PubNIX Inc. Data Services Terms and Conditions

  1. Services
    1. PubNIX Inc. (“PubNIX”) shall perform the Services indicated on the attached Services Agreement application (the “Application”) at the Customer’s location(s) specified in such Application this Agreement or on any attached Schedule (the “Service Sites”).  PubNIX reserves the right to perform all or any of the Services on its own network, when available, without notice to the Customer.
    2. PubNIX shall begin performing the Services upon installation of the Equipment, or as otherwise agreed to between the parties, and shall continue such performance during the Term (as defined in Section 6), unless any or all of the Services are earlier terminated in accordance with this Agreement.
    3. PubNIX may, without penalty (and specifically without the penalty set out in Section 5.c below), suspend the provision of all or any of the Services to the Customer, for a reasonable length of time, in order to maintain, test or configure the Services or to perform such other work as PubNIX may determine is necessary or appropriate.
    4. The parties agree that the scope of Services to be provided may be amended from time to time at the request of or with written authorization of the Customer, and any such amendment shall be deemed to become an integral part of this Agreement.  The Customer acknowledges that changes in the scope of Services may result in additional installation Fees and/or Monthly Fees, and/or termination charges.
  1. PubNIX Equipment
    1. PubNIX may install such wiring, cable, circuits, instruments, and other equipment (“Equipment”) in a Service Site as PubNIX determines necessary or appropriate to connect the Service Site to PubNIX’s network and to perform the Services.
    2. The Equipment shall be supplied and installed by PubNIX up to the Customer demarcation point, as defined by PubNIX.  The Customer acknowledges that the Equipment shall be maintained and repaired only by PubNIX or PubNIX’s authorized agents.  PubNIX may provide additional Services and/or Equipment beyond the Customer demarcation point if requested by the Customer.  The Customer acknowledges that such provision will result in additional Fees, in addition to the Installation Fees and Monthly Fees specified in this Agreement.
    3. PubNIX is the owner of all right, title and interest in and to the Equipment, or has obtained the right to make the Equipment available for use by the Customer from a third party.  The Equipment will at all times during and after the Term remain the property of PubNIX or such third party, as the case may be, regardless of the manner in which it is installed in or attached at the Services Sites.  The Customer shall be responsible for any loss, cost, claim or damage resulting to or from the Equipment for any reason whatsoever including, without limitation, a disappearance or theft, or in connection with its installation, removal, use, maintenance or repair, as well as any loss and damage resulting from the Customer’s use of the Services, unless such loss or damage is due solely to the negligence or willful misconduct of PubNIX.
    4. Subject to Section 3.b, the Customer shall not, without PubNIX’s prior written consent, make any deletion, addition, correction or other alteration to the Equipment, connect any equipment of the Customer or third party to the Equipment, or permit access to the Equipment by any person not approved by PubNIX.
    5. If any right, title or interest in and to any of the Equipment transferred or will transfer to the Customer and the full purchase price of such Equipment is not received by PubNIX on or before the date of such transfer, in consideration of PubNIX providing such Equipment, the Customer hereby creates and grants a purchase money security interest to PubNIX in such Equipment and all proceeds thereof, as security for the prompt and complete payment of all amounts owing to PubNIX by the Customer.
  1. Customer Obligations
    1. The Customer shall permit PubNIX or PubNIX’s authorized agents access to the Service Sites at all reasonable times during regular business hours or as otherwise agreed between the parties in order to install, inspect, maintain, repair, replace or remove or perform such other work as PubNIX may determine is necessary or appropriate to all or part of the Services and/or Equipment.  The Customer shall not place locks or other similar devices on the Equipment that would restrict such access to the Service Sites.
    2. The Customer may, at its own expense and with the prior written consent of PubNIX, interconnect its own equipment with the Equipment, in accordance with the standards and procedures for interconnection and installation that are provided to the Customer by PubNIX from time to time.  In such event the Customer shall be responsible for ensuring that all of its interface equipment is compatible, and does not interfere, with the Equipment and the Services.
    3. The Customer shall provide such space, shelter and electricity at the Service Sites for the Equipment as PubNIX determines is necessary or appropriate, including such environmental control systems, lighting and security provisions and all cable services, wiring, modems switching equipment and amplifiers which PubNIX determines is necessary or appropriate.
    4. The Customer shall not interfere with or damage or permit any other party to interfere with or damage Services, Equipment or other operations of PubNIX or PubNIX’s other customers.
