1. Definitions – The following words will have the meanings set out below:
“Metcom”, means Metcom Canada Limited. or any of its subsidiaries or affiliates.
“You, Your, Yours” means the customer entering into this Agreement;
“Agreement” means this Agreement, including the Cover Page, all of its Schedules, order forms, quotations and all documents supplementing, amending or confirming the Agreement. This Agreement may be changed and updated from time to time by Metcom. Metcom will post an updated version on its website available at http://metcomcanada.com/en/terms.html.Your continued use of the Services thereafter will be deemed accepted by You of such changes. Please keep checking our web site for the latest version.
“Laws”, means any legislation, regulation, rule, governmental order and decision (including those of the CRTC).
“Parties” means You and Metcom, and “Party” means either one of us, including Your and Metcom’ officers, directors, employees, and agents.
“Services” means the Services purchased by You as set out in this Agreement and as may be set out in the Schedules attached to this Agreement at any time.
“Schedules” means all Schedules attached to this Agreement and any additional Schedule(s) executed from time to time by the Parties.
“Term” means the initial period of the Agreement as set out in this Agreement and any renewal term.
2.1 By this Agreement, You agree to subscribe for the Services, and Metcom agrees to provide the Services to You subject to the terms and conditions in this Agreement. You may subscribe for additional Services from time to time, in accordance with the terms of this Agreement.
2.2 You may use the Services and Equipment (as that term is defined below) for Your lawful business purposes only. You will at all times use the Services and Equipment in compliance with this Agreement and all applicable Laws.
3. Term and Termination/Suspension
3.1 This Agreement becomes binding on You when signed and the Term for a Service will commence on the date that the Service is activated as determined by Metcom’s records.
3.2 At the completion of the initial Term, this Agreement will automatically renew for equal and successive Term(s) unless, and until terminated earlier in accordance with this Agreement.
3.3 This Agreement may be:
a. terminated by either Party without it incurring liability where the other Party commits a material breach of any provision in this Agreement and fails to cure it within thirty (30) days after receipt of written notice of the breach;
b. terminated by either Party effective the end of the then current Term of the Agreement by the terminating Party giving the other Party at least thirty (30) days written notice before the end of the then current Term; or
c. suspended or terminated by Metcom without it incurring any liability whatsoever:
i. immediately upon Your filing of a bankruptcy petition or similar proceeding under the law of any jurisdiction, or upon You becoming insolvent or making any assignment for the benefit of creditors, or upon the dissolution, liquidation, or appointment of a receiver of Your property or where any Law prohibits Metcom from providing Services;
ii. upon thirty (30) days written notice if you behave in a way that is threatening, harassing, abusive or unreasonable to Metcom its employees and/or agents;
iii. upon providing You forty-eight (48) hours notice where possible, where You use or are reasonably suspected by Metcom of using the Services in a fraudulent or illegal manner, or You fail to meet Metcom’s credit requirements; or
iv. upon providing You with ten (10) days prior written notice, where You fail to make payment in full of all undisputed portions of Your invoice as set forth in Section 5.
3.4 You acknowledge and agree that termination or suspension of the Services provided under this Agreement for any reason whatsoever does not eliminate Your responsibility to pay all fees and other amounts owed to Metcom up to the date of termination or suspension without any deduction or right of set off whatsoever.
3.5 If You terminate this Agreement other than in accordance with the terms of this Agreement, You will be required to pay to Metcom as liquidated damages, and not as a penalty, an amount which is equal to: (a) fifty percent (50%) of the average monthly usage (where applicable); plus (b) fifty percent (50%) of the monthly recurring charge for each of the Services, multiplied by the number of months remaining in the then current Term. In addition, You will be responsible for any other charges that Metcom, acting reasonably, is liable to incur for the remainder of the then current Term, including without limitation, installation charges, removal costs and rental costs, and You will forfeit a refund of any prepayment made for Services.
4. Rates and Charges
4.1 You are responsible for all charges for all Services and You agree to pay the rates and charges for all Services as set out in this Agreement, including system access fee(s), monthly service charges, any restoral fees, airtime, data transfer fees, long-distance fees, minimum commitment charges and any other charges incurred in using Your Services, regardless of who used the Services. You are solely responsible in the event of charges arising from fraudulent use of Your equipment by a third party.
