or encumbrances on the Equipment.
(f) Restrictions on Use of Service
(i) The Customer is prohibited from using the Services or permitting
them to be used for a purpose or in a manner for which they were
not originally provided without the prior consent of MetroNet.
(ii) The Customer shall not resell, or share the Services where such
re-sale or sharing would cause MetroNet to violate the terms of
its interconnection arrangements with other carriers.
(iii) Unless otherwise specified in a schedule to this Agreement, the
Customer shall not permit third parties (which term shall be
deemed to exclude the Customer's affiliates as defined in the
Canada Business Corporations Act), to initiate any transmission
from any of the Sites and shall not itself initiate any
transmissions on behalf of any third party from any of the Sites,
except where such initiation or transmission is part of the
primary business of the Customer.
4. LIMITATION OF LIABILITY AND INDEMNITY
(a) In no event shall MetroNet or any of its directors, officers, employees,
contractors, landlords or agents (it being acknowledged by each of the
parties that for purposes of this article only, MetroNet is
contracting as agent on behalf of its directors, officers, employees,
contractors, landlords and agents) be liable for incidental, consequential,
special or indirect damages (including, without limiting the generality of
the foregoing, costs and expenses and legal fees) arising from or in
connection with the breach of any provision of this Agreement or any tort
including, without limiting the generality of the foregoing, the negligence
of MetroNet or any of its directors, officers, employees, contractors or
agents. Without limiting the generality of the foregoing, such excluded
damages, costs and expenses shall include loss of goodwill, loss of
earnings, failure to realize expected savings, loss of profits, loss of
business opportunities, loss of financial support, loss of family, personal
injuries, mental suffering, loss of life, loss of use, electrical shocks,
xxxxx, fires or explosions and incidental, consequential, special, direct or
indirect damages arising from or in connection with any claims made against
MetroNet by a third party whether or not such damages are foreseeable and
whether or not MetroNet has been advised of the possibility of such damages
arising from or being connected to the Service or the installation,
operation or maintenance of the Equipment. Other than liability for the
foregoing, MetroNet shall not be liable for any loss, cost, claim or damage
(including the loss of the Customer's data) suffered or incurred by the
Customer or any third party. In the event any such claim is made against
MetroNet or any of its directors, officers, employees, contractors,
landlords or agents, to the extent the MetroNet indemnifies any of such
parties, the Customer shall indemnify MetroNet.
(b) In no event shall MetroNet be liable for the use of the Equipment and
Services by the Customer or any third party for unlawful or illegal purposes
or any purpose which is contrary to MetroNet's acceptable use policies.
Customer will indemnify and hold harmless MetroNet from any losses, damages,
costs or expenses resulting from any allegation, claim or action arising out
of or relating to use of the Equipment and Services by the Customer or any
third party, for unlawful or illegal purposes, or any purpose which is
contrary to MetroNet's acceptable use policies, including, without
limitation, suits, claims or judgments for libel, slander, infringement of
copyright or trademark, breach of any term of hereof or based on any other
legal theory howsoever arising from the content of the transmission and any
and all costs, damages, and expenses (including legal fees) in connection
therewith.
(c) METRONET MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES AS
TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES OR ANY OTHER
REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES REGARDING THE SERVICES
OR THE EQUIPMENT, WHETHER EXPRESS OR IMPLIED IN LAW OR IN FACT, OR IN
WRITING, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT. THE CUSTOMER
ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION, WARRANTY,
CONDITION OR GUARANTEE MADE BY METRONET.
(d) Notwithstanding any provision contained in this Services Agreement to the
contrary, in no event will the aggregate liability of MetroNet, its
affiliates and their directors, officers, employees, agents, consultants or
subcontractors to the Customer or to any other party for damages, direct or
otherwise, arising out of or in connection with this Services Agreement
exceed the fees payable hereunder by the Customer within the period of
twelve (12) months immediately preceding the occurrence of such breach or
tort or such shorter period as may have elapsed between commencement of the
term of this Services Agreement and such occurrence regardless of the cause
or form of action, whether claims are grounded in contract, tort (including
negligence) or strict liability.
5. FEE(S)
(a) The Fee(s) specified on the opposite side of this form, including any
security deposit, shall be paid by the Customer to MetroNet in accordance
with Section 5(b) herein in full without any right of set-off or deduction.
The Customer shall pay MetroNet any applicable sales, use, goods and
services, value added or similar taxes, payable with respect to the Fee(s),
or otherwise arising with respect to this Services Agreement.
(b) MetroNet will invoice the Customer for the Install Fee(s) (and any
applicable taxes) following installation. MetroNet will invoice the Customer
the Monthly Fee(s) (and any applicable taxes) on a monthly basis. The
Customer shall pay to MetroNet all invoices by the payment due date printed
on the invoice. A late payment charge of 1.0% per month may be applied to
any invoice for which payment has not been received by MetroNet by the
payment due date printed on the invoice. In the event that a particular
Service is commenced on a day other than the first day of a calendar month
or
terminates on a day other than the last day of a calendar month, the Monthly
Fee(s) for said Service for such calendar month shall be pro-rated based on
a thirty (30) day month.
