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This
Agreement is between the "Provider" Gori Canada Diffusion,
Inc. aka: ExaCom having its principal place of business at 12030
RR 4 Acton, Ontario, L7J 2M1 and the “Customer”. 1. DESCRIPTION OF SERVICES.
Provider shall sell, and Customer shall purchase from Provider
certain services specifically described in the www.exacom.net web page,
hereto and hereinafter referred to as “Service” and by this
reference is made a part of this Agreement (“Provider Services”).
There may be additional services offered by Provider in the
future in which event the Service described in this Paragraph of this
Agreement shall be amended to more accurately reflect such additional
services or the parties hereto will enter a separate agreement for such
services. 2. PRICING.
The current prices and rates for the Provider Services
provided under the terms of this Agreement are set forth in Service
described in Paragraph 1 of this Agreement.
Unless the parties agree otherwise in writing as to pricing and
payment terms, for any Provider Services not identified in the Service,
now existing or as hereafter amended, the Provider’s list prices and
rates and standard payment terms and conditions shall apply and govern.
3. PAYMENT
TERMS. Upon
acceptance of this Agreement, Customer shall immediately pay to Provider
any service setup fees (when this applies, e.g. Static IP service) prior
to Provider being obligated to commence or provide any Provider Services
to Customer. Any required
setup fees will be referenced in the Service described in Paragraph 1 of
this Agreement. Provider expects immediately,
for the first initial payment, a sum equal to: 1.
Service Startup Fees (when
this applies, e.g. Static IP service) 2.
First month service fees. Provider expects payments for
the second and each succeeding month within the Due Date, calculated
from the date the service account for Customer was created. Provider has
the right to hold back services if payment is not received for them. 3.1
Suspension for Non-Payment. In the event Customer
does not remit payment for Undisputed Charges (defined as all charges
due by Customer except for any specified amounts which Customer disputes
in good faith, with reference to specific provisions of this Agreement,
and with supporting factual documentation) by the end of the month,
Provider may, in its sole discretion, suspend the Provider Services
provided to Customer with forty-eight (48) hours prior notice (delivered
via facsimile transmission, or electronic email). 3.2
Termination for Non-Payment. In the event Customer
does not remit payment for Undisputed Charges (defined as all charges
due by Customer except for any specified amounts which Customer disputes
in good faith, with reference to specific provisions of this Agreement,
and with supporting factual documentation) within thirty (30) days after
the Due Date, Provider may, in its sole discretion, terminate the
Provider Services provided to Customer for material breach under the
provisions of section 5.3. 3.3
Taxes.
All charges to Customer hereunder are exclusive of federal,
state, local and foreign sales, use, excise, utility, gross receipts and
value-added taxes and other taxes, levies fees or excises of any kind,
including tax-related surcharges or applicable tariffs, which Customer
agrees to pay. In the event
that Customer provides Provider with a duly authorized exemption
certificate, Provider agrees to exempt Customer in accordance with the
law, effective on the date an exemption certificate is received by
Provider. 3.4
Cancellation. Customer must notify Provider of
cancellation by E-mail or regular mail at least
5 days before the end of the solar month.
No money shall be refunded for cancellation. No pro-rated amount
will be reimbursed or credited for the current solar month. Any money
owed by Customer to Provider for the current solar month is payable in
full. For example, if an
account is open on Aug. 17 and a notification is received by Aug. 25,
Customer account will be terminated by month-end and Customer owes the
full amount for the service for the current month.
If Customer account was open any time in the previous month
(e.g.: July 20), then Customer owes Provider payment for two full
months. 3.5
Billing Disputes. Customer must notify Provider in
writing of any disputed charges within 15 days of the Due Date of such
charges. If Customer does not notify Provider within that time period,
Customer is deemed to have waived any right to dispute such amounts,
either directly or as a set-off, recoupment or defense in any action or
efforts to collect amounts due to Provider. 4.
CUSTOMER OBLIGATIONS. 4.1
Compliance with Agreement, Exhibits and Use Policy. Customer
is required to comply with all conditions of this Agreement, Service and
terms of use published at www.exaCom.net, as it may be
updated and amended from time to time.