    5. The Customer shall not create or permit to exist any liens or encumbrances on the Equipment except as approved by PubNIX in writing.
    6. The Customer will at all times use the Services and Equipment in accordance with PubNIX’s Acceptable Use Policy, as amended from time to time.
    7. The Customer shall not use the Services or the Equipment in any manner not contemplated under this Agreement, including, without limitation, resale of such Services or the Equipment, without the express written consent of PubNIX.  Any such unauthorized use shall be considered a material breach of this Agreement.
  1. LIABILITY
    1. PubNIX shall not be liable for incidental, consequential, special or indirect damages arising from or in connection with the breach of any provision of this Agreement or any attached Schedule(s), whether or not such damages were foreseeable or PubNIX was advised of the possibility of such damages.  The aggregate liability of PubNIX arising out of or in connection with this Agreement shall not exceed the fees paid by Customer to PubNIX hereunder.  If requested, the Customer will provide in favour of PubNIX a waiver of subrogation from Customer’s insurer.  The limitation of liability set forth in this section shall not apply to claims of personal injury or property damage due to the sole negligence or wilful misconduct of PubNIX against whom the claim is made.
    2. In no event shall PubNIX be liable for the use of the Equipment and Services by the Customer or any third party for unlawful or illegal purposes, or any purpose which is contrary to PubNIX’s terms of service or PubNIX’s acceptable use policy, as amended from time to time.
    3. The Customer hereby indemnifies and holds harmless PubNIX and its agents for any and all losses, damages, costs or expenses (including legal fees) resulting from any allegation, claim or action by a third party arising out of or relating to use of the Equipment and Services by the Customer or any third party, for unlawful or illegal purposes, or any purpose which is contrary to PubNIX’s terms of service or PubNIX’s acceptable use policy, as amended from time to time, or for any breach of this Agreement by the Customer.
    4. PubNIX makes no representations, warranties, conditions or guarantees as to merchantability, fitness for particular purposes or any other representations, warranties, conditions or guarantees regarding the Services or the Equipment, whether express or implied, in law or in fact, or in writing, except as expressly stated in this Agreement.  The Customer acknowledges that it has not relied upon any representation, warranty, condition or guarantee made by PubNIX.
    5. Without limiting the generality of Section 4.d, PubNIX does not represent, warrant, covenant or guarantee that transmissions initiated by the Customer in the course of using the Services cannot and will not be received or intercepted by person(s) other than the intended recipient(s).
  1. FEES
    1. The Fee(s) specified in the Application, including any security deposit, shall be paid by the Customer to PubNIX in accordance with Section 5.d herein in full without any right of set-off or deduction.  The Customer shall pay PubNIX any applicable sales, use, goods and services, value added or similar taxes payable with respect to the Fee(s), or otherwise arising with respect to this Agreement.
    2. PubNIX agrees that in the event of a price decrease in its standard rates , the Customer will automatically be converted to the lower rate(s).
    3. Subject to Section 1.c, when a Service Interruption occurs the Customer shall be credited with an allowance equal to the amount established from time to time by the PubNIX SLA Credit Schedule.  Such allowance will be applied against the Customer’s next Monthly Fee.  “Service Interruption” means a failure by PubNIX to provide the Services (or any particular Service) substantially in accordance with service specifications (set by PubNIX from time to time) for reasons other than:
      1. capacity shortages not caused by PubNIX;
      2. the failure or non-performance of any service, equipment or facilities provided by the Customer, an interexchange carrier or another third party;
      3. any act or omission by the Customer including, without limitation, interruptions required to correct interference to a Service caused by the Equipment of the Customer or a third party connected to or used in conjunction with the Service;
      4. any unlawful, illegal or improper use of the Equipment or any Service;
      5. any period during which PubNIX interrupts the performance of the Services in order to perform tests, maintenance or adjustments to the Service facilities or the Equipment or such other work as PubNIX may determine is necessary or appropriate;
      6. the occurrence of an event of Force Majeure (as defined in Section 9);
      7. interruptions due to power fluctuations or power failure at the Service Sites; or
      8. access can not be gained to the Service Sites.
    4. PubNIX will invoice the Customer for the Installation Fee(s) (and all applicable taxes) forthwith following installation.  PubNIX will invoice the Customer the Monthly Fee(s) (and any applicable taxes) on a monthly basis.  The Customer shall pay to PubNIX all invoices by the payment due date printed on the invoice.  A late payment charge of 1.5% per month may be applied to any invoice for which payment has not been received by PubNIX by the payment due date printed on the invoice.  In the event that a particular Service is commenced on a day other than the first day of a calendar month or terminates on a day other than the last day of a calendar month, the Fee in respect of such Service shall be pro-rated based on a thirty (30) day month.
