Terms of Service

SERVICES AGREEMENT

The Services as detailed and agreed in the Order Form are governed by the following terms and conditions, and form part of the Agreement between FiberLynx Communcations Inc. (the “Service Provider”) and you (the “Customer”).

Interpretation

  • Definitions. In this Agreement, in addition to the terms used elsewhere in this Agreement:
    • “Administrative Contact” means the Customer’s authorized and designated representative shown on the Order Form;
    • “Agreement” means the Order Form, these terms and conditions, any addendum to the Order Form agreed to by the parties, and the policies and terms and conditions on the Service Provider’s website as updated from time to time.
    • “Business Day” means a day other than Saturday, Sunday or a statutory holiday in British Columbia.
    • “Commencement Payment” means the first payment due to Service Provider by the Customer for the Services as shown on the Order Form.
    • “Confidential Information” means all information disclosed by one party to the other, at any time, that would reasonably be considered to be confidential, including (i) with respect to Service Provider, its unpublished terms of service, prices, audit and security reports, server configuration designs, data center designs and other proprietary technology; (ii) with respect to the Customer, any files transmitted to or from, or stored by, the Customer on Service Provider’s servers; and (iii) with respect to both, other information that is marked as “confidential” or, if disclosed in non-tangible form, is verbally designated as “confidential” at the time of disclosure and confirmed as confidential in a written notice given within 30 days of disclosure, but excluding any information that is independently developed by a non-disclosing party as shown by such party’s written business records, or is or becomes generally available to the non-disclosing party or the public other than in breach of this Agreement.
    • “Currency” is defined in Section 1.2.
    • “ETF” is defined in Section 2.8.
    • “Fees” means the amounts payable by the Customer pursuant to this Agreement, including the Commencement Payment, Setup Fee, Recurring Fee and any additional fees for supplemental services, excess data transfer, re-instatement of service, switching and upgrade fees, and other non-recurring amounts.
    • “Initial Term” means the minimum period that the Customer agrees to pay for the Services as shown on the Order Form.
    • “Payment Cycle” means interval between each recurring payment for the Services, as shown on the Order Form.
    • “Recurring Fee” means the amount payable for each Payment Cycle, as shown on the Order Form.
    • “Renewal Term” means the minimum period that the Customer agrees to pay for the Services after the Initial Term, as shown on the Order Form.
    • “Service Commencement Date” means the date the Customer is provided access to the Services by Service Provider, being the date shown on Service Provider’s service confirmation e-mail to the Customer.
    • “Services” means the services described on the Order Form, and any supplemental services to be provided by Service Provider to the Customer from time to time pursuant to Section 2.3.
    • “Setup Fee” means the amount charged for the initial setup of the Services by Service Provider, as shown on the Order Form.
    • “SLA” means, as applicable, the service level agreement attached to the Order Form or the service level agreement posted on Service Provider’s website as updated from time to time.
  • Currency. All Fees are charged in the currency shown on the Order Form (“Currency”). Should the Customer need to pay in a different Currency, the prevailing foreign exchange rate to Canadian dollars on the date of payment, as obtained from the Royal Bank of Canada website, will be used to make the conversion.
  • Entire Agreement. The Agreement is the entire agreement between the parties, and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties and there are no other representations, warranties or covenants except as specifically set out in this Agreement.
  • Governing Law. This Agreement shall be governed by the laws of the Province of British Columbia, exclusive of its choice of law principles, and the laws of Canada applicable therein. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. The courts of the Province of British Columbia shall be the exclusive venue for all disputes arising out of or relating to this Agreement, and each party hereby irrevocably attorns to the exclusive jurisdiction of such courts. As permitted by law, the Customer covenants that it shall not bring or participate in any class action lawsuit against Service Provider, its affiliates or any of their respective shareholders, directors, officers, employees or agents.

