Terms Of Service

Northwest TelData hereby agrees to provide and Customer hereby agrees to purchase, from time to time, certain Services as outlined in completed Service Quotation or Service Order forms, or outlined in an email or a phone call between Customer and Northwest TelData. Services shall be ordered by Customer using the Service Quotation or Service Order forms of Northwest TelData, or by an email or a phone call between Customer and Northwest TelData, or as may be otherwise agreed to (“Service Order”). Each Service Order will reference this Agreement and shall be deemed a part of this Agreement when executed or otherwise agreed to by Customer or a duly authorized representative of Customer. Northwest TelData reserves the right to refuse any Service Order submitted by Customer. Each Service Order shall be in accordance with the Service availability, provisioning and installation policies, practices, procedures and necessary outages then in effect, and as revised from time to time, for such Service, except as may be otherwise agreed to in writing by authorized representatives of both Parties.

This Agreement shall become effective upon the earliest date indicated on the Service Quotation, Service Order form or Number Porting forms bearing the signature of Customer, or the date of the email or phone call where consent is given (“Effective Date”). Unless otherwise indicated in the Service Order, this Agreement shall continue in effect for an initial term of one (1) year ("Initial Term") from the date the services are activated.  Each new Service ordered will be subject to a term of one (1) year from the date the new service is activated.  New DID numbers will be subject to a term of thirty-six (36) months from the date of activation.  Following the Initial Term, this Agreement shall automatically renew on a rolling one (1) year basis and shall continue in effect until terminated by either Party, upon written notice to the other Party not less than thirty (30) days prior to the end of the term.

Service ordered by Customer is subject to availability and is provided as is. Submission of Service Order by Customer does not imply or confirm Service availability by Northwest TelData and will not be construed as such by Customer. Northwest TelData will provide Customer with a service activation date ("Service Activation") where such a date is available. Where a Service Activation is not available, Service will be made available on a best effort basis and communicated to Customer using the billing or technical contact electronic mail ("E-MAIL") address provided by Customer on the applicable Service Order. Northwest TelData reserves the right to withdraw any Service with thirty (30) day notice if the Service can not be delivered by Northwest TelData as provided in this Agreement or indicated in individual Service Orders ("Service Withdrawal"). Customer will hold Northwest TelData harmless of any damages, material or otherwise, incurred as a result of such Service Withdrawal. 

Installation charges quoted on a Service Order, quotation form, or by any other means are based on a maximum installation time of 15 minutes per device (phone, switch or router). Additional time required will be billed to the Customer at the standard hourly labour rate of $125/hour. If Northwest TelData has not done the structured cabling work, Customer will ensure that there is a power outlet and a separate Cat5e or Cat6 drop for the phone available at each location that requires a phone and will ensure that these drops are properly labelled at both ends. Customer will also ensure there is at least 6U available in their rack for the Northwest TelData equipment required to supply the phone and/or Internet services. If the above conditions are not met then the installation will be subject to delays and Customer will be billed for the additional work required to correct the situation on a time and material basis.          

