By using Services, Client agrees to be subject to the contractual terms defined in this Agreement. Some Services provided by Cōv communications Inc. may be governed by CRTC regulation. In the event of any discrepancy between this Agreement and CRTC regulation, or any other applicable law, precedence is given to the latter, including any notice, decision or policy that may result in a change in prices or services. All Services will be governed by these General Terms and Conditions, such forming part of the Agreement, and may be amended in accordance with this Agreement. These General Terms and Conditions are incorporated and govern in each and every Service Schedule. However, Parties acknowledge and agree that in the event of a conflict between the General Terms and Conditions and a Service Schedule, the latter shall prevail regarding such specific Service, the General Terms and Conditions governing any other issues regarding such Service as well as any other Services, if any.
The following definitions apply to the Agreement:
1.1 “Activation Date” means the date a Service becomes available to Client for use as specified in the Service Schedule, whether Client makes use of such Service or not.
1.3 “Client” means the undersigned legal person receiving Services from Cōv communications and shall include, without limitation, its employees, authorized agents and third parties acting on its behalf.
1.4 “Confidential Information” means, with respect to either Client or Cōv communications (a “Party” or collectively, the “Parties”), any information that is confidential to such Party including, without limitation, its inventions, research and development activities, products and product information, technical data, specifications and know-how relating to both existing and planned products, data, business, marketing, accounting and financial information, computer software, processes, operating and testing procedures, personnel records, existing and targeted customers, all information – in writing, orally, electronically or otherwise – identified as being confidential or, without limiting the generality of the foregoing, any disclosure related to the Agreement, as well as the terms herein.
1.5 “Connection Point” means the location(s) where Cōv communications’s installation, Equipment or Financed Equipment connects to Client’s terminal installation, namely the Client’s server room, including to Client’s equipment, whether such Equipment, if provided by Client, is owned by it, or where the installation or equipment connect to internal wiring network.
1.6 “Cōv communications Equipment” means equipment provided by Cōv communications up to the Connection Point.
1.7 “Equipment” means any equipment or software installed or provided by Cōv communications, loaned or leased to Client, except equipment specifically purchased by Client from a third party or from Cōv communications and fully paid for. Equipment includes any software or documentation provided by Cōv communications and IP addresses required for Internet connection.
1.8 “Financed Equipment” means the Equipment required to use Services which are leased or purchased by Client from Cōv communications.
1.9 “Fixed fee” means the initial fees to be paid by Client for the establishment of a Service and which represent the total installation and connection fees and, should Services include telephone access, the additional monthly fee for 911 service, as set by the CRTC, and any further tax, including the municipal tax, such which remain subject to change without any notice following a CRTC or tax authorities decision.
1.10 “General Terms and Conditions” means these general terms and conditions, as may be amended from time to time.
1.11 “Pay-per-use Services” means Services provided and invoiced by Cōv communications based on Client’s monthly use, including long-distance and overseas calls, directory assistance, any monthly fees payable by Client for exceeding limits included in telephone and Internet packages or charges relating to the “burst” use of Internet services.
10.12 “Service Schedule” means a service schedule being part of the Agreement as defined in section 1.2 hereof.
1.13 “Services” means all services provided by Cōv communications at Client’s request, including (i) telecommunication services, including Internet Access, Multi-Protocol Label Switching (MPLS), telephone lines, cloud telephony, Ethernet Virtual Private Lines, (ii) sale, installation, inspection, maintenance, repair, removal or disconnection of any equipment relating to Client’s Services; (iii) WiFi business solutions; (iv) CovCare; and (v) other services which may be provided by Cōv communications to Client.
1.14 “Service Period” means the period during which Cōv communications has agreed to provide Services to Client and for which fees and charges are to be paid by Client, whether or not Services are used.
2.1 Service Provider. In consideration of the payment of the agreed upon fees as set forth in a Service Schedule and subject to these General Terms and Conditions, Cōv communications agrees to provide Client with Services described in the Agreement and any subsequent amendments made at Client’s request during the Service Period.
2.2 Third Party. Cōv communications may, at its sole discretion, elect to provide any Service with or without the help of third-party suppliers, agents, subcontractors or other third parties, without prior notice to Client.
2.3 Access. Client shall remain sole responsible to supply, at no cost for Cōv communications, ducts both inside and outside the Service location, internal wiring network, adequate space, rights of way and power supply necessary for installation, connection and Equipment maintenance.
2.4 Third Party Rights. Client agrees to conform with the licensing regulations and related obligations of those third-party equipment, software and/or hardware products, and hold Cōv communications harmless against their design limitations, flaws or other possible shortcomings. All such software, and all software operating as part of all such hardware are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Software is licensed, not sold. All rights not expressly granted herein are reserved.
