Fibre Service Level Agreement and Terms of Service
This document is an addendum to the Terms and Conditions Of Use and is applicable to Users subscribing and paying for 1429481 Ontario Inc. o/a Pathway Communications (“Pathway”)’s Fibre services and whose account is not in default. Pathway’s description of the Service Level Agreement for Fibre services are based on, and apply only to, the specific service offerings selected by the User. No other or additional services are provided or implied at any time under the terms of this Service Level Agreement for Fibre Services.
Pathway guarantees that its core network is equipped with Internet access, over multiple GigE connections, obtained from at least two different upstream providers with the ability to automatically switch between providers in the event one connection is down. Pathway’s core network is also equipped with UPS Power and a diesel-powered generator to provide a secondary source of power in the event of an electrical outage.
SERVICE GUARANTEE: 99.9% INTERNET AVAILABILITY
Pathway will guarantee 99.9% Internet availability, on an annual basis, for its Fibre service. Internet availability shall be interpreted as Internet connectivity up to, and not beyond, the Ethernet interface on the Pathway supplied Fibre router. Downtime shall be interpreted as Pathway’s failure to deliver Network Availability to the User for reasons directly attributable to Pathway. In the event that downtime occurs, the User will need to contact Pathway’s Technical Support Department within two business days of the incident to open a trouble ticket. Pathway will investigate the ticket and should Pathway discover that down time actually occurred, it will inform the User. If the amount of downtime during a year of service exceeds 0.5%, the User will be entitled to a service credit according to the following schedule: for every complete hour of downtime, the User will be entitled to a service credit (applied to their account) equal to one hour’s prorated Fibre service fees, up to a maximum of 50% of the Fibre service fees charged during the month that the downtime occurred. Should down time, as defined herein, persist for five consecutive business days, the User is free to terminate the Fibre service agreement without penalty.
SERVICE GUARANTEE: SPEED
Pathway guarantees that its Fibre service will provide access between the Pathway provided router and the Pathway core network at up to subscribed speeds, plus or minus 10%. Pathway cannot guarantee speeds to and from the Internet as the Internet is a global network outside the control of Pathway Communications. Should the client believe that their Pathway Fibre service has failed to adhere to this speed guarantee, they must contact Pathway Technical support immediately to report the problem and be prepared to participate in a remote test of the Fibre speed. Pathway may at its own accord, and at the client’s written request, dispatch a technician to test the speed of the service. Should it be established that Pathway has failed to deliver the service according to the speed guarantee, the User will not be charged for the visit and Pathway will work to restore the Fibre speed to its proper speed. Should the onsite technician establish that Pathway has delivered the service according to the speed guarantee; the User will be charged $100 per hour of onsite technician’s time. The User agrees that a positive speed test by a Pathway technical support agent or Pathway technician is sufficient proof that Pathway Communications has fulfilled this speed guarantee.
EXCEPTIONS TO THE SERVICE GUARANTEES
Announced maintenance periods are not covered by the service guarantees in this service level agreement and shall not be considered down-time. Pathway agrees to provide a minimum of 24 hours’ notice before commencing maintenance that may affect Fibre services and shall inform the User when maintenance is complete. In the unlikely event that you experience access problems with your Fibre service, Pathway or its authorized agents may require onsite access to the Fibre router and/or the Fibre circuit (usually located in the telephone room) during standard business hours (8am – 6pm on weekdays). Should Pathway require access to the Fibre router or circuit, Pathway agrees to provide at least two hours notice to the user. If the user is unable or unwilling to provide Pathway with access to the Fibre router or circuit at the time requested by Pathway, then the following time will not be considered down-time. Customer errors, whether intentional or accidental, and events at the customer premises, including but not limited to a power failure, that interfere with or prevent Pathway from delivering Internet access are not the responsibility of Pathway Communications and are not covered by the service guarantees. The service guarantees are inapplicable to Users who opt to supply and/or administrate their own Fibre router. Problems which are proximately caused by strikes, shortages, failure of suppliers, riots, insurrection, fires, floods, storms, earthquakes, acts of God, war, governmental action, labour conditions, or other causes beyond Pathway’s reasonable control are not covered by the service guarantees.
