TERMS OF SERVICE
The following Terms of Service Agreement (“Agreement”) constitutes a contractual and binding agreement between Table9 Media and Customer, collectively (“Parties”) and separately (“Party”). Customer agrees to be bound by the MSA and agrees and understands that continued use of Services following any changes to the MSA constitutes agreement by Customer of new or modified terms.
Table9 Media hereby agrees to provide and Customer hereby agrees to purchase, from time to time, certain Services as outlined in completed Service Order forms. Services shall be ordered by Customer using the Service Order forms of Table9 Media, except as may be otherwise agreed to (“Service Order”). Each Service Order shall reference this Agreement and shall be deemed a part of this Agreement when executed by Customer or a duly authorized representative of Customer. Table9 Media reserves the right to refuse any Service Order submitted by Customer. Each Service Order shall be in accordance with the Service availability, provisioning and installation policies, practices, procedures and necessary outages then in effect, and as revised from time to time, for such Service, except as may be otherwise agreed to in writing by authorized representatives of both Parties.
This Agreement shall become effective upon the date indicated on the first completed Service Order form bearing the signature of Customer (“Effective Date”). Unless otherwise indicated on the Service Order, this Agreement shall continue in effect for an initial term of thirty (30) days (“Initial Term”). Following the Initial Term, this Agreement shall automatically renew on a rolling thirty (30) day basis and shall continue in effect until terminated, at any time, by either Party, upon not less than thirty (30) days prior written notice to the other Party.
4. Service Delivery
Service ordered by Customer is subject to availability and is provided as is. Submission of Service Order by Customer does not imply or confirm Service availability by Table9 Media and will not be construed as such by Customer. Table9 Media will provide Customer with a service activation date (“Service Activation”) where such a date is available. Where a Service Activation is not available, Service will be made available on a best effort basis and communicated to Customer using the billing or technical contact electronic mail (“E-MAIL”) address provided by Customer on the applicable Service Order. Table9 Media reserves the right to withdraw any Service with thirty (30) day notice if the Service can not be delivered by Table9 Media as provided in this Agreement or indicated in individual Service Orders (“Service Withdrawal”). Customer will hold Table9 Media harmless of any damages, material or otherwise, incurred as a result of such Service Withdrawal.
5. Billing and Payment
(A) Billing will occur every calendar month (the “Billing Period”). All payments must be made in CAD (Canadian Dollars) using pre-authorized credit card or automated debit payment. The initial charge due is prorated from either the Service Activation date or the date at which Customer first begins use of Service, whichever occurs first. Customer is subsequently billed on the 9th day of every month. Charges for usage exceeding Customer’s Service Order for each Billing Period are calculated from the first day of the month beginning at 12:01 AM PST to the last day of the month at 11:59 PM PST and at the rates and increments specified in the Service Order form and invoiced along with other charges on the 9th day of each month. All chargeable items for Services as well as any other data traffic charges, service charges and monthly fixed charges (“Charges”), if any, are billed by E-MAIL invoice transmission to Customer at the Billing E-MAIL address provided on the Service Order on the 9th day of each month. If the 9th day of the month is a business holiday, billing is sent on the following business day. Charges are applied to the Customer according to the payment method selected and funds are withdrawn each and every Billing Period on the last day of each month (“Due Date”). If the Due Date falls on a provincial or federal banking holiday, it is delayed to the next business day. Payments not received by the Due Date will be subject to a late charge of two (2.00%) per month calculated from the Due Date and including the date payment is received (“Late Payment Charge”). Customer will also be held liable for all reasonable attorney and collection fees, as well as other properly documented external fees that are incurred by the billing Party in collecting the past due payment. (B) In the event that Charges due are not paid in full by the Due Date, Table9 Media shall have the right to immediately suspend or terminate all or any portion of the Services to Customer without notice until such time as Customer has paid in full all Charges then due including late Charges. Following such late payment, Services shall be reinstated by Table9 Media according to internal re-reinstatement procedures. Customer forfeits all rights to any specified levels of service in any Service Order or as described in this Agreement and further releases Table9 Media from responsibility of any loss, whether material or otherwise, due to suspension or termination of Services.
