This Master Services Agreement is by and between EGATE Networks Inc. (“EGATE”) located at
107-85 Curlew Drive
Tel: +1 (416) 447-7700
Fax: +1 (416) 447-6447
and (“Customer”) located at the address stores in the Customer EGATE billing file. This agreement governs services provided by Customer upon earliest of execution of this agreement, execution of Quotes or Service Orders, use of EGATE Services.
In consideration of the mutual promises and covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, EGATE and Customer agree to be bound by the terms and conditions of the Master Services Agreement which consists of, as indicated or defined below, the General Terms and Conditions, any Addenda to the General Terms and Conditions, any Service Schedules and appendixes to Service Schedules, any Service Orders, any other attachments and any amendments to any of the forgoing (collectively referred to as “Agreement”). These Terms and Conditions are effective as of the date they are executed by EGATE or when Customer first receives Services from EGATE whichever is earlier (the “Effective Date”).
GENERAL TERMS AND CONDITIONS
1.1 Scope of Services. In accordance with the terms and conditions of the Agreement, EGATE will provide the services and/or equipment (collectively, “Services”) described in one or more service schedules forming part of this Agreement (“Service Schedules”) and/or any orders placed by Customer under any such Service Schedules and accepted by EGATE (“Service Orders”). In the event of any inconsistency between the General Terms and Conditions, the Service Schedules, and the Service Orders, the inconsistency shall be resolved by giving precedence first to a fully executed Service Order, then current appendices to Service Schedules then a fully executed Service Schedule, then any fully executed Addenda to the General Terms and Conditions, then last, the General Terms and Conditions. The provision of Services by EGATE is subject to compliance with all applicable laws, as well as regulations, rules, decisions, orders or policies made or promulgated thereunder or under any successor legislation, all as the same may be amended from time to time (collectively “Laws”) and the availability of suitable facilities.
1.2 Limitations of Service Delivery. The Customer acknowledges that EGATE has entered into agreements with EGATE Providers as defined in Section 1.7 for underlying services, equipment and facilities that enable EGATE to provide Services to Customer, and so Customer agrees that EGATE may be unable to provide such Services, or portion(s) thereof, in the event of any expiration or termination of such agreement(s) or failure of, or breaches by, such EGATE Providers, or due to changes in Laws. Any non-performance or delay of Services to be rendered by EGATE hereunder shall be excused to the extent that such non-performance or delay is attributable to actions or inactions of an EGATE Provider or due to changes in Laws.
1.3 Force Majeure/Other Related Matters. The Customer acknowledges and agrees that EGATE shall not be in breach of this Agreement if EGATE is unable to provide (for any period of time) all or part of the Services so long as such inability is the consequence of matters that are properly classified as “force majeure” or otherwise beyond EGATE’s reasonable control. The term “force majeure” includes the matters described in Section 1.2 and shall also include all other meaning normally afforded to that term in the legal context including, but not be limited to, “acts of God”, natural disasters, terrorism, war, strikes and labor disputes, third-party breaches (including failure of third party vendors and providers to provide contracted for services and products), defaults, or failures not within the reasonable control of EGATE.
1.4 EGATE-Provided Equipment. All EGATE equipment, device, hardware or apparatus owned or supplied by EGATE or EGATE Providers and used in connection with the Services (“EGATE-Provided Equipment”) shall remain the exclusive property of EGATE or EGATE Providers unless otherwise expressly set out in this Agreement. Customer shall: (1) take reasonable care of the EGATE-Provided Equipment in compliance with any operating instructions provided by EGATE; and (2) immediately return EGATE-Provided Equipment in good working order upon termination of the Agreement or any applicable Service Schedule. If Customer fails to comply with these obligations, Customer must pay EGATE the undiscounted retail value of the EGATE-Provided Equipment. EGATE will perform maintenance and repair of normal wear and tear of EGATE-Provided Equipment. Customer may be charged for the cost of repairing or replacing any theft, loss or damage of EGATE-Provided Equipment that goes beyond normal wear and tear. By installing or using EGATE-Provided Equipment, Customer agrees that software included with the EGATE-Provided Equipment is licensed strictly in accordance with the terms provided by the original equipment manufacturer (“OEM”).
1.5 Non-EGATE Equipment. Customer must supply, install and maintain all facilities, software and equipment not provided by EGATE (“Non-EGATE Equipment”). Customer is responsible for all disruptions and damage caused by Non-EGATE equipment, including any effect on other customers’ ability to receive EGATE services, and EGATE may take any action, including imposing charges, that it considers necessary to remedy such effects.
1.6 EGATE Right to Enter Premises. Upon obtaining consent from Customer, EGATE may enter the premises on which the Services are, or will be provided, to install, inspect, repair, maintain or remove EGATE-Provided Equipment or for any other purpose related to the operation of the Services. EGATE may enter the premises without consent in the case of an emergency or with a court order. This provision shall survive the expiration or termination of the Agreement.
