1. Terms & Conditions
These terms and conditions (the “service terms”), together with your PSD service agreement, form the agreement between you and PSD Professional Systems/Designs, Ltd. (“PSD”) for the service described in your service agreement. For the purposes of these service terms, “you” refers to the business or person whose name appears on the bill.
These service terms apply to your use of the internet access service or associated telecommunications service that PSD provides to you and to any equipment provided to you for use with the service. By accessing and using the service, you are agreeing to the terms of this agreement.
1.1 Agreement Term
During the agreement term (the “term”) stated in your service agreement, PSD will provide you with an exclusive right to use the service as set out in your service agreement.
This agreement will begin on the start date set out in the service agreement and will continue for the period of time set out in the term of the service agreement. Each amended service agreement will specify the start date and the term.
1.2 Agreement Renewal
Unless notice to renew and/or extend the term of the service and/or this agreement has been provided by you to PSD, this agreement and/or any service will continue on a month-to-month basis until terminated by either party with thirty (30) days’ notice given. The term and/or any service will automatically renew at the end of the term on a month-to-month basis until terminated by either party. PSD reserves the right to increase the fees payable at any time after the end of the term. PSD will provide you with thirty (30) days’ prior written notice of any increase in fees.
1.3 Agreement Amendments
PSD will notify you of any amendments to this agreement by sending you notice that this agreement has been amended on your monthly invoice and directing you to where the amendment(s) may be reviewed.
2. Fees and Payment
All fees are charged in Canadian dollars (CAD) and are subject to all applicable taxes and other government charges unless expressly noted.
2.1 Monthly Fees
You agree to pay PSD monthly recurring fees (the “fees”) as set out in the service agreement for the use, support, repair, and maintenance of the service on the service start date. Monthly fees are payable within fifteen (15) days from the invoice date and in accordance with the service terms.
2.2 Non-Recurring Fees
Non-recurring fees, such as connection fees, are due and payable within fifteen (15) days from the invoice date and in accordance with the service terms. You will be informed in writing of any additional fees required to complete the connection of your service, as detailed in the service agreement. PSD may not invoice additional fees to you as detailed in the service agreement without prior written agreement from you.
2.3 Interest on Fees in Arrears
Accounts remaining unpaid for thirty (30) or more days will be considered to be in arrears. If any amount is unpaid and in arrears, PSD will notify you in writing of any such unpaid amount. If you have not paid the amount in arrears within thirty (30) days of receiving PSD’s written notice, PSD reserves the right to charge interest at a rate of 2.5% per month on any amount in arrears under this agreement.
2.4 Termination for Non-Payment
In the event that the fees are more than ninety (90) days past due, PSD has the right to terminate this agreement by giving ten (10) days’ prior notice in writing. Termination for non-payment is without prejudice to all of your other obligations under this agreement including the obligation to pay all fees due under the terms of this agreement.
3. Quality of Service
3.1 Standard Service Level
(a) PSD’s Network (“PSDNet”) is engineered to meet a standard service level of 99.99% uptime per month as averaged over the calendar month. The PSDNet includes your access port and the PSD backbone, which includes PSD owned and operated routers, switches, interconnects, and peering relationships with other telecommunications providers.
(b) PSDNet does not include local access circuits (i.e., last mile) or your local area network (“LAN”), scheduled maintenance events, outages or disruptions caused by you, interconnect to or from other telecommunications provider networks, or an event of force majeure (section 13.1).
Where all or part of the services or obligations is subcontracted, PSD remains fully liable and responsible:
(a) for the execution of the services and/or obligations,
(b) to ensure that the subcontractor has complied with all of PSD’s obligations as set out in the service terms, and
(c) for the acts and omissions of the subcontractor, its employees, and agents.
(a) PSD will provide maintenance and repair of the service at its expense and in accordance with the terms set out in section 4.1.
(b) You may send PSD notice of a service issue at any time. PSD will respond to such a notice in accordance with the terms set out in section 4.1.
(c) During the term, PSD acknowledges that:
(i) the service will meet or exceed, and be consistent with, the specifications set out in the service levels and to this agreement, and
(ii) the service agreement and this agreement may be amended from time to time as may be required by all applicable codes.
4.1 Service Maintenance and Repair
All inspection, maintenance, repair, and restoration work related to the service will be performed by PSD or its authorized contractor(s).
