ARCHIVED - Telecom Order CRTC 2004-331
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Telecom Order CRTC 2004-331 |
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| Ottawa, 1 October 2004 | |
Cybersurf Corp. v. Shaw Cablesystems G.P. - Reseller agreement |
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| Reference: 8638-C12-200405268 and 8622-C122-200400656 | |
| In this order, the Commission directs Cybersurf Corp. (Cybersurf) and Shaw Cablesystems G.P. (Shaw) to enter into the Resale Agreement attached to this order. The Resale Agreement will remain in effect from the date of this order until Cybersurf and Shaw replace it with a mutually acceptable agreement or mutually agree on amendments to it. The Commission notes that any subsequent resale agreement negotiated between the parties or any subsequent mutually agreed modifications do not require Commission approval. | |
| The Commission denies Cybersurf's request to make the Resale Agreement final if Cybersurf and Shaw are unable to reach a mutually acceptable resale agreement within 45 days of the date of this order. | |
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1. |
In Cybersurf Corp. v. Shaw Cablesystems G.P. - Enforcement of Telecom Decision CRTC 2003-87, Telecom Decision CRTC 2004-24, 2 April 2004, (Decision 2004-24), the Commission directed Cybersurf Corp. (Cybersurf) and Shaw Cablesystems G.P. (Shaw) to enter into a higher-speed retail Internet service resale agreement within 45 days of the date of the decision. The Commission stated that if Shaw and Cybersurf were unable to reach a resale agreement within 45 days of the date of the decision, the Commission would be inclined to require the parties to apply the relevant provisions of the previously agreed third party Internet access (TPIA) agreement, or the TPIA tariff, modified as required to provide for resale. |
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2. |
The Commission received a letter dated 12 May 2004 from Cybersurf requesting that the Commission issue an order directing Shaw to adopt the terms of a draft higher-speed retail Internet service resale agreement (12 May 2004 draft) it had prepared. Cybersurf indicated that its draft agreement incorporated the relevant provisions of Shaw's TPIA tariff, appropriately modified for resale by Cybersurf of Shaw's higher-speed retail Internet service. |
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3. |
In a letter to Shaw and Cybersurf dated 14 May 2004, the Commission requested that Cybersurf and Shaw provide comments on the Commission proposal in Decision 2004-24 to apply the terms of Shaw's TPIA tariff, modified as required for resale, and requested Shaw to provide comments on Cybersurf's 12 May 2004 draft. |
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4. |
In its response filed 17 May 2004, Shaw opposed Cybersurf's request to the Commission and the possible imposition of Shaw's TPIA tariff for the resale by Cybersurf of its higher-speed retail Internet service. Shaw submitted that neither action was required to launch resale of its higher-speed retail Internet service as Cybersurf was already reselling Shaw's higher-speed Internet service in Calgary and either action would raise more issues than it would resolve, including significant issues of procedural fairness. |
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5. |
In its response filed 17 May 2004, Cybersurf filed a revised version of the 12 May 2004 draft, (the 17 May 2004 draft) with an explanation of the modifications it made to Shaw's TPIA tariff for the purpose of the 17 May 2004 draft. Cybersurf submitted that the proposed terms of service in its 17 May 2004 draft were prima facie reasonable, balanced and fair to both Cybersurf and Shaw. Cybersurf requested that the Commission approve the 17 May 2004 draft and the proposed Terms of Service on an interim basis. |
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6. |
On 19 May 2004, Cybersurf and Shaw were requested to provide, by 26 May 2004, any further comments as to whether the Commission should specify, pending agreement between the parties, the terms and conditions of a resale agreement and, if so, what the terms and conditions should be. Shaw was also directed to provide comments on Cybersurf's 17 May 2004 draft, including its rationale for any proposed changes. |
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7. |
On 26 May 2004, Shaw submitted an amended resale agreement based on the 17 May 2004 draft and the terms of its standard resale agreement, including the rationale for its proposed changes. |
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8. |
On 26 May 2004, Cybersurf submitted a slightly modified version of the 17 May 2004 draft (the 26 May 2004 draft). |
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9. |
In its comments filed 31 May 2004, Shaw reiterated its objections to a possible Commission imposed agreement. Shaw submitted that any interim agreement entered into between Shaw and Cybersurf would not in effect be interim but would establish the status quo. In its view, the terms and conditions of the resale agreement would form the basis of the relationship between Shaw and Cybersurf going forward. Shaw submitted that Cybersurf's request was an attempt to circumvent the reasonable standard commercial practice of negotiating an agreement with Shaw. |
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10. |
In its comments filed on 31 May 2004, Cybersurf responded to Shaw's proposed changes to the 17 May 2004 draft. Cybersurf requested that the Commission order Shaw and Cybersurf to enter into an agreement in the form of a modified version of its 26 May 2004 draft attached to its letter forthwith on an interim basis. Cybersurf also requested that the Commission specify that the order was to become final 45 days from the date of the order unless the parties were able to reach an alternate agreement. Cybersurf further requested that the Commission specify that the parties may, by mutual written agreement, modify the agreement without further Commission approval. |
Commission analysis and determination |
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11. |
The Commission notes Shaw's objections to a Commission imposed resale agreement rather than a resale agreement based on negotiations between Cybersurf and Shaw. The Commission also notes that Cybersurf is currently reselling Shaw's higher-speed retail Internet service without a resale agreement. However, the Commission also notes that despite these facts and despite the importance the parties place on having a resale agreement in place, they have been unable to negotiate a mutually acceptable resale agreement as directed by the Commission in Decision 2004-24. |
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12. |
The Commission considers that, although a resale agreement is not mandatory to allow for resale, a resale agreement is highly desirable to govern the relationship between Shaw and Cybersurf as it pertains to the resale of Shaw's higher-speed Internet service by Cybersurf. |
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13. |
The Commission notes that both Cybersurf and Shaw have provided detailed amendments and supporting rationale to the 17 May 2004 draft. The Commission also notes that the 17 May 2004 draft is based on Shaw's TPIA tariff, modified for resale as required by the Commission in Decision 2004-24. Consequently, the Commission finds that the 17 May 2004 draft as originally prepared by Cybersurf satisfies the Commission's directives set out in Decision 2004-24 as the appropriate starting point for determining a resale agreement between Cybersurf and Shaw. |
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14. |
The Commission considers that both parties were afforded sufficient opportunity to comment on each other's proposed amendments to the 17 May 2004 draft. In the Commission's view, this procedural step satisfies Shaw's concerns regarding procedural fairness. The Commission is also of the view that it is appropriate to impose a resale agreement on the parties, given the opportunity and length of time the parties have had to conclude a mutually acceptable agreement and their inability to reach an agreement despite Commission imposed deadlines. |
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15. |
The Commission is also of the view that Shaw's and Cybersurf's comments, proposed amendments and supporting rationale are sufficiently detailed to enable the Commission to determine a resale agreement drawn from both parties' submissions that would be balanced and fair to both parties. |
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16. |
The Commission has carefully reviewed both Cybersurf's and Shaw's submissions. The Commission has set out, as an attachment to this order, a resale agreement (the Resale Agreement) based on the 17 May 2004 draft which includes terms and conditions proposed by both parties, as well as modifications made by the Commission. The Commission considers that the Resale Agreement incorporating clauses from both parties and the Commission balances the need for commercial certainty with the opportunity for Cybersurf and Shaw to continue to negotiate a mutually agreeable resale agreement, and is therefore appropriate. |
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17. |
In light of the above, the Commission directs Cybersurf and Shaw to enter into the Resale Agreement attached to this order. The Resale Agreement will remain in effect from the date of this order until Cybersurf and Shaw replace it with a mutually acceptable agreement or mutually agree on amendments to it. The Commission notes that any subsequent resale agreement negotiated between the parties or any subsequent mutually agreed modifications do not require Commission approval. |