1.7 EGATE Affiliates and EGATE Providers. EGATE may perform its obligations under this Agreement through its affiliates, as defined in the Ontario Business Corporations Act and also including any partnership or other unincorporated association in which a party or any of its affiliated bodies corporate (as so defined) has a controlling interest (“Affiliates”). EGATE may also perform its obligations under this Agreement through “EGATE Providers” which include Affiliates, agents, suppliers, vendors, licensors or subcontractors, but EGATE shall not be relieved of its obligations by using the EGATE Providers, except as contemplated in Section 1.2.
2.0 Payment for Services.
2.1 Fees and Pricing. As consideration for the Services, Customer shall pay the fees specified in the Service Schedules and any other amounts payable pursuant to the Agreement (collectively “Fees”). These Fees are exclusive of any applicable sales taxes, such as without limitation, provincial sales taxes, territorial sales taxes, the Goods and Services Tax and/or the Harmonized Sales Tax, or similar sales, use, value-added, or transaction-based taxes or regulatory fee imposed on the purchaser (collectively “Taxes”), which the Customer also agrees to pay. Taxes do not include any tax on net income, property or capital of a party to this Agreement. EGATE will charge and remit to the applicable taxing authorities all applicable Taxes unless and until Customer provides EGATE with a valid tax exemption certificate authorized by the appropriate taxing authority for any Taxes that Customer claims should not be charged.
2.2 Credit Checks and Deposits. Customer agrees and authorizes EGATE to obtain credit, financial and related business information from any credit bureau, credit reporting agency or financial institution, from time to time, in order to determine Customer’s credit worthiness. EGATE may also require the Customer to deposit funds with EGATE in such amounts as EGATE determines to secure payment of Fees and Taxes. Such deposited funds shall not bear interest. EGATE may, in addition to all other remedies available to it, employ any or all amounts so deposited to pay any or all amounts invoiced by EGATE to Customer for which payment is overdue, and may request a top-up, and/or increase of any deposit so drawn down. As a new customer of EGATE, Customer may, within ten (10) days of execution of this Agreement, be required to deposit with EGATE funds, as notified by EGATE, equivalent to the total Fees and Taxes EGATE expects to invoice Customer under this Agreement on average for one month during the first year that this Agreement is in effect. Deposit requirements shall be re-evaluated and may be modified by EGATE in its sole discretion: (1) annually; or (2) whenever EGATE has reasonable grounds for believing that the credit risk associated with Customer has increased or is about to increase. The failure by Customer to comply, within ten (10) days, with any EGATE deposit requirement as amended from time-to-time, shall be treated equivalent to the Customer’s failure to pay Fees or Taxes invoiced when due for the purpose of Section 6.2.
2.3 Payment of Invoices. Invoicing for Services shall be monthly, in advance. Service Schedules may specify billing in arrears for certain usage-based services. Customer agrees that service is active and billable when the service is activated by EGATE. All pricing, invoices, and payments shall be in Canadian dollars, unless otherwise specified in a Service Schedule or Service Order. EGATE invoices may be provided via e-mail or postal mail. Invoices are due and fully payable within a set number of days from the invoice date, as specified in the applicable Service Schedule, or if not specified by a Service Schedule, within a period of forty (40) days from the invoice date. Any Fees or Taxes not paid when due are subject to late payment charges in the form of interest accruing at a rate of two percent (2%) per month, being 26.82% annually, or the highest rate allowed by applicable law, whichever is lower (“Late Payment Charges”). The Customer agrees to pay all collection costs incurred by EGATE in enforcing its rights under this Agreement to collect amounts payable by the Customer (including, without limitation, Fees, Taxes, Late Payment Charges and lawyers’ fees and court costs).
2.4 Nonpayment/Payment Default. If EGATE has not received payment of invoiced Fees, Taxes or Late-Payment charges required by the applicable due date (a “Payment Default”), EGATE may, upon five (5) days’ notice, in addition to its rights available to it at law or in equity: (i) suspend any or all Services to Customer; and/or (ii) terminate any Service Schedule, Service Order or the Agreement. The Customer shall remain responsible for all charges related to the Services in accordance with this Agreement. The remedies provided by this Section 2.4 are not exclusive.
2.5 Amendments to Prices and Rate Restructuring. Customer expressly acknowledges and agrees that EGATE may, at its discretion, modify the prices and Fees payable under this Agreement and as set forth in the Service Schedules and / or Service Orders upon not less than thirty (30) days’ written notice to Customer. Notwithstanding the foregoing, in the event that a EGATE Provider that supplies any underlying service or facility used by EGATE to provide the Services varies the amount(s) charged to EGATE for any such underlying service or facility or restructures any corresponding rate(s) into any new rate components either retroactively, due to a change in Laws, or prospectively, due to a change in Laws or for any other reason, EGATE shall have the right to vary any corresponding Service rate charged to Customer or restructure its Service rates accordingly, contemporaneously (including, if applicable, retroactively) with the change(s) made by the EGATE Provider, even if it is not possible for EGATE to give the Customer thirty (30) days’ prior notice of the change.
