a)
“Agreement” means the Invoice, together
with the terms and conditions of this Customer Agreement as they may be amended
from time to time, and posted at: http://www.tbwifi.ca/custag
b)
“Billing Date” means, for the first
month, the Effective Date, and for each subsequent month, 30 days later, an
electronic invoice will be sent to the email address on file 10 days before due
date.;
c)
“Billing Information” means your
Customer information together with the details of your Payment Method, as
designated on the Service Order;
d)
“Tera-Byte™” means Tera-Byte Dot Com
inc., a corporation duly incorporated under the laws of the
e)
“Effective Date” means the date the
Equipment is installed at the Premises as designated on the Invoice;
f)
“Equipment” means the Point to Multipoint
> 2.4 GHz or 900 MHz Subscriber Module AES together with all component parts
installed by Tera-Byte™ at the Premises, which is usually sufficient to access
and use the Services, and includes any additional equipment required to be installed
at the Premises to access the Services, as designated on the Invoice;
g)
“Installation Fee” means all fees for
installation of the Equipment, including the Installation Fee – Basic Equipment
and the Installation Fee – Additional Equipment, as designated on the Service
Order;
h)
“Service Order” means the document
marked “Work Order” outlining your Customer Information, Service Information
and Payment Method;
i)
“Monthly Payment” means the fee for
Services designated on the Invoice;
j)
“PC” means your personal computer and
all hardware and software components other than the Equipment used at the
Premises to access the Services;
k)
“Premises” means the place where the
Equipment is located;
l)
“Services” means the Tera-Byte™
wireless internet access package providing high speed internet connection at
the Premises;
m)
“Term” means the number of months from
the Effective Date designated on the Invoice (the “Initial Term”) until
termination in accordance with this Agreement, and includes any Renewal Term.
2.
Term:
Tera-Byte™ will make reasonable efforts to provide you with
the Services on the Effective Date, and continuously throughout the Term. However, there is no guarantee that the
Services will commence on the Effective Date or continue without interruption
thereafter. At the end of the Initial
Term, this Agreement shall be renewed and continue in force for an unlimited
number of one year terms (the “Renewal Terms”), unless and until this Agreement
is terminated in accordance with paragraph 14.
3.
Payment:
You agree to
pay Tera-Byte™ the Installation Fee and the Monthly Payment as indicated on the
Service Order, plus all foreign, federal, provincial or municipal taxes and
excises applicable thereto when due. The
Installation Fee is due on the Effective Date AND IS NON-REFUNDABLE. The first month’s Monthly Payment is due on
the Effective Date. Each subsequent
Monthly Payment will be due and payable on the Billing Date unless paid in
advance on the Effective Date. Interest is chargeable on overdue accounts at 2%
per month (24% per annum), calculated and compounded monthly, in advance, on
any amount due and remaining unpaid on any Billing Date. Billing, invoicing,
collection of accounts and other administrative services are provided to Tera-Byte™
by Tera-Byte Dot Com Inc.
4.
Equipment: Customer understands and agrees
that the Services require certain Equipment. ALL EQUIPMENT IS AT ALL TIMES THE
PROPERTY OF TERA-BYTE™. Tera-Byte™ may at its option, provide you with new or
reconditioned Equipment. You may not sell, transfer, lease, encumber or assign
all or any part of the Equipment to any other person. You shall not move the
Equipment or repair, adjust, or otherwise tamper with the Equipment without the
express written consent of Tera-Byte™. If Equipment is defective or stops
working for any reason, you will contact Tera-Byte™, and Tera-Byte™ will make
commercially reasonable efforts to maintain, repair, or replace the Equipment,
in its sole discretion, and at your sole expense. However, should Tera-Byte™ determine that the
Equipment is defective and cannot be repaired, then a credit will be issued to
cancel the repair charge. You shall pay Tera-Byte™ the full manufacturer’s
suggested retail price for the replacement of any lost, stolen, unreturned,
damaged, sold, transferred, leased, encumbered or assigned Equipment or any
part thereof, together with any incidental costs incurred by Tera-Byte™
relating to the replacement of Equipment or any part thereof. You hereby authorize Tera-Byte™ to charge your
credit card for any such charges. If you decide to move to premises which are
not located in Tera-Byte™’s territory, then you must provide written notice to Tera-Byte™,
and termination shall be effective on the last day of the month following the
month in which your termination request is received by Tera-Byte™.
