NETMATRIX Services Account Agreement
This is a contract between you and NETMATRIX Internet Services, (Netmatrix Internet Company Inc, ASTI Consultants Ltd., Netmatrix Corporation & any and all of it's Parents, Subsidiaries, Affiliates and their Respective Officers, Directors, Agents, Employees, Suppliers, Resellers and Distributors (COLLECTIVELY, THE "NETMATRIX ENTITIES" AND EACH, A "NETMATRIX ENTITY"). It spells out the terms and conditions which apply to your use of the services provided by NETMATRIX (the "NETMATRIX Internet Services / NETMATRIX Internet Services") for the service plan that you have selected.
In addition, please note that your access to, use of or acceptance of a product, service or benefit through web sites, web pages and web services operated by NETMATRIX, its affiliates or partners (the "NETMATRIX Sites") may be subject to additional terms, policies and rules contained within the NETMATRIX Sites or otherwise made available to you.
By opening a NETMATRIX Internet Services or NETMATRIX Services account under your name, or company name or by using the NETMATRIX Services you are agreeing to be legally bound by and abide by the terms of this Agreement. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT SUBSCRIBE FOR, ACCESS OR USE THE NETMATRIX SERVICES AND YOU MUST IMMEDIATELY TERMINATE YOUR NETMATRIX SERVICES ACCOUNT, IF YOU HAVE ONE (see Section 57).
Amendments to this Agreement
1. NETMATRIX reserves the right to amend this Agreement at any time. However, NETMATRIX will use reasonable efforts to publish any amendments on its Member Services Web Site at http://www.NETMATRIX.com, as may be updated from time to time, (the "NETMATRIX Internet Services Web Site") before such amendments become effective. You are responsible for regularly reviewing the NETMATRIX Internet Services Web Site to obtain timely notice of such amendments. If any amendment is unacceptable, you may terminate your NETMATRIX Internet Services account (see Section 57). If you do not terminate your account before the effective date of the amendment, you will be conclusively deemed to have accepted the amendment.
2. You represent and warrant that you have reached the age of majority (at least 18 or 19 years of age) in the province or territory in which you reside and that you possess the legal right and ability to enter into this Agreement and use the NETMATRIX Internet Services or NETMATRIX Services in accordance with this Agreement.
3. As the NETMATRIX Services account holder, you are responsible for your account and the maintenance of all passwords related to your account. You are solely responsible and liable for any and all activities that occur under your account, including without limitation all activities of any sub-account holders. You are also responsible for maintaining the confidentiality of your account and all passwords related to your account. You agree to immediately notify NETMATRIX, as specified on the NETMATRIX Services Web Site, of any unauthorized use of your account or any passwords related to your account or of any other breach of security and to provide assistance to NETMATRIX, as requested, to stop and/or remedy any breach of security.
4. You acknowledge that you have read the NETMATRIX Privacy Commitment at http://www.NETMATRIX.com (as it may be updated from time to time) (the "NETMATRIX Privacy Commitment") and hereby consent to the collection, use and disclosure by NETMATRIX and its agents of your personal information (whether previously collected or to be collected) for the purposes identified in the NETMATRIX Privacy Commitment. NETMATRIX' use of customer information is also subject to applicable terms and conditions contained in NETMATRIX' General Terms of Service (as amended from time to time), copies of which are available from NETMATRIX.
5. You agree to provide true, current, accurate and complete customer information as prompted by NETMATRIX' registration process or as otherwise requested by NETMATRIX or its agents and you agree to promptly notify NETMATRIX, by means specified on the NETMATRIX Internet Services Web Site, of any changes to this information as required to keep it current, complete and accurate.
Billing and Payment
6. You agree to pay all fees and charges (and applicable taxes) incurred which relate to the provision and/or use of the NETMATRIX Internet Services through your account, in accordance with the rates, terms and conditions established from time to time by NETMATRIX that are applicable to the service plan which you have selected. Such rates, terms and conditions will be posted on the NETMATRIX Internet Services Web Site or otherwise made available to you by NETMATRIX. NETMATRIX shall begin charging you on the date that you subscribe for the NETMATRIX Internet Services, unless otherwise specified by NETMATRIX.