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18. |
The Commission notes Cybersurf's request to make the interim Resale Agreement final if Cybersurf and Shaw were unable to reach a mutually acceptable resale agreement within 45 days of the date of an interim order. The Commission encourages Cybersurf and Shaw to continue negotiations. Consequently, the Commission denies Cybersurf's request. |
| Secretary General | |
| This document is available in alternative format upon request and may also be examined at the following Internet site: http://www.crtc.gc.ca |
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Shaw High Speed Internet Service Reseller Agreement |
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| This Agreement is entered into effective as of the day of , 2004 | |||
| Between: | |||
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- and - |
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CYBERSURF CORP. |
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| The following sets forth the terms and conditions pursuant to which Cybersurf may purchase and resell the Shaw High Speed Internet Service ("SHSI Service"). | |||
| 1. Definitions | |||
| "Acceptable Use Policy" means the acceptable use policy attached hereto as Schedule "B", as may be amended by Shaw from time to time; | |||
| "Affiliate" means an affiliate as defined in the Business Corporations Act (Alberta), as amended from time to time; | |||
| "Agreement" means this agreement and the attached Schedules; | |||
| "Application for Resale of SHSI Service" means the form attached hereto as Schedule "A", as may be amended by Shaw from time to time; | |||
| "Business Day" means a day, other than a Statutory Holiday, Saturday or Sunday, on which the principal commercial bank of Shaw is open for business during normal banking hours; | |||
| "Confidential Information" means all data and information whether in written, machine readable or other tangible form, or disclosed orally, that is of value to the disclosing party, is not generally known to competitors of the disclosing party, and which is communicated to another party in contemplation of this Agreement. Confidential information shall include, but not be limited to, information relative to the disclosing party's customers, services, facilities, current or proposed business plans, roll-out plans, financial information relating thereto, telephone calling pattern information, prices, trade secrets, know-how, formulae, processes, data, network configuration and rights-of-way, drawings, proprietary information, customer lists, and any other non-public information which concerns the business and operations of the disclosing party. If Confidential Information is in writing, graphic or electronic form, it will be marked "CONFIDENTIAL" or if information is not marked "CONFIDENTIAL" or is disclosed orally, the information will be identified as Confidential Information at the time of disclosure; | |||
| "CRTC" means the Canadian Radio-television and Telecommunications Commission; | |||
| "Customer Service Group (CSG)" means the group of employees that have been designated by Shaw as being responsible for the processing of SHSI Service requests and safeguarding Cybersurf's Confidential Information; | |||
| "Cybersurf Corp." is a corporation incorporated in the Province of Alberta, extra-provincially registered in the Provinces of Ontario and British Columbia and includes its affiliates and subsidiaries, as defined in this Agreement; | |||
| "End User" means a subscriber of Retail IS; | |||
| "End User Equipment" means the cable modems, Ethernet cards, computer, software, associated cabling and other equipment required to receive the SHSI Service, as designated by Shaw from time to time; | |||
| "Facilities" means the cable distribution system and all associated equipment used by Shaw to provide the SHSI Service; | |||
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"Effective Date" means the date that this Agreement was entered into; |
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| "Person" includes an individual, partnership, firm, body corporate or politic, government or department thereof and the legal representatives of such person; | |||
| "Premises" means the land and the building or buildings located thereon, or any part or parts of a building, occupied by an End User; | |||
| "Retail IS" means any Shaw SHSI Service together with other retail Internet services, such as electronic mail services and Internet browser software, typically provided by Internet service providers to their retail customers; | |||
| "SHSI Service" or "Service" means any Shaw retail higher speed Internet service as defined in Telecom Decision CRTC 2004-24 and offered by Shaw from time to time to the public, excluding Shaw's electronic mail services and Internet browser software; | |||
| "Serving Area" or "Serving Areas" means one or more of the six geographic areas described in Schedule "C"attached hereto as further amended from time-to-time: | |||
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(b) by agreement of the parties; or |
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(c) by CRTC directive; |
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| "Shaw Cablesystems G.P." is a corporation incorporated in the Province of Alberta, extra-provincially registered in the Provinces of Ontario, Manitoba, Saskatchewan and British Columbia, and includes its affiliates and subsidiaries, as defined in this Agreement; | |||
| "Subsidiary" means a subsidiary as defined in the Business Corporations Act (Alberta), as amended from time to time; | |||
| "Term" means a period commencing on the Effective Date and ending on the date that Shaw no longer provides SHSI Service to Cybersurf for resale to the public in any Serving Area; | |||
| "TPIA Service" has the meaning ascribed to it in the TPIA Service Agreement; | |||
| "TPIA Service Agreement" means the contract made effective November 6, 2002, between Shaw and Cybersurf specifying their mutual obligations with respect to Shaw's TPIA Service; | |||
| "TPIA Service Tariff" means Shaw TPIA Service Tariff CRTC 26300, as amended and approved by the CRTC from time to time; | |||
| "Unauthorized Use" means use of the SHSI Service by any person in any manner contrary to any applicable law, regulations, or terms of this Agreement, including the Acceptable Use Policy set out in Schedule "B", as same may be amended from time to time. | |||
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2. General Terms Regarding the Provision of SHSI Service by Shaw to Cybersurf |
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| 2.1 Shaw shall sell the SHSI Service to Cybersurf and grant Cybersurf the right to resell the SHSI Service to End-Users in the Serving Areas during the Term in accordance with the terms of this Agreement. The Agreement shall bind both Shaw and Cybersurf. | |||
| 2.2 The SHSI Service is a service offered to Cybersurf by Shaw pursuant to Telecom Decisions CRTC 99-11, CRTC 2003-87, CRTC 2004-24, and 2004-37. The Service allows Cybersurf to provide Internet access connectivity to its End-Users through cable modems, connected to Shaw's network for the purpose of providing Retail IS. Prior to connecting any make of cable modem to Shaw's network, Cybersurf shall submit all models of cable modems not previously approved by Shaw, or not used by Shaw in its network, to Shaw for approval, such approval shall not to be unreasonably withheld, and shall be conducted in accordance with Telecom Decision 2004-37. | |||
| 2.3 Cybersurf may use the SHSI Service only to provide Retail IS to its End-Users and may not use the SHSI Service to offer or provide any Internet protocol based voice telephony service, multi-casting service, virtual private network or local area network connection services to any End-User. | |||
| 2.4 This Agreement only applies with regard to the SHSI Service offered under this Agreement. Nowhere in this Agreement entered into between Shaw and Cybersurf with respect to the SHSI Service shall there be a limitation, restriction or other term that is less favourable than the basis on which Shaw uses its Facilities to offer its own Retail IS. | |||
| 2.5 Shaw is not required to provide SHSI Service to Cybersurf where: | |||
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(a) Shaw would have to incur expenses which are reasonably and directly related to providing SHSI Service to Cybersurf and which are over and above its normal business expenses and where Cybersurf does not agree, in writing, to pay to Shaw the expenses incurred by Shaw; |
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(b) Cybersurf owes amounts to Shaw that are past due; or |
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(c) Cybersurf does not provide a reasonable deposit or alternative to a deposit pursuant to this Agreement. |
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| 2.6 Shaw is not required to provide SHSI Service to locations where it does not offer Retail IS. | |||
| 2.7 Shaw does not warrant that the SHSI Service shall at all times be available. Requests for SHSI Service will be accommodated on a "first-come first-served basis", based on the dates of completed Applications for Resale of SHSI Service. | |||
| 2.8 In the event that the End-User's Premises are located upon or within real property to which Shaw does not have the requisite access, use of facilities providing service to such location, use right, nor access to the inside wire, Shaw cannot guarantee availability of the SHSI Service. | |||
| 2.9 Shaw assumes the costs of maintenance and repairs required due to normal wear and tear to its Facilities, except that Shaw may charge for the additional expense incurred when Cybersurf requires maintenance or repair work to be performed outside of regular working hours. | |||