(c) Where payments have been made for charges that should not have been billed,
or that were overbilled, the Customer will be credited with the overpayment
back to the date of the error up to a maximum of one year from the date the
error was identified. However, if the Customer does not dispute the charge
within one year of the date of a statement that shows the charges correctly,
the right to have the excess credited for the period prior to such statement
is lost.
(d) Unless there has been deception by a Customer with regard to a charge,
Customers are not responsible for paying a previously unbilled or
underbilled charge except where it is correctly billed within a period of
one year from the date it was incurred. If there has been deception by a
Customer, MetroNet is entitled to charge the Customer interest on the amount
of the correction of the rate specified in section 5(b) hereof.
(e) MetroNet shall have the right to increase its charges upon thirty (30) days
prior written notice due to increases in the rates by carriers whose
services are used by MetroNet in providing the Services. The new rates will
be applied to the Customer regardless of the contract term for the Service.
In the event that MetroNet imposes new rates, the Customer may, at its
option, indicate its intention to terminate the applicable Service without
penalty by written notice to MetroNet within fifteen (15) days of the date
MetroNet gives notice of the price increase. MetroNet may, by written notice
to the customer on or prior to the effective date of the price increase,
rescind the price increase, in which case the Customer shall not be entitled
to terminate the applicable Service.
6. REBATES IN THE EVENT OF SERVICE INTERRUPTION
When a Service Interruption occurs for a period of at least six (6) hours in any
twenty-four (24) hour period after MetroNet's receipt of written notice from the
Customer, the Customer shall be credited with an allowance equal to one-quarter
(1/4) of the Monthly Fee(s) for that particular month applicable to the Service
which is rendered useless or substantially impaired, per day of the Service
Interruption. "Service Interruption" means a failure by MetroNet to provide the
Services (or a particular Service) substantially in accordance with service
specifications (set by MetroNet from time to time) for reasons other than:
(a) capacity shortages not caused by MetroNet;
(b) the failure or non-performance of any service, equipment or facilities
provided by the customer, a interexchange carrier or any other third party;
(c) any act or omission by the Customer including, without limitation,
interruptions required to correct interference to a Service caused by the
Customer's equipment connected to or used in conjunction with the Service;
(d) any unlawful, illegal or improper use of the Equipment or any Service;
(e) any period during which MetroNet interrupts the performance of the Services
in order to perform tests, maintenance or adjustments to the Equipment;
(f) the occurrence of an event of Force Majeure; (see Section 11, below);
(g) interruptions due to power fluctuations or power failure at the Service
Sites;
(h) when access can not be readily and immediately gained to the Service Sites;
(i) durations when tests, maintenance, and adjustments are delayed at the
request of the Customer; or
(j) interruptions due to actions or omissions of the Customer, its officers,
employees, agents, contractors, landlords or invitees.
7. TERMINATION
(a) This Services Agreement hall become effective on the date upon which the
Services Agreement is executed by MetroNet, and shall continue in full force
and effect until either:
i) the term of the contract has expired when specified on the front of
this Services Agreement; or
ii) The Services Agreement is terminated in accordance with Section 7 of
this Services Agreement.
(b) MetroNet may terminate any Service or this Services Agreement, or MetroNet's
option, immediately, without further obligation to the Customer in the event
of:
i) any failure by the Customer to pay any Fee(s);
ii) any other breach of this Services Agreement or MetroNet's acceptable
use policies by the Customer which cannot be cured or is not cured
within thirty (30) days of MetroNet notifying the Customer of such
breach;
iii) any merger, consolidation, acquisition, or the sale, lease or other
transfer of all or substantially all of the assets or voting shares
of the Customer, or any other change in the control or ownership of
the Customer;
iv) if any licenses, easements, rights-of-way, permits or regulatory
authorization or approvals required by MetroNet to permit it to
fulfill its obligations in respect of the Services in a lawful
manner cannot be obtained or are obtained but are subject to
conditions involving expense to MetroNet or are terminated or
revoked or expire and are not renewed without expense to MetroNet or
if the provision of the Services would violate any applicable
federal, provincial or municipal law, regulation or bylaw or would
otherwise be unlawful;
v) if the Customer should file a petition in bankruptcy, voluntary or
involuntary, or become insolvent or reorganize or make any
assignment for the benefit of creditors or make any arrangements or
otherwise become subject to any proceedings under applicable
bankruptcy laws or insolvent laws with a trustee, or receiver
appointed in respect of a substantial portion of the assets of the
Customer, or in the event the Customer liquidates or winds up its
daily operations for any reason whatsoever.
(c) The Customer may terminate this Services Agreement immediately, without
further obligation to MetroNet:
i) by paying immediately to MetroNet 50% of the remaining value of this
Services Agreement; or
ii) in the event of more than five (5) Service Interruptions, as set out
in Section 6, happening in any thirty (30) day period; or
iii) in the event of any other breach of this Services Agreement by
MetroNet which cannot be cured or is not cured within thirty (30)
days of the Customer notifying MetroNet of such breach; or
iv) in the event of a Force Majeure as outlined in Section 11.