7. Available billing and payment options may vary depending on your location (i.e. the location of the telephone number associated with your NETMATRIX Internet Services account) (your "Customer Access Location") and NETMATRIX reserves the right to modify the forms of payment it will accept, at any time, in its sole discretion. If charges are included on your NETMATRIX phone bill, such charges are due on the due date shown on such bill. If payment is not received by NETMATRIX by this due date, interest shall accrue on the outstanding amount at a rate which is the lesser of 8% per month (96% compounded annually) and/or the maximum permitted by law. If a pre-authorized bank (or other financial institution) account debit (a "Bank Account Debit"), where applicable, is returned unprocessed to NETMATRIX, NETMATRIX reserves the right to apply a returned payment fee of $300.00, plus applicable taxes, to your account.
8. Your right to use the NETMATRIX Services is subject to any limits established by your credit card issuer or financial institution, if applicable. By using a credit card, Bank Account Debit, or other payment method you expressly authorize NETMATRIX or its agents to charge all fees and charges incurred by you under this Agreement to such card, account or other payment method and such authorization will survive termination of this Agreement until there are no charges owing by you under this Agreement. If you use a credit card, Bank Account Debit or other payment method and NETMATRIX does not receive payment from the card issuer or its agents, the financial institution or its agents, or through the other payment method, as applicable, you agree to pay all amounts due, upon demand by NETMATRIX.
9. Any failure of NETMATRIX to provide you with a bill or statement pursuant to this Agreement does not affect your responsibility to pay any incurred charges. Unless you notify NETMATRIX of any errors, discrepancies or irregularities in any billing within 10 days after they first appear on your bill or statement, such bill or statement will be deemed accepted by you for all purposes. Without limiting anything else in this Agreement, you agree to release NETMATRIX from any and all liability and claims of loss resulting from any errors, discrepancies or irregularities that are not reported to NETMATRIX within 10 days of the publication date of the applicable bill or statement.
10. You agree to pay all costs incurred by NETMATRIX in the collection of any delinquent charges due under this Agreement or in the enforcement of this Agreement, including without limitation, lawyers' fees.
11. The NETMATRIX Internet Services offer a variety of access speeds and service plans. All services are subject to the availability of suitable equipment and facilities and consequently all services are not available at all locations.
12. Final confirmation of service availability for NETMATRIX Internet Services high speed services cannot occur until the NETMATRIX Internet Services high speed equipment is installed at your premises. If such equipment is installed by a NETMATRIX installer, you hereby authorize the installer to disclose to NETMATRIX the necessary information to confirm service availability for your premises.
13. It is your responsibility to ensure that your equipment and software meet the current minimum system requirements specified by NETMATRIX as being necessary for access to the NETMATRIX Internet Services. From time to time, the equipment and/or software required to access the NETMATRIX Internet Services may change. Accordingly, your equipment and/or software may cease to be adequate to access the NETMATRIX Internet Services. In such circumstances, your sole remedy is to terminate your NETMATRIX Internet Services account.
14. You are not permitted to operate an e-mail, web, news or other similar server through a NETMATRIX Internet Services high speed service, except as specified by NETMATRIX.
15. Reverse engineering of the NETMATRIX Internet Services high speed service is not permitted. This means that you cannot have a higher upload than download speed.
16. NETMATRIX does not guarantee that the NETMATRIX Services will operate with all equipment or software, including without limitation all Internet applications and appliances.
General Practices and Limits
17. You acknowledge that NETMATRIX may establish general practices and limits concerning use of the NETMATRIX Internet Services, including without limitation the maximum size of any e-mail message that may be sent from or received by a NETMATRIX Internet Services account, the maximum disk space that will be allotted on NETMATRIX' servers on your behalf, the maximum amount of data that may be sent from or received by a NETMATRIX Internet Services account and the maximum number of days that e-mail messages will be stored on NETMATRIX' servers. Such general practices and limits shall be posted on the NETMATRIX Internet Services Web Site or otherwise made available to you. You agree to comply with all such general practices and limits. You acknowledge that such general practices and limits may differ for different portions of the NETMATRIX Internet Services and may be set at different levels for different users based upon factors that may be determined in NETMATRIX' sole discretion. NETMATRIX reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice. You further agree that violating such practices or exceeding such limits may result in suspension, restriction or termination of your account or the imposition of additional charges.
High Speed Service Installation
18. Installation options available for NETMATRIX Internet Services high speed service (e.g. NETMATRIX Quick Connect self-installation, NETMATRIX installation without an Ethernet Network Interface Card ("NIC"), NETMATRIX installation with a NIC) will depend upon the Customer Access Location. Not all installation options are available at all Customer Access Locations.