5.
NO WARRANTY: ALL EQUIPMENT AND SERVICES ARE
PROVIDED BY TERA-BYTE™ “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OR
CONDITIONS OF ANY KIND, EITHER EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NONINFRINGEMENT,
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
FOR THE CIRCUMSTANCES TO WHICH THEY ARE SUBJECTED OR ANY WARRANTIES ARISING
FROM COURSE OF DEALING OR USAGE OF TRADE. TERA-BYTE™ DOES NOT WARRANT
UNINTERRUPTED USE OR OPERATION OF THE EQUIPMENT OR SERVICES. NO ADVICE OR INFORMATION GIVEN BY TERA-BYTE™, ITS AFFILIATES, LICENSER, CONTRACTORS OR THEIR
RESPECTIVE EMPLOYEES SHALL CREATE A WARRANTY. TERA-BYTE™ DOES NOT
WARRANT THAT ANY DATA OR FILES SENT BY OR TO YOU WILL BE TRANSMUTED IN
UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD OF TIME, THAT THE SERVICE WILL
BE UNINTERRUPTED OR ERROR FREE, OR
THAT ANY CONTENT OR OTHER MATERIAL ACCESSIBLE ON THE SERVICES IS FREE OF
VIRUSES, CANCELBOTS, WORMS, TROJAN HORSES OR
OTHER HARMFUL COMPONENTS.
6.
Access to the
Premises: You agree to provide the employees, agents, contractors, and
representatives of Tera-Byte™ access at all reasonable times to the Premises to
install, maintain, inspect, repair and remove the Equipment. If you are not the
owner of the Premises, upon request, you will supply Tera-Byte™ with the
owner’s name and address, evidence that you are authorized to grant access to
the Premises on the owner’s behalf, and (if needed) written consent to access
the Premises from the owner.
7.
Your PC:
It is your responsibility to ensure that your PC meets the requirements
set out by Tera-Byte™ that are necessary to use the Equipment and the Services,
as posted online at: http://www.tbwifi.ca Tera-Byte™ makes no warranty as to the adequacy or capacity of
any hardware or third party software to attain performance objectives or to
enable you to access the Internet using the Equipment and the Services. You acknowledge that when accessing the Internet,
there are certain applications which are designed to allow other users to gain
unauthorized access to your PC. It is your
sole responsibility to take appropriate precautions to protect your computer
from damage to its software, files or data as a result of any unauthorized
access, virus or other harmful feature.
8.
Add-Ons: Up to five e-mail address, webmail access and
100 MB of electronic storage space are available to you through Tera-Byte Inc.
for the Initial Term. You may enroll for these services free of charge by
emailing support@Tera-Byte.ca.
9.
Service
Availability/Interruption:
The Service will normally be available to you when used within the
operating range of Tera-Byte™’s system.
Services are subject to transmission limitation or interruption caused
by atmospheric, topographical, and other conditions. Services may be limited in some areas where
coverage is not available or may be temporarily limited or interrupted due to
system capacity limitations and system repairs or modifications. Interruption may also result from non-payment
by you as provided herein. You will be
notified when your account is about to expire.
10.
Tera-Byte™ Provides No System Back-up. You acknowledge that Tera-Byte™ is not
required to perform system backups on any of your data, e-mails, or web
space. Except as otherwise set forth
herein Tera-Byte™ will not provide historical data to any party for any reason,
regarding any system or Internet activity.
11.