6. Billing and Adjustments
Any request for a billing adjustment must be made in good faith and in writing within thirty (30) days of receipt of the invoice for the Billing Period in question. Any such request shall include detailed documentation to establish the basis for any adjustment. Table9 Media will determine whether any adjustment shall be made and any such adjustments will be credited against the next periodic invoice. If Table9 Media denies the billing dispute, Customer agrees to pay the disputed amount due on the following Invoice date. A request for adjustment will not be cause for delay or reduction in payment of the undisputed balance due on any current periodic invoice. If a request for a billing adjustment or credit is not made in writing within this thirty (30) day period, the charges are deemed valid and Customer waives all rights to any credits, offsets or adjustments with regard to them.
Table9 Media may suspend or terminate the Services: (a) if there is a default in the payment of Charges, and such default continues for a period of three (3) business days after subject to a 24 hour advance written notice to the defaulting Party; (b) if there is a default of a material obligation under this Agreement and such default continues for a period of thirty (30) days after written notice to the defaulting Party; (c) immediately, if either Party becomes bankrupt or insolvent, or becomes subject to any legislation relating to bankruptcy or insolvency; or (d) as set out in the section outlining Force Majeure events. Upon termination of any Services, all Charges shall become immediately due and payable and will, at such time, be subject to the Late Payment Charge, as defined in the Billing and Payment section. Termination of the Services will not relieve the Parties from any liability, including amounts owed, accrued prior to, or at the time that such termination becomes effective.
8. Return of Materials and Property
Within ten (10) business days after the effective date of termination or expiration of this Agreement, Customer shall return all property, at Customer’s expense, belonging to Table9 Media and used to deliver Services.
9. Use of the Services
In addition to the Acceptable Use Policy, Customer shall not tamper with, alter or rearrange the Services and associated facilities (or those of Table9 Media, its suppliers or other customers) required to provide the Services; or otherwise abuse or fraudulently use the Services including, using the Services: (a) in any manner which interferes with Table9 Media facilities (or those of its suppliers or other customers), network or equipment, or access thereto by other persons; (b) contrary to reasonable instructions communicated by Table9 Media; (c) for any purpose or in any manner, directly or indirectly, in violation of applicable laws or in violation of any third party rights. Customer indemnifies and saves Table9 Media and its directors and officers harmless from and against all losses, liabilities, damages of any type, and expenses arising from any act or omission of Customer, including, without limitation, any use of the Services for any purpose or in any manner contrary to this Agreement. Unless otherwise agreed to in writing with Table9 Media, Customer shall be responsible for the use and compatibility of all equipment, software and/or services provided by Table9 Media or sought independently and separate from those Services provided by Table9 Media as set out in the Service Order.
10. Facilities and Equipment
The Parties each retain sole responsibility and ownership of their respective equipment including all warranties and licenses. The Parties are moreover responsible for the installation, testing, operation and maintenance of, and costs associated with, their respective equipment, facilities and services. Untimely installation or non-operation of either Party’s facilities or equipment will not relieve Customer of its obligations under this Agreement, including any payments owing.
11. Network Protection
In the event Customer Service traffic volumes or content results, or is judged to result, in harmful, illegal, disruptive, unusual, or other similar abnormality or activity which adversely affects the Table9 Media network or other Customer networks (including, but not limited to looping situations), Table9 Media reserves the right to block and refuse to accept such adverse traffic at any time, with prompt notice sent to the technical contact E-MAIL address on file as soon as possible thereafter.
12. Traffic Management
Certain Services, specifically including but not limited to the Broadband Cable Connectivity Service, are subject to traffic management policies and limitations set and regulated by Table9 Media’s upstream data and connectivity providers. Such traffic management policies affect Peer 2 Peer (P2P) applications used for non-real-time file sharing content among Customers and other Internet users. Table9 Media clients using Services affected by such traffic management policies do so with the explicit understanding that such traffic management policies are not within the jurisdiction of Table9 Media to change or contest. Customers enter into all contractual agreements with Table9 Media with the explicit understanding that cancellation of Services due to upstream traffic management policies will not be accepted as reasonable cause for cancellation and any such cancellation initiated by the Customer will be subject to cancellation policies as outlined in the respective contractual agreement.