| 2.10 Shaw shall respond to Cybersurf trouble reports only after Cybersurf has first determined that the trouble does not originate from its installations or equipment or the equipment of its End-Users. Where, at the request of Cybersurf, Shaw responds to a trouble report, and the trouble is determined by Shaw to originate from Cybersurf's installations or equipment or the equipment of its End-Users, Cybersurf shall be charged the service call rate charge set out in Item 103 of Shaw's TPIA Service Tariff. | |||
| 2.11 Before requesting the addition of or the transfer of an End-User to the Retail IS of Cybersurf, Cybersurf must obtain the prior consent of the End-User. | |||
| 2.12 If the transfer of an End-User is validly disputed by the End-User or by Cybersurf on behalf of the End-User, the End-User will be transferred back to the Retail IS last authorized by the End-User. Cybersurf must then provide to Shaw's CSG evidence of the End-User's transfer authorization. If such End-User authorization is not provided within 15 business days from the date of request by Shaw's CSG, Cybersurf will be deemed to have requested an unauthorized transfer. | |||
| 2.13 In the event that Cybersurf requested an unauthorized transfer as described in subsection 2.12 above, Cybersurf shall pay a $60 charge to Shaw if Shaw has to reverse an unauthorized transfer. | |||
| 2.14 Cybersurf is prohibited from permitting SHSI Service to be used for a purpose or in a manner that is contrary to any applicable law or regulation. Prohibited activities include, but are not limited to posting or disseminating material which is unlawful, posting or disseminating materials which violate the copyright or other intellectual property rights of others, any fraudulent activities, and breaches of the Acceptable Use Policy. | |||
| 2.15 Cybersurf is prohibited from permitting its End-Users to use the SHSI Service so as to prevent a fair and proportionate use by others or to interfere with their use by others. | |||
| 2.16 No payment may be exacted, directly or indirectly, from any Person, by any party other than Shaw for the use of Shaw's SHSI Service except where otherwise stipulated by special agreement. | |||
| 2.17 Shaw shall supply Cybersurf with the proprietary cable modems in accordance with the terms of paragraph 44 of Telecom Decision CRTC 2003-87. Once acquired by Cybersurf from Shaw, these End-User cable modems shall then be supplied and maintained by Cybersurf to its End-Users. | |||
| 2.18 Shaw shall be responsible for remotely provisioning and configuring the End-User cable modems and remotely performing network checks and tests on the status of Cybersurf's End-User cable modems. | |||
| 2.19 Cybersurf may resell the SHSI Service only to End Users located in one of the Serving Areas who meet Shaw's requirements, as set out below in subsections 2.19 (a-c), to receive the SHSI Service. Shaw may, in its discretion, refuse to permit Cybersurf to resell the SHSI Service to, and may refuse to activate, any potential End User under the following circumstances: | |||
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(a) if Cybersurf has not submitted a completed Application for Resale for the End User(s) of SHSI Service to Shaw; |
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(b) if the End User's Equipment make, model or configuration requirements do not meet the minimum standards established by Shaw for its own End Users; or |
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(c) if the End-User does not agree in writing to comply with terms and conditions respecting use of the SHSI Service that are consistent with the terms and conditions with which Shaw's own End-Users are required to comply. |
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| 2.20 Cybersurf acknowledges that the design, engineering and construction of the Facilities are entirely within Shaw's discretion and that Shaw is under no obligation to make any additions ormodifications to the Facilities to accommodate the needs or desires of Cybersurf or its End Users. Shaw shall not be responsible to Cybersurf or any of its End Users for their End User Equipment, in whole or in part, which ceases to be compatible with Shaw's Facilities or which becomes inoperative because of such modifications to Shaw's Facilities, provided that Shaw shall provide reasonable advance notice of such modification to Cybersurf so as to allow Cybersurf to mitigate the effects of such modification on its End Users. | |||
| 2.21 No provision of this Agreement shall be construed as vesting in Cybersurf any control or ownership interest of any kind whatsoever in any of the Facilities or other property of Shaw. The Facilities shall at all times remain the property of Shaw. | |||
| 2.22 Subject to subsection 2.4 above, the SHSI Service is subject to such modifications, additions and deletions as Shaw may in its sole discretion determine from time to time. | |||
| 2.23 Shaw shall refrain from direct marketing to End Users that use the Shaw SHSI Service, who through Cybersurf or another agent, have given notice of their intention to cancel their existing Shaw Retail IS, in order to transfer to Cybersurf from the earlier of the date of receipt of the notice to terminate, or the date on which Shaw receives an Application for Resale of SHSI Service with respect to that End User until 90 days from the date of disconnection of the Shaw Retail IS. | |||
| 2.24 Shaw shall refrain from offering discounts or other inducements not generally offered to the public where End Users personally initiate contact with Shaw for the purpose of cancelling Shaw's Retail IS, where the End User that uses the Shaw SHSI Service, wishes to transfer to Cybersurf from the earlier of the date of receipt of notice to terminate or the date on which Shaw receives an Application for Resale of SHSI Service with respect to that End User until 90 days from the date of disconnection of the Shaw Retail IS. | |||
| 2.25 At its discretion, Shaw may allow Cybersurf to perform its own End User installations in connection with the resale of SHSI Service, and such installations may be performed by the End User or a contractor of Cybersurf, with Cybersurf's consent. | |||
| 2.26 Shaw's agents and employees may, at reasonable hours, enter Premises on which SHSI Service is to be provided to install, inspect, repair and remove its facilities, to inspect and perform necessary maintenance in cases of network affecting disruption involving End User Equipment. | |||
| 2.27 Prior to entering Premises, Shaw must obtain permission from the End User or other responsible Person. | |||
| 2.28 Entry is not subject to Section 2.26 or 2.27 in cases of emergency or where entry is pursuant to a court order. | |||
| 2.29 Upon request, Shaw's agent or employee must show valid Shaw identification prior to entering the Premises. | |||
| 2.30 Cybersurf can only use the SHSI service to provide Retail IS to its End Users under the terms and conditions specified in this Agreement. Cybersurf shall not use the SHSI Service to offer other IP-based services to its End Users. Without limiting the generality of the foregoing, Cybersurf is prohibited from operating as a Competitive Local Exchange Carrier (CLEC) or Interexchange Carrier (IXC) for the purpose of offering IP-based telephone service to its End Users via the SHSI Service. | |||
| 2.31 Shaw reserves the right to monitor bandwidth usage, transmissions made or content posted or distributed via the SHSI Service and to take any measures that it deems necessary, in its sole discretion, to ensure compliance with these terms and conditions or to maintain the integrity of its network. | |||
| 3. Obligations of Cybersurf | |||
| 3.1 Cybersurf shall: | |||
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(a) ensure that all cable modems, Ethernet cards, associated cabling and other equipment and software forming part of the end User Equipment that are required in order to receive the SHSI service are purchased and installed at the End User's Premises; |
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(b) ensure that End User Equipment is available at its End Users' Premises and is properly installed, maintained and continuously meets the make, model and configuration requirements reasonably designated by Shaw from time to time in order to receive the resold SHSI Service from Cybersurf; |
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(c) instruct its End Users to keep their cable modems turned on even when the End Users' computers are turned off; and |
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(d) subject to section 2.4 above, ensure that each and every one of its End Users executes and delivers a service agreement with Cybersurf that contains a limitation of liability in favour of Cybersurf and Shaw, as owner of the Facilities, equal to a maximum of three (3) calendar months of the fees paid by the End User to Cybersurf. |
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| 3.2 Cybersurf shall provide all customer support services for End User at its sole cost and expense, including but not limited to: | |||
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(a) Billing of End Users for their use of the SHSI Service and any applicable service charges, credit verification, deposits and collection of all amounts owed by End Users; |
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(b) Advertising, marketing, sales and promotion of Cybersurf's resale of the SHSI Service; |
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(c) End User complaints, charges for bad debts and prevention of Unauthorized Use by End Users; |
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(d) Direct telephone, on-site and other support for End Users; and |
