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ICA Wireless offers Service Level Guarantee! and will have your business up and running in 5 days! |
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Terms of Use Agreement
1. Provision of Products and Services
ICA agrees to provide to the Customer the Products and Services identified in the Services Agreement included in, and in accordance with, this Terms and Conditions
Agreement.
The Terms and Conditions of Service set forth herein, and any supplements which may be attached hereto, constitute the full and final expression of the contract for the
sale of products or services (hereinafter referred to as Service(s)) by Ica Microsystems Inc ., (hereafter referred to as 'ICA") to the Customer, and supersedes all prior
quotations, purchase orders, correspondence or communications whether written or oral between ICA and the Customer. Notwithstanding any contrary language in the
Customer's purchase order, correspondence or other form of acknowledgment, Customer shall be bound by these Terms and Conditions of Service when it sends a
purchase order or otherwise indicates acceptance of this contract or when it accepts delivery from ICA of the Service(s). The contract for sale of Service(s) is expressly
limited to the terms and conditions of sale stated herein. Any different terms or conditions proposed by a party are rejected unless expressly agreed to in writing by the
other party. No contract shall exist except as herein provided.
ICA shall furnish to the Customer certain Service (s) in accordance with the description shown in the service order form(s) (hereafter referred to as "Service Order
Forms") and schedule(s) (hereafter referred to as 'Schedules") that may be attached hereto from time to time and may include additional terms and conditions applicable
to provision of the Service(s). Both parties must approve the Schedules before being attached and included as part of the contract.
2. ICA Equipment on Customer Premises
All equipment provided by ICA (usually consisting of antenna, mount, and power supply), remains the property of ICA solely and is only available to the customer
during the duration of the service. The customer agrees on termination, to provide access to ICA for equipment removal.
3. Entire Agreement
The terms and conditions set forth in this Agreement constitute the full and final expression of the contact for the purchase and sale of the Products and Services by ICA
to the Customer, and supersedes all prior quotations, and purchase orders, correspondence or communications whether written or oral between ICA and the Customer.
Notwithstanding any contrary language in the Customer's purchase order, correspondence or other form of acknowledgment, Customer shall be bound by this
Agreement when it sends a purchase order or otherwise indicates acceptance of this Agreement, or when it accepts delivery from ICA of the Product or Service. ANY
ADDITIONAL OR ANY DIFFERENT TERMS PROPOSED BY CUSTOMER ARE REJECTED UNLESS EXPRESSLY AGREED TO IN WRITING BY ICA. No
amendment or modification hereto nor any statement, representation or warranty not contained in this Agreement shall be binding on either party unless made in writing
by an authorized representative of each party. Prior dealings, usage of the trade or a course of performance shall not be relevant to determine the meaning of this
Agreement even though the accepting or acquiescing party had knowledge of the nature of the performance and opportunity for objection.
4.Quotations
Written quotations are valid for 30 days from its date unless otherwise stated in the quotation or terminated sooner by notice. All quotations are based on aggregated
connection unless otherwise specified/noted on quote.
5.Start Date
ICA will make its best effort to begin providing the Customer with the Services on the starting date specified, however, ICA does not guarantee that the service will
commence on that date. Once ICA has received signed Agreement from the Customer, the Customer will be bound to the Minimum Service period stipulated. The
wireless Customer will have thirty (30) days from the commencement of Term in which to cancel the account if so desired and the contract will be terminated. The
Customer will be liable for payment of the SET UP FEE.
6.Term
This Agreement shall be effective for the Term specified in the Services Agreement unless otherwise terminated as provided herein.
7. Limited Liability
ICA makes no warranties of any kind, whether express or implied for the Services it is providing and disclaims any warranty of title, representations, implied warranties
of merchantability, non-infringement and fitness for a particular purpose or failure to realize expected savings and warranties arising from a course of dealing, usage or
trade practice. ICA specifically denies any responsibility for the accuracy or quality of information obtained through the Services. Use of all information obtained or
transmitted via the Services is at the Customer's own risk.