Confidentiality
and Privacy:
a)
No
Confidentiality: Information transmitted through the
Internet in general is not confidential. Tera-Byte™ can not and shall not
guarantee your privacy or protection as a result of your use of the Internet
using the Services. Tera-Byte™ reserves the right to monitor your transmissions
when deemed necessary to provide proper service, to protect the rights and
property of Tera-Byte™, or to comply with laws.
b)
Account
Monitoring: Tera-Byte™ has no obligation to, but
may monitor the Services electronically from time to time in order to disclose
any information that may be necessary to satisfy any law, regulation or other
governmental request, to operate the Service properly, or to protect Tera-Byte™
or you.
c)
Eavesdropping.
Numerous customers use Tera-Byte™ Services, facilities and the airwaves. Any information, including sensitive or
confidential information sent by you is sent at your sole risk, and Tera-Byte™
shall have no liability whatsoever for any claims, losses, actions, damages,
suits or proceedings arising out of or otherwise relating to such actions by
you.
d)
Privacy
and confidentiality: Tera-Byte™ may collect, use and
disclose your personal information as is necessary to satisfy any legal,
regulatory or other governmental request; to operate the Service properly; or
to protect Tera-Byte™ or its customers, all in accordance with the guidelines
set out in Tera-Byte™’s Privacy Policy located at: http://www.tbwifi.ca/privacy
12.
Representations
and Warranties:
a)
Billing
Information: You
represent that the Billing Information is your correct information and is true
and accurate. You agree that you will provide timely advance notice to Tera-Byte™
of any change in your Billing Information.
b)
End
User Licenses:
You agree to comply with the applicable terms and conditions of all end
user license agreements accompanying any software or plug-ins to such software
distributed in connection with the Equipment or the Services. All such end user
licenses will terminate upon termination of this Agreement. In the event of an
inconsistency between the terms of this Agreement and any such license, the
terms of this Agreement shall prevail.
c)
Multiple
Users: You assume all liability for use of the Equipment and
Services by anyone at the Premises, and you are responsible for ensuring that
all such other users understand and comply with the terms and conditions of
this Agreement.
d)
Electronic
Storage: Tera-Byte™ may, in its sole discretion, delete or set up
systems to delete data to ensure that maximum capacities are not exceeded.
e)
Acceptable
Use: You agree to
comply with the policies of permitted and prohibited use of the Services as
posted from time to time online at http://www.tbwifi.ca/aup (the
“Acceptable Use Policy”). Violation of
the Acceptable Use Policy by you or anyone else using the Services or the
Equipment may result in termination of this Agreement.
a)
General: UNDER NO
CIRCUMSTANCES SHALL TERA-BYTE™, ITS AFFILIATES, LICENSERS, CONTRACTORS OR
AGENTS OR THEIR RESPECTIVE EMPLOYEES BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR
ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF
REVENUE OR PROFITS, LOSS OF BUSINESS OPPORTUNITIES or damage, loss or destruction of any software, files or data,
THAT RESULT IN ANY WAY FROM THIS AGREEMENT, INCLUDING YOUR USE OF THE EQUIPMENT
OR THE SERVICES OR ACCESS TO THE INTERNET OR ANY PART THEREOF, OR YOUR RELIANCE
ON OR USE OF SERVICES OR EQUIPMENT OR
INFORMATION OR MERCHANDISE PROVIDED ON OR THROUGH THE SERVICES, OR THAT RESULT
FROM MISTAKES, OMISSIONS, INTERRUPTIONS, MALFUNCTIONS, COMPLETE BREAKDOWNS
DELETION OF FILES, ERRORS, DEFECTS, THEFT, DESTRUCTION, DELAYS IN PREPARATION
OR TRANSMISSION, COMPUTER VIRUS OR ANY OTHER HARMFUL FEATURE OR FAILURE OF
PERFORMANCE.
