TERMS
AND CONDITIONS OF SERVICE
For the purpose of this agreement:
“Affiliate” means a corporation controlled
by or under common control with KELCOM OR IGS.
“Customer” means a Person who has:
1. Requested or been furnished with the Service or other communications
services from or by KELCOM\IGS, an Affiliate or their respective
employees, agents or dealers;
2. Obtained installation, of any other form of service or equipment
from KELCOM\IGS, an affiliate or their respective employees, agents,
dealers subcontractors or suppliers, and includes a User who has
signed the preceding page of this form.
“Person” includes a partnership, firm,
body corporate or politic, government or department or agency thereof
and the legal representatives of such person.
“Service” means data transmission and
communication service furnished by KELCOM\IGS.
“User” means a Person who uses the
service or other communications services furnished by KELCOM\IGS
or their respective employees, agents, dealers, subcontractors or
suppliers whether or not that Person is a Customer.
SUBSCRIPTION
1. Upon acceptance of this agreement by KELCOM\IGS, this agreement
shall constitute a subscription by the Customer for the Service.
2. The Customer warrants and agrees that it is and will be the
end user of the Service.
RULES AND REGULATIONS
The Customer agrees to abide by all the rules and regulations
governing the use of the Service that may be issued or adopted
by KELCOM\IGS from time to time and furnished to the Customer
relating to the provision of the Service.
Unlimited access is subject to time limited log-on periods and
forced log offs to balance usage between users, as deemed necessary
by KELCOM\ IGS Windsor. We do not allow unapproved bots, auto
dialers, scripts executables and bulk E-mailing or soliciting.
Accounts are not considered active until the user logs on the
first time. If the user logs on and activates the account, the
account becomes non-refundable for the duration of the term.
ADSL High Speed Internet service includes unlimited connectivity and bandwidth usage.
However, KELCOM reserves the right of temporary or permanent suspension of any account suspected to
to be used for file sharing, unattended server hosting, spamming or data attacks, whether knowingly
or unknowingly. KELCOM also reserves the right to suspend any account causing the damage to our
network infrastructure.
RATE AND CHARGES
4.(A) The Customer agrees to pay KELCOM\IGS for
the use of the Service at the time and in the amount specified
herein.
(B) The Customer agrees to pay KELCOM\IGS for
any message toll charges or other network service charges incurred
by the Customer in using the Service to make long distance calls
or to access the services of other communications or telecommunications
carriers, bulletin board services or other information providers
who change a tariff for their products and or services.
(C) All repurchased usage and setup fees are
non-refundable.
(D) Unused connection time during any monthly
period cannot be transferred to any other months.
CHANGES IN
RATES AND OTHER TERMS
5. In the case of a Term Plan, KELCOM\IGS may,
upon notice to the Customer directed to the address on the previous
page herein, change or modify any rates, charges or other fees
in connection with the Service including the rates for connection
time and monthly service charges. In the case of any other KELCOM\IGS
Price Plan, KELCOM\IGS reserves the right to, upon notice to the
Customer directed to the address on the previous page herein,
change or modify any of its rates, charges or other fees and any
other terms and conditions applicable in connection with the Service.
Such changes or modified terms and conditions shall be deemed
to be contained herein.