Provider reserves the right to suspend or terminate any Provider
Services to Customer for any violation of this Agreement, Service or
terms of use. 4.2
Customer's Duties.
Customer shall document and promptly report all errors or
malfunctions of service. Provider
shall provide all services purchased by the Customer.
4.3
Limitation on Warranties, Representations and Indemnities;
Disclaimer. PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND
IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES
ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
PROVIDER DOES NOT WARRANT THAT THE PROVIDER SERVICES WILL BE
UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
PROVIDER DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM
ITS SUPPLIER’S SERVERS AND OTHER PORTIONS OF THE INTERNET.
SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF SERVICES
PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS
CAUSED BY THESE THIRD PARTIES CAN PRODUCE SITUATIONS IN WHICH PROVIDER
SERVICES MAY BE IMPAIRED OR DISRUPTED.
ALTHOUGH PROVIDER WILL USE COMMERCIALLY REASONABLE EFFORTS TO
TAKE ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS,
PROVIDER CANNOT GUARANTEE THAT THEY WILL NOT OCCUR.
ACCORDINGLY, PROVIDER DISCLAIMS ANY AND ALL LIABILITY RESULTING
FROM OR RELATED TO SUCH EVENTS. 4.4
Cure. In
the event of a breach of the foregoing warranty, Customer shall promptly
notify Provider of the breach in writing.
Upon receipt of notice, Provider will use commercially reasonable
efforts to remedy the breach. If,
in Provider’s sole judgment, the breach cannot be remedied through
commercially reasonable efforts, Provider may at its option compensate
Customer for any loss caused by the breach, by credit against amounts
owing under this Agreement or otherwise, or may terminate this Agreement
and refund to Customer an equitable portion of any fees paid by Customer
to Provider for Provider Services not performed. THE FOREGOING SETS FORTH CUSTOMER’S SOLE REMEDY AND
PROVIDER’S SOLE LIABILITY FOR BREACH OF WARRANTY. 4.5
LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER PARTY BE LIABLE (WHETHER IN CONTRACT,
TORT OR OTHERWISE, INCLUDING NEGLIGENCE AND STRICT LIABILITY) FOR ANY
SPECIAL, INDIRECT, SPECULATIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER,
INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST SAVINGS OR COSTS
ATTRIBUTED TO DELAYS OR LOSS OF TIME, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE CLAIM OR OF THE POSSIBILITY OF SUCH DAMAGES, AND IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR PUNITIVE DAMAGES.
THE LIABILITY OF PROVIDER AND ITS SUPPLIERS UNDER THIS AGREEMENT
IS LIMITED TO PROVIDER'S OBLIGATIONS UNDER THE LIMITED WARRANTY SET
FORTH ABOVE. IN NO EVENT
SHALL THE LIABILITY OF PROVIDER OR ITS SUPPLIERS EXCEED THE AMOUNT OF
THE FEE PAID TO PROVIDER FOR THE SERVICE TO WHICH THE SPECIFIC CLAIM
RELATES. 5. TERM; TERMINATION. 5.1
Term; Automatic Renewal.
This Agreement shall be for an initial term of (1) one month from
the Effective Date (the “Initial Term”) and shall be automatically
renewed for successive monthly terms (the “Renewal Term”) (each a
“Term”) unless either party provides written notice to the other
party of termination at least fifteen (15) days prior to the end of the
Term. Customer’s payment
obligations shall survive termination or expiration of this Agreement. 5.2
Termination without Cause; Breach.
If
Customer terminates this Agreement without cause and without notice
prior to expiration of the Initial Term or the Renewal Term, or Provider
terminates this Agreement due to material breach by Customer, Customer
shall pay an early termination fee to Provider of $5 U.S.
The parties agree that the amount of the termination fee is a
reasonable compensation to Provider for breach of the Agreement. 5.3
For Cause Termination.
Either
party may terminate this Agreement for cause and without penalty in the
event that the other party breaches any material term of this Agreement.
Prior to such termination, the party intending to terminate shall
first give the other party advance written notice of its intention to
terminate this Agreement. The notice shall clearly describe the reason
for the party’s intention to terminate.