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(e) Repair, replacement, support and maintenance of all End User Equipment. |
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| All such services shall be performed by Cybersurf promptly and in a good and business like manner with warranties that are standard in the industry. Cybersurf shall provide all End Users with its current phone numbers and other contact information and instruct all End Users to use such phone numbers and other contact information for billing and account issues, technical support, repair and maintenance. | |||
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3.3 Cybersurf shall use reasonable commercial efforts to facilitate access by Shaw's agents and employees to End-User's Premises in order to install, inspect, repair and remove its Facilities and perform necessary maintenance in cases of network disruption. |
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| 3.4 Cybersurf shall arrange for all attendances by Shaw at Cybersurf's End User Premises and shall use reasonable commercial efforts to secure the presence and availability of the of End Users for such attendances. | |||
| 3.5 Cybersurf shall provide Shaw written notice of all requests to provide SHSI Service and related services to Cybersurf under this Agreement. Except in emergency situations, Cybersurf shall provide Shaw with no less than forty-eight (48) hours prior written notice of a request to terminate the SHSI Service of any End User. | |||
| 3.6 Cybersurf shall comply with, and shall ensure the compliance of all End Users with, all policies, terms and conditions regarding the use and operation of the SHSI Service imposed by Shaw on its own End Users from time to time, including, without limitation, the Acceptable Use Policy. | |||
| 3.7 Cybersurf shall provide Shaw on the last day of each quarter during the Term, a forecast of the number of End Users to whom Cybersurf expects to resell the SHSI Service in each Serving Area as at the end of the following quarter. | |||
| 3.8 Cybersurf shall pay Shaw in accordance with Article 5. | |||
| 3.9 Cybersurf shall not engage in any unfair trade practices or make any false or misleading statement or representations in advertising, printed material or otherwise with respect to the SHSI service or End User Equipment. Cybersurf shall not do anything that would tend to discredit, dishonour, reflect adversely upon or injure, in any manner, the reputation, goodwill or business of Shaw. | |||
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4. Obligations of Shaw |
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| 4.1 Shaw shall provide the SHSI Service to Cybersurf on the terms set out in this Agreement, including, without limitation, the following terms: | |||
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(a) Shaw shall provide the SHSI Service to Cybersurf with characteristics identical to those of the Shaw SHSI Service provided to Shaw's own End Users in all respects, including throughput; |
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(b) Shaw shall provide the SHSI Service such that Cybersurf can resell the SHSI Service as a branded Cybersurf service to the Cybersurf's End Users; |
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(c) Shaw shall provide Cybersurf with the ability to bill Cybersurf End Users directly, and for that purpose shall bulk bill Cybersurf for all charges, and the bulk bill shall contain sufficient information to differentiate charges between Cybersurf End-Users and permit Cybersurf to bill its End Users; |
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(d) Shaw shall make its SHSI Service available for resale to provide Internet service at a 25% discount from the lowest retail rate, other than $0.00, charged by Shaw to a cable customer for the Retail IS in question in the applicable Serving Area during any one month period including discounts or credits, with the 25% discount applying by entire Serving Area rather than on a customer basis; |
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(e) Shaw shall publish the lowest retail rate charged to a cable customer for the retail Internet service in question during any one month period including any discounts or credits, including the calculation thereof, so as to permit Cybersurf to verify Shaw's invoices issued pursuant to section 5.2 below, prior to making payment; and |
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(f) Shaw shall start providing SHSI Service to Cybersurf in each Serving Area for resale to the public in accordance with the timetable set out in paragraph 22 of Telecom Decision CRTC 2004-24; |
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| 4.2 Shaw shall at its expense and during its regular business hours: | |||
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(a) provide telephone technical support to a limited number of designated technical representatives of Cybersurf in relation to Shaw's own network and Facilities; and |
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(b) perform repairs, support and maintenance to its own network and Facilities. |
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| 4.3 Shaw shall have no direct or indirect obligations to End Users. End Users are not to be deemed to be third-party beneficiaries of this Agreement. | |||
| 4.4 Shaw shall respond to Cybersurf's installation, transfer and cancellation orders, and trouble tickets and Shaw shall advise Cybersurf whether End User premises are situated within an area accessible to Shaw's SHSI Service and provide related remedial services without discrimination as to service rates, intervals, levels, quality and policies relative to how Shaw responds to such orders and tickets and provides such advice with respect to Shaw's own End Users and potential End Users. | |||
| 4.5 Shaw shall not discriminate against Cybersurf or Cybersurf's End Users and in the event of an emergency involving Shaw's Facilities or services, Shaw shall not discriminate relative to the treatment accorded its own End Users and potential End Users in connection with such an emergency. | |||
| 4.6 In the event that Shaw must cancel or postpone installations, transfers, cancellations or repairs of SHSI Service or related services or equipment obtained by Cybersurf from Shaw and provided by Cybersurf to its End Users under this Agreement, Shaw shall notify Cybersurf promptly. | |||
| 4.7 Shaw shall not engage in any unfair trade practices or make any false or misleading statement or representations in advertising, printed material or otherwise with respect to the SHSI service or End User Equipment. Shaw shall not do anything that would tend to discredit, dishonour, reflect adversely upon or injure, in any manner, the reputation, goodwill or business of Cybersurf. | |||
| 5. Payment Terms | |||
| 5.1 In this Agreement, "Shaw's Lowest Monthly Retail Internet Rate" means in respect of any particular SHSI Service corresponding to a Shaw Retail IS sold in a particular Serving Area, the lowest monthly retail rate, other than $0.00, charged by Shaw to its End Users for the Retail IS in question in the applicable Serving Area during any one month period including any discounts or credits. | |||
| 5.2 Consistent with Shaw's normal billing practices Cybersurf will be billed in advance each calendar month. The billing will be, in respect of each SHSI Service sold by Shaw to Cybersurf, 75% of Shaw's Lowest Monthly Retail Internet Rate in respect of the SHSI Service multiplied by the number of Cybersurf End Users in respect of which Cybersurf has subscribed to that SHSI Service on the billing date. | |||
| 5.3 Cybersurf shall pay Shaw the following fees: | |||
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(a) One service call fee for each Cybersurf End User in respect of which Shaw provides SHSI Service activation, at the same rate and according to the same terms and conditions that Shaw charges its own End Users a service call fee when providing them activation of the corresponding Retail IS; |
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(b) Installation and construction fees associated with providing or upgrading End User drops, cable and jacks at End User premises at the same rates and according to the same terms and conditions that Shaw charges its own End Users when providing such services in order to enable an End User to receive SHSI Service at such premises; |
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(c) A fee equal to all non-recurring set-up costs and service charges directly incurred by Shaw in connection with the provision of the services set out in this Agreement; and |
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(d) Charges, at Shaw's then-current wholesale rates charged by Shaw to its wholesale customers , for any support and maintenance provided by Shaw to Cybersurf or in the case of Cybersurf's End Users Shaw's then-current rates charged by Shaw to its own End Users, for any support and maintenance provided by Shaw other than the support services which Shaw must provide pursuant to Subsections 4.2(a) and 4.2(b). The foregoing includes payment in respect of attendance by Shaw for scheduled appointments at End User's Premises where the End User is not, nor anyone authorized by the End User, in attendance at the appointed date and time. |
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| 5.4 The SHSI Service is made available to Cybersurf, as a customer of the SHSI Service. Cybersurf is billed on a monthly basis by Shaw for the SHSI Service it provides pursuant to this Agreement. All payments due by Cybersurf pursuant to this Agreement shall be due and payable to Shaw by Cybersurf within thirty (30) calendar days of the date of the invoice provided by Shaw to Cybersurf and are payable regardless of whether or not Cybersurf has been paid by the End User. All applicable taxes are extra and shall be the responsibility of Cybersurf. | |||