3. GENERAL SERVICE TERMS
3.1 Equipment. Unless necessary or agreed upon by Parties, Client provides, at its own costs, installation or equipment (telephone, computer and other hardware and software) necessary to ensure the provision of Service and which shall meet the minimum recommended usage standards. Client is also responsible to configure and install the necessary software in order to receive the Services and Client assumes all risks and must ensure the security when using the Services. Should Cōv communications provide Cōv communications Equipment, Client agrees that the such remains at all times the exclusive property of Cōv communications. The physical Cōv communications Equipment must remain at the location where Services are provided. Cōv communications shall be sole responsible for the cost of normal wear and tear, maintenance and repairs to the Cōv communications Equipment provided for Services, regardless of when such work is required.
3.2 IP Addresses. Client agrees that notwithstanding the rights to the usage of a limited number of IP Addresses, as registered and assigned to Client by Cōv communications, such IP Addresses remain the exclusive property of Cōv communications at all times. Client is authorized to use such IP Addresses during the Service Period. Cōv communications undertakes not to assign said IP Addresses to any third party during the Service Period.
3.3 Client’s Undertaking. Client undertakes to protect the Cōv communications Equipment or Financed Equipment from alteration and damage and assume risk of theft, damage or destruction thereof until it is returned to Cōv communications, or upon full payment of the Financed Equipment. Client shall remain solely responsible for the Cōv communications Equipment for as long as it is not returned to Cōv communications, whether during or following a Service Period, and agrees not to modify, disconnect, remove, repair or otherwise manipulate such, or to allow anyone other than Cōv communications to do so. Client shall maintain in force throughout the Service Period insurance covering the value of the Cōv communications Equipment or Financed Equipment.
3.4 Access to Premises. If required to provide Services, Client agrees to grant access to Cōv communications to the premises where Services are or will be dispensed, and to Cōv communications Equipment or Financed Equipment location, in order (i) to install, inspect, maintain, repair, or perform any preventive maintenance or emergency work; and (ii) to remove or disconnect the Cōv communications Equipment, Client’s Equipment or any third-party equipment; and (iii) to ensure the Client complies with its obligations under this Agreement. If Client is not the owner of the premises where Services are provided, Client must confirm that Cōv communications is authorized to act in accordance with this section.
4. INVOICES AND PAYMENT TERMS
4.1 Monthly Invoices. Services are invoiced by Cōv communications on a monthly basis, which does not necessarily represent a calendar month, unless otherwise agreed upon by the Parties. In accordance with a Service Schedule, Services may be invoiced during the monthly period prior to use, except for Pay-per-use Services, which are invoiced in the monthly period following their use and at the applicable price. All applicable taxes must be added to the rates listed in the Agreement.
4.2 Initial Fixed Fee. The initial Fixed Fees shall be invoiced in accordance with the appropriate Service Schedule or upon the first monthly payment for Services for which such were incurred.
4.3 Payment Terms. Invoiced Services must be paid in full by (i) the due date on the invoice; (ii) on the date indicated on the statement issued following the Client’s authorization for a direct debit or; (iii) on the date determined by Cōv communications in accordance with the Agreement.
4.4 Payment Methods. Client agrees to pay the invoiced amount prior to the due date by sending a cheque to Cōv communications.
4.5 Invoice Dispute. Unless Cōv communications receives an objection in writing within thirty (30) days of an invoice, invoices will be deemed accurate, agreed upon by Client and binding. If a dispute arises within such delay, any overcharged or mispriced amount will be credited to Client, if any, within thirty (30) days following the date of receipt of the objection notice, in order to allow Cōv communications to conduct the necessary verifications and revise the invoice.
4.6 Interest and Fees. Any delay in the payment of an invoice entails the application of a monthly interest at the rate of two percent (2%), or annual interests of twenty-six and eighty-two hundredths percent (26.82%). This interest is calculated daily and compounded monthly for each period of thirty (30) days following the due date. Finally, an administrative fee equal to the fees incurred by Cōv communications shall be invoiced to Client if a payment is refused.
4.7 Promotions. If a specific Service Schedule states that Client is entitled to a special rate regarding a Service, Client shall pay its invoices within the prescribed time limits, failing which Cōv communications reserves the right to invoice Client in addition to penalties, the regular rate retroactively from the Activation Date.
5. BINDING EFFECTS, TERM AND RENEWAL
5.1 Effective Date. These General Terms and Conditions, as well as any Service Schedule thereto, shall enter into force and be binding upon the parties from signature date, being understood that activation of a Service and Cōv communications Equipment installation shall be delivered or installed by Cōv communications only from the commencement date of the Agreement. In the event that there is a delay between the signature date of Client and of Cōv communications’s, these General Terms and Conditions shall be binding on the execution date by Client.