Term, Fees, and Termination

  • Commencement of Services. On the written notice to Customer of completion by Service Provider of the hardware and/or software configuration necessary to implement the Services, Service Provider will commence to provide the Services in accordance with the terms of this Agreement.
  • Term. This Agreement begins on the Service Commencement Date and continues until the end of the Initial Term. After the end of the Initial Term, this Agreement will automatically be renewed for successive periods in accordance with the Renewal Term, commencing on the day after the last day of the Initial Term. If the Customer does not wish for the Agreement to automatically renew at the end of the Initial Term or subsequent Renewal Term, it may provide 30 days’ notice to Service Provider prior to the end of the current term.
  • Supplemental Services. Service Provider may perform supplemental services for the Customer in addition to those set out on the Order Form on an hourly or fixed fee basis as agreed to in advance in writing by the parties, and the terms of this Agreement will apply to such additional services. Service Provider may take actions to remediate violations of the policies or terms and conditions of the Service Provider by the Customer without the requirement for the Customer’s consent, and such actions will be deemed to be Services for purposes of this Agreement and for which the Customer will pay Service Provider.
  • Fees. The Customer agrees to pay the Commencement Payment within 10 Business Days’ of the Service Commencement Date. The Customer agrees to pay the Recurring Fee, which is billed in advance for each Payment Cycle, in accordance with the due date shown on the invoice issued by Service Provider to the Customer. Interest on all overdue accounts will accrue at the rate of 1.5% per month, payable on demand. Fees not disputed within 180 days of their due date may not be contested by the Customer.
  • Credit Card Payment. If the Customer pays any Fees by credit card, the Customer expressly authorizes Service Provider or its agents to charge all Fees incurred under this Agreement to such card, and such authorization will survive termination of this Agreement until there are no charges owing by the Customer under this Agreement. If the Customer uses a credit card and Service Provider does not receive payment from the card issuer, the Customer will pay all amounts due, upon demand by Service Provider. The Customer must notify Service Provider of any changes to the credit card account including, without limitation, applicable account number or cancellation or expiration of the account, billing address or any other information that may prevent Service Provider from charging the account.
  • Taxes. The Customer will be responsible for all applicable sales, goods and services and other taxes payable in respect of any Fees.
  • Remedies for Non-Payment. Service Provider may suspend any or all Services on notice to the Customer if payment of any Fees is overdue, in which case the Customer is still responsible for all Fees accrued before and during the suspension of such Services. Upon suspension of the Services, the Customer will be required to pay Service Provider’s applicable reinstatement fee to resume access to the Services, in which case this Agreement will be deemed to have continued without termination. The Customer further agrees to pay Service Provider’s reasonable costs of collection of any overdue Fees, including collection agency fees, legal fees and court costs.
  • Early Termination. The Customer acknowledges that Service Provider has agreed to provide the Services during the Initial Term and any subsequent Renewal Term for the amount of the Recurring Fee based on the Customer’s commitment to pay for the entire Initial Term and entire Renewal Term, as applicable. If Service Provider terminates this Agreement as a result of any breach by the Customer, or if the Customer terminates this Agreement before the end of the Initial Term or Renewal Term, then an early termination fee (the “ETF”) applies. The ETF is equal to the amount of the Recurring Fee (for any Payment Cycle other than monthly, the Recurring Fee is converted to a monthly rate) multiplied by the number of months remaining until the end of the Initial Term or Renewal Term, as applicable. If less than one (1) month remains until the end of the Initial Term or the Renewal Term, then the ETF is equal to the amount of the Recurring Fee calculated on a one (1) month basis. The ETF is due on demand by Service Provider
  • Termination by the Customer. The Customer may terminate the Agreement immediately at any time:
    • for any reason, subject to the ETF in Section 2.8 above; or,
    • without any liability other than any Fees due up to the effective date of the termination, if Service Provider:
      • fails to provide the Services in accordance with the terms of this Agreement, such failure causes material harm to the Customer and Service Provider does not cure the failure within 10 Business Days of receipt of notice in writing from the Customer describing the failure in reasonable detail; or
      • materially violates any other provision of this Agreement and fails to cure the violation within 30 Business Days of receipt of notice in writing from the Customer describing the violation in reasonable detail.
  • Termination by Service Provider. Service Provider may terminate this Agreement before the end of the Initial Term or the Renewal Term without liability:
    • on four Business Days’ written notice to the Customer;
    • if the Customer materially violates any other provision of this Agreement, policies, and/or terms and conditions;
    • on one Business Day’s written notice to the Customer if the Customer uses the Service in violation of any other provision of this Agreement, policies, and/or terms and conditions more than once; or
    • upon one Business Day’s written notice if any other provision of this Agreement, policies, and/or terms and conditions is threatened or served with a claim for intellectual property infringement related to the provision of the Services and the Customer is unable to modify the Services in a way that avoids an ongoing risk of liability.
  • Suspension of Service. Service Provider will be entitled to suspend the Services without liability if:
    • Service Provider, acting reasonably, believes that the Services are being used in violation of this Agreement or any applicable law;
    • the Customer is in breach of any material term of this Agreement;
    • there is a denial of service attack on the Customer’s servers or any other event which Service Provider, acting reasonably, believes justifies the suspension of Services in order to protect Service Provider’s network or other customers; or
    • Service Provider is requested to do so by any law enforcement or governmental agency.
    • The Customer will not be able to access any files on Service Provider’s servers during a suspension of Services. Service Provider will use its best reasonable efforts to give the Customer advance notice in writing of a suspension of Services, unless a law enforcement or governmental agency directs otherwise or suspension without notice is necessary to protect Service Provider or its other customers.