| 5.5 Monthly rates are payable in advance on the first day of each month. The mere lapse of time in performing the obligations to pay under this Agreement will put Cybersurf in default. Without limiting the scope of this provision, any unpaid amount by Cybersurf will bear interest as of the thirtieth (30) day period following the invoice date at a rate of 1.5% per month (or 19.5% annually). Interest will be calculated on a daily basis and compounded monthly on the last day of each thirty (30) day period following the invoice date. Any partial payment shall be applied first to the interest, then to the principal, beginning with the earliest outstanding amount from the due date, irrespective of charges added to Cybersurf's invoice. | |||
| 5.6 Charges cannot be considered past due until the next bill has been generated. | |||
| 5.7 In exceptional circumstances, for example when Cybersurf presents an abnormal risk of loss to Shaw, prior to the normal billing date, Shaw may request payment from Cybersurf on an interim basis for the non-recurring charges that have accrued providing Cybersurf with details regarding the charges in question. In such cases, the charges can be considered past due three (3) days after they are incurred or three (3) days after Shaw demands payment, whichever occurs later. | |||
| 6. Disconnection/Suspension | |||
| 6.1 Cybersurf may give Shaw ninety (90) days prior notice to terminate its SHSI Service in a Serving Area, in which case Cybersurf must pay charges due for SHSI Service that has been furnished. | |||
| 6.2 Shaw may suspend or terminate Cybersurf's SHSI Service only where Cybersurf: | |||
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(a) fails to pay an account of Cybersurf that is past due, provided it exceeds five hundred dollars ($500) or has been past due for more than two (2) months; |
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(b) fails to provide a reasonable deposit or alternative when required to do so pursuant to this Agreement; |
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(c) contravenes subsection 2.14 or 2.15 of this Agreement; or |
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(d) fails to provide payment when requested by Shaw pursuant to Section 5.7 of this Agreement. |
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| 6.3 Shaw may not suspend or terminate SHSI Service in the following circumstances: | |||
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(a) where there is a dispute regarding the basis of the proposed suspension or termination, provided payment is being made for undisputed outstanding amounts and Shaw does not have reasonable grounds for believing that the purpose of that dispute is to evade or delay payments. |
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| 6.4 Prior to suspension or termination of SHSI Service, Shaw will provide Cybersurf with reasonable advance notice, stating: | |||
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(a) the reason for the proposed suspension or termination and the amount owing (if any); |
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(b) the scheduled suspension or termination date; |
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(c) the reconnection charge; |
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(d) the telephone number of a Shaw representative with whom any dispute may be discussed; and |
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(e) that disputes unresolved with this representative may be referred to a senior Shaw manager. |
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| Where repeated efforts to contact Cybersurf have failed, Shaw will deliver such advance notice to the billing address. | |||
| For the purposes of this Section 6.4, reasonable advance notice for the termination or suspension of the SHSI Service of Cybersurf will generally be at least thirty (30) days. | |||
| 6.5 In addition to the notice required by Section 6.4, Shaw will, at least twenty-four (24) hours prior to suspension or termination of the SHSI Service, advise Cybersurf except where: | |||
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(a) repeated efforts to so advise have failed; |
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(b) immediate action must be taken to protect Shaw from network harm resulting from Cybersurf provided installations or equipment or from the use of the SHSI Service by Cybersurf; or |
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(c) the suspension or termination occurs by virtue of a failure to provide payment when requested by Shaw pursuant to Section 5.7. |
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| 6.6 Notwithstanding the provisions of Sections 6.4 and 6.5, nothing contained within this Agreement shall be deemed to preclude Shaw from suspending or terminating forthwith the SHSI Service to Cybersurf or its End-User if such immediate action is necessary in the circumstances, in the reasonable assessment of Shaw, to maintain the integrity of its network. In cases of such suspension or termination, Cybersurf will be promptly notified by Shaw and afforded the opportunity to correct the condition that gave rise to the suspension or termination. | |||
| 6.7 Except with Cybersurf's consent or in exceptional circumstances, suspension or termination of SHSI Service may occur only on Business Days between 8 a.m. and 4 p.m., unless the Business Day precedes a non-Business Day in which case disconnection may not occur after 12 noon. | |||
| 6.8 Suspension or termination of SHSI Service does not affect Cybersurf's obligation to pay any amount owed to Shaw. | |||
| 6.9 In the case of suspension of SHSI Service, Shaw must make a daily pro rata allowance based on the monthly charge for the SHSI Service. | |||
| 6.10 In the case of termination or suspension of SHSI Service, reconnection charges may apply. | |||
| 6.11 Where it becomes apparent that suspension or termination of the SHSI Service occurred in error, was otherwise improper, or the grounds for disconnection no longer exist, Shaw must restore SHSI Service during business hours on the next day, at the latest, unless exceptional circumstances do not permit this, and no reconnection charges shall be levied. | |||
| 6.12 Shaw may disconnect an End-User of Cybersurf only where the End-User has acted contrary to Section 2.14 or 2.15 of this Agreement. | |||
| 6.13 Prior to disconnection of an End-User, Shaw will provide Cybersurf with reasonable advance notice stating: | |||
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(a) the reason for the proposed disconnection of the End-User; |
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(b) the scheduled disconnection; |
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(c) the reconnection charge; |
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(d) the telephone number of a Shaw representative with whom any dispute may be discussed; and |
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(e) that disputes unresolved with this representative may be referred to a senior Shaw manager. |
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| 6.14 In addition to the notice required by Section 6.13, Shaw will, at least twenty-four (24) hours prior to disconnection of an End-User, advise Cybersurf that disconnection of its End-User is imminent, except where: | |||
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(a) repeated efforts to so advise have failed; or |
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(b) immediate action must be taken to protect Shaw from Network harm from End-User provided equipment or from the use of the SHSI Service by an End-User. |
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| 6.15 Notwithstanding the provisions of this Agreement, nothing contained within this Agreement shall be deemed to preclude Shaw from disconnecting forthwith any End-User if such action is necessary in the reasonable assessment of Shaw, to maintain the integrity of its network. In cases of such disconnection, Cybersurf will be promptly notified by Shaw and its End-User afforded the opportunity to correct the condition that gave rise to the disconnection. | |||
| 6.16 Shaw must restore the connection of the End-User, without delay, where the grounds for disconnection of the End-User no longer exist. Reconnection charges may apply. | |||
| 6.17 Where it becomes apparent that disconnection occurred in error or was otherwise improper, Shaw must restore connection during business hours, on the next day at the latest, unless exceptional circumstances do not permit this, and no reconnection charges shall be levied. | |||
| 7. Security and Insurance | |||
| 7.1 Shaw will not require a deposit from Cybersurf at any time unless Cybersurf: | |||
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(a) has no credit history with Shaw and will not provide satisfactory credit information; |
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(b) has an unsatisfactory credit rating with Shaw due to previous payment practices regarding Shaw's services; or |
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(c) presents an abnormal risk of loss. |
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| 7.2 Shaw will inform Cybersurf of the specific reason for requiring a deposit, and of the possibility of providing an alternative to a deposit, such as arranging for third party payment, a bank letter of credit or a written guarantee from a third Person whose credit is established to the satisfaction of Shaw. | |||
| 7.3 Cybersurf may provide an alternative to a deposit provided it is reasonable in the circumstances. | |||