5.2 Credit Investigation. The coming into force of the Agreement may be conditional upon Cōv communications’s prior credit investigation of Client. Client hereby authorizes Cōv communications to verify and to have access, during the term, to Client’s credit file with the relevant financial institutions and authorizes at all times financial institutions and other agencies to disclose to Cōv communications the information on its credit report.
5.3 Activation Date. The Service Period provided in a Service Schedule begins on the Activation Date and ends at the time agreed with Client.
5.4 Automatic renewal. Upon expiration of a Service Period, failure by Client to send prior notice at least sixty (60) days before the end of a Service Period shall cause automatic renewal of such Service for an additional term equal to the term provided in the Service Schedule, being understood however that the monthly fees shall be those in force at the time of the renewal for such Service.
6.1 Fees. Cōv communications reserves the right to punctually modify fees in the event of a material change beyond Cōv communications’s control resulting in an increase in fees and / or royalties payable by Cōv communications, including due to a decision of the CRTC. Upon such material change, Cōv communications shall, at least thirty (30) days prior the date on which such increase takes effect (or any other time period required by the CRTC), provide Client with a written notice containing the actual and the revised fees, the effective date of the modification and Client’s rights under section 6.3.
6.2 Modifications to Agreement. Cōv communications reserves the right to modify this Agreement in its sole discretion. In such case, Cōv communications must, at least thirty (30) days before the amendment takes effect (or any other time period required by the CRTC), provide the Client with a written notice containing the amended dispositions and the previous versions, the effective date and the Client’s rights under article section 6.3 herein. Cōv communications shall be bound only upon acceptance by an authorized representative at its head office.
6.3 Client’s Rights. If the modifications requested by Cōv communications is not required by CRTC, third parties, including broadcasters, or applicable law and results in a significant increase in Client’s obligations or a signification reduction in Cōv communications’s obligations, Client may refuse such modification and Parties will determine a satisfactory alternative.
7. PARTIES COVENANTS
7.1 Privacy. Cōv communications is committed to protecting the privacy of Client, and personally identifiable information will only be used within the context of this Agreement. Cōv communications will not sell, rent or lease any personally identifiable information, and unless required by law, Cōv communications will only share such information with other Cōv communications entities or third parties acting on its behalf to fulfill the obligations provided herein.
7.2 Client – Legal Requirements. Client shall ensure compliance with all applicable legal requirements relating to Client and its equipment. Client shall conform to the technical specifications, operating requirements and security standards established by Cōv communications.
7.3 Client – Accounts and Passwords. Client shall be solely responsible for maintaining the confidentiality of the accounts, systems and passwords under their responsibility, and fully responsible for all activities occurring under such.
7.4 Client – Internet, Data Security and Privacy. Except when Cōv communications provides connectivity and/or hosting Services, Client shall obtain a connection and access to the public Internet, through an Internet service provider, in order to use Services, as Cōv communications may utilize such public Internet or third-party networks in order to provide the Services.
7.5 Client – Usage of Services. Client agrees not to use or not to allow the Services to be used in a manner that (i) violates any applicable law; (ii) restricts or prevents other users from properly using Services or to receive or transmit information or (iii) causes an unusually heavy load on the network. Client agrees to inform Cōv communications of any breach of law of which it is aware.
7.6 Client – Resale. Service usage is limited to the commercial use by Client. Unless otherwise agreed upon in a Service Schedule, Client shall not resell the Services to a third party.
7.7 Client – Internet Services. Client acknowledges and agrees to comply with the Cōv communications’s Internet Term of Use as well as any modification of such made from time to time by Cōv communications.
7.8 Client – Non-sollicitation. Client undertakes and agrees that, for the whole duration of this Agreement and for a period of one (1) year thereafter, it shall not, on its own behalf or on behalf of any other person, directly or indirectly, in any capacity, offer employment to or solicit the employment or otherwise entice away from the employment any Cōv communications employee. This undertaking remains valid following termination of the Agreement for whatever reason.
8. LIABILITY AND EXCLUSIONS
8.1 Local Exchange Carrier. Client hereby declares and confirms that there are no disputed or undisputed amounts owed by them to the incumbent local exchange carrier other than current month’s service charges and Client agrees to pay all charges due to prior to conversion to Cōv communications and to provide Cōv communications with proof of such payment. Client may deal directly with the incumbent local service provider at any time after initial service term has expired upon thirty (30) days written notice to Cōv communications and final payment for all services consumed.