b)
Limitation: IN THE EVENT OF ANY BREACH BY TERA-BYTE™, ITS
AFFILIATES, LICENSERS, CONTRACTORS OR AGENTS OR THEIR RESPECTIVE EMPLOYEES,
INCLUDING ANY BREACH OF A FUNDAMENTAL TERM OF THIS AGREEMENT OR ANY NEGLIGENCE
(INCLUDING GROSS NEGLIGENCE) BY TERA-BYTE™, YOUR EXCLUSIVE REMEDY SHALL BE TO
RECEIVE FROM TERA-BYTE™ PAYMENT FOR ACTUAL AND DIRECT DAMAGES TO A MAXIMUM
AMOUNT EQUAL TO THE MONTHLY FEES PAID BY YOU TO TERA-BYTE™ IN THE THREE MONTHS IMMEDIATELY
PRECEDING THE BREACH.
c)
No Liability for Content:
Some content on the internet may be
offensive, unsuitable for minors, or non-compliant with local laws, regulations
and other rules. You acknowledge that all content accessed at the Premises or through
the Services by any user is accessed and used at that users sole risk. You
agree to supervise all usage of the Services by minors. Tera-Byte™ assumes no liability whatsoever
for any claims or losses arising out of or otherwise relating to access to or
use of such content. You agree to hold Tera-Byte™ harmless from all liabilities
and expenses related to any breach of this Agreement by any user of your PC,
the Equipment or the Services. The
limitations of subsections 13(a), (b) and (c) apply even if Tera-Byte™ has been
advised of or foresees the possibility of any damages occurring.
d)
Your
Liability and Indemnity: TERA-BYTE™ SHALL NOT BE LIABLE FOR,
AND YOU DO HEREBY INDEMNIFY AND SAVE TERA-BYTE™ HARMLESS FROM AND AGAINST ALL
SUITS, CLAIMS OR JUDGEMENTS HOWSOEVER ARISING (INCLUDING TERA-BYTE™’S LEGAL
FEES ON A SOLICITOR AND HIS OWN CLIENT BASIS) OUT OF ANY OF THE FOLLOWING;
i)
CLAIMS FOR LIBEL, SLANDER, INFRINGEMENT
OF TRADE-MARK, COPYRIGHT, OR OTHER INTELLECTUAL PROPERTY RIGHTS OR CONTRACTUAL
RIGHTS OF ANY THIRD PARTY OR BASED ON ANY OTHER LEGAL THEORY HOWSOEVER ARISING
FROM THE MATERIAL, DATA OR OTHER CONTENT FROM TRANSMISSIONS TO OR FROM YOU OR YOUR
PC USING THE SERVICES, WHETHER AUTHORIZED BY YOU OR NOT; OR
ii)
ANY LOSSES, DAMAGES, EXPENSES OR COSTS
ARISING OUT OF OR IN CONNECTION WITH ANY CLAIM, OR OTHER PROCEEDING BASED UPON
A CONTENTION THAT THE USE OF THE EQUIPMENT OR SERVICES BY YOU OR A THIRD PARTY
INFRINGES ANY INTELLECTUAL PROPERTY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD
PARTY; OR
iii)
ANY LOSSES, DAMAGES, EXPENSES OR OTHER
CLAIMS BY ANY OTHER PERSONS RELATING TO THE SERVICES PROVIDED TO YOU; AND
iv)
ANY AND ALL THIRD PARTY ACTIONS, SUITS,
DEMANDS, CLAIMS, PROCEEDINGS, JUDGMENTS, COSTS AND EXPENSES ARISING FROM OR
INCIDENTAL TO THE FOREGOING.
14.