| 7.4 Deposits earn interest at the Toronto Dominion Bank's prime rate, calculated on the balance of the deposit, and the interest earned before the monthly billing period. The interest will be credited to the account each month, or upon refund of the deposit. | |||
| 7.5 Shaw will review the continued appropriateness of deposits and alternative arrangements at six-month intervals. When SHSI Service is terminated or the conditions which originally justified the deposit or alternative are no longer present, Shaw will promptly refund the deposit, with interest, or return the guarantee or other written undertaking, retaining any amount then owed to it by Cybersurf. | |||
| 7.6 During the Term of this Agreement, Cybersurf and Shaw shall maintain sufficient insurance in categories reasonably acceptable to Shaw and Cybersurf and in an amount reasonably acceptable to Shaw and Cybersurf to cover their respective obligations under this Agreement and shall provide evidence of same to the other or, if either Cybersurf or Shaw is self-insured, provide to the other satisfactory evidence that Cybersurf and/or Shaw, at all relevant times, is in a position to successfully fulfill its monetary obligations stemming from liability under this Agreement. At Shaw's request, Cybersurf shall name Shaw as an additional named insured on any such insurance policy. | |||
| 8. Termination | |||
| 8.1 Shaw may terminate this Agreement immediately upon written notice to Cybersurf if: | |||
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(a) Cybersurf is in fundamental breach of this Agreement and such breach continues unremedied for a period of fifteen (15) calendar days after written notice of same; |
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(b) Cybersurf provides false or misleading information to Shaw in connection with the resale of the SHSI Service; |
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(c) Cybersurf entices or allows an End User or other persons to make an Unauthorized Use of the SHSI Service; or |
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(d) Cybersurf commits or participates in any fraudulent or improper actions in the course of acting as a reseller of the SHSI Service including, without limitation, the submission to Shaw of any false or fraudulent claims for refund, credit, rebate, allowance, discount or other payment. |
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| 8.2 Either party (the "Non-Defaulting Party") may terminate this Agreement, upon thirty (30) days prior written notice to the other party (the "Insolvent Party") if the Insolvent Party initiates proceedings for its winding up, liquidation or dissolution, or takes action to become a voluntary bankrupt, or consents to the filing of bankruptcy proceedings against it or files a petition or answer or consent seeking reorganization, readjustment, arrangement, composition or similar relief under any bankruptcy law or consents to the filing of such petition or consents to the appointment of a receiver, liquidator, trustee or assignee in bankruptcy or insolvency or makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts generally as they become due or commits any other act of bankruptcy, or suspends transaction of its usual business, or any action is taken against the Insolvent Party by a third party in furtherance of any of the foregoing and such action by a third party is not dismissed within the thirty (30) calendar day notice period. | |||
| 8.3 In addition, in the event the Shaw Third Party Internet Access ("TPIA") service becomes available throughout a Serving Area, then Shaw may notify Cybersurf in writing that the provision of SHSI Service to Cybersurf for resale to the public pursuant to this Agreement will cease in respect of that Serving Area, upon expiry of a period designated by Shaw. However, Shaw shall not cease providing SHSI Service to Cybersurf for resale to the public pursuant to this Agreement in any Serving Area until Shaw is in a position to provide TPIA throughout the entire Serving Area, such that Cybersurf is in a position to serve End Users anywhere in that Serving Area using TPIA and has had a reasonable opportunity to transfer its entire End User customer base to Shaw's TPIA Service. | |||
| 8.4 In the case of termination of this Agreement, any amounts due to Shaw for Services and equipment provided to Cybersurf pursuant to this Agreement (including, without limitation, the SHSI Service) shall immediately become due and payable. | |||
| 8.5 The expiration or termination of this Agreement shall not relieve Cybersurf of its obligation to pay any amounts due to Shaw and shall not deprive Shaw of any of the rights, remedies or actions that may accrue to it up to and including the effective date of expiration or termination. | |||
| 9. Non-Disclosure and Use of Trademarks and Service Marks | |||
| 9.1 Shaw and Cybersurf intend to disclose certain information, which may include Confidential Information, to each other in connection with this Agreement. | |||
| 9.2 In consideration of the disclosure of the Confidential Information by one party (the "Disclosing Party") to the other party (the "Recipient") the Recipient agrees that it shall: | |||
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(a) use the Confidential Information only for the purposes of, and in connection with, the performance of its obligations under this Agreement and for greater certainty, not use Confidential Information for competitive purposes; |
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(b) hold such Confidential Information in confidence, with at least the same degree of care with which it protects its own Confidential Information and at a minimum in accordance with reasonably prudent industry standards; |
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(c) restrict disclosure of the Confidential Information solely to the employees, agents, contractors (and, in the case of Shaw, other service providers or licensors of Shaw required in order to provide the SHSI Service) who are bound to maintain such Confidential Information in confidence under terms and conditions similar to, and no less stringent than, those set out herein and advise such persons of their obligations under this Agreement with respect to such Confidential Information. The Recipient hereby assumes responsibility for any disclosure of Confidential Information by any person to whom disclosure of Confidential Information is permitted under this Agreement. The Recipient shall take all reasonably necessary measures to restrain any person to whom disclosure of Confidential Information is permitted under this Agreement from unauthorized disclosure or use of Confidential Information; |
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(d) except in connection with and as required for the purposes contemplated in this Agreement, not copy or duplicate such Confidential Information or knowingly allow anyone else to copy or duplicate such Confidential Information; and |
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(e) promptly return to the Disclosing Party, upon its request, or certify as destroyed, Confidential Information in whatever form, including all electronic and magnetic copies and notes thereof, regardless of whether such Confidential Information was made or compiled by the Recipient or furnished by the Disclosing Party. |
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| 9.3 The restrictions in this Agreement on use and disclosure of Confidential Information shall not apply to information that: | |||
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(a) shall become generally known through no act of the Recipient or is in the public domain or subsequently enters the public domain other than through unauthorized disclosure by the Recipient; |
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(b) was disclosed to the Recipient on a non-confidential basis by a third party having lawful possession and the right to make such disclosure, who was not under an obligation of confidence regarding the information, who was not identified to the Recipient as an agent of the Disclosing Party and provided that the Recipient would not reasonably expect that such third party had obtained such information in a confidential manner from the Disclosing Party; |
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(c) was in legitimate possession of the Recipient prior to its disclosure hereunder, as evidenced by appropriate records; |
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(d) is independently developed by the Recipient in the future without use of the Confidential Information, as evidenced by appropriate records; |
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(e) is expressly approved in writing by the Disclosing Party for release or other use by Recipient according to the terms set out in such express approval; or |
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(f) the Disclosing Party is required to disclose pursuant to law, court order, or other legal compulsion. |
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| 9.4 Except as otherwise provided in this Agreement, each party has the right to refuse to accept any information under this Agreement. | |||
| 9.5 The parties agree that an impending or existing violation of any provision of this Article 9 would cause the Disclosing Party irreparable injury for which it would have no adequate remedy at law, and agree that the Disclosing Party shall be entitled to obtain immediate injunctive relief prohibiting such violation, in addition to any other rights and remedies available to it. | |||
| 9.6 Each party acknowledges and agrees that nothing contained in this Agreement shall be construed as granting any rights, by license or otherwise, under any patent, copyright, trademark, trade secret or any other intellectual property rights in or concerning any of the Disclosing Party's Confidential Information except as expressly set out herein. | |||
