TDCNet (2072599 Ontario Ltd.)
TERMS & CONDITIONS
The undersigned user (the "User" or "You") hereby agrees with TDCNet (2072599 Ontario Ltd.) and its officers, directors and employees (collectively referred to as "TDCNet") that in consideration of TDCNet opening an account (the "Account") for the User to provide internet access or Web or related Internet or network Services through TDCNet's facilities (the "Services"), the User agrees that use of the Services is subject to all of the following terms and conditions which are subject to the terms of the Services package (the "Plan") chosen by the User.
Specific Limitations on Use of Dial Up Services
Users on unlimited dialup Internet access plans have unlimited access to the Internet on a 24 hr/ 7 day/ 365 day basis subject to the provisions set out below. TDCNet's system will not allow more than the contracted permitted number of log ins from a single Internet Account. In such cases access will be denied to additional log in attempts. To maximize the fair availability of lines for all users, TDCNet reserves the right to impose session limits on continuous hours logged into the network. At TDCNet's option routers may disconnect service after 6 continuous hours of service. The User is free to log in again immediately after being disconnected.
Specific Limitations on Use of ADSL Services
You also agree that the assignment of any IP address to you in the configuration of this service is provided as a lease, or loan of the address number. IP address space is managed and maintained by an external organization (ARIN), and TDCNet reserves the right to affect changes to IP assignments as necessary, required, or directed to do so. TDCNet will exercise best efforts to provide you with as much advance notice as possible, and will work with you should changes be required.
General Conditions of Use
1. The User agrees to use the Services only for lawful purposes and not for unauthorized copying, duplication, distribution, display or modification of any information protected by copyright or trademark or otherwise lawfully restricted (including, without limitation, software, programs, games and computer code). The User shall not use the Services for any purpose that is contrary to applicable laws or which is a nuisance. The User agrees not to transmit any material that is unwanted, threatening, abusive, obscene, discriminatory (including, without limitation, "hate" literature directed at any identifiable group) or in contravention of any law. The User agrees not to undertake mass-mail broadcasts of electronic mail (e-mail) or Usenet postings with the intent of sending advertising to other users of the Internet. The User will not use IRC "bots" which purposes include disrupting other users on the IRC network, or disrupting the IRC network itself. The User will be responsible for the actions and activities of any party who uses the Services using the User name identification and password of the User as provided by TDCNet whether or not such person used the identification and password with the User's consent or knowledge. The User is responsible for, and will be required to pay all costs and fees associated with cleanup required by TDCNet should your account be used to propagate electronic mail advertisements or offensive material. Cleanup includes, but is not limited to time and materials required to have the addresses of TDCNet servers removed from Spam blocking lists, real-time blackhole lists, and other automated countermeasures that may be implemented against TDCNet as a result of the User's actions. In addition, a charge will be payable by the User to TDCNet in the amount of $50.00 for each electronic mail message that is brought to the attention of TDCNet staff and can be verified as originating from the User's connection.
2. TDCNet will not be responsible for temporary interruption of Services (whether due to utility service breakdown, excessive users, mechanical breakdown or other reasons) and the User will not be entitled to any refund for any such temporary interruptions so long as TDCNet is actively seeking to correct the problem. If there is a material increase in the cost of providing the Services (such as, by way of example, an increase in the cost of telephone line charges from any ILEC or any form of tax on Internet use) TDCNet will give you 60 days written notice of any increase to the rates of your services. As a result of this notice, you can, within 30 days of receipt of that notice, cancel your agreement with TDCNet without any penalty. You will be responsible for paying any charges you incur up to the date of cancellation. If a charge on your credit card is denied or your cheque is returned due to non-sufficient funds, you agree to immediately pay a $25 service charge. If you fail to do this within three business days, we will disconnect your services. There will be service charge of 1.5% per month (18% per year) on any amounts owed to TDCNet that are more than 30 days past due. You agree to pay TDCNet $25.00 to reconnect Service(s) terminated under this Agreement.