LIMITATION
OF LIABILITY
6. (A) KELCOM\IGS DOES NOT WARRANT:
(I) UNINTERRUPTED WORKING OF THE SERVICE OR OTHER
COMMUNICATIONS TRANSMISSIONS SERVICES, EQUIPMENT OR SOFTWARE PROVIDED,
RENTED OR SOLD BY KELCOM\IGS, ANY OF ITS AFFILIATES OR ITS OR
THEIR RESPECTIVE EMPLOYEES, AGENTS OR DEALERS;
(II) UNINTERRUPTED WORKING OF THE TRANSMISSION
SERVICES OR EQUIPMENT OF ANY OTHER COMMUNICATIONS OR TELEPHONE
COMPANY, CARRIER OR SYSTEM WHOSE SERVICES OR EQUIPMENT ARE UTILIZED
BY KELCOM\IGS, ANY OF ITS AFFILIATES OR BY ANY CUSTOMER OR USER
IN CONNECTION WITH THE SERVICE; OR
(III) THE PRIVACY OF ANY COMMUNICATIONS RELYING
IN WHOLE OR IN PART ON THE SERVICE OR OTHER COMMUNICATIONS TRANSMISSIONS
SERVICE OR EQUIPMENT PROVIDED, RENTED OR SOLD BY KELCOM\IGS ANY
OF ITS AFFILIATES OR ITS OR THEIR RESPECTIVE EMPLOYEES, AGENTS
OR DEALERS, OR ON THE TRANSMISSION SERVICES OR EQUIPMENT OF ANY
OTHER TELECOMMUNICATIONS OR TELEPHONE COMPANY. CARRIER OR SYSTEM
WHOSE SERVICES OR EQUIPMENT ARE UTILIZED BY KELCOM\IGS, ANY OF
ITS AFFILIATES OR BY ANY CUSTOMER OR USER IN CONNECTION WITH THE
SERVICE; AND NO SUCH WARRANTY OR CONDITION, WHETHER EXPRESS OR
IMPLIED BY STATUTE OR OTHERWISE, SHALL FORM A TERM OR CONDITION
UPON AND UNDER WHICH KELCOM\IGS, ITS AFFILIATES OR ITS
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OR
THEIR RESPECTIVE EMPLOYEES, AGENTS OR DEALERS OFFER SUCH TRANSMISSION
SERVICE OR EQUIPMENT TO ANY OTHER PERSON.
(B) KELCOM\IGS ITS AFFILIATES AND ITS AND THEIR
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, DEALERS AND SUBCONTRACTORS
(IT BEING ACKNOWLEDGED BY EACH OF THE PARTIES THAT FOR THE PURPOSES
OF THIS PARAGRAPH 6 AND PARAGRAPH 14 BELOW ONLY KELCOM\IGS IS CONTRACTING
ON ITS OWN BEHALF AND AS AGENT ON BEHALF OF ITS AFFILIATES AND ITS
AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, DEALERS
AND SUBCONTRACTORS) SHALL NOT BE LIABLE TO ANY CUSTOMER, USER OR
ANY OTHER PERSON FOR ANY DAMAGES OR LOSS WHATSOEVER (INCLUDING WITHOUT
LIMITATION, DIRECT, INDIRECT, SPECIAL INCIDENTAL OR CONSEQUENTIAL
DAMAGES OR DAMAGES FOR DAMAGE TO OR LOSS OF PROPERTY, LOSS OF EARNINGS,
LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF FINANCIAL
SUPPORT, LOSS OF FAMILY, PERSONAL INJURY, MENTAL SUFFERING OR LOSS
OF LIFE), HOWSOEVER ARISING OR RESULTING OUT OF THE PROVISION OR
THE USE OF OR IN CONNECTION WITH THE SERVICE OR TELECOMMUNICATIONS
TRANSMISSION SERVICE OR OUT OF THE USE OR INSTALLATION OF EQUIPMENT
OR SOFTWARE PROVIDED, RENTED, SOLD OR INSTALLED BY KELCOM\IGS, ANY
OF ITS AFFILIATES OR ITS OR THEIR RESPECTIVE EMPLOYEES, AGENTS,
DEALERS OR SUBCONTRACTORS INCLUDING, WITHOUT LIMITATION FROM: DEFECTS,
MALFUNCTIONS OR COMPLETE BREAKDOWNS IN TRANSMISSION EQUIPMENT OR
FACILITIES: ELECTRICAL SHOCKS, BURNS, FIRES OR EXPLOSIONS CAUSED
BY MALFUNCTION TRANSMISSION EQUIPMENT OR FACILITIES; MISTAKES, OMISSIONS,
INTERRUPTIONS, DELAYS, ERRORS, DEFECTS, OR COMPLETE BREAKDOWN IN
TRANSMISSION; INCORRECT INSTALLATION OR OPERATION OF TRANSMISSION
EQUIPMENT OR FACILITIES; OR FROM NEGLIGENT. TORTUOUS OR DELICTUAL
CONDUCT OF KELCOM\IGS, ANY OF ITS AFFILIATES OR ITS OR THEIR RESPECTIVE
EMPLOYEES, AGENTS, DEALERS, SUBCONTRACTORS, SUPPLIERS OR MANUFACTURES,
OR ANY OTHER ACT OR OMISSION WHICH MIGHT GIVE RISE TO A CIVIL CAUSE
OF ACTION.
