Contract
Date
This agreement between Smart Business Canada and (Customer) is a one-year contract for Internet Services as described below for a twelve-month period beginning on the date of activation on the website. Invoices for Internet service will be sent monthly in advance of services rendered. Customer agrees to pay invoices on or before the due date.
SBC Start-up Billed
Location Description Installation Per/ Month Yearly
Costs Charge
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Montreal, QC SBC Membership BASIC plan $ 50 $ 199 $ 2,388
SBC Membership ACTIVE plan $ 75 $ 349 $ 4,188
SBC Membership PREMIUM plan $ 75 $ 549 $ 6,588
Total
$
Additional credits can be purchased as needed through the website.
By signing below, client agrees to the terms and conditions of the Client
Service agreement on page two of this document.
Vern Breau Date
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Vern Breau Date -----------------------------------
Co-Founder Customer Signature Date
Smart Business Canada
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Print Name
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Title
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Company Name
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Address
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City, State, Zip
Smart Business Canada 3680 Rue Joseph, Montreal, QC H4G 1J2
ph: (855) 936-7722 Ext. 802 / www.smartbusinesscanada.ca / info@smartbusinesscanada.ca
TERMS AND CONDITIONS
The following terms and conditions govern Smart Business Canada ("SBC's")provision of internet services ("Services") to the company or individual ("Customer") as described on the Client Service Agreement. The Term "Services" is limited to the services performed online on behalf of the customer, and our savings program, software provided by SBC to facilitate SBC Services but does not include any equipment, facilities, programming or software at the Customer site. Specifically, SBC Services includes only that portion of connections on SBC-side of the telecommunications provider's demarcation. If Services are, or become subject to, a tariff filed with the Federal Communications Commission or any other regulatory institution ("Tariff"), the terms and conditions of such Tariff, including rates, shall govern Customer's use of the Services.
1. TERM. The initial Term begins on the first day of the month following SBC's activation of SBC-side services. The Term for Services ("Term") will be 1 year. After initial Term all services shall automatically renew for one month Terms unless Customer or SBC notifies the other by thirty (30) days written notice that it does not wish to renew.
2. RATES. Rates are as set forth on Client Service Agreement Contract ("Order"). SBC will provide thirty (30) days written notice of any change in base prices. Customer is responsible for service fees according to the new base prices for Customer services installed based on the most recent Service Order(s). Billing shall commence on the date the service is activated. Customer will be invoiced monthly for all amounts due and owing to SBC. All payments are due within 30 days after the date of such invoice.
3. PAYMENT. Customer agrees to pay all charges incurred. Upon receipt of SBC invoice Charges shall be due on the first day of each calendar month for that months service whether or not an invoice is received. Payment shall be made in CAD Dollars. Interest charges of 1 3/4 percent per month or the highest rate permitted by law will accrue daily on all amounts not paid within thirty (30) days of the date due. Customer will be deemed to be in default hereunder if payment is not received within 30 days after the date of such invoice, and in addition, all Customer services will be disconnected without notice if any amounts are not paid within thirty (30) days of the date due. Customer will pay all sales and use taxes, as well as duties or levies, on Services. Customer's Services will not be initiated until Customer has paid current Customer fees, Services startup fees, and the fees for the first month of Services. If Customer wishes to cancel a Service Order before the Service is initiated, the Customer must provide notice to SBC in writing with return receipt, and such notice must be received by SBC prior to Service initiation. When a Customer cancels before initiation, the first month Service fee will be withheld. Because of the difficulties and inconvenience in attempting to establish the loss, if Customer breaches this Client Service Agreement with respect to any term of this agreement or terminates this contract early, SBC reserves the right, in addition to any other remedies which maybe available to it, to terminate this agreement and the services provided to Customer hereunder. In addition, upon the occurrence of any breach hereunder, 75% of the cumulative total of the balance on this agreement shall become due and payable as of that date as liquidated damages and not as a penalty. Customer acknowledges that the amounts payable pursuant to the preceding sentence are equitable compensation to
SBC, and are intended to reasonably compensate SBC for the losses which are occasioned by Customer's failure to honor its obligations hereunder and that the exact amount of damages is difficult or impractical to establish.
