DSL and Hosting Terms and Conditions



1. Payment of Fees

1.1 Measuring Usage - For usage based internet traffic charges, Customer is responsible for all charges as a result of traffic passing through, in and out, of the serial port within the Customer premise equipment connected to Navigata’s network. Navigata will measure usage of the Navigata Services in accordance with Navigata’s policies and practices in effect from time to time. Navigata may at its sole discretion amend its policies relating to measuring usage on ninety (90) days’ advance written notice to Customer.

1.2 Fees- Customer agrees to pay to Navigata fees for its use of the Navigata Services and the Equipment as specified in this Agreement, including, without limitation, the Installation Fees, the Monthly Base Fees and the Usage Fees or the Minimum Monthly Base Fees (collectively the "Customer Fees").

1.3 Invoices - Customer will pay all sales and value-added taxes, duties or levies imposed by any authority, government, government agency or commission or crown corporation in connection with the Navigata Services and the Equipment provided under this Agreement.

1.4 Other Charges - Customer will pay all sales and value-added taxes, duties or levies imposed by any authority, government, government agency or commission or crown corporation in connection with the Navigata Services and the Equipment provided under this Agreement.

1.5 Penalties and Additional Charges: For each change of unique user ID (also referred to as username, account ID, login ID or other means of identifying nomenclature), a service fee of $20.00 dollars may apply. Navigata reserves the right to charge Customer an administration fee of $20.00 for each complaint Navigata receives in written format as a result of abuse by Customer. Abuse is defined in the Acceptable Use Policy. As a result of cancellation by Navigata the Customer shall be subject to a restoration fee of $20.00. Navigata’s complementary technical support calls are limited to thirty (30) minutes in length, calls longer than the thirty (30) minutes may be subject to a technical assistance charge as set forth on the Navigata website, www.navigata.com/terms_and_conditions.

1.6 Fee Changes - Navigata may increase or decrease any of the Customer Fees by issuing Customer an amended price list at least ninety (90) days in advance of such changes.

1.7 Disputes- Charges will be deemed undisputed unless the Customer gives Navigata written notice to the contrary within fifteen days of the invoice date. The notice must include sufficient detail to permit Navigata to investigate the dispute. The dispute can not arise from Interruptions (as defined in Section 3.5 of this Agreement). Customer must pay any disputed amount within ten (10) days of the date of written notice from Navigata notifying Customer that the dispute is invalid.

1.8 Credit - The Customer acknowledges that execution of this Agreement signifies Customer’s acceptance of Navigata’s initial and continuing credit approval procedures and policies as determined by Navigata from time to time. Navigata reserves the right to withhold initiation or full implementation of Navigata Services under this Agreement pending initial satisfactory credit review and approval thereof which may be conditioned upon terms specified by Navigata, including, but not limited to, security for payments due hereunder in the form of a cash deposit, guarantee, irrevocable letter of credit or other means, which may be increased upon Navigata’s request at its discretion. As may be determined by Navigata in its sole discretion at any time, if the financial circumstances or payment history of Customer is or becomes unacceptable, or in the event Customer exceeds its credit limit as determined by Navigata or indicates difficulties in meeting its payments, Navigata may require a new or increased deposit, partial payment, guarantee or irrevocable letter of credit, at Navigata’s option, to secure Customer’s payments for the term of this Agreement. Failure of Customer to provide the requested security shall constitute a material breach of this Agreement and shall provide Navigata with cause to terminate this Agreement; such termination entitling Navigata to collect any outstanding amounts forthwith.

2. Customer Obligations

2.1 Use of Navigata Services- Customer agrees that it will receive and use the Navigata Services only in accordance with and for the purposes specified in this Agreement, Navigata’s Acceptable Use Policy, and, where applicable, that it will use its best efforts to ensure that its clients only use the Navigata Services in accordance with and for the purposes specified in this Agreement. The Terms and Conditions and the Acceptable Use Policy are located on the Navigata Website, www.navigata.com/terms_and_conditions.