The other party will have fifteen (15) days from the date of
receipt of such notice to correct the breach.
If the breach is not corrected within the fifteen (15) day period
but significant progress toward resolution of the breach has been made,
the party who provided notice of its intention to terminate may agree to
an additional extension of time for performance of this Agreement. The
right to terminate this Agreement shall be Customer’s sole and
exclusive remedy for any breach of this Agreement by Provider or any
loss or damage suffered in connection with the Provider Services. 6. CONFIDENTIALITY.
6.1
Each party agrees that information disclosed by one party under
this Agreement (the “Disclosing Party”) to the other party (the “Receiving
Party”), including account names, passwords, and/or software, which
information is considered proprietary by the Disclosing Party, shall be
considered Confidential Information under this Agreement. 6.2
A Receiving Party shall not disclose the Disclosing Party’s
Confidential Information to any third party without the Disclosing Party’s
prior written consent, except under order of court or government agency,
and then only if the Receiving Party gives timely notice of such order
to the Disclosing Party to afford such Disclosing Party the opportunity
to attempt to obtain a protective order.
Each party agrees to exercise the same level of care in
protecting the Confidential Information of the other party from
unauthorized use and disclosure as it uses in connection with its own
Confidential Information, but in no event less than reasonable care.
6.3
Confidential Information will not include information that is (i)
publicly available, (ii) in the Receiving Party’s lawful possession
prior to the Effective Date and not subject to disclosure restrictions
on the part of the Receiving Party, (iii) obtained by the Receiving
Party from third parties without disclosure restrictions known to the
Receiving Party, or (iv) owned by the Receiving Party without reference
to the Disclosing Party’s Confidential Information (as shown by that
Receiving Party’s written records). 7.
END-USER TERMS AND CONDITIONS 7.1
End-User Damage.
Neither Customer nor Provider will be responsible for any damage
a Client or an End-User suffers. This
includes damages resulting from loss of data due to delays,
non-deliveries, mis-deliveries, or service interruptions.
Use of any information obtained via the dial-up Internet service
is at the user’s own risk. 7.2
Subscription Agreement.
Customer's use of Provider Services must comply with the any use
policies or conditions of this agreement or those described in the
Service described in Paragraph 1 of this Agreement and related Exhibits.
Provider reserves the right, in its sole discretion, to amend,
modify or change the Policy from time to time.
Any such change shall be effective upon posting. 8. SERVICE LEVEL
AGREEMENT.
Availability of this service shall exceed 95% in any given month
and a have a yearly uptime average of over 99%.
Availability and uptime shall be defined as the ability to ping
the servers from all outside networks.
If service does not meet these standards and customer desires a
credit, a request must be made in writing within 15 days of the outage.
Provider shall issue a refund for the service that was affected, not to
exceed the total service cost for the month and directly proportional to
the time the service was affected multiplied by four. Furthermore, Customer agrees to hold
Provider harmless from any claim resulting in slow connections, busy
signals, loss of routing, or equipment failures on the UUNet, Starnet,
Qwest, ELI, O1 Communications networks, or any outside or future
networks. Customer understands that Provider is a “middleman” in
regards to the dial-up service and has no control over the quality of
service that the customer is receiving. 9.
FORCE MAJEURE. Neither
party shall be considered in default under any provision of this
Agreement by reason of any delay or failure in its performance of its
obligations hereunder if such delay or failure is caused by events
beyond its reasonable control, including but not limited to acts of God
or the public enemy; riots or insurrections; war; accidents; fire;
strikes; and other labor difficulties (whether or not the party is in a
position to concede to such demands); embargoes; judicial action; lack
of or inability to obtain export permits or approvals, necessary labor,
materials, energy, components, or machinery; and acts of civil or
military authorities. The time for any performance required hereunder
shall be extended by the delay incurred as a result of the events
described above. 10.
GOVERNING LAW; DISPUTE RESOLUTION.