2.6 Invoice Disputes. The Customer must notify EGATE in writing by e-mail, fax or postal mail of any disputed charges within forty-five (45) days following the invoicing of such charges. Billing disputes shall be defined as disputes in good faith, with reference to specific provisions of this Agreement, and with supporting factual documentation. If Customer does not notify EGATE within that time period and provide supporting factual documentation at the time of notification of a dispute, Customer is deemed to have waived any right to dispute such amounts, either directly or as a set-off, recoupment or defence in any action or efforts to collect amounts due to EGATE. The parties shall act in good faith to resolve the dispute diligently and in any event within ninety (90) days of its origin, failing which both parties may exercise their rights available under this Agreement and at law.
2.7 Returned Payments. In the event of a non-payment due to insufficient funds, credit denial, returned checks or other similar reasons, Customer agrees to pay EGATE, at EGATE’s sole option, the greater of forty dollars ($40.00) or the amount that a financial institution or EGATE Provider has charged EGATE for the returned payment.
3.0 Acceptable Use Policy
Use of EGATE’s Services are conditional upon a Customer’s adherence to EGATE’s Acceptable Use Policy (“AUP”), which may be found at http://www.egate.net/policies/aup. EGATE reserves the right to amend its AUP, from time to time, effective upon posting to EGATE’s website or other notice to the Customer. If Customer breaches the AUP, EGATE may either: (i) suspend any or all Services to Customer; and/or (ii) terminate this Agreement. EGATE reserves the right to amend its AUP from time to time, effective upon posting to EGATE’s website or other notice to Customer. The Customer agrees to cooperate with EGATE in enforcing the AUP, which includes, but is not limited to, cases of fraud, harassment, repetitive calling, spamming, spoofing, breaches of Laws or other instances, alleged or actual. The Customer also agrees to abide by EGATE’s decision to direct the Customer to suspend/terminate any Subscriber account for violation of the AUP.
4.1 Term of the Agreement. Subject to the termination provisions of this Agreement, the term of the main body of this Agreement (the “Agreement Term”) will begin on the date it is signed by EGATE and it will expire or terminate on the date that the Service Term, as defined in Section 4.3, of the last remaining Service Schedule expires or terminates.
4.2 Term of Service Schedules. Each Service will be provided for the period set out in the relevant Service Schedule and/or Service Order (the “Initial Service Term”).
4.3 Renewal Term(s) of Service Schedules. Unless Customer or EGATE provides notice to the other as described in Section 4.4, each Service Schedule and Service Order will automatically be renewed at the end of the Initial Service Term on the same terms and conditions for the consecutive renewal period(s) set out in that Service Schedule and/or Service Order (“Service Renewal Term(s)”). If there is no Service Renewal Term set out in a Service Schedule, then that Service Schedule or Service Order will expire and the Services provided under it will be terminated at the end of the Initial Service Term. The Initial Service Term and any Service Renewal Term(s) are collectively referred to as the “Service Term”. EGATE may change the Fees for a Service Renewal Term by providing the Customer with at least 30 days’ advance written notice of the change before the end of the then current Initial Service Term or Service Renewal Term, as the case may be.
4.4 Notice of Non-renewal. Either party may send to the other party a written notice, at least sixty (60) days in advance of the expiration of the relevant Service Term that it does not intend to renew a Service Schedule. As a result, that Service Schedule will expire and the Services provided under it will be terminated at the end of the Service Term. For greater clarity, Customer will not be subject to Termination Fees, as defined in Section 6.4, where a Service Schedule and / or Service Order has terminated by reason of expiry and non-renewal.
5.0 Representations, and Warranties, and Additional Obligations and Rights Respecting Services.
5.1 Service Warranties and Warranty Limitations. Customer acknowledges that EGATE does not warrant: (i) Services to be uninterrupted, error-free or completely secure; (ii) traffic not to be shaped; or (iii) third-party information, data, files, pictures or content in any form (collectively “Content”), or the availability, accuracy or any other aspect of any information including all data, files and all other information or third party Content in any form, accessible or made available to or by the Customer through the use of the Services. Customer understands that EGATE may, from time to time, whether according to maintenance schedules or on an emergency basis, need to interrupt the Services for maintenance and other reasons, and that the Customer shall not receive any compensation for such interruptions. The only warranties applicable to EGATE-Provided Equipment are the applicable OEM warranties and EGATE makes no representations or warranties regarding EGATE-Provided Equipment. Except as specifically set forth in this Agreement, the Services are provided on an “as is” basis, and Customer’s use of the Services is at Customer’s own risk. For greater certainty, unless expressly set out in a service level arrangement as part of a Service Schedule, Services are provided on a best effort basis and performance levels may vary. Except for the express warranties set forth in this Agreement, EGATE makes no other warranties, express or implied, and disclaims all other warranties, express or implied, including without limitation warranties of title, non-infringement, merchantability and fitness for a particular purpose, availability or reliability of Services, and any warranties arising from a course of dealing, usage, or trade practice.
5.2 The Internet. The Customer acknowledges and agrees that EGATE (including any EGATE Providers) does not operate or control the Internet and that (i) viruses, worms, Trojan Horses, or other undesirable data or software; or (ii) unauthorized users (e.g. hackers), may attempt to obtain access to the Customer’s data, website(s), computers, or networks and that data may be destroyed by such attacks and the Services may be interrupted or compromised. EGATE exercises no control over and has no responsibility whatsoever for the content accessible or actions taken on the Internet and EGATE expressly disclaims any responsibility for such content or actions. EGATE uses what it believes to be reasonable efforts to protect itself and its customers from such unauthorized use, but EGATE is not responsible for failures resulting from the unauthorized acts of third parties. In the event that EGATE is providing content filtering as part of the Services, the Customer acknowledges that filtering is provided only on a “reasonable efforts” basis and that while filtering may block much objectionable content, some objectionable content may pass through to Customer.