You will have access to connect your equipment to the service’s points of presence. You will have the right, at your own expense, to have your representative or your authorized contractor(s) observe any inspection, maintenance, repair, or restoration operation performed on the service by PSD with one (1) week’s prior notice given or, in the event of emergency situations, a reasonable and feasible amount of notice given. You will ensure that you, and all persons accessing or using the service, comply with all applicable PSD access procedures, including providing adequate notice, government codes, ordinances, rules, regulations, and restrictions, and that such access does not disrupt the network.
4.1.2 Operation and Maintenance
PSD will operate and maintain the service in a manner consistent with PSD’s standards and practices. Basic maintenance will include inspection services, routine remedial maintenance services, and ordinary course repairs. If it is reasonably able to do so, PSD will give you fifteen (15) business days’ notice before starting any work that might disturb or place at risk the normal operation of the service. Operation and maintenance do not include repair and restoration described below.
4.1.3 Repair and Restoration
Should you experience any failure or interruption of your service during the term of this agreement, you will perform diagnostic testing and take reasonable steps to isolate the problem. If it is determined that the source of the problem is outside of your business’s controlled equipment, you will contact the PSD Help Desk and notify PSD of:
(a) the affected service,
(b) the severity or urgency of the situation, and
(c) if you have prior written consent to resell PSD services, the level of service you are obliged to provide to your end-users.
If you are reporting an emergency call, PSD will respond accordingly and make commercially reasonable efforts to provide you with any emergency maintenance and restoration services required to inspect, assess, and repair the service as quickly as possible. It is the intent of PSD to resolve outages within four (4) hours of receiving your notification of an issue; however, safety and access restrictions may delay repair to eight (8) hours or more.
Wherever possible, PSD will ensure that the restored service meets the same specifications that the service had prior to the incident giving rise to the restoration services, and in any event, PSD will ensure the minimum performance specifications for the service. The PSD Help Desk will provide timely status updates to you of the repair work being carried out by PSD, as long as it is reasonable to do so given the severity of the outage and urgency of the repair. PSD will provide or cause to be provided the abovementioned repair, restoration work, and assistance on a 7 days per week, 24 hours per day basis.
PSD acknowledges and agrees that, depending on the circumstances, repair and restoration may require provisioning a redundant connection path.
4.2 Equipment Failure
4.2.1 Equipment Leased by PSD
If PSD is leasing equipment to you, it is PSD’s responsibility to replace any failed equipment for the duration of the term, including service agreement renewals.
4.2.2 Your Equipment
If you are purchasing or providing your own equipment, it is your responsibility to replace any failed equipment.
5. Service Usage Restrictions
5.1 No Third-Party Use
You acknowledge and agree that the service is intended solely to service your needs and the needs of your tenants.
5.2 No Interference
You will not nor will you allow any other person under your control to, remove, repair, modify, disconnect, or otherwise interfere with the service or PSD’s property, nor any PSD equipment directly used to provision the service, without first obtaining PSD’s written consent.
You will not assign, transfer or sublicense your interest in this agreement except to an affiliate without first having obtained PSD’s written consent, which will not be unreasonably withheld. For the purpose of this agreement, “affiliate” means entities at least 50% owned by (whether directly or indirectly), under common ownership with, or which own at least 50% of, the party in question and “affiliated” shall be interpreted accordingly.
Both parties agree to comply at all times with all applicable laws, including, but not limited to:
(a) data privacy/data security laws,
(b) import and export laws,
(c) legal restrictions,
(d) national security controls and regulations of the applicable foreign agency or authority, and
(e) any other applicable laws.
7.1 PSD’s Indemnity
PSD shall indemnify and hold harmless you and your affiliates and each of your and their directors, officers, employees, contractors, and agents from and against all claims, causes of action, lawsuits, losses, liabilities, damages, costs, and expenses, including attorney’s fees and other legal expenses whatsoever advanced by any person for any bodily injury (including death) or personal injury, or any loss, costs or damages of any nature whatsoever that are caused, result, or arise from or are contributed to by reason of any act or omission of, breach of laws or any breach of this agreement by PSD, its officers, employees, or agents, except to the extent of liability directly arising out of the independent negligent acts of you, your officers, employees or agents.