(C) IF AN INTERRUPTION OR COMPLETE FAILURE OF KELCOM\IGS
OR AN AFFILIATES TRANSMISSION SERVICES SHALL OCCUR THAT RESULTS
IN AN INTERRUPTION OR COMPLETE FAILURE OF THE SERVICE OR OTHER TELECOMMUNICATIONS
TRANSMISSION SERVICE THAT KELCOM\IGS OR AN AFFILIATE PROVIDES TO
THE CUSTOMER, KELCOM\IGS (OR ITS AFFILIATE) SHALL:
(I) IN THE CASE OF SUCH AN INTERRUPTION TO OR FAILURE
OF TRANSMISSION SERVICES LASTING 24 HOURS OR MORE FROM THE TIME
KELCOM\IGS IS ADVISED OF THE INTERRUPTION OR FAILURE, MAKE A REFUND
OF CHARGES PROPORTIONATE TO THE LENGTH OF THE INTERRUPTION OR FAILURE
OF SERVICE; AND
(II) IN THE CASE OF INTERRUPTION TO OR FAILURE
OF MESSAGE SERVICE. MAKE A REFUND OF CHARGES, COMPUTED FROM THE
TIME THAT KELCOM\IGS IS ADVISED OF THE INTERRUPTION OR FAILURE;
PROVIDED HOWEVER THERE UNDERTAKINGS REPRESENT THE SOLE EXTENT OF
LIABILITY OF KELCOM\IGS, ITS AFFILIATES AND ITS AND THEIR RESPECTIVE
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, DEALERS AND SUBCONTRACTORS.
7.
The limitations of liability set forth in paragraph 6 hereof apply
equally to data, voice and other telecommunications transmission
services provided to the Customer by any other Internet service
operator pursuant to any agreement entered into by KELCOM\IGS
and such other Internet communications service operator. In this
regard, paragraph 6 is to be read as if every reference to “
KELCOM\IGS “ includes a reference to such other data communications
service operator (it being acknowledged by each of the parties
that for the purpose of this paragraph only KELCOM\IGS is contracting
as agent on behalf of such other Internet service operator(s)).
RENEWAL AND
TERMINATION OF PRICE PLANS OTHER THAN TERM PLANS
8. If the KELCOM\IGS Price Plan selected by the
Customer is not a Term Plan:
(A) This agreement shall automatically renew
for successive monthly terms on the expiry of the initial and
each successive monthly term; unless the Customer or KELCOM\IGS
gives the other notice in writing of termination as hereinafter
provided.
(B) If the Customer should fail to pay for the
use of the Service or fail to pay any other amount owed to KELCOM\IGS
at the times and the amounts specified. KELCOM\IGS may terminate
provision of the Service(or any portion thereof) to the Customer
without notice to the Customer.
(C) This agreement may be terminated by either
party hereto upon 30 days notice in writing. In the case of the
Customer, notice shall be directed to the address on the previous
page herein.
(D) Notwithstanding the termination hereof, the
Customer agrees to pay all charges to KELCOM\IGS at the date of
termination on accordance with this agreement.