5.3 Traffic Patterns. In the event that Customer’s traffic causes undue load on EGATE facilities, EGATE reserves the right, at its sole discretion, to take measures, including limiting traffic, to maintain its equipment in proper functioning order. Any measures implemented by EGATE shall be limited in scope and duration to what is necessary to address the undue load on EGATE facilities.
5.4 Monitoring and Network Management. EGATE has no obligation, but has the right at any time to monitor use of the Services (electronically or otherwise) as necessary to satisfy any law, regulation or investigate any Content or use of Services as necessary to operate the Services or to protect the rights or property of itself or others that are directly relating to providing the Services. Such monitoring shall include but not be limited to bandwidth consumption and how it affects operation and efficiency of the network and EGATE Services. Customer acknowledges that EGATE does not own or have any control over the availability, accuracy or any other aspect of any third-party Content in any accessible form or type or that may be made available to or by the Customer through the use of the Services.
5.5 Representations. Each party hereby represents and warrants to the other party that:
(a) It has the authority and corporate power (if the party is a corporation) to enter into this Agreement and to perform its obligations under this Agreement;
(b) If the party is a corporation, it has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement;
(c) This Agreement constitutes a valid and binding obligation on it enforceable against it in accordance with its terms;
(d) Neither the execution nor the delivery of this Agreement by it, nor compliance with the terms, conditions and provisions thereof: (i) conflicts with, or will conflict with, or results or will result in, any breach of, or constitute a material default under any of the provisions of any agreement or instrument to which it is a party; or (ii) will result in the contravention of any applicable law;
(e) It is conducting its business and operations in compliance with all material applicable Laws.
6.1 Early Termination by Customer. Customer may terminate a Service Schedule or Service Order at any time before the end of the relevant Service Term by giving notice of termination to EGATE at least sixty (60) days before the proposed early termination date. Terminations by Customer pursuant to this Section 6.1 are subject to Termination Fees, as defined in Section 6.4.
6.2 Termination for Breach. Either party may terminate this Agreement or any Service Schedule or Service Order, or EGATE may suspend the Services in whole or in part, in each case, by giving notice in writing to the other party if the other party commits a material breach with respect to a material provision of this Agreement or the applicable Service Schedule or Service Order and does not remedy that breach within thirty (30) days after receiving written notice of the breach. Notwithstanding the foregoing and as set out in Section 2.4, EGATE may terminate this Agreement or any Service Schedule for Payment Default that is not remedied within five (5) days of Customer’s receipt of written notice from EGATE of Payment Default. If EGATE materially breaches a material provision of this Agreement with respect to the provision of a Service, and EGATE has not remedied that breach within thirty (30) days after receiving written notice of such default, Customer shall only be entitled to terminate the specific Service(s) for which the breach occurred under the applicable Service Schedule, without the payment of any Termination Fees. In the event of a termination by EGATE pursuant to a material breach of a material provision by Customer in accordance with this Sections 6.2, Customer shall pay Termination Fees to EGATE, as defined in Section 6.4.
6.3 Additional Termination Rights. Notwithstanding anything else in this Agreement, either EGATE or Customer may terminate this Agreement (including all Service Schedules attached hereto) and the Services at any time by giving written notice to the other if the other: (i) becomes insolvent or bankrupt; (ii) ceases doing business in the ordinary course; (iii) appoints, or has appointed for it, a receiver or trustee in bankruptcy; (iv) makes an assignment or takes any other action for the benefit of its creditors; (v) has instituted against it any proceeding in bankruptcy, receivership or liquidation, and such proceedings continue for thirty (30) calendar days without being dismissed; or (vi) is wound up or dissolved. Any of these listed events will constitute a material breach of the Agreement. In the event of a termination by EGATE pursuant to a material breach of a material provision by Customer in accordance with this Sections 6.3, Customer shall pay Termination Fees to EGATE, as defined in Section 6.4.
6.4 Amounts Payable by Customer on Termination. On the termination of this Agreement or of a Service Schedule or Service Order for any reason, all payments required to be made to EGATE by the Customer thereunder, including all Fees, Taxes and Late Payment Charges due for the terminated Service up to the date of termination, shall be due and payable in accordance with the terms set out in Article 2. In the event of a termination by Customer pursuant to Section 6.1 or a termination by EGATE pursuant to a material breach of a material provision by Customer in accordance with Sections 6.2 or 6.3, Customer shall also pay to EGATE the termination charges specified in the relevant Service Schedule or Service Order plus applicable Taxes, or if not specified, an amount equal to the sum of (collectively, the “Termination Fees”):
(i) where termination occurs within an Initial Service Term, in recognition of the larger upfront costs incurred by EGATE to provide Services to Customer, one hundred percent (100%) of the remaining monthly Fees for the terminated Service that would have been payable to the end of the Initial Service Term plus applicable Taxes; and
(ii) where termination occurs within any Service Renewal Term, the sum of:
(a) fifty percent (50%) of the remaining monthly Fees for the terminated Service that would have been payable to the end of the Service Renewal Term plus applicable Taxes; and
(b) any applicable costs which EGATE is liable to continue to pay to EGATE Providers for the remainder of the applicable Service Renewal Term for, or in respect of, the terminated Service(s).