(A) Billing will occur every calendar month (the “Billing Period”) unless otherwise specified or delayed for any reason. All payments must be made in CAD (Canadian Dollars) using pre-authorized credit card or automated debit payment, or by cheque. The initial charge due is prorated from either the Service Activation date or the date at which Customer first begins use of Service, whichever occurs first. Customer is subsequently billed from the 1st day of every month. Charges for usage exceeding Customer's Service Order for each Billing Period are calculated from the first day of the month beginning at 12:01 AM PST to the last day of the month at 11:59 PM PST and at the rates and increments specified in the Service Order form and invoiced along with other charges. All chargeable items for Services as well as any other data traffic charges, service charges and monthly fixed charges ("Charges"), if any, are billed by E-MAIL invoice transmission to Customer at the Billing E-MAIL address provided on the Service Order.  Charges are applied to the Customer according to the payment method selected and, where applicable, funds are withdrawn each and every Billing Period on the 11th day of each month ("Due Date"). If the Due Date falls on a provincial or federal banking holiday, it may be delayed to the next business day. Payments not received by end of the month will be subject to a late charge of two (2.00%) per month calculated from the invoice date and including the date payment is received ("Late Payment Charge"). Customer will also be held liable for all reasonable attorney and collection fees, as well as other properly documented external fees that are incurred by the billing Party in collecting the past due payment. (B) In the event that Charges due are not paid in full by the last day of the month, Northwest TelData shall have the right to immediately suspend or terminate all or any portion of the Services to Customer without notice until such time as Customer has paid in full all Charges then due including late Charges. Following such late payment, Services shall be reinstated by Northwest TelData according to internal re-reinstatement procedures. Customer forfeits all rights to any specified levels of service in any Service Order or as described in this Agreement and further releases Northwest TelData from responsibility of any loss, whether material or otherwise, due to suspension or termination of Services.  (C) In the event that any Charges are postponed for any reason; including being due to any form of agent or reseller agreement with the Customer, whether arranged in a formal written agreement, by email or phone call, or in person; the balance owing for all Services received by the Customer will be due immediately upon the receipt of the invoice by the Customer.  In the event that Charges due are not paid within 48 hours after the invoice is sent, Northwest TelData shall have the right to immediately suspend or terminate all or any portion of the Services to Customer without notice until such time as Customer has paid in full all Charges then due including late Charges. Customer will also be held liable for all reasonable attorney and collection fees, as well as other properly documented external fees that are incurred by the billing Party in collecting the past due payment. 

Any request for a billing adjustment must be made in good faith and in writing within thirty (30) days of receipt of the invoice for the Billing Period in question. Any such request shall include detailed documentation to establish the basis for any adjustment. Northwest TelData will determine whether any adjustment shall be made and any such adjustments will be credited against the next periodic invoice. If Northwest TelData denies the billing dispute, Customer agrees to pay the disputed amount due on the Invoice date. A request for adjustment will not be cause for delay or reduction in payment of the undisputed balance due on any current periodic invoice. If a request for a billing adjustment or credit is not made in writing within this thirty (30) day period, the charges are deemed valid and Customer waives all rights to any credits, offsets or adjustments with regard to them.

Northwest TelData may suspend or terminate the Services: (a) if there is a default in the payment of Charges, and such default continues for a period of three (3) business days after subject to a 24 hour advance written notice to the defaulting Party; (b) if there is a default of a material obligation under this Agreement and such default continues for a period of thirty (30) days after written notice to the defaulting Party; (c) immediately, if either Party becomes bankrupt or insolvent, or becomes subject to any legislation relating to bankruptcy or insolvency; or (d) immediately, if required due to Force Majeure events. Customer may terminate a Service at any time before the end of the Term by giving notice of termination to Northwest TelData at least thirty (30) days before the proposed early termination date. Upon termination of any Services, Customer shall pay to Northwest TelData all Fees and Taxes due for the Service up to the date of termination. Customer shall also pay to Northwest TelData (i) 100% of the reasonable out-of-pocket expenses that Northwest TelData incurs or will incur in connection with its contractual arrangements with any affiliates, agents, suppliers or subcontractors that Northwest TelData has made arrangements with to perform its obligations under this Agreement, and (ii) an amount equal to 100% of the remaining monthly Fees for the Service that would have been payable to the end of the Term (collectively, the “Termination Fees”), plus Taxes on the Termination Fees. The Termination Fees are liquidated damages and consideration for the Services, and are not a penalty.

On the termination of this Agreement, all payments required to be made to Northwest TelData by Customer under the Agreement shall be due and payable immediately. Termination of this Agreement shall not relieve Customer from any liability, including amounts owing, which accrued before the termination is effective.