19. Extra charges shall apply to all services not included in NETMATRIX' standard installation options.
20. You authorize NETMATRIX, its employees, agents, contractors and representatives, to enter your premises and access your equipment and software for the purpose of installing, maintaining, inspecting, repairing or removing any equipment or software as reasonably required for the provision of the NETMATRIX Internet Services. Access to your premises will be at a time that is mutually convenient for you and NETMATRIX.
21. The standard installation configuration for self-installation or NETMATRIX installation only includes the installation of the high speed modem to 1 stand alone computer or non-networked server. If you wish to connect additional computers to the Internet you are responsible for installing and maintaining the necessary systems and their configurations.
22. You agree to comply with the terms of the NETMATRIX High Speed User Guide supplied by NETMATRIX, where applicable.
23. You must provide an adequate, standard household power outlet within 1.8 metres of the location that the high speed modem is to be installed.
24. You must provide a suitable location for the installation of the high speed modem and associated components within 1.8 metres of the computer to be used for access to the NETMATRIX Internet Services. The location must provide reasonable ventilation and protection from damage to, or theft or loss of, the high speed modem and associated components.
25. Additional charges shall apply when it is necessary for NETMATRIX to install special equipment or software or to incur an unusual expense to establish the NETMATRIX Internet Services.
26. All site visits will involve a minimum charge for moves, changes, rearrangements or re-installations of a high speed service, unless otherwise specified by NETMATRIX.
27. In no event will NETMATRIX be responsible or liable for any claims, damages, losses or expenses, including without limitation lost wages or missed work, in the event that an installation appointment for the NETMATRIX Internet Services is missed, either by NETMATRIX or by any third party installer.
28. The high speed modem and associated components and the POTS Splitter are provided for your use as part of the NETMATRIX Internet Services high speed service and are at all times owned by NETMATRIX (unless you are using the NETMATRIX QuickConnect package). You hereby agree not to sell, transfer, lease, assign any interest in, or encumber all or any part of the NETMATRIX-owned high speed equipment.
Customer Equipment and Software
29. The NETMATRIX Internet Services high speed service must be connected to a suitable NIC installed at your premises. If you are supplying and installing the NIC yourself, you must install the NIC as appropriate prior to the installation of the high speed modem. Alternatively, if you purchase the NIC along with installation of the NIC from NETMATRIX when ordering the NETMATRIX Internet Services (not available in all locations), you must ensure that there is a suitable free NIC slot available in your computer prior to arrival of the NETMATRIX installer at your premises. In all cases, NETMATRIX will not remove NICs from your computer (except as required for support of NICs purchased from NETMATRIX pursuant to Section 36 hereof) or rearrange NICs in your computer.
30. You are required to show that your computer is functioning properly prior to NETMATRIX doing any work on your computer (where applicable).
31. You agree that NETMATRIX is not responsible for any damage to or loss of your data, equipment or software arising from installation or maintenance of the NETMATRIX Internet Services or from other services provided at your premises. NETMATRIX recommends that you back-up all existing computer files by copying them to a different storage device prior to the installation or maintenance of any NETMATRIX Internet Services high speed equipment or software.
32. The NETMATRIX Internet Services high speed service may interrupt the functioning of some home or business security systems which use the same phone line(s) as the NETMATRIX Internet Services. You agree that NETMATRIX is not responsible for any such problems or interruptions. You are responsible for ensuring that your premises are appropriately wired to ensure proper functioning of any home or business security systems, prior to installation of the NETMATRIX Internet Services.
33. You acknowledge and agree that, except as otherwise explicitly stated in this Agreement, NETMATRIX is not responsible for the installation, operation, maintenance or support of any equipment or software owned or used by you, including without limitation any equipment or software used in connection with the NETMATRIX Internet Services.
Software Supplied by NETMATRIX
34. You agree that any and all software and documentation that forms part of the NETMATRIX Internet Services or that is supplied by NETMATRIX, its agents or representatives for use in connection with the NETMATRIX Internet Services (the "Software") is protected by applicable intellectual property laws, remains the sole property of NETMATRIX or its suppliers and is supplied subject to the terms of this Agreement, including without limitation the Disclaimers and Limitation of Liability herein, and the terms of any applicable Software license made available to you by NETMATRIX. Unless otherwise authorized by NETMATRIX or in the applicable Software license, you agree not to:
a. copy, modify, rent, lease, loan, sell, assign, sublicense, grant a security interest in or otherwise transfer any right or interest in the Software;
b. distribute, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover the source code, of the Software;
c. remove any proprietary notices or labels on or in the Software; or
d. allow any other person or entity to engage in any of the foregoing activities.