Customer acknowledges that Termination Fees are a reasonable pre-estimate of EGATE’s liquidated damages, represent consideration for the Services, and are not a penalty.
6.5 Accrued Obligations that Survive Expiry or Termination and Exceptions. Subject to the provisions of this Agreement, the termination of this Agreement shall not release either party from any obligation which has accrued on or prior to the date of termination of the Agreement.
7.1 Customer Indemnification of EGATE. The Customer agrees to indemnify, defend, and hold harmless EGATE and EGATE Providers, and the directors, officers, employees and agents of EGATE and its EGATE Providers, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon a claim that: (i) if true, would constitute a breach of any of Customer’s representations, warranties, or agreements hereunder; (ii) arises out of the negligence or willful misconduct of Customer; or (iii) is brought against EGATE or EGATE Providers by a third party in connection with the Services or other matters related to this Agreement.
7.2 Notice. In claiming any indemnification hereunder, EGATE shall promptly provide the Customer with written notice of any claim which EGATE believes falls within the scope of Section 7.1. EGATE may, at its own expense, assist in the defence if it so chooses, provided that the Customer shall control such defence and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind EGATE shall not be final without EGATE’s written consent, which shall not be unreasonably withheld.
8.0 Limitation of Liability.
8.1 LIABILITY FOR DAMAGES AND CAP. EGATE’S AND THE EGATE PROVIDERS’ TOTAL CUMULATIVE LIABILITY FOR DAMAGES, EXPENSES, COSTS, LIABILITY, CLAIMS OR LOSSES (COLLECTIVELY, “DAMAGES”) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF SERVICES UNDER THIS AGREEMENT, WHETHER ARISING IN NEGLIGENCE, TORT, STATUTE, EQUITY, CONTRACT, COMMON LAW, OR ANY OTHER CAUSE OF ACTION OR LEGAL THEORY EVEN IF EGATE OR A EGATE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, IS LIMITED TO DIRECT, ACTUAL, PROVABLE DAMAGES AND WILL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE TOTAL AGGREGATE AMOUNTS PAID BY CUSTOMER TO EGATE UNDER THIS AGREEMENT FOR THE SERVICE(S) GIVING RISE TO THE DAMAGES (LESS ALL DISCOUNTS AND CREDITS AND AMOUNTS PAID FOR PREVIOUS DAMAGES FOR SUCH SERVICE, IF ANY, FOR THE SPECIFIC SERVICE(S) THAT GAVE RISE TO THE DAMAGES), DURING THE THREE (3) MONTH PERIOD BEFORE THE EVENT GIVING RISE TO THE DAMAGES.
8.2 NO LIABILITY FOR CERTAIN DAMAGES. EGATE AND EGATE PROVIDERS ARE NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF SERVICES UNDER A SERVICE SCHEDULE OR SERVICE ORDER (INCLUDING LOST PROFITS, ANTICIPATED OR LOST REVENUE, LOSS OF DATA, LOSS OF USE OF ANY INFORMATION SYSTEM, FAILURE TO REALIZE EXPECTED SAVINGS OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS, OR ANY THIRD PARTY CLAIM), WHETHER ARISING IN NEGLIGENCE, TORT, STATUTE, EQUITY, CONTRACT, COMMON LAW, OR ANY OTHER CAUSE OF ACTION OR LEGAL THEORY EVEN IF EGATE OR EGATE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
8.3 RIGHTS AND REMEDIES. All of Customer’s rights and remedies relating to: (1) EGATE’s failure to meet a service level agreement; AND (2) SERVICE INTERRUPTIONS, including IN EACH CASE, ANY credits, refunds or rights of termination, are set out in the relevant Service Schedule. These rights and remedies are subject to the limitations of liability set out in THESE articleS 8 and 8A and are the only remedies for EGATE’s failure to meet a service level agreement or for a service interruption.
8A. Limitation of Voice over Internet Protocol (“VoIP”) Calling and Related Limitation of Liability
8A.1 In this Agreement and, without limitation, in this Article 8A, the terms “you”, “your” and “yours” refer not only to Customer, but also include every person Customer authorizes to act as its agent with regard to a Service or to use the Service through one or more accounts EGATE has designated and provided to Customer (all such accounts hereinafter collectively called “Account” or “Accounts”).
8A.2 There are some differences and limitations in how 9-1-1 calling over EGATE Services provided using VoIP technology (“EGATE VoIP Service”) operates relative to 9-1-1 service over traditional telephone service as further described in the following sections. Please review this Article 8A of this document thoroughly before activating, installing or using the any EGATE VoIP Service.