8.2 Client’s Liability (Long-Distance and Overseas Call). Client is solely responsible for the use of long distance and overseas call Services and must ensure that such are secure. Client undertakes to hold Cōv communications harmless of any losses, damages, prejudices in connection with the use of call services overseas, whether authorized by Client or fraudulently made through Client’s Services.
8.3 Client’s Liability (Equipment). Risk of loss or damage to each item of the Equipment/Financed Equipment shall pass to Client upon delivery of such item to Client’s premises. If Client deliberately, negligently or by performing its own installations, causes loss or damages the installation or Cōv communications Equipment, Client shall pay the total costs of the restoration or replacement of such installations or Cōv communications Equipment. Such costs must be paid promptly by Client upon presentation of an invoice from Cōv communications. Finally, under no circumstances shall Cōv communications be required or liable to replace any defective Cōv communications Equipment due to Client’s negligence to follow directions regarding storage and use, including if the room where such Cōv communications Equipment is located is not kept between 18⁰C and 21⁰C or not be connected to an electrical ground.
8.5 Public Telecommunications Carrier. Cōv communications, as a public telecommunications carrier, cannot incur any liability for the communications it carries. Cōv communications’s liability hereunder is limited to providing Services during the Service Period.
8.6 NO WARRANTIES. UNLESS OTHERWISE PROVIDED FOR IN A SERVICE SCHEDULE, CŌV COMMUNICATIONS DOES NOT WARRANT AND EXPRESSLY DISCLAIMS: (I) THAT TECHNICAL SUPPORT SERVICES WILL BE PERFORMED UNINTERRUPTED OR ERROR-FREE; (II) THAT SERVICES WILL MEET THE CLIENT’S REQUIREMENTS, SATISFY A PARTICULAR BUSINESS, LEGAL, TECHNOLOGICAL OR OTHER NEEDS OR IS OTHERWISE FIT FOR CLIENT’S PARTICULAR PURPOSES; (III) THAT ANY THIRD-PARTY SOFTWARE MAY BE TRANSMITTED BY ELECTRONIC MEANS (WHETHER AS AN ATTACHMENT TO AN E-MAIL, THROUGH A DOWNLOAD FROM THE INTERNET OR OTHERWISE) SECURELY OR REMAINING FREE OF VIRUSES, WORMS OR OTHER CODES, ROUTINES OR DEVICES DESIGNED TO DISABLE, IMPAIR, DESTROY, ERASE, DEACTIVATE OR OTHERWISE DAMAGE THE SOFTWARE, ANY SOFTWARE, SYSTEM, EQUIPMENT, HARDWARE OR DATA WHATSOEVER; (IV) THAT SERVICES CAN PROPERLY FUNCTION IN COMBINATION, OR USED IN CONJUNCTION WITH HARDWARE, PRODUCTS, SOFTWARE, EQUIPMENT OR SYSTEMS; (V) THAT ANY COMMUNICATION, DATA OR PERSONALLY IDENTIFIABLE INFORMATION CAN REMAIN PRIVATE, SAFE OR SECURE AGAINST MALICIOUS INTENT, ACTIONS OR SOFTWARE; OR (VI) THAT ALL DEFECTS OR ERRORS ASSOCIATED WITH SERVICES CAN BE CORRECTED. THE WARRANTIES ARE THE ONLY WARRANTIES GIVEN BY CŌV COMMUNICATIONS WITH RESPECT TO SERVICES. TO THE EXTENT LEGALLY PERMITTED, THE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER ARISING BY LAW, STATUTE, USAGE OR OTHERWISE; AND (VII) THAT ANY WORKS MADE BY CŌV COMMUNICATIONS ON CLIENT NETWORK OR INFRASTRUCTURE SHALL NOT AFFECT CLIENT’S INSTALLATION OR BUSINESS.
8.7 LIABILITY LIMITATION. NOTWITHSTANDING ANYTHING CONTRARY IN THE AGREEMENT, CŌV COMMUNICATIONS’S AGGREGATE LIABILITY TOWARDS THE CLIENT OR ITS CUSTOMERS, AFFILIATES OR OTHER RELATED PERSON OR REPRESENTATIVE IN RELATION TO OR ARISING UNDER THIS AGREEMENT AND ANY SERVICE SCHEDULE (INCLUDING WITHOUT LIMITATION, FOR BREACH OF CONTRACT, OR WARRANTY, STRICT LIABILITY, CONTRACTUAL OR EXTRA-CONTRACTUAL LIABILITY, TORT, INCLUDING NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY), SHALL BE LIMITED TO THE CLIENT’S ACTUAL AND DIRECT DAMAGES AND SHALL NOT, UNDER ANY CIRCUMSTANCES, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO CŌV COMMUNICATIONS BY THE CLIENT AS FEES DURING THE PERIOD OF SIX (6) MONTHS IMMEDIATELY PRECEEDING THE BREACH OR THE ACT GIVING RISE TO CŌV COMMUNICATIONS’S LIABILITY. THE CLIENT ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL CŌV COMMUNICATIONS BE LIABLE FOR DAMAGES IN RESPECT OF GENERAL, INCIDENTAL, AGGRAVATED, PUNITIVE, EXTRA-CONTRACTUAL, EXEMPLARY, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST BUSINESS REVENUE, LOST PROFITS, LOST GOODWILL, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF CŌV COMMUNICATIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY CONTAINED IN THIS SECTION 9.7 SHALL APPLY EVEN IF A LIMITED WARRANTY OR LIMITED REMEDY FAILS OF ITS ESSENTIAL.