TERMINATION
OF TERM PLAN
9. (A) If an event of default (as defined below)
occurs under a Term Plan, KELCOM\IGS, in its absolute discretion,
may terminate provision of the Service to the Customer and this
agreement. If the Guide requires the Customer to pay KELCOM\IGS
a specified amount as a genuine pre-estimate of liquidated damages
in the event of early termination of this
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agreement
by KELCOM\IGS as a result of the occurrence of an event of default,
or by the Customer far any reason, the Customer shall pay such amount
to KELCOM\IGS within 21 days of written notice to the Customer requiring
it to do so, directed to the address on the previous page herein.
The Customer shall pay any costs incurred by KELCOM\IGS to recover
such amount and any other amounts due hereunder, including legal
fees.
(B) For the purpose of Term Plan, the occurrence
of any one of the following shall constitute an event of default:
(i) failure by the Customer to pay all required
charges and taxes to KELCOM\IGS within 5 days of the due date thereof
as specified in KELCOM\IGS’s monthly statement to the customer;
(ii)failure to the Customer to remain a KELCOM\IGS
subscriber for any reason;
(iii) breach of this agreement by the Customer;
(iv) the Customer having recourse or being subject
to any statue respecting bankruptcy, insolvency or winding up.
SURVIVAL
10. The limitations on liability in paragraph
6, 7 and 14 hereof and the Customers obligations in subparagraph
8(D) and 9(A) shall survive the expiry or other termination of
this agreement.
COMPLETE AGREEMENT
12. The Customer acknowledges that there are
no other terms and conditions of this agreement except as are
expressly contained or deemed to be contained herein or expressly
incorporated herein by reference.
GOVERNING LAW
13. The agreement shall be governed by and construed
in accordance with the laws applicable in the province in which
the Customer’s designated billing address is situate, as
identified on the previous page herein.
LANGUAGE (APPLICABLE
ONLY TO THE PROVINCE OF QUEBEC)
14 The parties hereto have required that this
agreement and all transactions, documents or notices resulting
there from or ancillary thereto be drawn up in the English language.
Les parties aux presentes ont demande que ce contrat et tous les
documents, transactions ou avis en resultant ou y etant assujettis
soient rediges en langue anglaise.
EQUIPMENT
15. The Customer acknowledges and agrees that
the only warranty applicable to any equipment being purchased
pursuant to this agreement is that written limited warranty supplied
by the manufacturer or as specified between the Customer and a
specified insurance carrier via separate agreement. THERE IS NO
WARRANTY OR CONDITION, WHETHER EXPRESS OR IMPLIED BY STATUTE OR
OTHERWISE, PROVIDED BY KELCOM\IGS OR ITS AFFILIATES TO THE CUSTOMER
WITH RESPECT TO ANY EQUIPMENT PURCHASED PURSUANT TO THIS AGREEMENT.
CHANGE
16. The Customer may, subject to KELCOM\IGS’s
approval, change to another KELCOM\IGS Price Plan.
CRTC
17. KELCOM\IGS’s rates and charges are
subject to approval from time to time by the Canadian Radio-television
and Telecommunications Commission (the “CRTC”). Notwithstanding
anything to the contrary herein contained, KELCOM\IGS may also
terminate provision of Service to the Customer and this agreement
without notice to the Customer if the performance of this agreement
would result in non-compliance with any applicable statue or regulation
or the regulations or requirements of the CRTC or other regulatory
authority having jurisdiction.
MISCELLANEOUS
18. Time is of the essence with respect to this
agreement and no waiver by KELCOM\IGS of any default shall constitute
a waiver of any other default by the Customer or waiver of KELCOM\IGS’s
rights. Except as provided herein, this agreement may not be amended
except as writing and shall be binding upon and ensure to benefit
of the parties hereto, their permitted successors and assigns.
Any provision of this agreement which is unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition of enforceability without invalidating
the remaining provisions hereof and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction. The Customer acknowledges
and agrees that clerical errors shall not affect the validity
of this agreement and KELCOM\IGS shall be entitled to unilaterally
correct the same.
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