Warranties, Obligations, and Indemnities

  • Customer Warranties. The Customer represents and warrants to Service Provider that (a) if the Customer is an individual, they are at least 18 years of age and has the legal capacity to enter into this Agreement; (b) the information the Customer has provided for the purpose of establishing an account with Service Provider is accurate; and (c) the Customer has the right to use any trademarks, trade names, logos and other identifying marks and any materials that are subject to copyright used by the Customer on any website hosted by Service Provider.
  • Customer Obligations. The Customer agrees that it will (a) abide by all the provisions of this Agreement; (b) use industry standard security precautions in connection with its use of the Services including, where prudent, encrypting any confidential information transmitted to or from, or stored by, the Customer on the servers or storage devices used by the Customer; (c) be financially responsible for use of the Services; (d) have acquired or will acquire all necessary authorizations for the use and display of any third-party content not owned by or licensed to the Customer; (e) not copy, duplicate, transmit, compile or mirror any proprietary server software installed on leased servers provided by Service Provider, including without limitation any custom scripting, security robots, log utilities, virtual installation robots, account maintenance software or other utilities; and (f) cooperate with any investigation by Service Provider of suspected violations of Service Provider policies and terms and conditions.
  • No Service Provider Warranties. Service Provider makes no warranty or representation that the Services will be uninterrupted, error-free, or completely secure. The Customer acknowledges that there are risks inherent in use of the Internet that could result in the loss of privacy, confidential information and property, including any data or information transmitted by any server designated as “secure”. To the greatest extent permitted by applicable law, Service Provider disclaims any and all warranties not expressly stated in this Agreement, including implied warranties of merchantability, fitness for a particular purpose and non-infringement. The Customer is solely responsible for the suitability of the Services chosen, and acknowledges that the Services are provided on an “as is”. Service Provider recommends that the Customer make its own arrangements to regularly backup all files and has no liability if any precautionary backups made by Service Provider fail in whole or in part.
  • Confidential Information. With respect to Confidential Information:
    • Subject to section 3.4.2, each party agrees that, without the prior written consent of the other party, it will not use any Confidential Information of the other except in connection with the performance or use of the Services or the exercise of its rights under this Agreement, and will not disclose the other’s Confidential Information to any third party, excluding its service providers, agents or legal representatives who need to know the information to represent or advise it with respect to the subject matter of this Agreement; and
    • Service Provider may without notice, (i) report to the appropriate authorities any conduct by the Customer (or the Customer’s customers or end-users) that Service Provider reasonably believes violates any applicable law; and (ii) provide any information, including Confidential Information, required by law or regulation to be disclosed, or in response to a formal or informal request from a law enforcement or government agency. Where feasible and permitted by law, Service Provider will provide the Customer advance notice and the ability for the Customer to respond to any requests of information from a law enforcement or government agency.
    • If there is any inconsistency between any terms of this Agreement and the terms of Service Provider’s privacy policy, this Agreement will prevail.
  • Customer Indemnity. The Customer will indemnify and hold harmless Service Provider, its affiliates, and their respective shareholders, directors, officers, agents and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, expenses, penalties, fines, punitive damages, requests for injunctive relief, amounts in interest and other amounts of any kind or nature whatsoever (including reasonable lawyers’ fees) brought by any third party under any theory of legal liability (collectively, “Claims”) arising out of or related to (a) actual or alleged use of the Services in violation of this Agreement or any applicable law, including without limitation infringement of third party intellectual property rights, by any person regardless of whether such person has been authorized to use the Services by the Customer; (b) actual or alleged breach by the Customer of any of its obligations, whether contractual, statutory or implied, to its customers or end-users; and (c) any dispute between persons who claim to have authority to act for the Customer in connection with the control of the Customer’s account with Service Provider.
  • Limitation of Damages. The Customer agrees that the allocations of risk herein made are reasonable and that Service Provider would not enter into this Agreement without such allocations. Service Provider will not be liable to the Customer for any Claims caused by or related to the Customer’s use of the Services or inability to use the Services. This provision does not limit the Customer’s right to terminate this Agreement if such failure constitutes a material breach of this Agreement. Service Provider will not in any circumstances be liable to the Customer or any person claiming under the Customer for any lost profits or any indirect, special, incidental, indirect or consequential loss or damage of any kind, or for damages that could have been avoided by the use of reasonable diligence, arising in connection with this Agreement, even if Service Provider has been advised or should be aware of the possibility of such damages. In no event shall Service Provider be liable to the Customer or any person claiming under the Customer for any punitive damages. Notwithstanding any provision of this Agreement, except for claims based on Service Provider’s willful misconduct, the maximum aggregate monetary liability of Service Provider and any of its affiliates, shareholders, directors, officers, employees or agents under any theory of law shall not exceed One Thousand Canadian Dollars (CAD $ 1,000.00).
  • Service Provider Software. The Customer will not modify, alter, remove or obscure any copyright, trademark or other proprietary rights notices that appear on any software provided by Service Provider. The Customer will not reverse engineer, decompile or disassemble any software provided by Service Provider, except as expressly permitted by or is permitted by the terms of any “open source” license that governs the use of such software or applicable law notwithstanding this limitation, and then only following at least 10 Business Days’ advance written notice to Service Provider.
  • Third Party Products. Service Provider may arrange for the Customer’s purchase or license of, and may provide support for, third party software, services and other products not included as part of the Services. Service Provider makes no representation or warranty whatsoever regarding such third party software, services, products and related support services and, as between Service Provider and the Customer, such services are provided “as is”. The Customer’s use of third party software, services and other products is governed by the terms of any license or other agreement between the Customer and the third party.