Domain Name Use: Customer acknowledges that Navigata as part of the Navigata Services provided pursuant to this Agreement, has registered a domain name in Customer’s name (“the domain name”). Customer agrees that it has read and fully understands the Registration Agreement applicable to the domain name and agrees that Customer will at all times during the time that this Navigata Services Agreement is in effect, observe all the terms and be bound by the obligations of such Registration Agreement as it may exist from time to time as if Customer had signed such Registration Agreement. Such Registration Agreement as it exists from time to time, is incorporated into and forms part of this Navigata Services Agreement. Such Registration Agreement may be found and accessed by Customer at the website of the registrar of the domain name being Tucows Inc. at www.tucows.com or such replacement website therefore adopted by TuCows Inc. from time to time. Customer acknowledges and agrees that Navigata is not in the domain name registration business and thus Navigata offers no representation, warranty or guarantee of any kind or nature relating to the domain name other than that the domain name has been initially registered by Navigata in the Customer’s name. Navigata expressly disclaims any and all other warranties or representations, whether express or implied, respecting the domain name. Customer agrees that it is its responsibility to visit the website of the registrar of the domain name on a regular basis to become familiar with changes to the Registration Agreement from time to time and Customer’s continued use of the domain name constitutes Customer’s agreement to and acceptance of any and all amendments to the Registration Agreement.

Customer acknowledges that any breach by Customer of the Registration Agreement may result in the immediate suspension or termination in Navigata’s sole and unfettered discretion, of the Navigata Services and/or registration and use of the domain name. Customer releases Navigata, its shareholders, directors, officers, employees, representatives and agents or any of their successors and assigns, from any and all losses, claims, causes of action of any kind or nature, and damages, whether direct or indirect, special, consequential, incidental, punitive or exemplary damages, including but not limited to damages for loss of profits or savings, loss of data, or loss of use and any claim attributable to the negligence of Navigata, (“the claims”) resulting from ,or in any way relating to the registration of the domain name, the use of the domain name by Customer, the suspension and/or termination of the ability of the Customer to use the domain name, or the suspension or termination of the registration of the domain name.

Customer indemnifies Navigata, its shareholders, directors, officers, employees, representatives and agents or any of their successors and assigns, from and against the claims (including any and all legal fees and expenses incurred by Navigata with respect to the claims) that may be brought or alleged by any third party related in any way to the registration and use of the domain name, including any claim by the registrar or the registry of the domain name.

2.2 Site Accommodation - Customer will at its expense provide all necessary electrical and other utility connections and services, air conditioning equipment and other preparations and alterations to the Site(s) reasonably required by Navigata to install and maintain the Equipment. Customer will provide to Navigata account setup information, permits, licenses, and any equipment space, supporting structures, electrical power, channel termination equipment, conduit, or inside wiring at Customer’s premises as Navigata reasonably requires to provide service.

2.3 Operating Conditions - Customer will ensure that the operating and environmental conditions for the Equipment are suitable for equipment of this kind and otherwise conform to any reasonable requirements Navigata might stipulate from time to time. If the operating and environmental conditions for the Equipment do not conform to Navigata’s reasonable requirements, Navigata may refuse to proceed with the installation of the Equipment, or if installed, remove the Equipment. Any expenses associated with the repair, replacement or maintenance of Equipment that is not due to reasonable wear and tear will be borne solely by the Customer.

2.4 Co-operation and Access - Customer will permit Navigata and its employees, designates or authorized agents to enter Customer's premises during normal business hours, subject to Customer's reasonable security measures, for the purpose of installing, inspecting, maintaining, relocating and removing the Equipment and for the purpose of performing any other act contemplated by this Agreement. Customer shall ensure that its clients acknowledge that Navigata, may exercise similar rights on the premises of the Customer’s clients.