35. The NETMATRIX Internet Services Help Desk will provide telephone assistance on a reasonable efforts basis, via the telephone number and during the hours specified on the NETMATRIX Internet Web Site. Assistance is limited to your problems using the NETMATRIX Internet Services and may exclude problems related to certain equipment and software, as specified by NETMATRIX, in its discretion. NETMATRIX cannot guarantee the resolution of any particular problem or NETMATRIX Internet Services interruption. NETMATRIX will make every reasonable effort to answer requests with in a 24 - 48 hours period. NETMATRIX makes no guarantee requests will be answer with in this time period.
36. During the term of this Agreement, NETMATRIX will provide on-site support (including, at NETMATRIX' option, repair or replacement of equipment that is defective in material or workmanship) for all NETMATRIX-owned equipment. In addition, NETMATRIX will provide on-site support for NICs purchased from NETMATRIX, where applicable, for a maximum of 30 days from the date of installation. After that, support for the NIC becomes your responsibility.
37. You acknowledge that it is possible that the access numbers used by your modem to connect to the NETMATRIX Internet Services may be telephone numbers that result in additional and/or long distance charges being billed to you. You are solely responsible for determining whether the access numbers you are using are subject to any additional and/or long distance charges and you agree to pay all such charges, including without limitation those that may be billed to you by a third party. NETMATRIX will not reimburse you for any charges incurred by you as a result of selecting access numbers that are subject to additional and/or long distance charges. Information concerning additional and long distance charges is available on the NETMATRIX Internet Services Web Site.
38. You acknowledge that the NETMATRIX Internet Services provide access to content, information and materials that are uncensored. You acknowledge that some of the content, information and material that is available through the NETMATRIX Internet Services and the Internet may be inaccurate, offensive, harmful or in violation of applicable laws. NETMATRIX recommends that minors using the NETMATRIX Internet Services be supervised by an adult.
Acceptable Use of the NETMATRIX Internet Services
39. The NETMATRIX Internet Services may be used only for lawful purposes. You agree that you will not:
a. post, upload, reproduce, distribute or otherwise transmit unauthorized or unsolicited commercial e-mail, junk or bulk e-mail, chain letters or other "spam";
b. engage in threats, harassment, intimidation, stalking or abuse of others;
c. scan or probe another computer system;
d. obstruct or bypass computer identification procedures;
e. engage in unauthorized computer or network trespass;
f. export equipment, software or data outside of Canada or the United States in contravention of applicable export control legislation;
g. post, upload, reproduce, distribute or otherwise transmit information or materials where such activity gives rise to civil liability, or otherwise violate the rights or assist others to violate the rights of NETMATRIX or any third party; such violations include but are not limited to engaging in copyright infringement, trademark infringement and defamation;
h. post, upload, reproduce, distribute, or otherwise transmit information or materials where such activity constitutes a criminal offence, or otherwise engage in or assist others to engage in any criminal offence; such offences include, but are not limited to, communicating hatred, pyramid selling, unauthorized use of a computer, mischief in relation to data, fraud, obscenity and child pornography;
i. engage in or assist others to engage in any activity that otherwise violates established or accepted network etiquette, violates applicable charters, FAQ's, policies, rules or guidelines of NETMATRIX Internet Services or other parties, disrupts or threatens the integrity, operation or security of the NETMATRIX Internet Services or any computer or Internet system, elicits complaints from other Internet users, is contrary to any law or regulation or, in the sole judgement of NETMATRIX Internet Services, is otherwise objectionable;
j. otherwise violate NETMATRIX' Acceptable Use Policy at
http://www.NETMATRIX.com, as it may be updated from time to time;
k. use or register NETMATRIX' trade-marks, trade names or logos, including without limitation any such trade-marks, logos or service marks displayed on any web site(s) operated by NETMATRIX, without NETMATRIX' express prior written permission;
l. share, resell, reproduce, copy, distribute, redistribute, or exploit for any commercial purposes, any portion of, use of or access to, the NETMATRIX Internet Services, except where expressly authorized by NETMATRIX; or
m. allow any other person or entity to engage in any of the foregoing activities while using your NETMATRIX Internet Services account.