In no event shall ICA be liable to the Customer or to any third party for any special, indirect, incidental, punitive or consequential damages, or any damages, penalty or
fine whatsoever resulting from loss of use, data, or profits, (including without limitation any damages claimed for loss of income, revenue or profits or for loss of
goodwill or legal fees) whether in an action of breach of contract, negligence or other tortuous action arising out of or in connection with the performance of this
Agreement.
The liability of ICA for claims arising from the furnishing of Service(s) or equipment pursuant to this Agreement or daims arising from the interruption or loss of use
thereof, whether such Services are provided over its own facilities or through any connecting carriers or through facilities operated by its agents, shall be limited to, and
the Customer's exclusive remedies shall be: (i) the correction of errors of which ICA has received written notice and proof within thirty (30) Business Days of
occurrence; or (ii) where such correction is not practicable, the Customer shall be entitled only to an equitable credit not to exceed the charges invoiced to Customer for
that portion of Service(s) which produced the erroneous result. In any event ICA's total liability (including claims based on negligence) shall be limited in the aggregate
to the Customer's direct damages not to exceed the invoiced value for a thirty day period, of the Service(s) which was affected which gave rise to the claim.
The Customer further agrees to indemnify and hold ICA and its directors, officers, managers, employees, agents, and representatives harmless from and against any loss,
cost (including legal fees and court costs), damage, injury, liability, claim, penalty, fine, interest, or any course of action whatsoever resulting from the breach of this
Agreement or from any act or omission whatsoever by the Customer, its officers, managers, employees, agents, and representatives.
8.Taxes
The Customer shall be responsible for the payment of the Goods and Services Tax, Provincial Sales Tax and other taxes of a similar nature applicable to, or arising from
the transaction, the Products and Services, and the sale, value, or use of any of the Products or Services regardless of the period or entity actually taxed.
9. Schedules
Schedules that may be attached hereto from time to time may include additional terms and conditions applicable to the Products and Services identified in such Schedules. The Schedules must be approved by both parties in writing before being attached and included as
part of this Agreement.
10.Invoicing
ICA shall invoice on the first of each month for services of that month. Payment is due upon receipt of the invoice, invoices which are late for more than 60 days may be
subject to temporary disconnection, and payments which are more than 30 days late will bear interest at an annual rate of 2% per month which will be calculated
monthly. Any suspension of Services shall not constitute the termination of this Agreement. The customer must bring invoice inquiries and disputes to ICA's attention
within thirty (30) days of the invoice date. In the case of re-occurring late payments/non-payments/returned payments or if ICA has reasonable grounds to believe that
the Customer's credit worthiness has substantially declined, ICA reserves the right to place the Customer on a Pre-Authorized payment plan to mitigate the potential of
non-payment.
11.Renewal
This Agreement will automatically be renewed at the end of the initial Term for a further term equal to initial term, unless either party notifies the other party in writing
of its intent not to renew at least thirty (30) days prior to the end of the initial term or renewal term, as the case may be. Notwithstanding the foregoing, upon the renewal
of each Term, the parties shall negotiate in good faith any desirable changes in the pricing for such services.
12.Early Cancellation
Cancellation charges shall apply to any agreement that is terminated before the agreed contracted term.
Charges shall be calculated based on half the amount of the remainder of the contracted term. Set up installation fees, and service must be paid in full until date of cancellation plus applicable taxes. Failure to provide ICA access to remove their equipment upon
termination/cancellation will result in a charge of $2,900.00 plus applicable taxes.
13.Termination
ICA may terminate the Term of this Agreement early by providing written notice to the Customer if the
Customer fails to fulfill any of its obligations under this Agreement within thirty (30) days of the receipt of notice from ICA of such failure. Subject to the provisions
above, the Agreement may be terminated forthwith with notice by ICA in the event that the Customer commits any act of bankruptcy within the meaning of the
Bankruptcy Act, if any bankruptcy or insolvency proceeding is taken against the Customer, if the Customer makes any voluntary assignment for the benefit of its
creditor, if a receiver takes possession of any of the Customers property, or if the Customer ceases to carry on business in the normal course, provided that the Customer
shall remain obligated to pay for the Services to date of termination.