4.2 Metcom reserves the right to change rates for any and all Services.
4.3 If at any time Customer terminates or originates more than 1% of its total billable monthly minutes to or from High-Cost regions and Northwestel (“NWT”), as defined by Metcom Inc, then Metcom shall reserve the right to apply a surcharge to the High Cost and NWT termination and/or origination minutes. Metcom will provide to the Customer the list identifying regions classified as High Cost and NWT upon request.
5. Billing and Payment
5.1 Unless otherwise specified, we will bill You monthly. Billing for usage-based services is in arrears, and billing for fixed charges is in advance. We may bill You, however, for a charge up to twelve months from the date the charge was incurred.
5.2 In addition to rates and charges, invoices will include, and You are responsible for: any and all applicable provincial and federal taxes, interest on prior overdue amounts and any administrative surcharges for returned cheques and payments.
5.3 Payments for Invoiced amounts are due by the required payment date specified on Your invoice, without any right of deduction or setoff. Interest will accrue on all past due amounts at a rate of 3% per month (42.58% per annum on a compounded basis) or such other rate as Metcom may set from time to time. An administrative surcharge will apply to returned cheques. You will be responsible for all costs incurred by Metcom to collect any unpaid invoices, including legal fees.
a. You must bring all invoice disputes and inquires to Metcom’s attention in writing within sixty (60) days of the invoice date. Your failure to do so will be taken as acceptance of the contents of the invoice and You will have no further right to challenge any portion of the invoice.
b. Billing disputes will be handled in accordance with the Dispute Resolution section of this Agreement.
a. You may apply for and pay invoices by pre-authorized payment (PAP). By so doing, you authorize us to deduct all invoiced amounts from the account You designate at Your financial institution.
6.1 As a precondition to the provision of, or continuing provision of Services, You:
a. agree to allow Metcom to collect any information from you to facilitate credit inquires about You, and consent to the disclosure of such information from and to credit grantors, credit bureaus and suppliers of services as Metcom deems appropriate at any time; and
b. agree to provide a security deposit and/or special payment terms and/or prepayment for Services in an amount or amounts as may be determined and required in Metcom’s discretion from time to time for reasons including but not limited to: regularly failing to keep Your account current, defaulting on payment obligations or using Services in excess of Your current credit limit.
6.2 Despite any other provisions of this Agreement, Your outstanding charges for Services will not at any time whatsoever, exceed Your then current credit limit, unless You receive Metcom’ prior approval.
7.1 Where required, Metcom will provide and install equipment, facilities and products, including cables and documentation (the “Equipment”) to provide You with Services. You agree that the Equipment, and any North American Numbering Plan numbers and/or IP addresses assigned to You will at all times remain Metcom’ property and You have no right, title or interest in or to the Equipment except for its use under this Agreement.
7.2 The Equipment will be considered to be in good working condition, unless You give notice to Metcom to the contrary within five (5) days of receiving the Equipment.
7.3 You agree:
a. to not re-arrange, disconnect, remove, reconfigure or repair any Equipment, including passwords, except by prior written agreement with Metcom ;
b. upon deactivation or termination of Services, to return the Equipment immediately to Metcom in good working condition excluding normal wear and tear. Charges for Equipment will continue and be payable until the Equipment is returned and failure to do so within the time specified by Metcom will result in Metcom, at its option repossessing the Equipment at Your expense or You paying Metcom the replacement cost of such Equipment; and
c. if the Equipment is damaged, lost or stolen while in Your care, or returned to Metcom in an unusable condition, to pay the replacement value of the Equipment as determined by Metcom.
8. Access to Facilities – You agree to provide Metcom (and its agents) access to Your premises, including power and support, at Metcom’ reasonable request to make such installations, service, inspections, tests and adjustments as are necessary for the provision of the Services. No co-location rights are granted in this Agreement unless such rights are set out in a separate Schedule. You agree to provide access to Your premises in order for Metcom to repossess or remove any and all equipment or facilities it has provided to You for the provision of Services.
9.1 In accordance with this section and any Non-Disclosure Agreement between the Parties, each Party will hold all confidential information of the other Party and the terms of this Agreement, in strictest confidence and will not disclose such information to any third party without the prior written consent of the other Party, unless so required by Law. In addition to any other remedies a Party may have, if a Party breaches these confidentiality obligations, then the Parties agree that any further or continuing disclosure will cause irreparable harm to the non disclosing Party and the non-disclosing Party will be entitled (and the disclosing Party agrees to not defend and consent to) an injunction barring any further disclosure of such confidential information, in addition to monetary damages for such breach.