40. If at any time you become aware of any violation, by any person or entity, of the acceptable use rules set out in Section 39 above, which involves your account, you agree to immediately notify NETMATRIX and provide NETMATRIX with assistance, as requested, to stop and/or remedy such violation.
41. Without limiting any of NETMATRIX' rights to suspend, restrict or terminate your NETMATRIX Internet Services account as described elsewhere in this Agreement, NETMATRIX may suspend, restrict or terminate your NETMATRIX Internet Services account without notice if, in NETMATRIX' sole and absolute discretion, you have violated any of the acceptable use rules set out in Section 39 above. You acknowledge and agree that NETMATRIX shall not be responsible or liable to you or any third party for any suspension, restriction or termination of your account.
42. Netmatrix reserves the right to block in whole or in part "any email" transmit authorized or unauthorized, unsolicited commercial e-mail, junk or bulk e-mail, chain letters or other "spam" or any email Netmatrix deems as unsolicited commercial email or "SPAM". You acknowledge and agree that NETMATRIX shall not be responsible or liable to you or any third party for any rejection, deletion, suspension, restriction, redirection or termination of any email Netmatrix deems as unsolicited commercial email or "SPAM".
43. You acknowledge that content, including but not limited to text, software, music, sound, photographs, video, graphics or other material accessed through the NETMATRIX Internet Services or the Internet is protected by applicable copyrights, trade-marks, patents, trade secrets and/or other proprietary rights and laws. You further acknowledge that, except where expressly stated otherwise, all programs, services, processes, designs, technologies, materials and all other things comprising the NETMATRIX Internet Services are owned by NETMATRIX, its licensors or its suppliers and are protected by applicable copyrights, trade-marks, patents, trade secrets and/or other proprietary rights and laws.
44. NETMATRIX does not claim ownership of information, materials, software or other content (collectively, the "Content") that you post, upload, input, provide, submit or otherwise transmit to NETMATRIX or any third party, using the NETMATRIX Internet Services. However, you agree that by posting, uploading, inputting, providing, submitting or otherwise transmitting the Content to NETMATRIX or any third party, using the NETMATRIX Internet Services, you have thereby granted NETMATRIX a royalty-free, non-exclusive license to use, copy, distribute, transmit, display, edit, delete, publish and translate such content to the extent reasonably required by NETMATRIX to provide the NETMATRIX Internet Services to its customers or to ensure adherence to or enforce the terms of this Agreement.
45. You acknowledge that, except where otherwise specified by NETMATRIX, IP addresses and e-mail addresses assigned to you by NETMATRIX during the term of this Agreement remain the property of NETMATRIX at all times.
46. You understand that the technical processing and transmission of the NETMATRIX Internet Services, including your content, materials or other information, may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices. You further acknowledge that any content, materials or information that you may access through the NETMATRIX Internet Services may be subject to "caching" at intermediate locations on the Internet.
47. You acknowledge that NETMATRIX has no obligation to censor or monitor use of the NETMATRIX Internet Services by you, any customer or any third party, including without limitation any obligation to censor or monitor any content, material or other information sent, received or accessible through the NETMATRIX Internet Services or the Internet. However, you agree that NETMATRIX has the right to, without notice, monitor use of the NETMATRIX Internet Services and monitor, review and retain such content, material or information if NETMATRIX believes in good faith that such activity is reasonably necessary to provide the NETMATRIX Internet Services to customers, ensure adherence to or enforce the terms of this Agreement, comply with any laws or regulations, respond to any allegation of illegal conduct or claimed violation of third party rights, or protect itself or others.
48. In the event that NETMATRIX receives a complaint relating to use of the NETMATRIX Internet Services by a customer, NETMATRIX may, in its sole and absolute discretion and without notice or liability, investigate the complaint, restrict, suspend or terminate the account(s) involved and/or remove any content, information or materials from its servers.
49. You agree that NETMATRIX may, without notice or liability, disclose to third parties any customer information or any content, information or materials associated with a NETMATRIX Internet Services account, if NETMATRIX believes in good faith that such activity is reasonably necessary to provide the NETMATRIX Internet Services to customers, ensure adherence to or enforce the terms of this Agreement, comply with any laws or regulations, respond to any allegation of illegal conduct or claimed violation of third party rights, or protect itself or others.