4. TERMINATION. SBC with (30) days prior written notice may terminate this service agreement at any time.
5. RIGHTS AND OBLIGATIONS OF CUSTOMER.
A. Customer shall at its own expense provide all necessary preparations required to comply with SBC's services specifications.
B. Customer shall provide information related to Services as requested by SBC to troubleshoot Services.
C. Customer shall not nor shall it permit or assist others to use Services for any purpose other than that for which they are intended.
D. Customer shall not nor shall it permit or assist others to abuse or fraudulently use Services, including but not limited to the following:
1. Obtaining or attempting to obtain service by any fraudulent means or device with intent to avoid payment;
2. Accessing, altering, or destroying any information of another SBC Customer by any fraudulent means or device, or attempting so do so; or
3. Using Services so as to interfere with the use of SBC network by other Customers or authorized users, intentionally or not; or in violation of the law or in aid of any unlawful act.
E. Customer acknowledges that SBC's network may only be used for lawful purposes. SBC reserves the right to, from time to time, monitor Customer's activity. The transmission of any material in violation of any Canadian or Proincial regulations is prohibited. This includes, but is not limited to, copyrighted material, material legally judged to be threatening or obscene, material protected by trade secret or material that is otherwise deemed to be proprietary or judged by SBC to be inappropriate or improper such as unsolicited bulk e-mail messages. SBC has zero tolerance for unsolicited bulk e-mail messages and reserves the right to terminate the Connection in the event that SBC becomes aware that Customer, or persons making use of Customer's services or using the SBC network for the distribution of unsolicited bulk e-mail messages.
F. Customer acknowledges that SBC offers Customer access to services on their servers. Customer hereby acknowledges that SBC servers are not owned, operated, managed by or in any way affiliated with SBC or any of its affiliates, and that it is a separate network of computers, independent of SBC. Customer's use of SBC serices is solely at Customer's own risk and is subject to all applicable local, Provincial, national and international laws and regulations. Access to our services is dependent on numerous factors, technologies and systems, many of which are beyond SBC's authority and control.
G. Customer acknowledges that access to other networks connected to SBC's network must comply with the rules appropriate for that other network. MICA exercises no control whatsoever over the content of information passing through its network.
6. EQUIPMENT OR SOFTWARE NOT PROVIDED BY SBC.
A. SBC shall not be responsible for the installation, operation or maintenance of equipment or software not provided by SBC; nor shall SBC be responsible for the transmission or reception of information by equipment or software not provided by SBC.
B. Customer shall be responsible for the use and compatibility of equipment or software not provided by SBC. In the event that Customer uses equipment or software not provided by SBC that impairs the Customer's use of Services, Customer shall nonetheless be liable for payment for Services. Upon notice from SBC that the equipment or software not provided by SBC is causing or is likely to cause hazard, interference or service obstruction, Customer shall eliminate the likelihood of hazard, interference or service obstruction. Customer shall if necessary pay SBC to troubleshoot difficulties caused by equipment or software not provided by SBC. SBC will notify Customer by telephone before any such charges are incurred.
C. SBC shall not be responsible if any changes in Services cause equipment or hardware not provided by SBC to become obsolete, require modification or alteration, or otherwise affect performance of equipment or hardware not provided by SBC.
D. SBC includes this terms and conditions so that SBC can control the performance of SBC network on an end-to-end basis and protect SBC network. SBC's intent is to manage the services on a Communication basis with Customer for leased line based services.
7. RIGHTS AND OBLIGATIONS OF SBC.
A. SBC shall install, operate and maintain Services. SBC shall not be responsible for cabling that connects equipment not provided by SBC to SBC Services.