2.5 Navigata Sites - If the Equipment is located on property of Navigata ("Navigata Site") and Navigata agrees to provide Customer access to or usage of the Navigata Site, Customer shall enter into a Site Services Agreement with Navigata concurrently with this Agreement becoming effective.

2.6 Use of Equipment- Customer acknowledges and agrees that it will have no right, title and/or interest in the Equipment except to use the Equipment for the purposes of receiving and transmitting telecommunications data. Customer will not itself and, where applicable, will ensure that its clients do not:

· permit any numbering or lettering displayed on the Equipment to be removed, altered, disfigured or covered up;

· permit the Equipment to be operated by or come under the possession or control of any person other than the Customer, its agents or employees, or its clients;

· permit the Equipment to be removed from the site(s) specified in the Schedule(s) (the “Site(s)”);

· permit the Equipment to be affixed to any land or premises or attached to any personal property; or

· permit any degradation of the environmental or operating conditions under which the Equipment is to operate, from those conditions in effect at time of installation.

The Equipment shall remain the personal property of Navigata, regardless of the manner in which the Equipment may become attached to any land or premises. Customer hereby acknowledges that it received a copy of this Agreement and waives all right to receive from Navigata a copy of any financing statement, financing charge statement or verification statement filed at any time in respect of this Agreement or the Equipment under any provincial Personal Property Security Act or similar legislation. Customer agrees to do all such acts to execute all such documents reasonably required in furtherance of such statements.

Customer shall ensure that the Equipment does not become subject to any lien, levy, charge, security interest or other encumbrance whatsoever. In the event of the subjection of the Equipment to any lien, levy, charge, security interest or other encumbrance whatsoever or the removal of the Equipment from the Site(s), Navigata, without notice, may enter the Site(s) or other place(s) where the Equipment in question is located and take immediate possession and remove it, whether affixed to realty or not, retaining possession and suspending Navigata Services accordingly until the breach is corrected. Where the Site(s) is on the premises of a client of the Customer, the Customer shall ensure its client’s acknowledgement that Navigata may enter and remove the Equipment. Navigata shall not incur any liability to Customer or its clients for or by reason of such entry or taking of possession, whether there is damage to property or otherwise and Customer shall indemnify Navigata for any such third party claims that may be made against Navigata.

2.7 Illicit Use - Under no circumstances shall the Customer use, and the Customer shall use its best efforts to ensure that its clients do not use, the Navigata Services or the Equipment fraudulently or otherwise illegally including, without limitation:

a) falsely reducing or avoiding in whole or in part, the regular charges for the Navigata Services and the Equipment;

b) obtaining, accessing, altering or destroying data files, programs, procedures or other information of Navigata or other Customers of Navigata;

c) using the Navigata Services or the Equipment in such a manner as to interfere with the use of the Navigata Services or the Equipment by other Customers of Navigata; and

d) using the Navigata Services and the Equipment in any manner that, directly or indirectly, violates any law, rule, code or regulation or aids any unlawful act or undertaking.

2.8 Acceptable Use-Customer has read and agrees with Navigata’s Acceptable Use Policy located on the Navigata Website (www.navigata.com/terms_and_conditions.) The Policy may be modified periodically by Navigata; all modifications are posted on the Navigata Website. Customer understands the Acceptable Use Policy is extended to Customers clients and will ensure its clients comply with the terms and conditions set out in the Acceptable Use Policy in an Acceptable Use Policy with its own clients. Continued use of Service is deemed to be the Customers acceptance of the modified Policy.

2.9 Liability - If any of Customer's obligations under this Agreement, or those of Customers’ clients, are breached, Customer shall be liable to Navigata for all costs (including legal fees) incurred by Navigata in remedying the breach. In the event that the Customer’s client breaches any of the provisions of this Agreement, the Customer shall take reasonable steps to remedy the breach and to prevent continuing breaches which may include issuing such notices to cure the default as are legally required and termination of the client’s entitlement to utilise the Navigata Services and immediate removal of the Equipment.