50. NETMATRIX reserves the right to change the NETMATRIX Internet Services charges, service plan features, e-mail addresses, minimum equipment and software requirements and any other aspect of the NETMATRIX Internet Services at any time, without notice or liability, at NETMATRIX' sole and absolute discretion. If you do not agree to such changes, your sole remedy will be to terminate your NETMATRIX Internet Services account (see Section 57).
51. YOU ACKNOWLEDGE AND AGREE THAT:
a. ALL USE OF THE NETMATRIX INTERNET SERVICES IS AT YOUR OWN RISK;
b. THE NETMATRIX INTERNET SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS;
c. NETMATRIX DOES NOT GUARANTEE ERROR-FREE OR UNINTERRUPTED OPERATION OF THE NETMATRIX INTERNET SERVICES;
d. NEITHER NETMATRIX NOR ITS SUPPLIERS ARE RESPONSIBLE OR LIABLE FOR LOSS, DELETION OR ALTERATION OF ANY TRANSMISSIONS OR DATA, INCLUDING WITHOUT LIMITATION ANY E-MAIL MESSAGES, FOR ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, OR FOR ANY TRANSACTIONS ENTERED INTO THROUGH OR USING THE NETMATRIX INTERNET SERVICES, INCLUDING WITHOUT LIMITATION DOMAIN NAME REGISTRATIONS, RENEWALS AND TRANSFERS;
e. NETMATRIX IS NOT RESPONSIBLE OR LIABLE FOR ANY ACT OR OMISSION OF ANY THIRD PARTY, INCLUDING BUT NOT LIMITED TO ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONDUCT OR ANY INFRINGEMENT OF ANOTHER'S RIGHTS, INCLUDING WITHOUT LIMITATION INTELLECTUAL PROPERTY RIGHTS;
f. NEITHER NETMATRIX NOR ITS SUPPLIERS ARE RESPONSIBLE FOR ANY CONTENT THAT IS TRANSMITTED THROUGH THE NETWORKS OF NETMATRIX OR OTHERS OR THAT IS SENT, RECEIVED OR ACCESSED USING THE NETMATRIX INTERNET SERVICES, BY YOU OR ANY THIRD PARTY; AND
g. NETMATRIX IS NOT RESPONSIBLE OR LIABLE FOR LOSS OR DAMAGE TO YOUR EQUIPMENT, SOFTWARE OR DATA ARISING DIRECTLY OR INDIRECTLY OUT OF INSTALLATION OR MAINTENANCE OF THE NETMATRIX INTERNET SERVICES.
52. NETMATRIX MAKES NO CONDITIONS, WARRANTIES OR REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, USABILITY, SECURITY, QUALITY, CAPACITY, PERFORMANCE, AVAILABILITY, TIMELINESS OR ACCURACY OF THE NETMATRIX INTERNET SERVICES, ANY OTHER PRODUCTS OR SERVICES SUPPLIED UNDER THIS AGREEMENT OR THE NETWORKS OF THIRD PARTIES. NETMATRIX EXPRESSLY DISCLAIMS ALL CONDITIONS, WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE AND NON-INFRINGEMENT, WHETHER ARISING BY USAGE OF TRADE, COURSE OF DEALING, COURSE OF PERFORMANCE OR OTHERWISE.
53. THE NETMATRIX WEB SITE(S) WHICH YOU MAY VISIT WHILE USING THE NETMATRIX INTERNET SERVICES MAY CONTAIN LINKS TO OTHER WEB SITES. THESE LINKS ARE PROVIDED SOLELY AS A CONVENIENCE TO YOU AND THE INCLUSION OF ANY SUCH LINK DOES NOT IMPLY ENDORSEMENT, INVESTIGATION OR VERIFICATION BY NETMATRIX OF SUCH WEB SITES OR THE INFORMATION CONTAINED THEREIN. NETMATRIX IS NOT RESPONSIBLE FOR THE CONTENTS OF ANY SUCH WEB SITES AND MAKES NO REPRESENTATIONS, CONDITIONS OR WARRANTIES REGARDING ANY OTHER WEB SITES. IF YOU DECIDE TO ACCESS OTHER WEB SITES, YOU DO SO AT YOUR OWN RISK.