B. SBC warrants that Services will be in good working order and will conform to SBC's service specifications upon the date activated. The foregoing warranties are in lieu of all other warranties, express or implied, including but not limited to the implied warranties of merchantability and fitness for a particular purpose.
For Web Hosting services, SBC will provide reasonable and industry acceptable network security measures to help protect appropriate customer data files, with respect to SBC web hosting services.
C. Customer's sole remedy for performance or non-performance of Services pursuant to SBC's service specifications shall be repair or replacement of Services.
D. SBC shall not be liable, either in contract or in tort, for protection from unauthorized access of Customer's transmission facilities or Customer premise equipment; or for unauthorized access to or alteration, theft or destruction of Customer's data files, programs, procedure or information through accident, fraudulent means or devices, or any other method, even should such access occur as a result of SBC's negligence.
E. SBC shall not be liable for claims or damages caused by Customer's fault, negligence or failure to perform Customer's responsibilities; claims against Customer by any other party; any act or omission of any other party furnishing services; or installation or removal of equipment furnished by any service provider, except where caused by the gross negligence of SBC.
F. SBC shall not be liable for damages to Customer equipment caused by the negligence or willful acts of SBC's officers, employees, agents or contractors for loss through theft or vandalism of Customer equipment on SBC's premises, and for damages caused by the use of Customer equipment or supplies .
G. For any other claim, Customer's damages, if any, shall be limited to those actually proven as directly attributable to SBC, subject to the following limitation: SBC will not be liable under any circumstances for any lost profits or other consequential damages, even if SBC has been advised of the possibility of such damages to Customer for any cause whatsoever, regardless of the form of action, and whether in contract or in tort, including negligence, shall be limited to the lesser of $100,000 or the monthly charges paid for Services from the date damages were incurred, but in no event more than twelve (12) month's charges for the Services that cause the damages.
H. Upon default by Customer, SBC may terminate Services and retake possession of Services (before, during or after action to recover sums hereunder), retain all payments made hereunder, and recover charges and costs owed by Customer as well as any other damages SBC may have sustained because of Customer's default. "Default" shall mean where Customer becomes subject of a voluntary or involuntary bankruptcy, insolvency, reorganization or liquidation proceeding; makes an assignment for the benefit of creditors; admits in writing its inability to pay debts when due; or fails within ten (10) days after written
notice to remedy any breach of this Agreement.
I. SBC may interrupt Customer Services immediately after an attempt so notify Customer by telephone at the telephone number of the technical contact specified on the Service Order in any event where SBC Technical Review Committee has determined Customer is in breach of paragraph 5 subparagraph B of this Agreement. In the event such action is taken by SBC, Customer Services will be reinstated when SBC's Technical Review Committee determines the condition has been remedied by Customer. This paragraph takes precedence over paragraph 7 sub-paragraph G.
J. SBC MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANT-ABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THIS INCLUDES LOSS OF DATA RESULTING FROM DELAYS, NONDELIVERIES, MISSED DELIVERIES, OR SERVICE INTERRUPTION HOWEVER CAUSED. USE OF ANY INFORMATION OBTAINED BY SBC'S NETWORK IS AT CUSTOMER'S OWN RISK. SBC SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH ITS SERVICES.
K. Customer understands that routine maintenance and periodic system repairs, upgrades and re configurations may result in temporary impairment or interruption in service. As a result, SBC does not guarantee continuous or uninterrupted service and reserves the right from time to time to temporarily reduce or suspend service without notice.
8. INDEMNITIES. SBC its affiliates, officers, directors, licensees, licensers, will be indemnified and saved harmless by the Customer from and against all loss, liability, damage and expense, including reasonable attorney's fees, caused by:
1. Negligent acts or omissions of officers, employees, agents or contractors of Customer that arise out of or are caused by the construction, installation, maintenance, presence, or use or removal of systems, channels, terminal equipment or software not provided by SBC that are connected to SBC Services and that result in claims and demands for damages to property or for injury or death to persons including payments made under any Worker's Compensation Law or under any plan for employee's disability or death benefits;
2. Claims for liable, slander, invasion of privacy or infringement of copyright, and invasion and/or alteration of private records or data arising from any information, data or message transmitted over the network by Customer.