This Agreement and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the Province
of Ontario. The parties to
this Agreement shall try to come to a settlement of any dispute,
controversy or claim arising out of or relating to this Agreement, or
the breach, termination or validity thereof. If the parties fail to
settle any such matter, such matter shall be finally settled in
accordance with the Commercial Rules of the government of Ontario in
effect at the time, and judgment upon the award rendered may be entered
in any court of competent jurisdiction.
The award of the arbitrator(s) may include compensatory damages
against either party but under no circumstances may the arbitrator(s)
award punitive or multiple damages against either party.
Arbitration proceedings shall be conducted in Toronto, Ontario.
The parties agree not to institute any litigation or proceedings
against either other in connection with this Agreement except as
provided in this Article. In
no event shall such an arbitration award include any award of punitive
damage and the parties hereby waive the right to recover punitive
damages. ALL DISCUSSIONS AND DOCUMENTS PREPARED
PURSUANT TO ANY ATTEMPT TO RESOLVE A DISPUTE UNDER THIS PROVISION ARE
CONFIDENTIAL AND FOR SETTLEMENT PURPOSES ONLY AND SHALL NOT BE ADMITTED
IN ANY COURT OR OTHER FORUM AS AN ADMISSION OR OTHERWISE AGAINST A PARTY
FOR ANY PURPOSE INCLUDING THE APPLICABILITY OF FEDERAL AND PROVINCIAL
COURT RULES. The parties agree to toll any
applicable statutes of limitations during the pendency of any of the
above dispute resolution proceedings.
Nothing in this Paragraph will prevent any party from seeking
injunctive relief in a judicial proceeding if interim relief from a
court is necessary to preserve the status quo pending resolution or to
prevent serious and irreparable injury to that party or others.
The parties shall continue to perform all obligations under this
Agreement pending the above-described dispute resolution proceedings,
subject to full reservation of rights at law or under this Agreement. 11. SEVERABILITY.
In case any provision of this Agreement shall be invalid, illegal
or unenforceable, such provision shall be construed so as to render it
enforceable and effective to the maximum extent possible in order to
effectuate the intention of this Agreement; and the validity, legality
and enforceability of the remaining provisions hereof shall not in any
way be affected or impaired thereby. 12. DELAYS OR
OMISSIONS.
No delay or omission to exercise any right, power or remedy
accruing to a party under this Agreement shall impair any such right,
power or remedy of such party nor shall it be construed to be a waiver
of any such breach or default, or an acquiescence therein, or of any
similar breach or default thereafter occurring; nor shall any waiver of
any single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Any waiver, permit, consent
or approval of any kind or character on the part of either party of any
breach or default under this Agreement, or any waiver on the part of
either party of any provisions or conditions of this Agreement must be
made in writing and shall be effective only to the extent specifically
set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to
a party, shall be cumulative and not alternative. 13.
BINDING AGREEMENT. This Agreement shall be binding upon the parties hereto and their
respective successors and assigns as permitted hereunder.
No person or entity other than the parties hereto is or shall be
entitled to bring any action to enforce any provision of this Agreement
against either of the parties hereto, and the covenants and agreements
set forth in this Agreement shall be solely for the benefit of, and
shall be enforceable only by, the parties hereto or their respective
successors and assigns as permitted hereunder. 14. ENTIRE
AGREEMENT.
This Agreement and the published Service accepted by Customer and
Provider constitute the entire understanding and agreement between the
parties and supersede any and all prior or contemporaneous oral or
written communications with respect to the subject matter hereof.
This Agreement shall not be modified, amended or in any way
altered except by an instrument in writing signed by the parties.
If any provision of this Agreement, or the application of such
provision to any person or circumstance, shall be held invalid, the
remainder of this Agreement, or the application of such provision to
persons or circumstances other than those to which it is held invalid,
shall not be affected thereby. 15. COUNTERPARTS.
This Agreement may be executed simultaneously in two or more
counterparts, each counterpart shall be deemed to be an original, and
all counterparts individually or together shall constitute one and the
same instrument. Each party represents and warrants that the person
whose signature appears below is duly authorized to enter into this
agreement on behalf of the party. In witness whereof, the parties have
entered into this agreement as of the date last set forth below (the “Effective
Date”):
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