8.8 DATA SECURITY WARRANTY. CŌV COMMUNICATIONS DOES NOT CONTROL THE PUBLIC INTERNET, AND IN ACCORDANCE WITH THESE GENERAL TERMS AND CONDITIONS: (A) CANNOT GUARANTEE OR WARRANT THE SECURITY, ACCURACY OR CONTENT OF ANY INFORMATION OR DATA; (B) CANNOT BE HELD RESPONSIBLE FOR THE THEFT, DESTRUCTION OR INADVERTENT CORRUPTION OR DISCLOSURE OF ANY OF CLIENT’S OR CUSTOMERS’ DATA OR INFORMATION; (C) CANNOT GUARANTEE ANY INTERNET LEVEL OF PERFORMANCE, OR THAT THE CLIENT’S DATA WILL NOT BE STOLEN OR LOST DURING TRANSMISSION OVER THE INTERNET, EVEN WHEN CŌV COMMUNICATIONS IS USING INDUSTRY-STANDARD MECHANISMS, TOOLS, SOFTWARE, HARDWARE AND OTHER MEANS TO ACCELERATE OR SAFEGUARD SUCH DATA DURING SUCH TRANSMISSION. THEREFORE, CŌV COMMUNICATIONS HEREBY DISCLAIMS ANY AND ALL GUARANTEE OF INTERNET PERFORMANCE, INTERNET SERVICE INTERRUPTIONS, INTERCEPTIONS, DEGRADATION, ERRORS, SPOOFING, SPYING, HACKING, DELAYS, DEFECTS, LOSS OR THEFT OF DATA WHICH COULD OCCUR DURING TRANSMISSION OF ANY FORM OF DATA EXCHANGE BETWEEN CLIENT’S SYSTEMS OR ACCOUNTS, AND THE INTERNET. FINALLY, SHOULD CŌV COMMUNICATIONS BE REQUIRED BY CLIENT TO EXECUTE ANY WORKS ON CLIENT NETWORK OR INFRASTRUCTURE, THEN CLIENT AGREES THAT CŌV COMMUNICATIONS SHALL NOT BE LIABLE FOR ANY LITABIILTY REGARDING ANY DATA SECURITY BREACH.
8.9 INTERNET. EXCEPT WHEN CŌV COMMUNICATIONS PROVIDES CONNECTIVITY OR HOSTING SERVICES, WHICH ARE COVERED BY THEIR OWN LIMITATIONS, CŌV COMMUNICATIONS DOES NOT CONTROL OTHER INTERNET SERVICES PROVIDERS OR THE QUALITY OF THE CONNECTIONS OR ACCESSES TO THE INTERNET, OR ANY INTERNET HOST, INTERNET TECHNOLOGY PROVIDERS OR CONTENT PROVIDERS. CŌV COMMUNICATIONS IS THEREFORE NOT RESPONSIBLE FOR ANY PRODUCTS, SERVICES, CONNECTIONS, ACCESS, SOFTWARE OR HARDWARE USED TO CONNECT TO THE PUBLIC INTERNET, WHICH MAY BE CAUSED BY INTERNET SERVICES PROVIDERS, OR ANY INTERNET SETTINGS OR ANY INTERNET CONTENT. EXCEPT AS PROVIDED FORTH IN THIS AGREEMENT, CŌV COMMUNICATIONS WILL NOT CONTACT ANY PROVIDER OR ANY THIRD PARTY ON BEHALF OF CLIENT.