2.10 Client co-operation - Customer shall ensure that its clients will comply, at all times, with the terms of this Agreement to the extent that the Customer’s client makes use of the Navigata Services or Equipment.

2.11 Security- Protection, security, and management of usage and security of the Customers Network is the sole responsibility of the Customer. In the event that the Customers Network security is violated the offence will be remedied between the Customer and the offending party(s). Navigata will not compensate Customer for damages incurred due to security violation(s) of Customer Equipment/ Network(s), nor will the Customer make deductions or off sets of any kind for usage charges due Navigata.

3. Navigata Obligations

3.1 Installation – As soon as reasonably possible following the installation of suitable facilities, either by Navigata or Customer, Navigata will install the Equipment at the Site(s). Navigata’s regular business hours are from Monday- Friday 8 a.m.- 4p.m. local time. Any installations to be scheduled outside of Navigata’s regular business hours may be subject to after hour installation charges. Navigata does not guarantee the availability of technicians to accommodate any after hour installations.

3.2 Navigata Services - Navigata shall provide the Navigata Services in accordance with the terms and conditions of this Agreement.

3.3 Support - If required or requested, Navigata will provide to Customer and its authorised users of the Navigata Services, such training, instructional material and other support as Navigata deems appropriate on Navigata’s then current terms and prices for such support services.

3.4 Maintenance - Unless otherwise specified Navigata will maintain and repair the Equipment. It is the responsibility of the Customer to verify that their network and equipment, including power are in suitable operating and environmental working conditions. If a disruption of Service is reported to Navigata that is a result of Customer equipment failure, any costs associated in remedying the disruption will be billed to the Customer, at Navigata’s discretion, at current labour rates and material costs. Navigata’s current labour rates are available on www.navigata.com/terms_and_conditions.

3.5 Temporary Suspension- Customer agrees that it may be necessary for Navigata or its suppliers to temporarily suspend the Navigata Services for technical reasons to maintain the Network, the Equipment or any other facility, the timing of which will be determined by Navigata. For the purpose of restoring the Navigata Service the Customer acknowledges that Navigata may require access to Customer’s premises, in addition to the access required under Section 2.4 of the Agreement. Such access shall be provided immediately upon Navigata’s request, at no charge to Navigata. Navigata may upon reasonable notice, not exceeding 48 hours, make inspections, perform tests and adjustments as needed to investigate, modify or maintain the installation/ operation of both the Navigata and Customer Networks. Navigata may suspend Navigata Services for any duration, without liability, to investigate or prevent improper or unlawful use of the Services, facilities, or connections to the Navigata Network. Navigata will not award any Service Credits for the duration of Service Suspensions.

4. Proprietary Rights

4.1 Equipment - Customer acknowledges and agrees that title to the Equipment and all other material provided to Customer by Navigata under this Agreement shall at all times remain with Navigata and Customer shall acquire no property or other rights in or to any of the foregoing other than as specifically provided in this Agreement during the term or any subsequent renewal period.

4.2 Software - Where any of the Navigata Services or the Equipment contains computer programming or software (the "Resident Software"), Navigata hereby grants to Customer and the Customer’s clients a non-exclusive, non-transferable royalty-free licence to use during the term of this Agreement the Resident Software for the sole purpose of enabling Customer and the Customer’s client to obtain the Navigata Services. Customer recognise that the Resident Software constitutes valuable trade secrets of Navigata and its licensors and that Navigata and its licensors own all of the technology, know-how and intellectual property rights associated with such software, the Navigata Services and the Equipment. Customer shall use its best efforts to protect and keep confidential the Resident Software used by it and shall make no attempt to examine, copy, alter, reverse engineer, tamper with or otherwise misuse the Resident Software.

4.3 Trade Marks and Trade Names - The Customer shall not display or otherwise use any trade mark, trade name, logo, symbols, coined word or combination of words used by Navigata or permit the same to be displayed or otherwise used in connection with any business conducted or controlled by the Customer except as may be specified or approved by Navigata in writing.