| 9.7 All obligations undertaken respecting Confidential Information disclosed hereunder shall survive the termination or expiration of this Agreement, however caused. | |||
| 9.8 No permitted assignment of this Agreement shall relieve the Recipient of its obligations hereunder with respect to Confidential Information disclosed to it prior to the assignment. | |||
| 9.9 Unless Cybersurf provides express consent or disclosure is pursuant to a legal power, all information kept by Shaw regarding Cybersurf, other than Cybersurf's name, address and listed telephone number, is confidential and may not be disclosed by Shaw to anyone other than: | |||
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(a) Cybersurf; |
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(b) a Person who, in the reasonable judgment of Shaw, is seeking the information as an agent of Cybersurf; |
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(c) another telecommunications company, provided the information is required for the efficient and cost-effective provision of telephone service and disclosure is made on a confidential basis with the information to be used only for that purpose; |
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(d) a company involved in supplying Cybersurf with telephone or telephone directory related services, provided the information is required for that purpose and disclosure is made on a confidential basis with the information to be used only for that purpose; or |
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(e) an agent retained by Shaw in the collection of Cybersurf's account, provided the information is required for and is to be used only for that purpose. |
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| Express consent may be taken to be given by Cybersurf where Cybersurf provides: | |||
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(a) written consent; |
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(b) oral confirmation verified by an independent third-party; |
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(c) electronic confirmation through the use of a toll-free number; or |
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(d) electronic confirmation via the Internet. |
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| 9.10 Unless Cybersurf's End User provides express consent or disclosure is pursuant to a legal power, all information kept by Cybersurf regarding the End User, other than the End User's name, address and listed telephone number, is confidential and may not be disclosed by Cybersurf to anyone other than: | |||
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(a) the End User; |
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(b) a Person who in the reasonable judgment of Cybersurf, is seeking the information as an agent of the End User; |
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(c) another telecommunications company, provided the information is required for the efficient and cost-effective provision of telephone service and disclosure is made on a confidential basis with the information to be used only for that purpose; |
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(d) a company involved in supplying the End User with telephone or telephone directory related services, provided the information is required for that purpose and disclosure is made on a confidential basis with the information to be used only for that purpose; or |
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(e) an agent retained by Cybersurf in the collection of the End User's account, provided the information is required for and is to be used only for that purpose. |
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| Express consent may be taken to be given by the End User where the End User provides: | |||
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(a) written consent; |
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(b) oral confirmation verified by an independent third-party; |
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(c) electronic confirmation through the use of a toll-free number; or |
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(d) electronic confirmation via the Internet. |
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| 9.11 Cybersurf may request information regarding its account and Shaw shall provide the information requested if: | |||
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(a) Cybersurf has given Shaw sufficient advance notice and details of the information sought to allow Shaw to comply with the request; and |
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(b) Cybersurf agrees to reimburse Shaw for costs if Shaw would incur unusual expenses to provide the information. |
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| 9.12 Shaw and Cybersurf shall maintain End User information in accordance and in compliance with existing privacy legislation, as amended from time to time. | |||
| 9.13 Except as expressly provided in this Agreement, Cybersurf and Shaw shall have no right to use any Confidential or proprietary information of the other party. | |||
| 9.14 Neither Shaw nor Cybersurf nor its or their subcontractors nor agents shall use or cause to be used (nor incorporate into its own service marks, trademarks, trade names or logos) any of the other Party's trademarks, service marks, corporate name or identification, logos or any other proprietary designation or intellectual property of such Party without that Party's prior written consent which may be withheld for any reason and upon obtaining any such written consent, only in accordance with the instructions and standards of the Party providing such consent to the other Party. Neither Party shall acquire or claim any right, title or interest in or to any of the trademarks, service marks, corporate name or identification, logos or any other proprietary designation or intellectual property of the other Party through the resale of the SHSI Service or otherwise. | |||
| 10. Limitation of Liability and Indemnification | |||
| 10.1 Shaw's liability to Cybersurf as a result of any claim, demand, action, cause of action, loss, expense, liability, cost or damage of any kind or nature whatsoever, direct or indirect, regardless of the cause, arising out of or relating to this Agreement, the operation of, failure of or failure to operate or perform the SHSI Service, Cybersurf Retail IS, related services or any part thereof, or any other equipment associated with the SHSI Service, Cybersurf Retail IS, or related services, including, without limitation, any claim arising out of a failure to complete an Internet connection, delay in completion of an Internet connection, interruption of an Internet connection, or error in information used in connection with the operation of the SHSI Service, Cybersurf Retail IS, related services, shall be limited to the extent set out in this Agreement. | |||
| 10.2 Without restricting the generality of the foregoing, Shaw shall not be liable and Cybersurf shall defend, indemnify and hold Shaw harmless from and against any and all claims, suits, fines, demands, actions, causes of action, losses, expenses, liabilities, costs or damages of any kind whatsoever, direct or indirect (collectively "Claims"), including, without limitation, Claims from any of Cybersurf's End-Users, arising directly or indirectly out of or in relation to the furnishing of the SHSI Service or related services to Cybersurf or the Cybersurf Retail IS to its End-Users. | |||
| 10.3 Shaw is in no way liable for the content transmitted over its facilities. Shaw's liability with respect to the provision of the SHSI Service is limited to providing the SHSI Service, subject to the terms and conditions described in this Agreement. | |||
| 10.4 Shaw does not guarantee uninterrupted working of its SHSI Service and/or Facilities. | |||
| 10.5 Where there are omissions, interruptions, delays, errors or defects in transmission, or failures or defects in Shaw facilities, Shaw's liability is limited to a refund of charges, on request, proportionate to the length of time the problem existed. However, where the problem is occasioned by Shaw's negligence, Shaw is also liable for the amount calculated in accordance with Section 10.7 Except for interruptions due to events of force majeure, Cybersurf shall be entitled, in such case, to a credit, provided that: | |||
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(a) Shaw is notified by Cybersurf; |
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(b) A written request for credit is filed by Cybersurf with Shaw within fifteen (15) days of such notification. |
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| 10.6 Shaw cannot be held liable by Cybersurf or Cybersurf's End-Users or any other Person, for damages resulting from errors, omissions, interruptions, delays, transmission errors, transmission defects, network outages, failures or defects in its facilities or the SHSI Service, or for damages from any other causes except to the extent that such damages are attributable to gross negligence or deliberate fault of Shaw. | |||
| 10.7 Except with regard to physical injuries, death or damages to Cybersurf's premises or other property occasioned by its negligence, or with regard to Shaw's deliberate fault or gross negligence, anti-competitive conduct, or breach of contract where the breach results from the gross negligence of Shaw, Shaw's liability for negligence is limited to three (3) times the monthly charges related to the SHSI Service subscribed by Cybersurf pursuant to this Agreement. | |||