    5. Where payments have been made for charges that should not have been billed, or that were over billed, the Customer will be credited with the over-payment back to date of the error up to a maximum of six (6) months from the date the error was identified.  If the Customer does not dispute the charge within six (6) months of the date of a statement, the right to have the excess credited for the period prior to such statement is lost.
    6. The Customer is not responsible for paying previously unbilled or under billed charges except where the charge is correctly billed within a period of six (6) months from the date it was incurred.
    7. As security for the prompt and complete payment of all amounts due under this Agreement, including in respect of any minimum commitment by the Customer, the Customer hereby creates and grants to PubNIX a security interest in all of the Customer’s right, title and interest in and to all presently owned or held and after acquired or held personal property, assets and undertaking of the Customer and all proceeds thereof.
  1. TERMINATION AND TERMINATION CHARGES
    1. This Agreement shall become effective on the date upon which this Agreement is executed by PubNIX. The term of Services (“Term”) shall commence on the date of Service Installation and shall continue in full force and effect until the earlier of:
      1. the expiry of the Service Term specified in the Application; or
      2. the termination of the Agreement in accordance with this section.
    2. Upon the expiry of the Term of this Agreement, the Customer may extend this Agreement on a month-to-month basis at the Monthly Fee and this Agreement shall continue on a month-to-month basis subject to termination pursuant to Section 6.d or on thirty (30) days written notice by either party to the other, or, subject to PubNIX’s approval, the Customer may sign a new Agreement for the Services.
    3. Customers being provided Services(s) on a month-to-month Agreement may terminate the Service(s) at any time, subject to a thirty (30) day minimum billing on thirty (30) days written notice.
    4. PubNIX may terminate any Service under this Agreement, at PubNIX’s discretion, immediately, without further obligation to the Customer in the event of:
      1. any failure by the Customer to pay any Fee(s), payments for Equipment, or other amounts when due hereunder or any breach of this Agreement by the Customer which cannot be resolved or is not resolved to PubNIX’s satisfaction within fifteen (15) days of PubNIX notifying the Customer of such breach;
      2. any merger, consolidation or similar transaction or acquisition or sale, lease or other transfer of all or substantially all of the assets or voting shares of the Customer, or  any other change in the control or ownership of the Customer;
      3. the Customer making or being deemed to have made a general assignment for the benefit of creditors under the Bankruptcy and Insolvency Act (the ”Act”), or if a petition is filed against it under the Act, or if it shall be declared or adjudicated bankrupt, or if an application is made in respect of it under the Companies Creditors Arrangement Act, or if a liquidator, trustee in bankruptcy or receiver institute proceedings against the Customer to be adjudged bankrupt or insolvent or consents to the institution of such appointment or proceedings, or if it admits in writing an inability to pay debts generally as they become due or becomes an “insolvent person” as that term is defined in the Act;
      4. use of the Services and/or Equipment for any illegal or unlawful purposes or any purposes which is contrary to PubNIX’s terms of services or PubNIX’s Acceptable Use Policy, as amended from time to time; or
      5. PubNIX being required by law to cease providing Services.
    5. The Customer may terminate this Agreement immediately, without further obligation to PubNIX, other than the obligation to pay amounts owing for Services provided to the date of such termination under the following conditions:
      1. by paying immediately to PubNIX 60% of the remaining value of aggregate Monthly Fees under this Agreement;
      2. by entering into a new Agreement for Services for a term and quantity equal to or greater than the original Agreement;
      3. if the Customer has not been receiving Services from PubNIX prior to execution of this Agreement, by providing written notification to PubNIX within 60 days of the Services installation date that the Customer is not satisfied with the Services; or
      4. pursuant to the provisions of Section 9.
    6. Upon termination:
      1. PubNIX may immediately remove any Equipment from the Service Sites and the Customer shall permit PubNIX and its agents access to the Service Sites for such purpose;
      2. the Customer shall pay PubNIX any and all amounts owed by Customer to PubNIX pursuant to this Agreement and all costs (including reasonable legal fees) incurred by PubNIX in attempting to protect PubNIX’s rights or remedies, or to cause the Customer’s compliance with its obligations pursuant to this Agreement; and
      3. in the case of termination by PubNIX in accordance with Section 6.e, the Customer shall pay PubNIX all Monthly Fee obligations for the remaining portion of the Term.
  1. ASSIGNMENT