IP Infringement Claims

  • Third Party Claims Procedure. Service Provider reserves the right and has absolute discretion to restrict or remove from its servers any content that violates this Agreement or is otherwise objectionable or potentially infringing or in violation of any third party’s rights or any laws. If Service Provider becomes aware of such circumstances, Service Provider may immediately take corrective action including, but not limited to, (a) issuing warnings; (b) suspending or terminating the Services; (c) restricting or prohibiting any and all uses of content hosted on Service Provider’s systems; or (d) disabling or removing any third party content, any content distributed or made available for distribution using the Services, or other content not supplied by Service Provider which, in Service Provider’s sole discretion, may violate or infringe any third party rights or laws or which may expose or potentially expose Service Provider to civil or criminal liability or public ridicule. It is Service Provider’s policy to terminate Services to repeat infringers. Nothing in this Agreement, however, obligates Service Provider to monitor or exert any editorial control whatsoever over any material distributed using the Services, and Service Provider has no obligation to censor or monitor any person’s use of the Services or any obligation to censor or monitor any content, material or other information sent, received or accessible through the Services. If Service Provider takes corrective action due to such possible violation, Service Provider shall not be obligated to refund any Fees paid in advance of such corrective action.

Miscellaneous Provisions

  • Force Majeure. Service Provider will have no liability resulting from any interruption, disruption or failure of any Service caused by circumstances beyond its reasonable control including, without limitation, acts of any governmental body, war, insurrection, sabotage, terrorism, armed conflict, embargo, fire, flood, strike, other labor disturbance, earthquake or other seismic disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third-party services, virus attacks, denial of service attacks, failure of third party software (including without limitation e-commerce software, payment gateways, statistics for free scripts) or inability to obtain supplies, power or equipment needed for provision of the Services, scheduled maintenance including upgrades, emergency maintenance, domain name server issues outside the direct control of Service Provider, including DNS propagation or any delays in the registration or transfer of a domain name, domain registrar or registry issues, browser or DNS caching that may make the Customer’s site appear inaccessible when others can still access it, or any act or omission by the Customer or its agents such as custom scripting, willful misconduct, exceeding allowable monthly site traffic allocation or any use of the Services in violation of this Agreement.
  • Notices. Any notices to Service Provider required or permitted under this Agreement must be given in writing by mail or hand delivered to: FiberLynx Communications Inc.,Suite 420–609 Granville Street P.O.Box 10352, Vancouver, B.C. V7Y 1G5, Attn: Edward Guest. Any notices to the Customer may be sent by e-mail to the Administrative Contact or by means reasonable under the circumstances, including an e-mail to a known contact. Notices are deemed received on the day delivered or, if that day is not a Business Day, as of the beginning of the first Business Day following the day delivered. Notices must be given in the English language.