13. Warranties and Disclaimers
Each Party represents and warrants to the other that: (i) it has the right and power to enter into this Agreement and to fulfill its obligations hereunder; (ii) entering into, and performance of its obligations under this Agreement does not and will not violate, and is not inconsistent with, any agreements between such Party and any third parties or any applicable laws or regulations; and (iii) it shall comply with the requirements of any and all applicable federal, provincial, local, and other laws, regulations, rules and orders of any governmental body having jurisdiction over such Party or the activities of such Party contemplated by this Agreement. THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL INFORMATION, CONTENT, AND OTHER SERVICES MADE AVAILABLE BY TABLE9 MEDIA OR ANY THIRD PARTY ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND. TABLE9 MEDIA AND ITS AFFILIATES AND THEIR EMPLOYEES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE WHATSOEVER REGARDING THE CONTENT OR SERVICES, OR HYPERTEXT LINKS TO ANY WEBSITES. TABLE9 MEDIA AND ITS AFFILIATES AND THEIR EMPLOYEES AND AGENTS DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, WARRANTIES RELATED TO ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE, AND IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL TABLE9 MEDIA, ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. TABLE9 MEDIA, ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS, WILL NOT BE LIABLE TO ANY USER, CUSTOMER OR OTHER THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICES OR THE TABLE9 MEDIA WEBSITE, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIABILITY OF TABLE9 MEDIA TO CUSTOMER AND USER FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT THE CUSTOMER IS ENTITLED IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED AND AS MADE AVAILABLE UNDER “BILLING AND ADJUSTMENTS” SECTION OF THIS AGREEMENT. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.
14. Operations and Maintenance
The Services shall be provided and used in accordance with operations and maintenance procedures for which Table9 Media will make periodic announcements through E-Mail, website postings. Such procedures shall constitute “best working practice”. At no time shall maintenance or provisioning activity be carried out by Customer on equipment provided, owned or operated by Table9 Media without the prior written consent of Table9 Media. Customer shall comply with all reasonable requests for access when Table9 Media requires access to Customer’s equipment or facilities in order to maintain equipment or provide Services to the levels agreed.
15. Confidential Information and Proprietary Rights
Unless the Customer consents in writing, or disclosure is pursuant to a competent legal entity with jurisdiction over Table9 Media, all information provided by Table9 Media to the other with respect to the Services other than information already made available to the public, shall be kept confidential and shall not be disclosed to anyone other than: (a) a person who, in the reasonable opinion of Table9 Media, is Customer’s agent, (b) another telecommunications company, for the efficient and cost-effective provision of telecommunication services; (c) a person or company involved in supplying either Party with telecommunications or telephone directory related services; (d) either Party’s agent or consultants retained in the collection of Customer account, provided the information is required for such purpose and such person, telecommunications company, directory company, agents or consultants agree to be bound by the provisions of this section or substantially similar obligations; or (e) a person or company to whom or which disclosure may otherwise be necessary to enable Table9 Media to provide the Services; provided that the information is required for such purpose specified in clauses (a) through (e) hereof and such person, telecommunications company, directory company, agents or consultants agree to be bound by the provisions of this section or substantially similar obligations. Information of and relating to the Charges shall be kept confidential by Customer, and information which identifies the end-user customers of Customer, including the Services utilized by such end-user customers and the charges therefore shall be kept confidential by Table9 Media. Except as provided for above, Customer shall publicize or disclose the subject matter of this Agreement nor the nature of the Services provided hereunder without the prior written consent of the other Party.
16. Permitted Use and Disclosures
Notwithstanding the provisions of the “Confidential Information and Proprietary Rights” Section above, Table9 Media may disclose the Customer’s Confidential Information to the extent such disclosure is reasonably necessary to comply with applicable governmental or law enforcement laws, regulations, or orders.