Return of Materials and Property

Within ten (10) business days after the effective date of termination or expiration of this Agreement, Customer shall return all property, at Customer's expense, belonging to Northwest TelData and used to deliver Services.

In addition to the Acceptable Use Policy, Customer shall not tamper with, alter or rearrange the Services, associated facilities or equipment (or those of Northwest TelData, its suppliers or other customers) required to provide the Services; or otherwise abuse or fraudulently use the Services including, using the Services: (a) in any manner which interferes with Northwest TelData facilities (or those of its suppliers or other customers), network or equipment, or access thereto by other persons; (b) contrary to reasonable instructions communicated by Northwest TelData; (c) for any purpose or in any manner, directly or indirectly, in violation of applicable laws or in violation of any third party rights. Customer indemnifies and saves Northwest TelData and its directors and officers harmless from and against all losses, liabilities, damages of any type, and expenses arising from any act or omission of Customer, including, without limitation, any use of the Services for any purpose or in any manner contrary to this Agreement. Unless otherwise agreed to in writing with Northwest TelData, Customer shall be responsible for the use and compatibility of all equipment, software and/or services provided by Northwest TelData or sought independently and separate from those Services provided by Northwest TelData as set out in the Service Order.  The Customer, reseller or agent acknowledges it has had and shall have access to marketing and other information of the Company relating to its operations and that if the Customer were to compete against the Company or be involved with a person or company that was in competition with the Company during the period the Services are used and for ten (10) years thereafter the Company would suffer irreparable damage. Accordingly, the Customer covenants and agrees that it will not, directly or indirectly: (a) carry on or be engaged in any business which is similar to or competitive with any business which is being carried on by the Company except where those actions are as an agent or reseller of the Company; (b) attempt to solicit any business or customers away from the Company; (c) accept any business that is substantially the same as the business of the Company from any person, firm, corporation or other entity who is or was a customer or client of the Company; or (d) do any act the probable effect of which would be detrimental to the business of the Company or impair relations between the Company and any of its subsidiaries, partners, customers or employees.

The Parties each retain sole responsibility and ownership of their respective equipment including all warranties and licenses. The Parties are moreover responsible for the installation, testing, operation and maintenance of, and costs associated with, their respective equipment, facilities and services. Untimely installation or non-operation of either Party's facilities or equipment will not relieve Customer of its obligations under this Agreement, including any payments owing.

In the event Customer Service traffic volumes or content results, or is judged to result, in harmful, illegal, disruptive, unusual, or other similar abnormality or activity which adversely affects the Northwest TelData network or other Customer networks (including, but not limited to looping situations), Northwest TelData reserves the right to block and refuse to accept such adverse traffic at any time, with prompt notice sent to the technical contact E-MAIL address on file as soon as possible thereafter.

Certain Services, specifically including but not limited to the Broadband Cable Connectivity Service, are subject to traffic management policies and limitations set and regulated by Northwest TelData's upstream data and connectivity providers. Such traffic management policies affect Peer 2 Peer (P2P) applications used for non real-time file sharing content among Customers and other Internet users. Northwest TelData clients using Services affected by such traffic management policies do so with the explicit understanding that such traffic management policies are not within the jurisdiction of Northwest TelData to change or contest. Customers enter into all contractual agreements with Northwest TelData with the explicit understanding that cancellation of Services due to upstream traffic management policies will not be accepted as reasonable cause for cancellation and any such cancellation initiated by the Customer will be subject to cancellation policies as outlined in the respective contractual agreement.