14.Contract Renegotiation
As a standard term in our agreement, ICA is pleased to grant our Customer the right to revise their
contracted services based on changes to their internal service requirements or changes in ICA's pricing. To revise their contract, the Customer must migrate to another
service term offered by ICA, which has a dollar value equal to or greater than the remaining value of the original Agreement.
15.Access to Service Site
The Customer is responsible for providing ICA and its employees, contractors, subcontractors, agents and representatives with access to cables, termination panels and
any other equipment located on private property. Service(s) outage time shall not include any time that ICA or its employees, contractors, subcontractors, agents and
representatives are delayed by the Customer in gaining such access.
16.Customer Equipment & Infrastructure
The Products and Services exclude Customer premise equipment, and do not include destinations beyond ICA's jurisdiction. The Customer is solely responsible for the
maintenance of all equipment and facilities beyond the point of demarcation. If asked by authorized personnel, ICA can perform basic diagnostic checks for customers
to isolate problems on Customer premise equipment or infrastructure. If the fault is not within the ICA equipment, connection or jurisdiction, the Customer shall be
billed for all work done, with the minimum charge being $200.00.
17.Ownership of Equipment
The Equipment, as detailed in a Service Order Form, shall be supplied and installed by ICA and shall be maintained and repaired only by ICA or ICA's authorized
agents. The Customer acknowledges that, unless otherwise specified elsewhere in this Agreement, ICA is the owner of all right, title and interest in the Equipment, or
has obtained the right to make the Equipment available for use by the Customer from a third party. Such Equipment shall remain the property of ICA, or such third
party and shall not by reason of the attachment, installation or connection of any part thereof to any realty become or be deemed a fixture to such realty, nor be pledged
by the Customer as part of collateral to any third party. The Customer shall be responsible for any loss, cost, claim or damage caused to or by the Equipment at the
customer`s site from any cause whatsoever including, without limitation, theft, or in connection with its installation, removal, use, maintenance or repair, unless such
loss or damage is due to the negligence or willful misconduct of ICA or ICA's authorized agents. The Customer shall not, except as necessary in an emergency, without
ICA's prior written consent, make any alteration, addition or correction to the Equipment, connect any of the Customers equipment to the Equipment, or permit access
to the Equipment by any person not approved by
18.Performance Guarantee
ICA will credit the customer's account a maximum of 5% of the monthly fee for a continuous unscheduled outage of over 4 hours upon receiving a trouble call for the customer. The credit will be applied on the Customers account with ICA. Performance level
guarantee uptime, during business hours,(24/7) is ninety-nine percent (99.9%).
19.Network Availability
Availability is a measure of the time during which the service is available for use .It is a complement of outage where availability equals total time minus outage time. Outage time begins when the Customer
contacts ICA Technical Support and a trouble ticket is opened. Outages due to scheduled routine maintenance procedures shall not be considered in the availability objective calculation.
20.Mean Time to Repair (MTTR)
All calls by the Customer shall be made to ICA Technical Support to report any service outages. The
Mean Time To Repair objective; on-site deployment time is 4 hours.
21.Customer Obligations
Subject always to any other term of this Agreement, the Customer shall Be responsible to provide one or more internal contacts who will be the interface between ICA and
The Customer for all services performed as part of the Agreement notify ICA of the Customer due date for moves, adds and changes.
Sign-off for moves, adds, and changes must be vetted through ICA in writing. Not resell or distribute any ICA services without written approval from ICA.
Not re-arrange, disconnect, remove or otherwise tamper with ICA equipment. Periodically review, and agrees to on-line terms http://www.icawireless.com/canadianwirelessisp/termsofuse.asp
22.Restrictions on Use of the Services
The following are restrictions on the use of the Services:
- The Customer shall not knowingly use the Services to invade another person's privacy; unlawfully
use, possess, post, transmit or disseminate obscene, profane or pornographic material; post,
transmit, distribute or disseminate content which is unlawful, threatening, harassing, abusive,
libelous, slanderous, defamatory or otherwise offensive or objectionable; unlawfully promote or incite hared; or post, transmit or disseminate objectionable
information, including, without limitation, any transmissions constituting or encouraging conduct that would constitute a criminal offense, give arise to civil liability, or otherwise violate
any municipal, provincial, federal or international law, order or regulation.