Termination:
Upon termination of this Agreement for any reason, you agree that you
will grant Tera-Byte™ access to the Premises to remove the Equipment or, at the
request of Tera-Byte™, you will deliver the Equipment to Tera-Byte™ (at its
address for notice provided herein), and in either event, you will promptly
return to Tera-Byte™ (at its address for notice provided herein) all copies of
any software provided to you by Tera-Byte™.
i)
Termination
without Notice for Non-Payment: If Tera-Byte™
is unable to obtain payment from you by the Billing Date at any time during the
Term, Tera-Byte™ may immediately terminate the Agreement or your access to the
Services, or both, without notice to you. Upon such termination, in addition to
payment of all other amounts due, you may be required to pay a reactivation fee
if you request to continue the Service, and if Tera-Byte™ agrees.
ii)
Termination
without Notice other than for Non-Payment: Tera-Byte™ may immediately terminate this
Agreement and suspend Services at any time without notice to you if you resell
the Services, if you make a false or misleading representation to Tera-Byte™,
if you fail to allow access to the Premises in accordance with section 6 hereof, or if you are in breach of any term or
condition of this Agreement, other than as contemplated in paragraph 14.a)i) hereof. Upon
such termination, you will immediately pay Tera-Byte™ a lump sum equal to the
Monthly Fee multiplied by the number of months remaining in the Initial Term or
the Renewal Term, as the case may be, plus an administration fee assessed in
the discretion of Tera-Byte™.
iii)
Termination
with Notice:
Tera-Byte™ may terminate this Agreement for any other reason, at any
time, upon reasonable notice to you.
Upon such termination, you will pay Tera-Byte™ all fees incurred up to
the termination date.
b)
Termination
by you: You may give written notice of your intention to terminate
this Agreement at any time, for any reason. Upon such termination, you will
immediately pay Tera-Byte™ a lump sum equal to the Monthly Fee multiplied by
the number of months remaining in the Initial Term or the Renewal Term, as the
case may be, and such termination is effective on the last day of the month
following the month in which your termination request is received by Tera-Byte™.
15.
Disputes:
Any claim, dispute or controversy (whether in contract or tort, pursuant
to statute or regulation, or otherwise, and whether pre-existing, present or
future) arising out of or relating to: (a) this Agreement; (b) the Services or
the Equipment; (c) oral or written statements, advertisements or promotions
relating to this Agreement, the Services or the Equipment; or (d) the
relationships which result from this Agreement (including relationships with
third parties who are not signatories to this Agreement) (the
"Dispute"), will be referred to and determined by a sole arbitrator
(to the exclusion of the courts). Notice
of a Dispute and a request to arbitrate shall be given and will initiate the
arbitration process. Arbitration will
occur at such location designated by Tera-Byte™ within
16.
Notice:
Any notice required to be given to Tera-Byte™ shall be in writing and
delivered to: Terminal Level, 10004 104 Avenue,
17.
General:
The failure of either party to exercise any option herein or to insist upon the
strict interpretation of this Agreement shall not be a waiver of any right or
option, but the same shall continue to be in full force and effect. This Agreement is governed by and construed in
accordance with the laws of the
18.
Survival
of Terms: The obligations described in sections 3, 4, 5, 6, 10, 11, 12, 13, 15, 16 and 17 hereof and
this section survive the expiration or earlier termination of this Agreement
for any reason.
|
Buyer’s Right to Cancel: You may cancel this contract from the day you enter into the
contract until 10 days after you receive a copy of the contract. You do not
need a reason to cancel. If you do not receive the goods
or services within 30 days of the date stated in the contract, you may cancel
this contract within one year of the contract date. You lose that right if you accept delivery
after the 30 days. There are other
grounds for extended cancellation. For
more information, you may contact your provincial consumer affairs
office. If you cancel this contract,
the seller has 15 days to refund your money and any trade-in, or the cash
value of the trade-in. You must then
return the goods. To cancel, you must
give notice of cancellation at the address in this contract. You must give notice of cancellation by a
method that will allow you to prove that you gave notice, including
registered mail, fax or by personal delivery. |
BILLING INFORMATION Credit Card Number: ___________________________________ Expiry Date: __________/___________ Cardholder Name: _____________________________________ Billing Email: _______________________________________
Signature: ________________________________________