All Fibre service Users will be assigned a dedicated installation coordinator to facilitate the installation of their dedicated high-speed service. Installation will require a dedicated point of contact at the User’s organization to facilitate installation. This User is required to have an adequate understanding of networking, TCP/IP, and your office LAN setup. For a Fiber fed building, it is the goal of Pathway to complete Fibre service installation within 35 business days of receipt of a signed and properly executed Fiber service agreement. In the event that installation exceeds 35 business days, Pathway will inform the User of the reason(s) behind the delay and provide an updated completion date. For a non-fiber fed building, Pathway is unable to provide a targeted installation date and works with the assumption of 99+ working days.
FULLY MANAGED FIBRE ROUTER
Pathway will provide the use of a commercial grade Fibre to Ethernet router with our Fibre service. Pathway agrees to configure, monitor and manage the router for the user. Configuration change requests must be made, in writing to Pathway’s technical support department and are subject to Pathway approval. Within the base monthly price, the User is entitled to two router configuration changes per month. Additional changes at charged at $50 per change. Unused configuration changes cannot be carried over to the following month.
SUBJECT TO CHANGE AND APPLICABILITY
The Pathway Communications’ Server Fibre Service Level Agreement and General Conditions of Use are subject to change with 15 days’ notice. Please contact Pathway Communications for the most recent version of these documents. This service level agreement will be deemed inapplicable if it is discovered that the User or anyone at the User’s premises has taken any action, whether deliberate or otherwise, to disrupt Pathway’s ability to deliver the service as outlined in the agreement, including, not but limited to, logging in to the Pathway provided Fibre router.
SPECIFIC LIMITATIONS ON INSTALLATION AND USE OF FIBRE SERVICES
Unlimited Data transfer rate does not apply to users who offer ISP/ASP/Web hosting Services. You also agree that the assignment of any IP address to you in the configuration of this service is provided as a lease, or loan of the address number. IP address space is managed and maintained by an external organization (ARIN), and Pathway reserves the right to affect changes to IP assignments as necessary, required, or directed to do so. Pathway will exercise best efforts to provide you with as much advance notice as possible, and will work with you should changes be required. An early termination charge of $750 will be levied if the service is cancelled prior to the beginning of installation.
GENERAL CONDITIONS OF USE
1. The User agrees to use the Services only for lawful purposes and not for unauthorized copying, duplication, distribution, display or modification of any material or information protected by copyright or trademark or otherwise lawfully restricted (including, without limitation, software, programs, games and computer code). The User shall not use the Services for any purpose that is contrary to applicable laws or which is a nuisance. The User agrees not to transmit any material that is unwanted, threatening, abusive, obscene, discriminatory (including, without limitation, “hate” literature directed at any identifiable group) or in contravention of any law. The User agrees not to undertake mass-mail broadcasts of electronic mail (e-mail) or Usenet postings with the intent of sending unsolicited advertising to other users of the Internet. The User will not use IRC “bots” unless specifically authorized by Pathway. The User will be responsible for the actions and activities of any party who uses the Services using the User name identification and password of the User as provided by Pathway whether or not such person used the identification and password with the User’s consent or knowledge.
2. Pathway will not be responsible for temporary interruption of Services (whether due to utility service breakdown, excessive users, mechanical breakdown or other reasons) and the User will not be entitled to any refund for any such temporary interruptions so long as Pathway is actively seeking to correct the problem. If there is a material increase in the cost of providing the Services (such as, by way of example, an increase in the cost of telephone line charges from any ILEC or any form of tax on Internet use) Pathway will give you 30 days written notice of any increase to the rates of your services. As a result of this notice, you can, within 15 days of receipt of that notice, cancel your agreement with Pathway without any penalty. You will be responsible for paying any charges you incur up to the date of cancellation. If a charge on your credit card is denied or your cheque or automatic withdrawal is returned due to non-sufficient funds, you agree to immediately pay a $45 service charge. If you fail to do this within three business days, we will disconnect your services. There will be a service charge of 1.5% per month (18% per year) on any amounts owed to Pathway that are more than 30 days past due. You agree to pay Pathway $25.00 to reconnect Service(s) terminated under this Agreement.