- The Customer shall not knowingly use the Services to access any computer systems, software, data, or any confidential, copyright protected or patent protected material of any other person,
without the knowledge and consent of such person, make unauthorized attempts to gain access to any account or computer resource not belonging to the Customer (i.e. engage in spoofing), or
otherwise gain unauthorized access to, alter, or destroy any information of another person by any means or device.
- The Customer shall not knowingly use the Services to upload, post, publish, deface, modify, transmit, reproduce, or distribute in any way, information, software or other material which is
protected by copyright, or other proprietary right, or related derivative works, without obtaining permission of the copyright owner or right holder.
- The Customer shall not knowingly send unsolicited e-mail that causes complaints from the recipients of such unsolicited e-mail (i.e. engage in spamming), nor send large quantities of
unwanted or unsolicited e-mail to individual e-mail accounts (i.e. engage in mail bombing).
- The Customer shall not knowingly obtain or attempt to obtain Services by any means or device with intent to avoid payment.
- The Customer shall not knowingly engage in any activities that will cause a denial of service to any ICA customers or end-users.
23.Limited Liability
The Customer agrees that ICA shall not be responsible or liable to the Customer, to anyone claiming
through the Customer or to any third party for any loss, cost (including lawyers and court costs), damage, injury, liability, claim, penalty, fine, interest, or any course of
action whatsoever resulting from any interruption to the Services unless such interruption results from the negligence or willful misconduct of ICA or its Board
members, officers, managers, employees, agents, and representatives harmless from and against any loss, cost (including lawyers and court costs), damage, injury,
liability, claim, penalty, fine, interest, or any course of action whatsoever resulting from the breach by the Customer of this Agreement, and from any act or omission
whatsoever by the Customer, its officers, managers, employees, agents, and representatives, and from any claim by any third party in connection with the use of the
Products or Services. Except with respect to liability for damages arising form death, bodily injury, or damage to tangible property caused by ICA's negligence or a
willful breach of the obligations of confidentiality herein, the liability of ICA for claims arising form the furnishing of Products and Services, or from the interruption or
loss of use thereof, shall be limited to, and Customer's exclusive remedies shall be: (i) the correction of errors or interruptions in the Services of which within thirty (30)
days of occurrence; and (ii) the Performance Guarantee, credit outlined in these terms. ICA, its servants, agents or employees shall in no event be liable for any failure or
delay in performance hereunder if such failure is due, in whole or in part, to any cause beyond its reasonable control. In no event shall ICA be liable for any indirect,
special, incidental or consequential damages in connection with or arising out of the performance of this Agreement howsoever caused including, without limitation of
the foregoing, any business or economic loss whatsoever even if ICA has been advised of the possibility. ICA does not give any representations or warranties of the
merchantability of the Products or Services, or of their fitness for a particular purpose. Notwithstanding the foregoing, ICA represents and warrants that it has sufficient
ownership and/or sub licensing rights to provide the Products and Services hereunder, and that, to the best of ICA's knowledge, such provision of Products and Services
will not infringe or violate, as the case may be, any patents, trademarks, trade names, copyrights, trade secrets or other intellectual property of proprietary rights.
24.Force Majeure
Neither party shall be liable for failure to perform or delay in performance due to fire, flood, extreme weather, strike or other labor difficulty, act of God, act of any governmental authority or of the other
party, embargo, fuel or energy shortage, wrecks or delays in transportation, or due to any other cause beyond such party's reasonable control. In the event of delay in performance due to any such cause, the
date of delivery, time for completion or performance of the Products or Services will be extended by a period of time reasonably necessary to overcome the effect of such delay.