8.10 WORKS ON CLIENT INFRASTRUCTURE. SHOULD CLIENT REQUIRE CŌV COMMUNICATIONS’S TECHNICIANS TO EXECUTE ANY WORKS, INCLUDING CONFIGURATION OR NETWORK ADAPTATION, ON CLIENT LOCAL AREA NETWORK, INCLUDING ON CLIENTS HARDWARE, IN ORDER TO ENABLE SERVICES TO FUNCTION PROPERLY, CLIENT UNDERSTAND AND AGREES THAT, NOTWITHSTANDING ANYTHING TO THE CONTRARY, CŌV COMMUNICATIONS MAKES NO REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF ANY KIND CONCERNING SUCH SUPPORT SERVICES, THE CONFIGURATIONS OR THEIR USE, ACCURACY OR FUNCTION AND SHALL NOT BE LIABLE IN ANY MANNER FOR ANY REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND WHETHER EXPRESS OR IMPLIED OR COLLATERAL OR WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING ANY WARRANTY OR CONDITION OF QUALITY OF SUCH WORKS OR THAT SUCH WORKS WILL BE ERROR FREE.
8.11 Disclaimer and Compensation. Cōv communications shall not be responsible and shall not indemnify Client or any third party for damages incurred resulting of : (i) any act or omission of Client or any third party; (ii) any claim or defamation suit, infringement of copyright suit, trademark infringement suit or infringement of the rights of third-parties suit as a result of the use of Services; (iii) intellectual property infringement arising from the combination or use of Client’s facilities while using Services; (iv) any unauthorized use of Services; v) any long distance or overseas charges resulting from the use of the telephony in a fraudulent manner.
9. RIGHT TO DISCONNECT
9.1 Motives. Cōv communications may cease to provide Services for any of the following reasons: i) Client fails to pay an invoice for more than sixty (60) days from the due date; ii) Client refuses access to Cōv communications to the premises in accordance with the Agreement, (iii) Client uses or allows others to use Services for any purpose or in any manner contrary to this Agreement or applicable law or regulation, (iv) Client deliberately, negligently or by conducting its own installations, causes loss or damage to Cōv communications’s Equipment or installation, or (v) if, during a Service Period, Cōv communications incurs exceptional expenses which Client refuses to assume.
9.2 Notice. Before disconnecting any Services, Cōv communications shall give Client a written notice at least five (5) working days prior to effective disconnection date. Such written notice shall include: the motives for such disconnection, the amount due, if any, Service’s reinstatement fee and any other relevant information.
9.3 Client’s Obligations. The fact that Cōv communications ceases to provide Service in accordance with this section 9 does not relieve Client’s obligation to pay any amount owing under the terms of the Agreement at the time of such disconnection, including all initial Fixed fees. Unless otherwise provided for, disconnection costs equal to the Abandonment Fees hereunder shall also be paid by Client.
10. CANCELLATION AND TERMINATION
10.1 Prior to Activation Date (Cōv communications). Cōv communications may cancel the Agreement, any Service Schedule, or refuse to provide Services, without compensation to Client if (i) it must incur exceptional expenses regarding Services which the Client refuses to assume, including obtaining a right of way, undertaking special construction work or relocating Client’s Equipment; or (ii) Cōv communications is not satisfied with a credit investigation or with the results of a business case regarding services; or (iii) Client has an overdue account with Cōv communications; or iv) required services from another supplier are not available or are available under certain conditions which are not acceptable to Cōv communications.
10.2 Before or during Service Period (Client). Client cannot, unilaterally and without cause, elect to terminate the Agreement, or any Service Schedule, and hereby expressly renounce and unequivocally waives the benefit of Articles 2125 and following of the Civil Code of Quebec and equivalent sections in other applicable law. However, notwithstanding what is provided for herein, Client may terminate the Agreement, or any Service Schedule, following execution of the Agreement, by giving a sixty (60) day prior written notice to Cōv communications, subject to payment of the Abandonment Fee. Client understands, however, that such Abandonment Fee is an estimate of the damages that Cōv communications may incur as a result of Services being cancelled by the Client. For the purposes hereof, but subject to applicable law, “Abandonment Fee” means the amount payable by Client who terminates a Service prior to the expiration of a Service Period, which represents an amount equal to the sum of (i) any amount unpaid by the Client to Cōv communications up to the termination date, including the fixed initial costs; and (ii) should the Client lease some Financed Equipment, the value of the balance due on such Financed Equipment; and (iii) the value of the Equipment damaged or not returned by the Client in accordance with this Agreement; and (iv) as liquidated damages an amount equal to monthly fees payable by Client for the remaining duration of Service Period.