7.2 Your Indemnity
You shall indemnify and hold harmless PSD, its officers, employees, and agents from and against any and all claims, causes of action, lawsuits, losses, damages, and reasonable expenses including for bodily injury (including death) or personal injury directly arising from your misuse of the service, including, claims against PSD by such persons for interruption of service or lack of service quality, except to the extent of liability arising out of the negligent acts of PSD, its officers, employees or agents. You further release PSD from any responsibility or liability related to the confidentiality of any information available by or through PSD’s systems, except to the extent arising out of the negligent acts or willful acts of PSD, its officers, employees, or agents.
8. Limitation of Liability
8.1 Limitation of Liability
(a) Except with respect to either party’s breach of confidentiality, any gross negligence, willful misconduct, or any loss or damage caused by either party’s negligence and as otherwise provided in this section, each party’s liability to the other shall not exceed the amount payable or paid by you under this agreement in the two (2) months immediately preceding the event giving rise to the claim.
(b) You agree that PSD will not be liable to you for any third-party claims related to defamation, copyright, or trademark infringement or the violation of any third-party rights arising from the misuse of the service or the material transmitted or received over the service or any unauthorized misuse of the service.
8.2 No Consequential Damages
Except with respect to either party’s breach of confidentiality, any gross negligence, willful misconduct infringement of any third party’s intellectual property rights, or any loss or damage caused by either party’s negligence, neither you nor PSD shall be liable for the other party’s or any third party’s loss of use, loss of profits, contract production, or of revenue or for increased cost of working or business interruption or any other indirect incidental, special, punitive, exemplary, or consequential loss or damage however caused arising out of or in connection with this agreement, irrespective of whether such damages have been caused by the negligence or misconduct of you or PSD and whether or not foreseeable at the time of execution of this agreement.
9. Representations and Warranties
9.1 PSD’s Representations and Warranties
PSD represents and warrants to you that:
(a) Unless otherwise indicated, PSD has or will obtain(ed) and maintain all easements, rights of way, leases, licenses, authorities, permits, arrangements, and other agreements whether written or verbal, relating to the grant of rights and interest in or access to the real property underlying the service including manholes, access to poles, ducts, inner ducts, conduits or pedestals in connection therewith relating to the service (collectively, the “underlying rights”) and that the underlying rights in no way limit or prohibit your use of the service for the term of this agreement or any renewal of this agreement.
(b) PSD will perform its duties, obligations, and responsibilities under each underlying right, and promptly notify you with any notice of default or termination of an underlying right it receives from a grantor thereof. If the loss of an underlying right by PSD makes it impossible for PSD to continue to provide the service to you, the parties will work together to provide an alternative for you, and failing provision of a satisfactory alternative service, this agreement will terminate with no further liability to either party.
PSD represents and warrants to you that the statement of facts contained in section 9.1 above is accurate and true.
9.2 Your Representations and Warranties
Except for any representations and warranties expressly set forth in this agreement, PSD makes no warranty, representation, or condition of any kind concerning the service provided under this agreement. PSD makes no other warranties, representations or conditions, express or implied, by operation of law or otherwise, including, without limitation, any implied warranties or conditions of non-infringement, merchantability or fitness for a particular purpose of any implied warranties or conditions arising out of course of performance, course of dealing or usage of trade.
You represent and warrant that the statement of facts contained in section 9.2 above is accurate and true.
9.3 Managed Backup
The use of PSD’s Managed Backup service does not warrant long-term archival capabilities.
9.3.1 PSD’s Managed Backup Responsibilities
(a) PSD guarantees that data backed up by this service will be recoverable without data corruption. A file will be considered corrupt only if the restored file does not substantially match the original file.
(b) PSD will not sell or distribute your stored data to third parties, nor will PSD use your stored data for advertising purposes.
9.3.2 Your Managed Backup Responsibilities
(a) It is your responsibility to keep and remember your own passwords. In the event that you lose your passwords, PSD will not be able to retrieve them in the event of their loss.
(b) It is your responsibility to ensure that all of your users’ computers are able to connect to the service and are configured properly.
(c) You are solely responsible for the files you upload to PSD’s Managed Backup service and assume all risks associated with them, including intellectual property or other legal claims.
(d) If, for compliance reasons, you require PSD to prohibit password resets, you are responsible for any data loss incurred if your password (and therefore your encryption key) is lost. You understand and agree that there are no data recovery options in this case.