10. Indemnification – YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS METCOM, ITS AFFILIATES, UNDERLYING CARRIERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS, AND SUPPLIERS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE LEGAL FEES, RESULTING FROM THE USE OF THE SERVICES OR FROM ANY BREACH OF THIS AGREEMENT AND ANY SCHEDULE(S) BY YOU EXCEPT AND TO THE EXTENT OF ANY NEGLIGENCE OR MISCONDUCT ON THE PART OF METCOM. THE PROVISIONS OF THIS SECTION WILL SURVIVE TERMINATION OF THIS AGREEMENT.
11. Disclaimer and Limitation of Liability
11.1 Metcom provides the Services and Equipment to You on an “as is” basis and disclaims all warranties, whether express, implied or statutory, including, but not limited to, any warranties of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or system integration. No warranty is made that the Services and Equipment will operate in an error free or uninterrupted manner.
11.2 Metcom will not be responsible for any damages including actual, direct, indirect, incidental, special, consequential, punitive or reliance, or for any lost profits of any kind, even if the damages were foreseeable, arising out of the provision of the Services or in any way arising out of this Agreement. Your exclusive remedy and Metcom’ liability, if any, for damages for any cause whatsoever, will be no more than the recurring charges paid by You for the affected Service for the one (1) month preceding the event alleged to have caused damages. Any legal action arising in connection with this Agreement must be brought within one (1) year after the cause of action arises. For the purpose of this section, “Metcom” includes its officers, directors, employees, agents and affiliates.
12. Dispute Resolution – The Parties will first attempt to resolve any dispute arising out of or under this Agreement between two designated representatives appointed by the Parties. The Parties agree that any dispute arising out of or under this Agreement, which cannot be resolved within thirty (30) days, shall be determined by an arbitration to be held in Ottawa, Ontario pursuant to the provisions of the Ontario Arbitration Act, 1991. The Parties also agree that there shall be three arbitrators, one appointed by each Party and a third arbitrator (who will act as the chair of the arbitration) who will be appointed by the first two arbitrators. The Parties agree that the arbitrators’ fees and other expenses related to the holding of the arbitration shall be borne equally by the Parties. Notwithstanding this Section 12, the Parties may mutually agree to opt out of arbitration and choose instead to have any dispute arising out of or under this Agreement be determined by the Courts of the Province of Ontario as contemplated by clause 13.3 of this Agreement.
13.1 Entire Agreement: This Agreement constitutes the entire agreement between the Parties regarding the provision of Services, and supersedes and replaces all prior agreements and representations whether written or oral with respect to the provision of Services. In the event of conflict between the terms of a quotation and these terms and conditions the terms of the quotation shall govern.
13.2 Amendment: You can only amend this Agreement in writing signed by an authorized representative of Metcom. This Agreement can only be amended by a signatory authorized by Metcom and not by any Metcom sales representatives, agents or employees.
13.3 Jurisdiction: This Agreement will be governed by the laws of Ontario and the applicable laws of Canada and the Parties agree to be subject to the exclusive jurisdiction of the courts of Ontario.
13.4 Independent Contractors: This Agreement will not be construed as constituting either Party as a partner or agent of the other Party or to create a joint venture in the conduct of business or otherwise.
13.5 Notices: Any notice or other communication required or permitted by this Agreement will be in writing and be provided by personal delivery, email, or by facsimile to You or Metcom at the last address or facsimile number provided in writing by each Party. Notices delivered in person will be effective on the date of such delivery and notices delivered by facsimile will be effective on the date of transmission provided printed proof of transmission is obtained.
13.6 Force Majeure: Metcom will not be liable for any failure nor delay in performance to the extent caused by factors beyond its reasonable control, including, without limitation, labour disputes, fires or other casualties, weather or natural disasters, damage to facilities, or the conduct of third parties.
13.7 Assignment: You cannot assign this Agreement in whole or in part without Metcom’ prior written consent. Metcom can assign this Agreement to any affiliate or subsidiary. This Agreement is binding upon and enures to the benefit of the Parties and their respective successors and permitted assigns.
13.8 Severability and Waiver: If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, that provision will be deemed severable from the other provisions which will remain valid and enforceable. The terms of this Agreement may only be waived in writing and signed by both Parties. No failure by either Party to insist upon the other Party’s performance of any obligations hereunder will constitute waiver unless in writing.
13.9 Language: This Agreement has been drawn up in English at the request of the parties. Les parties ont convenu que la présente entente soit rédigée en anglais.