10.3 During Service Period (Cōv communications). In the event that: (i) Client is in breach of any obligation provided in this Agreement or for any serious cause; or (ii) a fraud in which Client is or could be directly or indirectly involved; or (iii) Client quits, abandons or disposes the premise(s) where Cōv communications provides Services; or (iv) Client ceases to carry on business; or (v) the Cōv communications Equipment or Services have been serviced, installed, modified, repaired or relocated by personnel other than those authorized by Cōv communications; or (vi) if the Equipment or installation contains defects resulting from improper handling, abnormal or abusive use, improper use or storage; or (vii) any merger, consolidation, acquisition, sale, lease or other transfer of all or substantially all of the assets or voting shares on Client, or any other change in the control or ownership of Client or similar transaction that Cōv communications does not reasonably accept; then Cōv communications may, in its sole discretion, terminate the Agreement, or any Service Schedule, during a Service Period by giving Client a written notice to that effect. Termination will result in the Client losing, without compensation of any kind, all rights granted by the Agreement. In any such situation, Client shall pay to Cōv communications the Abandonment Fee.
10.4 During Service Period (Cōv communications). Cōv communications reserves right to terminate the Agreement, or any Service Schedule, if required by order or otherwise to cease offering one or more of Services, by the CRTC or any other judicial, administrative or governmental authority. In the event of such termination, neither party shall be entitled to claim compensation from the other for any breach of contract or for any other inconvenience or damage resulting from the termination of this Agreement.
10.5 Bankruptcy or Assignment. If Client sells, assigns or otherwise disposes, freely or by onerous title, all or a substantial part of its assets, declares bankruptcy or assigns its assets to the benefit of its creditors in general, becomes insolvent or unable to pay its debts, or acknowledges its insolvency in any other way, Cōv communications may, following knowledge of any of such situation, immediately terminate the Agreement without notice. In the event of such termination, neither party shall be entitled to claim compensation from the other party of any kind for breach of Agreement or for any other inconvenience or damage resulting from such termination.
10.6 Equipment Delivery. Upon termination of this Agreement, or of a Service Schedule, Client shall return the Cōv communications Equipment to Cōv communications. If, within fifteen (15) days of the termination, Cōv communications has not received the Cōv communications Equipment, it may retake possession of the Cōv communications Equipment whenever possible or charge replacement fees of the Cōv communications Equipment.
10.7 Wiring. Without limiting its obligation to deliver the Equipment in accordance with the Agreement, Client acknowledges that upon termination, Cōv communications shall not be obligated to remove, uninstall, or recover any wire, material and equipment used or installed by Cōv communications to provide Services. In addition, Client agrees that Cōv communications shall not be liable in any way for any direct or indirect damage that the Client may suffer for any wiring, equipment or device left behind upon termination.
11.1 Financed Equipment. If Client has Financed Equipment, title to and ownership shall remain with Cōv communications and will not be transferred to the Purchaser until complete and total payment of the purchase price, interest, costs and expenses due hereunder, has been made to Cōv communications.
11.2 Non-payment. In the event of non-payment of Financed Equipment, Cōv communications may request Client (i) to return the Financed Equipment; or (ii) to pay the outstanding amount due on the Financed Equipment.
11.3 Warranty. In addition to what is provided in Section 8, Cōv communications warrants that the Equipment/Financed Equipment shall operate in accordance with the original manufacturer’s technical specifications for a period of one (1) calendar year from the date of installation. Excluded from this limited warranty are any repairs or replacements in relation with the relocation of the Equipment/Financed Equipment of any components thereof, adding or removing accessories, attachments or other devices, alterations to the Equipment/Financed Equipment, repairs or replacements necessitated by accidents, abuse or improper operation of the Equipment/Financed Equipment, acts of third parties, force majeure or use of accessories or devices other than those installed and approved by Cōv communications. Except as provided for herein, all other warranties expressed or implied, legal or conventional, regarding Equipment/Financed Equipment are specifically excluded.
12. SERVICE LEVEL GENERALITIES
Cōv communications and Client agree that the following generalities regarding service levels apply to each Service Schedule, and the Service Level Agreements and Service Level Objectives that apply, if any:
12.1 Service Level Agreement. If Cōv communications fails to meet the service level agreement (“SLA”) set forth in a Service Schedule, Client shall be entitled to a credit as described in such Service Schedule. “Service Interruption” means a failure by Cōv communications to provide a Service substantially in accordance with the specifications set herein for reasons other than i) failure of any service, equipment or facilities provided by Client or a third party; ii) any act or omission by Client; iii) any unlawful, illegal or improper use of Services, or iv) Cōv communications being legally required to interrupt the services; v) any period during which Cōv communications performs scheduled maintenances; vi) the occurrence of an event of force majeure; vii) interruptions due to power fluctuations or failure at the service locations; or access cannot be gained to the service locations.