8A.3 EGATE offers a form of 9-1-1 calling that is similar to traditional 9-1-1 service but has some important differences and limitations when compared with enhanced 9-1-1 service (“E9-1-1”) available in most locations in conjunction with traditional telephone service. With both traditional basic 9-1-1 and E9-1-1 service, your call is sent directly to the nearest emergency response centre. In addition, with E9-1-1 service, your call back number and last address are visible to the emergency response centre call-taker. With EGATE VoIP Service 9-1-1 calling, your call is sent to a national emergency call centre. Regardless of whether your call-back number and the last address registered with EGATE for your EGATE VoIP Service are visible to the call centre operator, when you make a 9-1-1 call, you will be asked to confirm your location information. The call centre operator will then transfer your 9-1-1 call to the emergency response centre nearest your location. You should be prepared to provide or confirm your name, address and call-back number with the operator. Do not hang up unless told directly to do so and if disconnected, immediately dial 9-1-1 again.
8A.4 If you are unable to speak during a 9-1-1 call and the call centre operator has access to a call-back number and last registered address associated with your EGATE VoIP Service, the operator will transfer the call to the emergency response centre closest to that address. In order for emergency services to be dispatched to the correct address in such cases, you must ensure that the registered address that you have provided to EGATE is always the same as the physical address at which the Analog Terminal Adapter/other device you use to obtain your EGATE VoIP Service (“VoIP Device”) is located. Whenever you move the physical location of your VoIP Device or you add a line, you must update your registered address accordingly. Address registrations and updates may be recorded by e-mailing the EGATE care team at firstname.lastname@example.org or via telephone, by calling (416) 447-7700.
8A.5 EGATE VoIP Service 9-1-1 calling will not function in the event of a power or broadband outage or if your broadband service (whether obtained from EGATE or another Internet service provider) is suspended or disconnected. Following a power failure or disruption, you may need to reset or reconfigure your VoIP Device prior to utilizing EGATE VoIP Service, including 9-1-1 calling.
8A.6 You must successfully register your location of use for each changed, newly added or newly ported number in order for 9-1-1 calling to function as intended. Address registrations and updates may be recorded by e-mailing the EGATE care team at email@example.com or via telephone, by calling (416) 447-7700.
8A.7 Improper installation or configuration of your VoIP Device or other Equipment used in conjunction with EGATE VoIP Service will prevent your 9-1-1 calling from functioning as intended. Immediately following installation of your VoIP Device and EGATE VoIP Service and following every power outage, or if you have reason to suspect that anyone has tampered with the VoIP Device or related Equipment or that it has failed, you should make a test call to another telephone number (NOT 9-1-1) using your EGATE VoIP Service to ensure that it is functioning correctly in case a 9-1-1 call will need to be made at some point using the EGATE VoIP Service. If the EGATE VoIP Service is not working correctly at any time, please call technical support at (416) 447-7700 from another telephone for assistance.
8A.8 There may be a greater possibility of network congestion and/or reduced speed in the routing of 9-1-1 calls made utilizing EGATE VoIP Service as compared to traditional 9-1-1 calls dialled over traditional public telephone networks.
8A.9 You should inform any business or household residents, guests and other persons who may be present at the physical location where you utilize EGATE VoIP Service, of the important differences in and limitations of EGATE VoIP Service 9-1-1 calling as compared with E-9-1-1 service, as set out above.
8A.10 EGATE does not currently offer Operator Service and so emergency services cannot be accessed through an operator by dialling “0”.
8A.11 EGATE does not have any control over whether, or the manner in which, calls using EGATE VoIP Service 9-1-1 calling service are answered or addressed by any local emergency response centre. EGATE disclaims all responsibility for the conduct of local emergency response centres and the national emergency calling centre. EGATE relies on third parties to assist it in routing 9-1-1 calls to local emergency response centres and to a national emergency calling centre. EGATE disclaims any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result.
8A.12 You acknowledge and understand that the EGATE VoIP Service or access to the EGATE VoIP Service, including 9-1-1, public alerts or special needs services, may not function correctly, or at all, in the following circumstances:
8A.13 You acknowledge and agree that, to the maximum extent allowed by law, EGATE Parties will not be liable for any injury, death or damage to persons or property, arising directly or indirectly out of, or relating in any way to 9-1-1 calling from your EGATE VoIP Service and you agree to indemnify and hold harmless the EGATE Parties for any liabilities, claims, damages, losses and expenses, (including reasonable legal fees and expenses) which you or anyone accessing or attempting to access 9-1-1 calling from your EGATE VoIP Service may suffer or incur, arising directly or indirectly out of or relating to your or that person’s failure to obtain access to 9-1-1 emergency services.
8A.14 By subscribing to EGATE VoIP Service and activating it, you acknowledge all of the limitations of the 9-1-1 calling provided through EGATE VoIP Service, that you will take all of the corresponding measures described above in light of these limitations, that you accept the limitations of liability applicable to 9-1-1 calling provided through EGATE VoIP Service. If you do not agree with any of the terms and conditions related to EGATE VoIP Service, including the limitations and requirements associated with 9-1-1 calling provided over EGATE VoIP Service, do not subscribe to, or activate, EGATE VoIP Service, do not install the VoIP Device or any other Equipment provided in connection with the EGATE VoIP Service and call EGATE immediately at (416) 447-7700 to cancel your EGATE VoIP Service, if any such service has been ordered or activated.