Each Party represents and warrants to the other that: (i) it has the right and power to enter into this Agreement and to fulfill its obligations hereunder; (ii) entering into, and performance of its obligations under this Agreement does not and will not violate, and is not inconsistent with, any agreements between such Party and any third parties or any applicable laws or regulations; and (iii) it shall comply with the requirements of any and all applicable federal, provincial, local, and other laws, regulations, rules and orders of any governmental body having jurisdiction over such Party or the activities of such Party contemplated by this Agreement. THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL INFORMATION, CONTENT, AND OTHER SERVICES MADE AVAILABLE BY NORTHWEST TELDATA OR ANY THIRD PARTY ARE PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND. NORTHWEST TELDATA AND ITS AFFILIATES AND THEIR EMPLOYEES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE WHATSOEVER REGARDING THE CONTENT OR SERVICES, OR HYPERTEXT LINKS TO ANY WEBSITES. NORTHWEST TELDATA AND ITS AFFILIATES AND THEIR EMPLOYEES AND AGENTS DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, WARRANTIES RELATED TO ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE, AND IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL NORTHWEST TELDATA, ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. NORTHWEST TELDATA, ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS, WILL NOT BE LIABLE TO ANY USER, CUSTOMER OR OTHER THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICES OR THE NORTHWEST TELDATA WEBSITE (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 SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NORTHWEST TELDATA'S TOTAL CUMULATIVE LIABILITY FOR DAMAGES, EXPENSES, COSTS, LIABILITY OR LOSSES (COLLECTIVELY, “DAMAGES”) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF SERVICES, WHETHER ARISING IN NEGLIGENCE, TORT, STATUTE, EQUITY, CONTRACT, COMMON LAW, OR ANY OTHER CAUSE OF ACTION OR LEGAL THEORY EVEN IF NORTHWEST TELDATA 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 MONTHLY FEES (LESS ALL DISCOUNTS AND CREDITS) PAID BY THE CUSTOMER FOR THE SPECIFIC SERVICE(S) THAT GAVE RISE TO THE DAMAGES DURING THE ONE MONTH PERIOD BEFORE THE EVENT GIVING RISE TO THE DAMAGES, LESS AMOUNTS PAID FOR PREVIOUS CLAIMS, IF ANY. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.

The Services shall be provided and used in accordance with operations and maintenance procedures for which Northwest TelData will make periodic announcements through E-Mail, website postings. Such procedures shall constitute “best working practice”. At no time shall maintenance or provisioning activity be carried out by Customer on equipment provided, owned or operated by Northwest TelData without the prior written consent of Northwest TelData. Customer shall comply with all reasonable requests for access when Northwest TelData requires access to Customer's equipment or facilities in order to maintain equipment or provide Services to the levels agreed.

Unless the Customer consents in writing, or disclosure is pursuant to a competent legal entity with jurisdiction over Northwest TelData, all information provided by Northwest TelData to the other with respect to the Services other than information already made available to the public, shall be kept confidential and shall not be disclosed to anyone other than: (a) a person who, in the reasonable opinion of Northwest TelData, is Customer's agent, (b) another telecommunications company, for the efficient and cost-effective provision of telecommunication services; (c) a person or company involved in supplying either Party with telecommunications or telephone directory related services; (d) either Party's agent or consultants retained in the collection of Customer account, provided the information is required for such purpose and such person, telecommunications company, directory company, agents or consultants agree to be bound by the provisions of this section or substantially similar obligations; or (e) a person or company to whom or which disclosure may otherwise be necessary to enable Northwest TelData to provide the Services; provided that the information is required for such purpose specified in clauses (a) through (e) hereof and such person, telecommunications company, directory company, agents or consultants agree to be bound by the provisions of this section or substantially similar obligations. Information of and relating to the Charges shall be kept confidential by Customer, and information which identifies the end-user customers of Customer, including the Services utilized by such end-user customers and the charges therefore shall be kept confidential by Northwest TelData. Except as provided for above, Customer shall publicize or disclose the subject matter of this Agreement nor the nature of the Services provided hereunder without the prior written consent of the other Party.

Notwithstanding the provisions of the "Confidential Information and Proprietary Rights" Section above, Northwest TelData may disclose the Customer's Confidential Information to the extent such disclosure is reasonably necessary to comply with applicable governmental or law enforcement laws, regulations, or orders.