(d) Upon termination:
i) MetroNet may immediately remove any Equipment from the Service
Sites;
ii) The Customer shall pay MetroNet any and all amounts owed by Customer
to MetroNet pursuant to this Services Agreement and all costs
(including reasonable legal fees incurred by MetroNet in attempting
to protect MetroNet's rights or remedies, or to cause the Customer's
compliance with its obligations pursuant to this Services Agreement;
and
iii) In the case of termination by MetroNet in accordance with
subsections 7(b)(i), 7(b)(ii), the Customer shall pay MetroNet all
Monthly Fee(s) obligations for the remaining portion of the Term.
8. ASSIGNMENT
Neither party may assign any rights or obligations under this Services Agreement
to any third party without the express written consent of the other party, which
consent shall not be unreasonably withheld. Notwithstanding the foregoing,
MetroNet may assign its rights or obligations under this Services Agreement to
any affiliate or by way of security to a creditor without the consent of the
Customer.
9. SECURITY OF TRANSMISSIONS
MetroNet does not represent, warrant, covenant or guarantee that transmission
initiated by the Customer in the course of using the Services cannot be received
or intercepted by other person(s).
10. CONFIDENTIALITY
Each party (the "Receiving Party") shall maintain the confidentiality of all
confidential information disclosed by the other party (including the existence
and terms of this Services Agreement) and shall not copy or use only such
confidential information except as contemplated by this Services Agreement. the
foregoing shall not apply to information which is or becomes publicly known
otherwise than by reason of a breach of this Services Agreement by the receiving
Party or has been independently developed outside the scope of this Services
Agreement. Where the Receiving Party is required by law to disclose confidential
information, it shall use best efforts to minimize the extent of disclosure of
the confidential information and to obtain an undertaking from the recipient to
maintain the confidentiality thereof. MetroNet may disclose the Customer's
confidential information to MetroNet's subcontracts, provided that such
subcontractors agree to be bound by confidentiality provision equivalent to this
Section.
11. FORECLOSURE
(a) If at any time during the Term MetroNet is unable to provide a Service of
the Services by reason of the occurrence of an event of Force Majeure
(defined in Section 11(b)), MetroNet will be excused from the performance of
its obligations hereunder, during the continuance of such inability,
provided that MetroNet provides written notice of the occurrence of the
Force Majeure to the Customer within seven (7) days of its occurrence and
takes all reasonable measures to prevent or remove the Force Majeure. In the
event of the occurrence of an event of Force Majeure, MetroNet will provide
the Customer with bridge service, if possible, and the Customer may, at its
option, terminate the Services Agreement with written notice if MetroNet
cannot prevent or remove an act of Force Majeure within three (3) months of
the occurrence of the event of Force Majeure.
(b) "Force Majeure" means a fire, rain, flood, epidemic, earthquake, snowstorm,
ice buildup, quarantine, embargo, or other act of God, explosion,
malfunction, damage or destruction to equipment or facilities, strike or
other dispute with workers, riots or civil disputes, war (whether declared
or undeclared) or armed conflict, any municipal ordinance or provincial or
federal law, governmental order or regulation or order of any court or
regulatory body the inability to obtain, or any delay in obtaining, local
access for any reason whosoever, fraud, breaches of system security or any
other event not within the reasonable control of MetroNet which renders
continued provision of a Services or the Services Agreement impossible,
impracticable or illegal.
12. GENERAL
(a) Any notice, request, demand, consent or other communication provided or
permitted hereunder shall be in writing and given by personal delivery, or
sent by registered mail, postage prepaid, or transmitted by facsimile or
other form of recorded communication tested prior to transmission, addressed
to the party for which it is intended at its address set out on the opposite
side of this form, provided, however, that either party may change its
address for purposes of receipt of any such communication by giving ten (10)
days prior written notice of such change to the other party in the manner
prescribed above. Any notice so given shall be deemed to have been received
on the date on which it was delivered or transmitted by facsimile or other
form of recorded communication.
(b) This Services Agreement is subject to all of the terms and conditions of the
MetroNet's terms of service and acceptable use policies, as amended from
time to time. The most up-to-date versions of these documents are available
by calling 1-888-8METNET or on the Internet at xxx.xxxxxxxx.xx
(c) This Services Agreement will be governed by and construed in accordance with
the laws of the province of _____________, or, where left blank, the
province of Ontario, (the "Province") and the laws of Canada applicable
therein. The parties hereby attorn to the jurisdiction of the courts of the
Province.
(d) The invalidity or unenforceability of any provision of this Services
Agreement or any covenant herein contained shall not affect the validity or
enforceability of any other provision or covenant herein contained and any
such invalid or unenforceable provision or covenant shall be deemed to be
severable.
(e) The parties hereto confirm that it is their wish that this Services
Agreement, as well as all other documents relating hereto, including all
notices, have been and shall be drawn up in the English language only. Les
parties aux presentes confirment leur volont, que cette convention, de meme
que tous les documents, y compris tout avis, qui s'y rattachent, soient
rediges en langue anglaise.