(e) You will use PSD Managed Backup in a manner that complies with all governing laws, regulations, ordinances, and directives.
(f) You will use PSD Managed Backup in accordance with PSD’s policies.
(g) You will not monitor or copy any material on PSD Managed Backup—either manually or by use of automated means—without prior written consent.
9.4 Managed Security
9.4.1 PSD’s Managed Security Responsibilities
(a) PSD is responsible for providing the security software as a service.
(b) PSD will provide first-line technical support for the Managed Security products used.
(c) PSD will act as a consultant in the configuration and deployment of the products on an as-needed basis.
9.4.2 Your Managed Security Responsibilities
(a) You must provide PSD with a technical contact responsible for your security policy and end-user support.
(b) You will keep and maintain accurate documentation of your system configuration and end device setup.
(c) You will ensure that your software and systems are regularly updated to the latest versions provided by the vendor.
(d) You will ensure support contracts are in place for hardware and software, where applicable.
10.1 Early Termination
You may terminate this agreement without cause at any time by providing thirty (30) days’ prior written notice to PSD. If you cancel your service and your account is not in arrears you remain responsible for paying an amount equal to 50% of PSD’s net monthly profits plus 100% of demonstrable damages or fees incurred by PSD.
10.2 Termination for Cause
Either party may terminate this agreement immediately upon written notice in the event that:
(a) The other party materially breaches this agreement, provided that where such a material default is capable of being remedied, the defaulting party will have thirty (30) days to rectify such a default from the receipt of the written notice describing the breach in reasonable detail, or
(b) The other party files, or has filed against it, a petition of bankruptcy or makes an assignment for the benefit of creditors, which is not subsequently dismissed within sixty (60) days, or is unable to pay its debt as they fall due for a period of sixty (60) days, or a receiver, manager, liquidator, administrator, or the local equivalent is appointed of all or a substantial part of the other party’s assets and such an appointment is not revoked or withdrawn within thirty (30) days of the appointment.
10.3 Changes in Regulations
PSD will give you written notice in the event that:
(a) there is a change or amendment to existing laws or regulations, or
(b) any subsequent law, regulation, ruling, order, directive, or policy of any court, or governmental or regulatory body (including the CRTC) becomes applicable to PSD that has a materially adverse effect on PSD or its operations and that affects its ability to carry out this agreement, or
(c) there is any determination that PSD is not permitted to continue to provide the service to you.
Upon your receipt of such a notice, the parties will meet to discuss possible options that would allow your continued use of all or any portion of the service or your use of an alternative service in place of the existing service. If the parties are not able to agree on an alternative for your continued use of some or all of the service or your use of an alternative service in place of the existing service within sixty (60) days after PSD’s notice under this section, then PSD will have the right to terminate this agreement upon thirty (30) days’ further notice to you, after which this agreement will terminate without liability.
10.4 Effect of Termination
Upon the termination of this agreement for any reason:
(a) any amounts owed to PSD under this agreement up to the date of such termination will be due and payable within forty-five (45) days, and
(b) in the event of termination for cause by PSD (including termination for non-payment by you), you will pay an amount equal to 50% of the total remaining fees that would have been payable for the service during the term. PSD shall not be liable for any incidental or consequential damages as a result of the termination of the agreement under this provision, except to the extent arising out of the negligent acts or willful acts of PSD, its officers, employees, or agents.
11. Service Outage Policy
11.1 General Outages
For any service outage period for a service where the service level is greater than best effort, you will receive an outage credit or refund, as applicable, after the first four (4) hours of the outage, calculated as a percentage of the monthly fees for each hour that the outage continues, up to a maximum of the full monthly fees per calendar month. The parties agree that the outage credit or refund is the sole remedy provided with respect to service outages.
11.2 Chronic Outages
A “chronic outage” is considered to have occurred if:
(a) your service is unavailable for more than forty-eight (48) consecutive hours, or
(b) if more than five (5) confirmed outages consisting of at least one (1) hour of unavailability each occur within a thirty (30) day period.
If you have experienced a chronic outage, you may cancel the service without early termination or other penalties by providing PSD with written notice of your desire to cancel within thirty (30) days of the chronic outage. Following receipt of such a notice and upon verification of the chronic outage, PSD will immediately cancel the affected service and will credit you with any unused monthly fee for which you have previously been invoiced.