Limitation of Liability
54. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL NETMATRIX, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUPPLIERS, RESELLERS AND DISTRIBUTORS (COLLECTIVELY, THE "NETMATRIX ENTITIES" AND EACH, A "NETMATRIX ENTITY") BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES OR LOSSES WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, OPPORTUNITY, EARNINGS, USE OR DATA, ARISING DIRECTLY OR INDIRECTLY FROM OR RELATED TO THIS AGREEMENT OR THE NETMATRIX INTERNET SERVICES, REGARDLESS OF THE CAUSE OF ACTION AND EVEN IF ONE OR MORE OF THE NETMATRIX ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO DAMAGES OR LOSSES ARISING FROM OR IN ANY WAY RELATED TO THE FOLLOWING:
a. THE PERFORMANCE OF THE INTERNET;
b. THE CONTENT OR ACCURACY OF ANY MATERIAL, INFORMATION OR DATA (INCLUDING WITHOUT LIMITATION ANY SOFTWARE) VIEWED, DOWNLOADED, ACCESSED OR TRANSMITTED OVER OR THROUGH THE INTERNET OR THE NETMATRIX INTERNET SERVICES, INCLUDING WITHOUT LIMITATION MATERIAL WHICH INFRINGES THE RIGHTS OF OTHERS OR OTHERWISE VIOLATES LAWS OR REGULATIONS;
c. THE VIEWING, DOWNLOADING, TRANSMITTING, ACCESSING, PURCHASING OR BY ANY OTHER MEANS ACQUIRING ANY INFORMATION, MATERIAL, PRODUCT OR SERVICE ACCESSIBLE THROUGH THE INTERNET OR THE NETMATRIX INTERNET SERVICES;
d. DELAYS, ERRORS, INTERRUPTIONS, MISTAKES, OMISSIONS, NON-DELIVERY, INCORRECT DELIVERY, VIRUSES OR DEFECTS IN THE TRANSMISSION OF ANY INFORMATION, MATERIAL OR DATA OVER OR THROUGH NETMATRIX' SYSTEMS OR NETWORKS OR THE SYSTEMS OR NETWORKS OF THIRD PARTIES; AND
e. INSTALLATION OR MAINTENANCE OF THE NETMATRIX INTERNET SERVICES, BY YOU, NETMATRIX OR THIRD PARTIES.
55. CIRCUMSTANCES MAY ARISE IN WHICH YOU OR ANOTHER PARTY IS ENTITLED TO RECOVER DAMAGES FROM ONE OR MORE OF THE NETMATRIX ENTITIES. IN SUCH INSTANCE, THE AGGREGATE LIABILITY OF THE NETMATRIX ENTITIES FOR DAMAGES IS LIMITED TO $1.00.
56. You agree to indemnify and hold harmless each of the NETMATRIX Entities from all demands, claims, awards, actions, proceedings, damages, losses, costs, charges and expenses, including legal fees, incurred by or made against the applicable NETMATRIX Entity, which result from or relate to:
a. access to or use, by you or any third party, of your NETMATRIX Internet Services account; or
b. any of your acts or omissions, including without limitation breach or non-performance of this Agreement and any violation of third party rights.
57. You may stop using the NETMATRIX Internet Services at any time and terminate your account by:
a. contacting NETMATRIX through the number identified on the NETMATRIX Internet Services Web Site and requesting account termination; or
b. sending an e-mail to NETMATRIX at the address identified on the NETMATRIX Internet Services Web Site, specifying the following:
i. your request for account termination;
ii. your name and contact telephone number;
iii. your userID or username;
iv. if a pre-authorized payment plan is used, the last 4 digits and expiry date of your credit card or the last 4 digits of your financial institution account number and the name of the financial institution used for billing; and
v. your reason for terminating your account (optional).
58. NETMATRIX will process your termination request effective:
a. the date your request is received, if your Customer Access Location is in Alberta; or
b. the next billing date following receipt of your request, if your Customer Access Location is in a province or territory other than Alberta.
59. NETMATRIX may, in its sole discretion, suspend, restrict or terminate your NETMATRIX Internet Services account, effective at any time, without notice to you, for any reason, including without limitation because:
a. the operation or efficiency of the NETMATRIX Internet Services are impaired by the use of the NETMATRIX Internet Services from your account;
b. any amount is past due from you to NETMATRIX;
c. NETMATRIX has received a third party complaint which relates to the use or misuse of the NETMATRIX Internet Services from your account; or
d. you have been or are in breach of any term or condition of this Agreement.
e. for any other reason NETMATRIX deems necessary, at it's sole discretion.