4.4 Confidentiality - Except as otherwise permitted under this Agreement, the Customer agrees to keep confidential all technical, financial, commercial, legal or other information of Navigata (collectively the “Confidential Information”) whether disclosed orally, or in any other media or form and howsoever obtained, and Customer shall not disclose the Confidential Information to any third person without the prior express written consent of Navigata. The Confidential Information of Navigata and all the rights therein or related thereto are, and shall remain, the property of Navigata.

5. Term of Agreement- This Agreement will commence on the day of initial installation. Navigata Service is subject to the availability of suitable facilities and requested Navigata Services. In the event the Navigata Services set out in the agreement are not available for the initial installation date the subsequent installations will Commence at the time of activation. The term for the subsequent Navigata Services will be pro-rated to align with the months remaining in the original term. Unless earlier terminated in accordance with section 6 of this Agreement the terms and conditions provided within will continue in effect for the duration of the term(s), and thereafter all Navigata Services will be automatically renewed for additional one year period(s) at the applicable rates and discounts, or unless otherwise negotiated, or unless Navigata or the Customer provides notice of termination at least 60 days in advance of expiry of the term(s) or renewal period(s).

6. Termination

6.1 By Navigata - If Customer (i) breaches any of its obligations under this Agreement and fails to correct the breach within three (3) calendar days after receiving written notice from Navigata to do so, (ii) persistently breaches any of the terms or conditions of this Agreement, or (iii) should become insolvent or subjected to any process, proceeding or arrangement for the benefit of its creditors, including any reorganisation, receivership or liquidation proceedings, then Navigata may terminate this Agreement by giving Customer written notice of termination, which termination will take effect when notice is given.

6.2 By Customer – If Navigata amends the Agreement and the effect of the amendment, or the cumulative effect of an amendment with past amendments, amounts to a material change of the Navigata Services offered or the cost of the Navigata Services, then the Customer shall have the right within thirty (30) days of the amendment, to terminate this Agreement without penalty by giving Navigata thirty (30) days advance written notice of termination which termination will take effect upon the expiry of the thirty (30) day notice period.

7. Return of Materials - Upon the expiration or earlier termination of this Agreement, Customer shall cease all use of the Resident Software and Equipment and Customer will permit Navigata to remove from Customer's premises the Equipment and all material in whatever form or whatever medium that contains or discloses any information relating to the Navigata Services and the Equipment. Where the Site(s) is on the premises of a client of the Customer, Customer shall ensure that Navigata may exercise similar rights to enter and remove, the Equipment and all material in whatever form or whatever medium that contain or disclose any information relating to the Navigata Services and the Equipment. Customer will provide to Navigata a letter confirming that all such materials have been returned to Navigata.

8. Early Termination - If prior to the expiry of the Term(s), Customer fails to fulfil its obligations under this Agreement, leading to the termination of this Agreement by Navigata, Customer agrees that it shall be liable to pay to Navigata an amount equal to the total of the Minimum Monthly Base Fees for the period remaining in the term(s), unless otherwise stated. For Navigata Services ordered not yet implemented Customer will be responsible for any charges associated with the process of provisioning the Services ,including but not limited to, installation, removal or termination fees. Customer acknowledges and agrees that the foregoing amounts payable are the reasonable liquidated damages of Navigata recoverable from Customer for early termination and not a penalty fee. For Dial up Internet Access Service and Web Hosting Services the minimum term is three (3) consecutive months of service. Cancellation of Services prior to the minimum term will be liable for the fees remaining in the initial term.

9. Suitability- Customer shall be solely be responsible for determining the adequacy of service for any and all uses to which the Customer may apply it. NAVIGATAMAKE NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.