3. Pathway will provide the Services using currently available technology and will avoid using any hardware, software or methods known to threaten User security. Beyond that, Pathway makes no warranties of any kind, whether expressed or implied, in relation to the accessibility, accuracy, reliability, safety or quality of the Services. Pathway does not guarantee the privacy of files or E mail or the security of any computer used to access the Services. Pathway has no responsibility for any damage suffered by any person, organisation, group or entity due to loss of data, delay, non-delivery or service interruptions in using the Services, whether or not caused by the negligence, errors or omissions of Pathway or those for whom it is responsible at law. Pathway exercises no control and has no responsibility whatsoever over the information passing through the Services. Use of any information obtained through the Services is at the User’s sole risk and User assumes full responsibility for the accuracy, reliability, quality or effect of information obtained through the Services. The User specifically waives any right to any consequential damages as a result of any failure of the Services, including, without limitation, loss of data or hardware, and under no circumstances will Pathway be liable to the User or any other party for any amount greater than the amounts paid by the User for Services, even in the event of the negligence of Pathway or a fundamental breach of this Agreement. The User agrees to indemnify and hold harmless, Pathway, their officers, directors, employees and agents from any and all claims resulting or arising from this Agreement, the User’s use of the Services and any breach of this Agreement by the User whether or not caused by the negligence or omission of Pathway or those for whom it is responsible at law.
4. Notwithstanding that the Pathway billing rates may be referred to or advertised as “monthly”, the actual billing period is thirty (30) days, regardless of the length of the current month. All payments for use of the Services are due in advance every thirty (30) days, commencing from the date the User’s Plan commences (when the User signs up with Pathway) and continuing until termination of this Agreement. Any Account that is more than 15 days late in any payment will be in default. Payments made by cheque which are returned for lack of funds or any other reasons will be in immediate default and subject to an additional returned check charge (currently $45) which must be paid before the Account is in good standing. The installation fee and first month’s service charges are payable in advance, and are required before your service can commence. Thereupon, all charges are billed in advance at the beginning of your billing period. This contract for the Service will remain in place for a minimum term of one, two, three or five years (which ever term is selected by the User on the order form) commencing from the date that the service is provisioned by Pathway and will be extended automatically for the same period thereafter. The contract will be extended automatically for similar term unless Pathway receives advance written notice of your intention not to continue with the service, at least two months prior to the completion of the initial or renewed service contract. Once such contract period has commenced, should you decide to terminate this contract before the expiration of the full contract period, you agree that you will be obliged to pay Pathway the full sum of the remainder of the contract period at the existing rate. The user is not entitled to any refund should they decide to terminate the annual services before the end of the contract term.
5. The User’s access to Services may be restricted and the Account terminated at any time, without notice, if the User is in default of this Agreement and upon such termination Pathway will have no obligation to make any refund or other payment (including, without limitation, refund of installation fees, prepaid fees or other credits for future Services) to the User. Despite any such termination, Pathway may pursue any other available recourse against the User, including barring the user from sending E-mail or other communication to the Pathway server from another server.
6. Pathway may, without notice, change the terms and conditions upon which the Services are provided (including, without limitation, changing the continuous use limits for dial up users and changing the rules of access to the Services) so long as Pathway continues to provide regular and reasonable access to the Services for the term of this Agreement. Pathway may terminate this Agreement at any time for any reason without notice to the User and upon such termination by Pathway, the User will be entitled to request that Pathway refund any credit that the Account may have for prepaid unused Services and the User will have no other recourse against Pathway whatsoever for such termination. If the User voluntarily terminates this Agreement or if the Account is terminated due to the default of the User, the User will not be entitled to any refunds from Pathway whatsoever.
7. All communications and notices between Pathway and the User will be conducted through E-mail unless otherwise agreed to by an authorised representative of Pathway. All such communications and notices will be deemed received by the User three days after being sent by E-mail by Pathway. The User specifically agrees that Pathway has no obligation to send any other notice to the User, even in the event of default. All notices from the User for modifications, changes, upgrades or termination of Services will be effective only if presented to, and received by, Pathway in writing or via E-mail. Such notices sent to Pathway by the User must be confirmed by return E-mail to be effective.