3. TDCNet will provide the Services using currently available technology and will avoid using any hardware, software or methods known to threaten User security. Beyond that, TDCNet makes no warranties of any kind, whether expressed or implied, in relation to the accessibility, accuracy, reliability, safety or quality of the Services. TDCNet does not guarantee the privacy of files or e-mail or the security of any computer used to access the Services. TDCNet has no responsibility for any damage suffered by any person, organization, group or entity due to loss of data, delay, non-delivery or service interruptions in using the Services, whether or not caused by the negligence, errors or omissions of TDCNet or those for whom it is responsible at law. TDCNet exercises no control and has no responsibility whatsoever over the information passing through the Services. Use of any information obtained through the Services is at the User's sole risk and the User assumes full responsibility for the accuracy, reliability, quality or effect of information obtained through the Services. The User specifically waives the right to any consequential damages as a result of any failure of the Service, including, without limitation, loss of data or hardware, and under no circumstances will TDCNet be liable to the User or any other party for any amount greater than the amounts paid by the User for Services, even in the event of the negligence of TDCNet or a fundamental breach of this Agreement. The User agrees to indemnify and hold harmless TDCNet, their officers, directors, employees and agents from any and all claims resulting or arising from this Agreement, the User's use of the Services and any breach of this Agreement by the User whether or not caused by the negligence or omission of TDCNet or those for whom it is responsible at law.
4. Notwithstanding that the TDCNet billing rates may be referred to or advertised as "monthly", the actual billing period is thirty (30) days, regardless of the current month. All payments for the use of the Services are due in advance every thirty (30) days, commencing from the date the User's Plan commences (when the User signs up with TDCNet) and continuing until termination of this Agreement. Any Account that is more than 15 days late in any payment will be in default. Payments made by cheque which are returned due to lack of funds or any other reasons will be in immediate default and subject to an additional returned cheque charge (currently $25) which must be paid before the Account is in good standing. The User must provide 30 days written notice to TDCNet of his/her intention not to continue the Services.
5. The User's access to Services may be restricted and the Account terminated at any time, without notice, if the User is in default of this Agreement and upon such termination TDCNet will have no obligation to make any refund or other payment (including, without limitation, refund of set up fees, prepaid fees or other credits for future Services) to the User. Despite any such termination, TDCNet may pursue any other available recourse against the User, including barring the User from sending e-mail or other communication to the TDCNet server from another server.
6. TDCNet, may without notice, change the terms and conditions upon which the Services are provided (including, without limitation, changing the continuous use limits for dialup users and changing the rules of access to the Services) so long as TDCNet continues to provide regular and reasonable access to the Services for the term of this Agreement. TDCNet may terminate this Agreement at any time for any reason without notice to the User and upon such termination by TDCNet the User will be entitled to request that TDCNet refund any credit that the Account may have for prepaid unused Services and the Use will have no other recourse against TDCNet whatsoever for such termination. If the User voluntarily terminates this Agreement or if the Account is terminated due to the default of the User, the User will not be entitled to any refunds from TDCNet whatsoever.
7. All communications and notices between TDCNet and the User will be conducted through e-mail unless otherwise agreed to by an authorized representative of TDCNet. All such communication and notices will be deemed received by the User three days after being sent by e-mail by TDCNet. The User specifically agrees that TDCNet has no obligation to send any other notice to the User, even in the event of default. All notices from the User for modifications, changes, upgrades or termination of Services will be effective only if presented to, and received by, TDCNet in writing or via e-mail. Such notices sent to TDCNet by the User must be confirmed by return e-mail to be effective.