8A.15 Notwithstanding anything in this Article 8A, the provisions of Article 8 of this Agreement also apply to EGATE VoIP Services.
9. Intellectual Property Rights.
Title to, ownership of, and all intellectual property rights in, any facilities, equipment, software, systems, processes and documentation used to provide the Services (“Service Components”) shall belong and remain with EGATE, or EGATE Providers. Unless expressly stated elsewhere in this Agreement, this Agreement does not grant to the Customer any intellectual property or other rights or licenses in or to any Service Components. In addition and without limitation, Customer acknowledges it has no right, title or interest in or to any network address or identifier (such as, for example, telephone number, Internet Protocol address, or host name) assigned to the Customer by EGATE.
10. Confidential Information.
10.1 Definitions. “Confidential Information” means any data, documentation or other information of a proprietary or confidential nature of a party (“Disclosing Party”), or its Affiliates, or which is treated as confidential by a party or its Affiliates, whether or not identified as being confidential or proprietary, which is disclosed or made available to the other party in connection with the negotiation, preparation or performance of this Agreement (“Receiving Party”). All non-public information regarding the design, installation, delivery, performance or implementation of the Services, including non-public pricing information, service levels and network design specifications shall constitute Confidential Information of EGATE. Confidential Information excludes Customer’s name, address and listed telephone number and any data, documentation or other information which is: (i) is in the public domain at the time of disclosure; (ii) becomes publicly available through no fault of the Receiving Party; (iii) is known to the Receiving Party prior to receipt thereof from the Disclosing Party, free of any confidentiality obligation; or (iv) is available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, if that source or its source is not in breach of any obligations of confidentiality to the Disclosing Party.
10.2 Ownership and Protection of Confidential Information. Confidential Information shall remain the property of the Disclosing Party. The Receiving Party shall use commercially reasonable efforts to protect the confidentiality of all Confidential Information, using at least the same standard of care as it uses to protect its own Confidential Information, but in any event, a reasonable standard of care. Neither party shall at any time, without the prior written consent of the other party, disclose or use (except as expressly permitted by, or required to achieve the purposes of, this Agreement) the Confidential Information of the other party. Each party shall allow the disclosure of such information within its own organization only on a need-to-know basis and only to individuals who have agreed to maintain the confidentiality of such Confidential Information. If the Receiving Party reproduces any part of such information for permitted use within its own organization, the Receiving Party shall indicate the Disclosing Party’s proprietary interest in all such reproductions. Notwithstanding the foregoing, the parties further agree that the Receiving Party may disclose Confidential Information to its or its Affiliates’ employees, contractors, directors, officers, representatives, or advisors to whom such disclosure is necessary for the purposes authorized herein. The Disclosing party shall remain responsible for any breaches of this Section 10.2 by any of such employees, contractors, directors, officers, representatives, or advisors. The obligation to keep Confidential Information confidential shall survive termination or expiration of this Agreement, however caused, for a period of five (5) years. A party may disclose Confidential Information if required by a governmental agency, by operations of law, or if necessary in any proceeding to establish rights or obligations under this Agreement, provided that the party required to make the disclosure gives the other party reasonable prior written notice sufficient to permit that other party an opportunity to contest such disclosure. Since a breach of this Section 10.2 of the Agreement by either party may cause irreparable harm to the other party for which monetary damages may be inadequate, in addition to other available remedies, the non-breaching party may seek injunctive relief for any apprehended or actual violation hereof in addition to any other remedies available at law. As soon as practicable, Receiving Party shall notify Disclosing Party of any breach of this Section 10.2 of the Agreement.
10.3 Consent to Receipt of Commercial Electronic Messages. Customer agrees to receive commercial electronic messages from EGATE, its Affiliates and marketing partners. Customer agrees to receive software downloads from EGATE, its Affiliates and EGATE providers to the extent that such downloads are reasonably necessary for the continued efficient operation of the Services.
11.1 General. All notices necessary under this Agreement shall be given in writing, and either delivered personally, by mail postage-prepaid and return receipt requested, or sent by a courier that records delivery information, by fax or by e-mail addressed using the contact information set out on the first page of this Agreement or addressed using such other contact information as one party advises the other by way of a written notice provided in accordance with this Article 11. Notices, if personally delivered, will be deemed to have been received the same day, or if sent by express courier, will be deemed to have been received upon delivery, as indicated in the express courier’s record of delivery. Notices delivered by facsimile shall be considered to have been received upon the sender obtaining a bona fide confirmation of such delivery. Notices delivered by e-mail shall include the following, and shall only be effective if the recipient provides by e-mail a confirmation of delivery and the date of acceptance of the delivery: (i) sender’s name, address, telephone number, fax number and e-mail address; (ii) date and time of the transmission; and (iii) the name and telephone number of a person to contact in the event of transmission problems. Delivery of notices after 5:00 p.m. at the address being served constitutes delivery the following day. Notices sent by mail shall be deemed to have been received on the fifth (5th) day after posting. Neither party shall use the mail to provide a notice to the other in the event of an actual or apprehended disruption to the postal service due to a labour dispute or otherwise.