8. Each of the services is provided “as is” and “as available,” without warranty of any kind. Pathway does not warrant uninterrupted use or operation of any service, or that any data sent by or to you will be transmitted in uncorrupted form or within a reasonable period of time. All representations, warranties, endorsements and conditions of any kind, express or implied, including without limitation, warranties of title or non-infringement and any implied representations, warranties and conditions of fitness for a purpose and merchantable quality and those arising from a course of dealing or usage of trade are hereby excluded. Pathway shall have no liability to you for patent or copyright infringement or misappropriation of trade secrets with respect to any service provided by any third party through Pathway. Your course, in the event of any such claim with respect to any service, shall be solely against such third party.
9. Force Majeure. Neither party is liable for failure or delay in performance hereunder which is proximately caused by strikes, shortages, failure of suppliers, riots, insurrection, fires, floods, storms, earthquakes, acts of God, war, governmental action, labor conditions, or other cause beyond its reasonable control. The failure to make any payment required under this Agreement shall never be excused under this force majeure provision.
10. Pathway may by written notice to the User, cancel the Services if the user:(i) fails to perform or comply with any of the provisions of the order form or the Conditions of Service and Use (ii) commences any proceeding seeking relief or protection under any bankruptcy or insolvency laws, (iii) seeks to liquidate, dissolve or wind up its business or (iv) makes an assignment for the benefit of creditors for all or substantially all of its assets.
11. If the User moves to a new office location and wishes to relocate the Fibre connection, Pathway requires a minimum of thirty (30) business days notice in order to provision access at the new location. Additional charges may apply. In the event that we are unable to provide Fibre service or a similar service offering at the new location, you will still be responsible for fees payment until the end of your contract.
12. The user hereby expressly consents and grants Pathway Communications the right to make all credit inquiries necessary from time to time.
SPECIFIC TERMS AND CONDITIONS SURROUNDING EQUIPMENT
13.On the following terms and conditions, Pathway agrees to provide the User with the use of the property described below (the “Equipment”)
14. The Equipment shall be and shall remain at all times the sole property of Pathway. This agreement provides only for the locating of the Equipment with the User for the convenience of the User and creates no other property rights in the Equipment whatsoever. Pathway maintains the right to substitute, repair, remove, change or otherwise deal with the Equipment in whatever way it sees fit and at any time it deems appropriate.
15. The Equipment is provided to the User until such time as the User ceases to obtain Fibre Services from Pathway or until Pathway requires the return of the Equipment for service or other purposes. The Equipment is provided for use solely by the User and only in connection with the paid Fibre Services obtained by the User from Pathway. Pathway agrees to act reasonably and will not terminate or interrupt the User’s access to the Equipment without good reason.
16. Upon request from Pathway, the Equipment will be returned to Pathway at its Office in good working order without any dispute or delay whatsoever. The User confirms that it has no rights whatsoever in the Equipment (including, without limitation, the right to retain or use the Equipment) except as provided herein.
17. The User will use the Equipment properly and only for its intended use and will keep the Equipment clean, dry, in a well-ventilated location and in good repair. The User will not remove, lend out, disassemble, misuse, tamper with, modify or expose the Equipment to conditions that may result in damage to the Equipment. The User will not attempt to program, configure, turn off, or otherwise deal with the Equipment, except with the prior express permission, knowledge and assistance of Pathway. In the event that there is an interruption of service for any reason whatsoever due to failure of the Equipment, the User will immediately notify Pathway via telephone and in writing and will follow Pathway’s direction in dealing with the problem. Pathway will have no liability to the User whatsoever for interruption of use of the Equipment except as specifically set out herein or in the Fibre Service contract between the parties.
18. The User is fully responsible for any and all damages, which may occur to the Equipment during the period that the Equipment is in the User’s possession. Any cost of such damage, as determined by Pathway, acting reasonably, shall be paid to Pathway by the User within seven days of invoicing for the cost of such damage.
19. The User will provide Pathway with complete access to the Equipment, including access to the room and area where the Equipment is located, at any time that the Pathway so desires. Pathway is entitled to immediate access to the Equipment, without notice, at any time between 9 am and 5 p.m. on a business day (regardless of whether the User is open on that day) and at such other times as the parties may agree. In the event that the User is in default of this Agreement or of its Fibre service contract with Pathway, then the User hereby irrevocably directs its staff, landlord (if applicable) and any other custodial staff to permit Pathway access to the User’s premises to remove the Equipment.