3. Claims for infringement of patents arising from the use of equipment and software, apparatus and systems not provided by SBC in connection with Services.
9. GENERAL.
A. Customer shall not assign or transfer the Order without the prior written consent of SBC. SBC may, however, assign this Agreement to its parent company or an affiliate with thirty (30) days notice. No Customer is allowed to resell or redistribute Internet services provided by SBC including but not limited to the following services; SBC's Services manager. Retransmission of Internet services through microwave and radio waves for reselling is prohibited. SBC may permit Customer to provide Internet services to third parties only under an exclusive written agreement between SBC and Customer.
B. SBC will not be responsible for performance of its obligations hereunder where delayed or hindered by war, riots, embargoes, strikes, or other concealed acts of workmen (whether of SBC or others), casualties, accidents or other occurrences beyond SBC's control. SBC shall notify Customer in the event of any of the foregoing occurrences. Should such occurrence continue for more than sixty (60) days, SBC or Customer may cancel the Order for the affected Services with no further liability.
C. The provision of Services by SBC is subject to SBC's continuing approval of Customer's creditworthiness. Customer shall furnish financial information as SBC may from time to time request to determine Customer's credit-worthiness.
D. Any legal action arising out of failure, malfunction or defect in Services shall be brought within one (1) year of the occurrence or is deemed waived. Any and all actions shall be brought in the appropriate court system in the province of Quebec.
E. This Agreement may not be modified except by written amendment by the parties. No agent, employee or representative of SBC or Customer has authority to bind the parties to any representation or warranty unless such is specifically included in this Agreement, the Order, or written amendments thereto.
F. Any notice required to be given hereunder shall be in writing and shall be deemed to have been delivered when deposited in the United States Mail, registered or certified mail, return receipt requested with adequate postage affixed and addressed to the person set forth in the signature block hereto or to such other address as either party may provide to the other in accordance with the provisions hereof. Notices may be sent to the administrative address of record for the Customer. Notice to SBC shall be to:
Smart Business Canada
Mtl, QC, H4G 1J2
Attention: Contract Administration
G. All users of Customer services are responsible for ensuring their use complies with any policies in effect which may apply to their use. Further, users of Customer services are responsible for determining which policies affect their specific use. This may include but is not limited to the National Science Foundation Appropriate Use Policy.
H. Customer is responsible for assessing its own need for property, casualty, and liability insurance and shall obtain such insurance as it sees fit. Customer shall bear the risk of loss to its own equipment and agrees to so make any claims against the others for any property loss.
I. This Agreement shall be governed by the laws of the province of Quebec.
J. Should any part or portion of the Agreement be found invalid, the balance of the provisions shall remain unaffected and shall be enforceable.
K. It is understood and agreed by the parties hereto that this instrument in conjunction with the Customer Agreement constitutes the entire agreement between the parties. Each party hereby specifically advises the other that any representations inconsistent with the terms and conditions contained herein made by any officer, agent or employee are wholly unauthorized and specifically repudiated.
L. It is understood and agreed by the parties hereto that this instrument in conjunction with the Customer Agreement constitutes the entire agreement between the parties. Each party hereby specifically advises the other that any representations inconsistent with the terms and conditions contained herein made by any officer, agent or employee are wholly unauthorized and specifically repudiated. The parties have entered into this Agreement as of the date indicated on the first page.
M. Neither party shall disclose any of the terms and conditions of this agreement without the prior written notice of the other, provided, however, in any of its sales and marketing materials SBC may refer to Customer as its Customer.
N. This agreement may be executed in two or more counterparts, each of which shall be deemed to be an original for all purposes hereof. This agreement contains the entire agreement of the parties hereto and with respect to the matters covered hereby and supersedes any other prior or simultaneous agreement related to such matters.
Smart Business Canada