The Customer may not assign any rights or obligations under this Agreement to any third party without the express written consent of PubNIX, which consent shall not be unreasonably withheld.

  1. CONFIDENTIALITY

During and after the Term, each party (the “Receiving Party”) shall maintain strictly confidential all information, financial, technical, or otherwise, disclosed by the other party (including the terms of this Agreement) and shall not copy or use any such information except as contemplated by this Agreement.  The foregoing shall not apply to information which is or becomes publicly known otherwise than by reason of a breach of this Agreement by the Receiving Party or has been independently developed outside the scope of this Agreement.  Where the Receiving Party is required by law to disclosure confidential information, it shall use its best efforts to minimize the extent of disclosure of the confidential information and to obtain an undertaking from the recipient to maintain the confidentiality thereof.  Notwithstanding the foregoing, PubNIX may disclose the Customer’s confidential information to PubNIX’s agents, provided that such agents agree to be bound by confidentiality provisions equivalent to this section.

  1. FORCE MAJEURE
    1. If at any time during the Term PubNIX is unable to provide any or all of the Services by reason of the occurrence of an event of Force Majeure (defined in Section 9.b), PubNIX will be excused from the performance of its obligations hereunder, during the continuance of such inability, provided that PubNIX provides written notice of the occurrence of the Force Majeure to the Customer within fifteen (15) days of its occurrence and takes all reasonable measures to prevent or remove the Force Majeure .  In the event of the occurrence of an event of Force Majeure, PubNIX may provide the Customer with bridge service, if possible, and the Customer may, at its option, terminate the Agreement with written notice if PubNIX cannot resume provision of the Services within three (3) months of the occurrence of the event of Force Majeure.
    2. “Force Majeure” means a fire, rain, flood, epidemic, earthquake, snowstorm, ice build-up, quarantine, embargo, or other act of God; explosion, damage or destruction of equipment or facilities; strike, lockout or other dispute with workers; riots, civil disputes, war (whether declared or undeclared) or armed conflict; any municipal ordinance or provincial or federal law, governmental order of regulation or order of any court or regulatory body; the inability to obtain, or any delay in obtaining, local access for any reason whatsoever, fraud control by PubNIX which renders continued provision of a Service or the Services under the Agreement impossible, impracticable or illegal.
  1. GENERAL
    1. Any notice, request, demand, consent or other communication provided or permitted hereunder shall be in writing and given by personal delivery, or sent by registered mail, postage prepaid, or transmitted by facsimile or other form of recorded communication tested prior to transmission, addressed to the party for which it is intended at its address set out on the Services Agreement application; provided, however, that either party may change its address for notice by giving ten (10) days prior written notice of such change to the other party in the manner prescribed above.  Any notice so given shall be deemed to have been received on the date on which it was delivered or transmitted by facsimile or other form of recorded communication.
    2. This Agreement will be governed by and construed in accordance with the laws of the Province of Quebec. The parties hereby attorn to the jurisdiction of the courts of the Province.
    3. This Agreement is subject to all of the terms and conditions of PubNIX’s terms and service, as amended from time to time.  The most up-to-date versions of the documents are available by calling PubNIX at +1-514-990-5911.
    4. If any section, provision or part of this Agreement is held to be unenforceable, invalid or illegal, then it shall be severed and deemed to be deleted and the remaining provisions shall remain valid and binding.
    5. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any provision, whether or not similar, nor shall any waiver constitute a continuing waiver.

The parties hereto confirm that it is their wish that this Agreement, as well as any other documents relating hereto, including all notices, have been and shall be drawn up in the English language only.

 

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