12.2 Service Interruption Procedure. If a “Service Interruption” occurs for a period of at least one (1) hour in any twenty-four (24) hours period, Client must immediately notify Cōv communications about the problems regarding Service, by Cōv communications’s Customer Support. Client’s representative will identify the support service issue, gather initial case information and work to resolve the issue prior to contacting Customer Support. Only designated Client representatives may report an incident. Client representative shall advise Cōv communications support personnel of the situation and provide the necessary staff for diagnosis and problem resolution efforts. Once an issue is submitted to Cōv communications, a severity level will be assigned in accordance with the descriptions listed in a Service Schedule. If the issue is determined by Cōv communications to not be a part of the Support Services, Cōv communications shall notify Client representative promptly and provide the rationale for such determination. Each severity level sets forth a minimum performance standard value. Customer Support manages service calls and provides continuous support until the case is resolved.
12.3 Testing. Cōv communications, shall have the right, from time to time, to carry out tests, verifications or adjustments relating to the installation or the Cōv communications Equipment or the Financed Equipment to ensure the good and continuous operation. No credit will be granted to Client for any interruption caused by preventive maintenance. Scheduled maintenances shall be preceded by at least twenty-four (24) hours prior notice to Client.
12.4 Reporting. Support is generally requested via Cōv communications’s Customer Support (“Customer Support”) accessible as follows:
|Phone and Email Contact Information|
|Local (Toll Free)||450-901-1001
12.5 Service Labour Rates. The following labour rates shall apply (following rates do not include applicable taxes):
|Category||During Business Hours
|After Business Hours (Overtime)
(Minimum 1 hour)
|$150.00 for the first hour
$135.00 per hour thereafter
|$225.00 for the first hour
$202.50 per hour
|Travel Time||Travel time will be charged on a portal-to-portal basis.|
|Accelerated Service Fees
(Minimum 1 hour)
|$300.00. for the first hour
$225.00 per hour thereafter
|$750.00 for the first hour/technician
$225.00 per hour thereafter
For the purposes hereof, “Business Hours” shall mean Monday to Friday, from 8:00AM to 9:00PM and Saturday and Sunday from 9:00AM to 5:00PM, excluding statutory holidays. Support hours shall be (24x7x365 days).
13.1 Cōv communications Notice’s. Any notice given by Cōv communications to Client shall be in a written form and sent to the Client by mail, messaging system or e-mail. It will be given to the Client’s mailing address or e-mail address mentioned in the Agreement or at any other address specified by Client in a specific Service Schedule. In the case of a notice sent by ordinary mail, it shall be deemed to have been received five (5) days after the date of mailing if the postal service is operating normally.
13.2 Client notice. Any notice given by Client may be written. All written notice can be sent by ordinary mail to Cōv communications’s address, by fax (with acknowledgment of receipt) or by e-mail. In the case of a notice sent by ordinary mail, it shall be deemed to have been received five (5) days after the mailing date if the postal service is operating normally. A notice sent by fax or e-mail on a business day before four (4) in the afternoon shall be deemed to have been sent on that day; after that time, it shall be deemed to be made on the following business day. All Client notices can be hand delivered to Cōv communications (with a proof of receipt) at its business location. Receipt by the customer of an invoice from Cōv communications shall serve as sufficient notification of its acceptance.
13.3 Transfer. Client may not transfer the Agreement, or any portion thereof, or cede or alienate any of its rights or obligations hereunder to any third party without the prior written consent of Cōv communications. For purposes hereof, a change in the control of the Client shall be deemed a transfer.
13.4 Electronic signature. The representatives of both Cōv communications and the Client confirm that they are properly authorized to bind Cōv communications or the Client, as the case may be. If Cōv communications or the Client is executing this Agreement, or any portion thereof, electronically, by clicking “APPROVE”, “SEND”, “SIGN”, “Next” or any similar function that results in the submission of such party’s approval or digital signature, parties agree that such submission shall represent irrevocable evidence of the submitting party’s intent to be bound by this Agreement as if the representative of the submitting party executed this Agreement by hand.
13.5 Applicable laws. The Agreement shall be governed by the laws applicable in the Province of Québec and any provision contrary to said laws shall not invalidate the remaining provisions hereof. Parties recognize the exclusive jurisdiction of the courts in the Province of Quebec, judicial district of Laval, with respect to any matter relating to this Agreement and the Parties agree to abide by it.
13.6 Non-waiver. The failure by a party not to require full compliance with any provision of this Agreement or the failure or delay of a party in the exercise of any right or remedy under this Agreement shall not be interpreted as a waiver or surrender by that party of the right to benefit from the entire provision.
13.7 Complete Understanding. This Agreement constitutes a true and complete description of the agreement reached between the parties with respect to Services and cancels and replaces any other agreement or prior agreement between the parties in this matter.
13.8 Language. The parties acknowledge that they have requested that this Agreement be drawn up in English language. Les parties reconnaissent avoir exigé la rédaction du contrat en anglais