10. Limited Warranty

10.1- Subject to the terms and conditions of this Agreement, Navigata warrants that where the Equipment is used for the purposes for which it was designed, constructed and installed and, in accordance with user manuals for the Equipment, Customer's purposes as stated in this Agreement and Navigata's instructions provided to Customer from time to time that it will conform to Navigata's specifications for such Equipment provided however that this limited warranty will not apply to any error or interruption caused by any event, circumstance or development which is outside of the reasonable control of Navigata or as a result of scheduled operational or maintenance down time for which Navigata has provided Customer advance notice.

10.2 - The warranties in section 10.1 are in lieu of all other representations, warranties and conditions, express or implied but not limited to any implied warranties, representations or conditions of merchantability, fitness for a particular purpose or non-infringement of third party rights, with respect to the equipment and the Navigata Services or regarding the date upon which the equipment or Navigata Services are to be installed or will become operational.

11. Limitation of Liability - Customer acknowledges and agrees neither Navigata nor any of its shareholders, directors, officers, employees, representatives or agents will be liable for any special, indirect, consequential, incidental, punitive or exemplary damages, or damages (including but not limited to damages for loss of profits or savings, loss of data, or loss of use) in connection with this Agreement, the Navigata Services or Equipment, or any other information, material or Services provided by Navigata to Customer under or related to this Agreement, whether arising out of contract, tort or other basis. If despite the foregoing limitations, Navigata or any of its shareholders, directors, officers, employees or representatives should become liable to Customer or any other person in connection with this Agreement for any reason, then the maximum aggregate liability of Navigata, its members, shareholders, directors, officers, employees and representatives for all such things and to all such parties will be limited to the lesser of the actual amount of loss or damage suffered by the claimant or the amount payable by Customer to Navigata for one month of service under this Agreement.

12. Indemnity - Customer will indemnify and save harmless Navigata and its members, shareholders, directors, officers, employees, agents, contractors, and representatives from and against all damages, losses, costs and expenses (including actual legal fees and costs), fines and liabilities incurred by or awarded, asserted or claimed against Navigata or any of its members, shareholders, directors, officers, employees and representatives in connection with Customer's negligence, activities or omissions, or breaches of its obligations under this Agreement, including claims brought by a person using or relying upon any advice given or publication produced and distributed by Customer.

13. Insurance - Customer will obtain and maintain throughout the term of this Agreement all risks liability and property damage insurance on terms and in amounts for the replacement cost of the Equipment and, for bodily harm to employees or contractors of Navigata working on Customer’s premises.

14. Notices - All notices must be in writing and delivered personally or by facsimile transmission to the address or fax number specified for each party on the DSL and Hosting Agreement. Addresses and facsimile numbers for notices may be changed by subsequent notice. Notices delivered personally are given when received. Notices delivered by facsimile transmission are given at the location of receipt on the business day immediately following the date of transmission.

15. Assignment - Customer may not assign this Agreement without the express written consent of Navigata which consent shall not be unreasonably withheld. Navigata may assign its rights under this Agreement at any time without the prior written consent of Customer.

16. Governing Law - This Agreement shall be interpreted in accordance with and be governed in all respects by the laws of the Province of British Columbia and the laws of Canada applicable therein. The courts of British Columbia shall have non-exclusive jurisdiction to entertain any action or proceeding brought by the parties in connection with this Agreement or any alleged breach of this Agreement. The parties each attorn irrevocably to the jurisdiction of such courts.

17. Customer Acknowledgement - Customer acknowledges that it accepts all risk of any unauthorised or illegal use of the Navigata Network or any inter-connected network by third parties. Navigata will use reasonable commercial efforts to assure a reasonable level of security for its network, however it provides no warranties, makes no representations, and accepts no liability for the unauthorised or illegal access or interference with the Customer's network unless such access or interference is caused by the intentional unlawful acts of Navigata, its agents or employees.

18. Survival - Notwithstanding termination of this Agreement the parties remain bound by sections 2.9, 4.1, 4.2, 4.3,4.4, 7, 10, 11, 12 and other provisions of this Agreement that are necessary for the interpretation or enforcement thereof.