8. Each of the Services is provided "as is" and "as available" without warranty of any kind. TDCNet does not warrant uninterrupted use or operation of any service, or that any data sent by or to you will be transmitted in uncorrupted form or within a reasonable period of time. All representations, warranties, endorsements and conditions of any kind, express or implied, including without limitation, warranties of title or non-infringement and any implied representations, warranties and conditions of fitness for a purpose and merchantable quality and those arising from a course of dealing or usage of trade are hereby excluded. TDCNet shall have no liability to you for patent or copyright infringement or misappropriation of trade secrets with respect to any service provided by any third party through TDCNet. Your course, in the event of any such claim with respect to any Service, shall be solely against such third party.
9. Force Majeure. Neither party is liable for failure or delay in performance hereunder which is proximately caused by strikes, shortages, failure of suppliers, riots, insurrection, fires, flood, storms, earthquakes, acts of God, war, governmental action, labour conditions, or other cause beyond its reasonable control. The failure to make any payment required under this Agreement shall never be excused under this force majeure provision.
10. TDCNet may by written notice to the User, cancel the Services if the User: fails to perform or comply with any of the provisions of the order form, the Conditions of Service and Use, or the Acceptable Use Policy posted on TDCNet's Web site
commences any proceeding seeking relief or protection under any bankruptcy or insolvency laws,
seeks to liquidate, dissolve or wind up its business or
makes an assignment for the benefit of creditors for all or substantially all of its assets.
Specific Terms and Conditions
Surrounding Equipment
11. On the following terms and conditions, TDCNet agrees to provide the User with the use of the property described below (the "Equipment").
12. The equipment shall be and shall remain at all times the sole property of TDCNet. This agreement provides only for the locating of the Equipment with the User for the convenience of the User and creates no other property rights in the Equipment whatsoever. TDCNet maintains the right to substitute, repair, remove, change or otherwise deal with the Equipment in whatever way it sees fit and at any time it deems appropriate.
13. The Equipment is provided to the User until such time as the User ceases to obtain ADSL Services from TDCNet or until TDCNet requires the return of the Equipment for service or other purposes. The Equipment is provided for use solely by the User and only in connection with the paid ADSL Services obtained by the User from TDCNet. TDCNet agrees to act reasonably and will not terminate or interrupt the User's access to the Equipment without good reason.
14. Upon request from TDCNet, the Equipment will be returned to TDCNet at its Office in good working order without any dispute or delay whatsoever. The User confirms that it has no rights whatsoever in the Equipment (including, without limitation, the right to retain or use the Equipment) except as provided herein.
15. The User will use the Equipment properly and only for its intended use and will keep the Equipment clean, dry, in a well-ventilated location and in good repair. The User will not remove, lend out, disassemble, misuse, tamper with, modify or expose the Equipment to conditions that may result in damage to the Equipment. The User will not attempt to program, configure, turn off, or otherwise deal with the Equipment, except with the prior express permission, knowledge and assistance of TDCNet. In the event that there is an interruption of service for any reason whatsoever due to failure of the Equipment, the User will immediately notify TDCNet via telephone and in writing and will follow TDCNet's direction in dealing with the problem. TDCNet will have no liability to the User whatsoever for interruption of use of the Equipment except as specifically set out herein or in the ADSL Service contract between the parties.
16. The User is fully responsible for any and all damages, which may occur to the Equipment during the period that the Equipment is in the User's possession. Any cost of such damage, as determined by TDCNet, acting reasonably, shall be paid to TDCNet by the User within seven days of invoicing for the cost of such damage.
17. The User will provide TDCNet with complete access to the Equipment, including access to the room and area where the Equipment is located, at any time that TDCNet so desires. TDCNet is entitled to immediate access to the Equipment, without notice, at any time between 9 am to 5 pm on a business day (regardless of whether the User is open on that day) and at such other times as the parties may agree. In the event that the User is in default of this Agreement or of its ADSL Service contract with TDCNet, then the User hereby irrevocably directs its staff, landlord (if applicable) and any other custodial staff to permit TDCNet access to the User's premises to remove the Equipment.
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