11.2 Change of Contact Information. Any EGATE contact information listed in the Agreement (such as contact name, title, address, telephone, facsimile or email address listed in Article 8A) can be changed by notice provided in accordance with Section 11.1.
12.0 Miscellaneous Provisions.
12.1 No Partnership or Third Party Beneficiaries. The relationship between EGATE and the Customer is that of independent contractors, and nothing in this Agreement shall be construed to constitute the parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking between the parties hereto, and the parties expressly agree that no such partnership is intended. No person or entity other than the parties hereto shall have, is deemed to have or claim any third party, direct or indirect benefits, rights or claims to this Agreement or the matters described herein.
12.2 Assignment; Binding Agreement. The EGATE Services are for the exclusive use of the Customer and neither this Agreement nor any of the Customer’s rights or obligations thereunder may be assigned, by Customer to any other person without EGATE’s prior written consent which may be withheld. EGATE may assign this Agreement at any time. This Agreement is binding on each party’s successors and permitted assignees.
12.3 Entire Agreement. This Agreement, including all Service Schedules, consists of the entire agreement between the parties. No promise, representation, warranty, or covenant not included in this Agreement has been or is relied upon by either party. Any prior agreements, negotiations, correspondence, or understandings related to the subject matter of this Agreement shall be deemed to be merged in this Agreement and shall be of no further force or effect. Each party has relied upon such party’s own examination of the full Agreement and the provisions thereof, and the representations and covenants expressly contained in this Agreement itself. The failure or refusal of either party to inspect the Agreement or other documents, or to obtain legal advice or other advice relevant to this transaction, constitutes a waiver of any objection, contention, or claim that might have been based upon such reading, inspection, or advice. No modification addendum or amendment of this Agreement shall be of any force or effect unless in writing executed by both parties.
12.4 Interpretation. Unless otherwise provided, all terms shall have the meaning given them in the ordinary English usage and as customarily used. Words in any gender shall include both other genders. Whenever the context requires, the singular shall include the plural, the plural shall include the singular, and the whole shall include any part thereof. The headings in this Agreement shall not affect the interpretation of any provision of this Agreement. The words “including” and “includes” mean “including without limitation” and “includes without limitation”. Unless explicitly indicated otherwise, a reference to an “Article” and “Section”, refers to an article or section of the document forming part of this Agreement in which the reference occurs.
12.5 Invalidity & Severability. If any part of this Agreement is void, prohibited or unenforceable, this Agreement shall be construed as if such part had never been part of this Agreement; and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the void, prohibited, or unenforceable provision or by its severance herefrom. Furthermore, in lieu of such void, prohibited, or unenforceable provision, there shall be added automatically as part of this Agreement a provision as similar in its terms to such void, prohibited, or unenforceable provision as may be possible and be legal, valid and enforceable.
12.6 Headings. The Article, Section and other headings contained in this Agreement are for purposes of reference only and shall not limit, expand, or otherwise affect the construction of any of the provisions of this Agreement.
12.7 Counterparts; Facsimile or Electronic Delivery. This Agreement and any amendment thereto may be executed in any number of counterparts, each of which when executed and delivered shall be deemed to be an original, and all of which shall together constitute one and the same instrument. The transmittal of signatures or of signed copies of this Agreement, any amendment thereto and notices required or permitted to be given hereunder by fax or email hereby constitutes good and valid execution and delivery of such document and are legally binding on both EGATE and the Customer.
12.8 No Waiver. The failure of Customer or EGATE to exercise any right under this Agreement, or to insist upon strict or full performance of the obligations under this Agreement, shall not constitute a waiver or relinquishment of any provision of this Agreement. In order to be binding upon a party, any such waiver must be express and in writing signed by that party. The rights of the parties under this Agreement are cumulative.
12.9 Authorized Execution. The parties each represent and warrant: (1) that the individual executing this Agreement for and on its behalf is authorized to execute this Agreement; (2) that such party shall be bound in all respects hereby; and (3) that such execution presents no conflict with any other agreement of such party.
12.10 Survival. All terms and provisions of this Agreement, which should by their nature survive the termination of this Agreement, shall so survive.
12.11 Non-solicitation. Customer agrees not to solicit EGATE or EGATE Providers’ employees or contractors during the Service Term and for a period of one year thereafter.
12.12 Choice of Law/Venue. The parties agree that the substantive laws of the Province of Ontario, without reference to its principles of conflicts of laws, will be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement. EGATE and Customer each consent to the exclusive personal jurisdiction of and venue in a court located in Toronto, Ontario for any suits or causes of action connected in any way, directly or indirectly, to the subject matter of this Agreement or to the Services. Any cause of action or claim the Customer may have with respect to the Services must be commenced within two (2) years after the claim or cause of action arises or such claim or cause of action is barred.
12.13 Language. The parties hereto have requested that this Agreement and all correspondence and all documentation relating to this Agreement, be written in the English language. Les parties aux présentes ont exigé que la présente entente, de même que toute la correspondance et la documentation relative à cette entente, soient rédigées en langue anglaise.