60. Termination of your NETMATRIX Internet Services account by you or NETMATRIX automatically terminates this Agreement.
61. In the event that your NETMATRIX Internet Services account is suspended, restricted or terminated, additional reconnection charges will apply bringing from 6 - 12 months your you normal monthly rate, payable in advance.
62. NETMATRIX shall have no responsibility to notify any third party, including any third party providers of services, merchandise or information, of any suspension, restriction or termination of your account. In the event your account is suspended, restricted or terminated, NETMATRIX shall have no obligation to forward any unread or unsent messages to you or any third party or to maintain any messages, information or other content related to your account and you acknowledge that all such messages, information and content may be immediately deleted. Without limiting the generality of the foregoing, you acknowledge that upon suspension, restriction or termination of your account, all e-mail addresses related to your account may be immediately deleted and/or reassigned to other customers.
63. Any termination of your account shall not relieve you from any amounts owing or other liability accruing under this Agreement prior to the time that such termination becomes effective.
64. You agree to return any NETMATRIX-owned high speed modems and associated components to a NETMATRIX approved depot within 14 days of termination of a NETMATRIX Internet Services high speed service account, unless otherwise directed by NETMATRIX. If you do not return such equipment in accordance with the foregoing, if such equipment is returned damaged, or if you have assigned, encumbered, sold, transferred or leased such equipment, you agree to pay a $300.00 charge, plus applicable taxes.
65. This Agreement, including any and all documents, web sites, rules, terms and policies referenced herein, constitutes the entire agreement between ETMATRIX and you with respect to the matters referred to in this Agreement and supersedes all prior and contemporaneous agreements and understandings, whether electronic, oral or written, between NETMATRIX and you with respect to such matters.
66. The failure of NETMATRIX to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between you and NETMATRIX nor trade practice shall act to modify any provision of this Agreement.
67. In the event that any portion of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intention of you and NETMATRIX, and the remainder of this Agreement shall remain in full force and effect.
68. This Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta, Canada. You hereby irrevocably consent to the exclusive jurisdiction of the courts of the Province of Alberta and the federal courts situated in the Province of Alberta in connection with any matter arising under this Agreement. Use of the NETMATRIX Internet Services in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation this Section, is prohibited.
69. Any cause of action you may have with respect to this Agreement or the NETMATRIX Internet Services must be commenced within 1 year after the claim or cause of action arose, or it shall be barred.
70. All references to NETMATRIX web site addresses in this Agreement shall also include any successor or replacement web sites containing substantially similar information as the referenced web site(s).
71. NETMATRIX may at any time assign its rights and obligations under this Agreement, in whole or in part, without notice to you. You may not assign this Agreement.
72. This Agreement will enure to the benefit of and bind you and NETMATRIX and our respective personal and legal representatives, successors and permitted assigns.
73. All monetary amounts expressed in this Agreement are in Canadian dollars, unless otherwise expressly stated.
74. The rights, powers and remedies of NETMATRIX in this Agreement, including without limitation the right to suspend, restrict or terminate any NETMATRIX Internet Services account, are cumulative and in addition to and not in substitution for any right, power or remedy that may be available to NETMATRIX at law or in equity.
75. The following provisions shall survive termination of this Agreement: Sections 6-10, 28, 33-34, 45, 47-49, 51-56, 60-78 and any other provisions that by their meaning are intended to survive termination of this Agreement.
76. You agree that no joint venture, partnership, employment or agency relationship exists between NETMATRIX and you as a result of this Agreement or use of the NETMATRIX Internet Services.
77. The section headings in this Agreement are for convenience only and have no legal or contractual effect.
78. NETMATRIX and you acknowledge and agree that: (a) the charges for, and availability of, the NETMATRIX Internet Services are in no way contingent or conditional on your subscription for the provision of any tariffed or tariffable service from a NETMATRIX affiliate; and (b) non-forborne telecommunications services, and bundled services that include non-forborne telecommunications services, are required to be provided, and shall only be provided, in accordance with tariffs approved by the Canadian Radio-television and Telecommunications Commission. Tariffs applicable to the NETMATRIX Internet Services include the following: None (the NETMATRIX Internet Services are either non-regulated or forborne).
Effective Jan 1, 2000