11.3 Outages Caused by You
On-site support for outages caused by your on-site users will be billed at our current market rate plus materials with your prior written consent.
(a) For the purpose of this agreement, “confidential information” means all information regarding a party’s business, including confidential, trade secret, and/or proprietary information, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary.
(b) Each party agrees:
(i) to hold the other party’s confidential information in strict confidence,
(ii) to limit access to the other party’s confidential information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained in this agreement, and
(iii) not to use such confidential information for any purpose except as expressly permitted in this agreement.
However, the receiving party will not be in violation of this section 12 in regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that the receiving party gives the other party prior written notice of such a disclosure in order to permit the other party to seek confidential treatment of such information.
(c) The restrictions on use and disclosure of confidential information set out above will not apply to any confidential information, or portion thereof, which:
(i) is or becomes a part of the public domain through no act or omission of the receiving party,
(ii) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records,
(iii) is independently developed by the receiving party without reference to the disclosing party’s confidential information, as shown by the receiving party’s competent written records, or
(iv) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
13.1 Event of Force Majeure
(a) If either of the parties becomes unable to carry out the whole or any part of its obligations under this agreement for any reason beyond its reasonable control including, without limitation, acts of God, adverse weather, acts of governmental authorities, riots, strikes, fire, flood, epidemics (including pandemics), war, terrorism (including cyberterrorism), failure of public utilities or damage or destruction of any network facilities (each an “event of force majeure”), then the execution of the obligations of the affected party will be excused during the continuation of any inability caused by an event of force majeure, but such inability will be remedied to the greatest extent possible and with all reasonable dispatch. Upon becoming aware of an event of force majeure, either party will give immediate notice to the other party. If an event of force majeure continues for a period exceeding three (3) months or another period as is mutually agreed to by the parties, the other party may terminate this agreement by giving the affected party seven (7) days’ notice of its intention to do so.
(b) Despite the occurrence of an event of force majeure, the party affected shall proceed with the execution of its obligations not thereby affected to the greatest extent possible.
(c) The provisions of this section shall not operate to excuse you from any obligation to pay money, except to the extent that PSD is not providing the service.
13.2 Governing Law and Jurisdiction
13.2.1 This Agreement
The validity, interpretation, and execution of this agreement shall be governed by the procedural and substantive laws of the Province of British Columbia and the laws of Canada applicable therein without regard to conflicts of laws and principles that would require the application of the laws of any other jurisdiction. All claims, suits, proceedings, or disputes arising hereunder shall be brought in and be subject to the sole and exclusive jurisdiction of the courts located in Vancouver, British Columbia.
13.2.2 Data Storage
The information you provide may be stored electronically on a server outside of Canada. The information will be protected with appropriate security safeguards but may be subject to access under the laws of the foreign jurisdiction.
13.3 Non-Exercise of Rights
The failure of either party to exercise in any respect any right provided for in this agreement will not be deemed a waiver of any further rights in this agreement.
Each provision of this agreement reasonably intended by its terms to survive termination or expiration of this agreement shall so survive.
The parties agree that during the term of this agreement, and for a period of two (2) years thereafter, neither party will, without the prior written consent of the other party, induce or attempt to induce or influence directly or indirectly, an employee of that other party to leave its employer; provided, however, that there will be no violation if an employee chooses to contact and gain employment through their own initiative or through any newspaper, trade, internet or other advertisements, job fairs, and the like or that is no longer employed by the other party, that has provided notice of resignation, or that has received notice of impending termination.
13.6 Unenforceable Provisions
If any provision of this agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be severed from this agreement with all other provisions remaining in full force and effect.
Any notices or other communication required or permitted under this agreement and intended to have legal effect must be given in writing to the other party at the address stated on the first page of the service agreement or such other address as a party may advise the other from time to time. Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be:
(a) delivered personally,
(b) sent via certified mail (return receipt requested),
(c) sent via facsimile (fax) or email (with confirmation of receipt), or
(d) sent by a recognized courier service.
13.8 Third-Party Rights
Nothing in this agreement is intended to nor shall it be construed as conferring on or giving to any party, other than the parties to this agreement and their permitted successors or assigns, any rights under this agreement.
The headings contained in this agreement are for reference purposes only and are not to be used in the interpretation of this agreement.
This agreement shall enure to the benefit of and be binding on the successors and assigns of you and PSD.