  • IP Ownership. Each party acknowledges that nothing in this Agreement entitles it to any rights in the copyrights, inventions, trade secrets or other intellectual property of the other party, who retains exclusive ownership and rights in such intellectual property, and that Service Provider shall own any intellectual property that it may develop in the course of performing the Services. The Customer does not acquire any ownership interest or rights to possess Service Provider’s servers or other hardware and has no right of physical access thereto. On termination of this Agreement, the Customer will promptly release any Internet protocol (“IP”) numbers, addresses or address blocks assigned to the Customer in connection with the Service and agrees that Service Provider may take steps to change or remove any such IP addresses.
  • Modifications. This Agreement may be amended only in writing signed by both parties with the exception of: (a) amendments to Service Provider’s policies and terms and conditions, which may be amended without the Customer’s consent by Service Provider in accordance with the respective terms of those documents; and (b) changes to the these Terms and Conditions attached to an existing Order Form, which may be made by an exchange of correspondence (including e-mail) that reflects both parties’ consent to the change, without any signature. Any amendments pursuant to Section 5.4(a) shall take effect upon 30 days of the Customer receiving notice of such amendments. The terms on either party’s purchase order or other business forms are not binding on the other party unless such terms are expressly incorporated into a written agreement signed by both parties.
  • Non-Waiver. No failure or delay in enforcing any provision of this Agreement will be deemed a waiver of a party’s rights with respect to that provision or any other provision of this Agreement.
  • Execution and Delivery. This Agreement will be deemed to have been executed and adopted by the Customer and delivered to Service Provider when the Customer: (a) orders a product from Service Provider’s website and electronically indicates the acceptance of these Terms and Conditions; or (b) replies to an e-mail from Service Provider which contains the Order Form and these Terms and Conditions and the Customer’s reply confirms the Customer’s execution and delivery. Alternatively, this Agreement may be executed and adopted by the Customer and delivered to Service Provider by sending the Order Form, duly executed by the Customer, by conventional mail, facsimile or electronic transmission, and facsimile signatures or signatures on an electronic image, such as .pdf or .jpg format, shall be deemed to be original signatures.
  • Survival. The following sections in this Agreement will survive termination: 1, 2.4, 3.3, 3.5, 3.6, 3.8, 5.3, 5.7, and any other sections that by their nature are intended to survive termination of this Agreement.
  • Severability. Each Section of this Agreement is distinct and severable. If any section of this Agreement, in whole or in part, is or becomes illegal, invalid, void, voidable or unenforceable in any jurisdiction by any court of competent jurisdiction, the illegality, invalidity or unenforceability of that section, in whole or in part, will not affect the legality, validity or enforceability of the remaining sections of this Agreement, in whole or in part.
  • Assignment and Enurement. Neither this Agreement nor any right or obligation under this Agreement may be assigned by the Customer without the prior written consent of Service Provider. This Agreement enures to the benefit of, and is binding upon, the parties and their respective heirs, executors, administrators, estate trustees, trustees, personal or legal representatives, successors and permitted assigns. Service Provider may assign this Agreement, in whole or in part, without obtaining any consent from the Customer.
  • Cumulative Rights. The rights, powers and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights, powers and remedies available at law or in equity or otherwise.