25.Notice
Any notice permitted or required to be given under this Agreement shall be made in writing to the address for each party indicated in the Services Agreement. Any such
notice shall be sent by prepaid courier, or by facsimile transmission (fax) or by e-mail. If notice is sent by prepaid courier it shall be deemed received within 2 business
days, all other shall receive personal confirmation from recipient in writing within 2 business days.
26.Compliance with Laws
The Customer agrees to comply with all applicable laws relating to the use of the Products and Services. Without limiting the generality of the foregoing, the Customer
shall not use the Services to upload, download or transmit any illegal content.
27.Governing Law
This agreement shall be interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. The Customer submits to
exclusive jurisdiction of the courts of the Province of Ontario.
28.Benefit of Agreement
The Agreement shall be binding upon and shall ensure to the benefit of the parties hereto and their respective successors and assignees.
29. Ownership of Equipment
The Equipment, as detailed in a Service Order Form, shall be supplied and installed by ICA and shall be maintained and repaired only by ICA or ICA's authorized
agents. The Customer acknowledges that, unless otherwise specified elsewhere in this Agreement, ICA is the owner of all right, title and interest in the Equipment, or
has obtained the right to make the Equipment available for use by the Customer from a third party. Such Equipment shall remain the property of ICA, or such third
party and shall not by reason of the attachment, installation or connection of any part thereof to any realty become or be deemed a fixture to such realty, nor be pledged
by the Customer as part of collateral to any third party. The Customer shall be responsible for any loss, cost, claim or damage caused to or by the Equipment at the Site
from any cause whatsoever including, without limitation, theft, or in connection with its installation, removal, use, maintenance or repair, unless such loss or damage is
due to the negligence or willful misconduct of ICA or ICA's authorized agents. The Customer shall not, except as necessary in an emergency, without ICA's prior written
consent, make any alteration, addition or correction to the Equipment, connect any of the Customers equipment to the Equipment, or permit access to the Equipment by
any person not approved by ICA.
30. General Conditions
Any Article, Section, Item or other subdivision of the Agreement which is, or becomes illegal, invalid or unenforceable shall be severed from the Agreement and be
ineffective to the extent of such illegality, invalidity or nonenforceable and shall not affect or impair the remaining provisions hereof or thereof.
The Customer is permitted to resell the Services provided by ICA pursuant to a Service Agreement. If the Customer uses or allows the use by its customers (the "End
Users") of the Services for the provision of Voice over Internet Protocol services ("VoIP Services") and the Customer or its End Users are not already subject to the
requirements of the Canadian Radio-television and Telecommunications Commission (the "CRTC") as regards the provision of VolP Services, then the Customer shall
ensure it, and its End Users comply with the decisions, directives and other requirements of the CRTC with respect to emergency services obligations, message relay
services obligations and consumer privacy safety obligations applicable to the provision of VoIP Services.
This Agreement, including any schedules, addendum's, appendices or other attachments hereto, shall enure to the benefit of, and be binding upon, the parties hereto, and
their respective successors and permitted assigns.
The individuals executing this Agreement on behalf of ICA or the Customer, as the case may be, each represent that they are authorized to execute the Agreement on
behalf of ICA and the Customer, as the case may be.
The Customer, during the Term of the Agreement shall obtain and keep in force all requisite consents from the Building Owner(s) of the Service Site(s), to permit the
Customer to connect its Communications Equipment to ICA's Communications facilities at the Demarcation Point.
Any delay or omission of ICA (or the Customer) in the enforcement of any provision of the Agreement shall not affect the right of ICA (or the Customer) thereafter to
enforce the same provision. Nor shall the waiver by ICA (or the Customer) of any breach of any provision of the Agreement be taken or held binding by the Customer
(or ICA), unless in writing and such waiver shall not be taken or held to be a waiver of any future breach of the same provision or prejudice the enforcement of any other
provision.
31. Schedules
In the event of any inconsistency or contradiction with regards to interpretation or applicability between or among them, the following declining order of precedence
shall govern:>br>
(i) Service Orders;
(ii) Terms and Conditions of Service;
(iii) Schedules to the Service Orders.
(iv) Online terms of Use
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