| 10.8 Shaw is not liable for: | |||
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(a) any act or omission on the part of Cybersurf or its employees, agents or contractors arising from the furnishing of Retail IS by Cybersurf to its End-Users; |
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(b) defamation or copyright infringement arising from content transmitted or received over Shaw's facilities; or |
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(c) infringement of patents arising from combining or using Cybersurf's facilities with Shaw's Facilities. |
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| 10.9 Cybersurf, as a subscriber of SHSI Service, shall indemnify Shaw against claims made by Cybersurf's End Users. | |||
| 10.10 Nothing in this Agreement limits Shaw's liability in case of deliberate fault or gross negligence, anti-competitive conduct, or breach of contract where the breach results from the gross negligence of Shaw. | |||
| 10.11 Other than as provided for in this Agreement, there are no warranties, representations, conditions or guarantees of any kind whatsoever provided by Shaw to Cybersurf, either expressed or implied, whether arising by statute, agreement, tort, product liability or otherwise, regarding this Agreement and the services provided by Shaw hereunder including, but not limited to, warranties, representations, conditions and guarantees as to merchantability, fitness for any particular purpose, non-infringement of intellectual property rights, capacity, throughput, design, condition or quality. | |||
| 11. Notices | |||
| 11.1 Any notice, communication, request, demand or other document required or permitted to be given, sent or delivered hereunder by one party to the other shall be in writing and shall be given, sent or delivered addressed to the intended recipient as follows: | |||
| If to Shaw: | |||
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Shaw Cablesystems G.P. |
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With a copy to: |
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Legal Counsel |
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| If to Cybersurf: | |||
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Cybersurf Corp. |
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With a copy to: |
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Nelligan O'Brien Payne LLP |
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| Notice shall be deemed given if by personal delivery on the date delivered, if by registered mail five (5) business days following mailing, if by facsimile or electronic transmission on the next Business Day following facsimile or electronic transmission. Each party may, by way of written notice delivered as set out herein, amend its contact information. | |||
| 12. Representations and Warranties | |||
| 12.1 Shaw and Cybersurf each represent and warrant to the other that: | |||
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(a) it is duly authorized to enter into and perform this Agreement; |
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(b) this Agreement has been duly executed and delivered by it; |
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(c) the entering into, and performance by it, of this Agreement does not and will not violate any law, regulation or other enactment or rule binding upon it, nor any contract by which it or any of its assets is bound; |
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(d) this Agreement constitutes its legal, valid and binding obligations, enforceable in accordance with its terms; |
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(e) it will conduct its business in a professional, businesslike manner that will reflect favourably on its business; |
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(f) it will not engage in deceptive, fraudulent, misleading, illegal or unethical business practices, whether with respect to the sale or resale of the SHSI Services or otherwise; and |
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(g) it will not make any representations or warranties as to the other's products or services except as expressly set out in marketing and advertising literature provided by that other party to it. |
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| 13. General | |||
| 13.1 Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included. | |||
| 13.2 Assignment. This Agreement shall not be assigned, in whole or in part, by either party without the express written consent of the other which shall not be unreasonably withheld. | |||
| 13.3 Force Majeure. Neither Shaw nor Cybersurf shall be liable to the other for any delay or failure in performance hereunder due to and including without limitation, fires, work stoppages, strikes, lock-outs, slow-downs and similar labour disruptions, embargoes, requirements imposed by governmental regulations, civil or military authorities, acts of God, the public enemy or other causes and circumstances which are beyond the reasonable control of the party unable to perform. If an excused performance occurs, the party delayed or unable to perform shall give immediate notice to the other party. | |||
| 13.4 Non-Waiver. The waiver, express or implied, by either party, of any rights or of any failure to perform or breach by the other party shall not constitute or be deemed a waiver of any other right hereunder or of any other failure to perform or breach by the other party, whether of a similar or dissimilar nature. | |||
| 13.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable thereto. | |||
| 13.6 Relationship of the Parties. Shaw and Cybersurf are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. | |||
| 13.7 Entire Agreement. This Agreement, which shall ensure to the benefit of and be binding upon the parties and their respective successors and permitted assigns, constitutes the entire agreement between the parties with respect to the sale by Shaw of the SHSI Service to Cybersurf and the resale of the SHSI Service to Cybersurf's End Users and supersedes and excludes all prior agreements, negotiations, representations and proposals, whether written or oral, relating thereto. No variation or amendment hereto shall be binding unless agreed to in writing by Cybersurf and Shaw. | |||
| 13.8 Interpretation. For the purposes of this Agreement, except as otherwise expressly provided, the following shall apply: | |||
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(a) words importing the singular include the plural and vice versa, and words importing gender include all genders and firms or corporations where applicable; |
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(b) the headings inserted in this Agreement are for convenience of reference only and in no way define, limit or enlarge the scope or meaning of any of the provisions of this Agreement; |
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Executed by the parties as of the day and year first above written.
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| SHAW CABLESYSTEMS G.P. | CYBERSURF CORP. | ||
| Per: _______________________________ | Per: ________________________________ | ||
| Per: _______________________________ | Per: ________________________________ | ||
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SCHEDULE A |
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APPLICATION FOR RESALE OF SHAW HIGH SPEED INTERNET SERVICE |
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Date |
Install Date |
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Customer Name |
Home Phone |
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Apt # |
Work Phone |
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Address |
Prov |
Postal Code |
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Cable Services |
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| Is Cable TV service currently active at the above address? | How Many Computer will be connected to the Internet Service: | |||||||||
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q Yes q No |
q One (1) q Two (2) |
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Installation: |
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q Morning (8am - 12 noon) |
q Afternoon (12 noon - 4 pm) |
q Evening (4pm - 8 pm) |
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Please call customer one (1) hour before arrival? |
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q Yes : Please call __________________________________ at __________________________ q No |
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Cable Modem Information: |
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Modem Type: |
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MAC Address: |
Serial Number: |
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Extra Notes or Instructions: |
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Does the End User presently receive high speed Internet service via cable? Yes______________ No______________ Do other homes in the End User's neighbourhood receive cable service and/or high speed Internet via cable? Yes______________ No______________ |
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Contact Information: |
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SCHEDULE B |
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| Shaw's Acceptable Use Policy can be viewed at: | ||||||||||
| https://secure.shaw.ca/policy/Use-Policy.asp | ||||||||||
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SCHEDULE C |
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| Calgary | Saskatoon | Victoria | |
| Calgary | Saskatoon | Victoria | |
| Crossfield | Prince Albert | Duncan | |
| Airdrie | Vancouver | Nanaimo | |
| Cochrane | Vancouver | Parksville | |
| Strathmore | Burnaby | Port Alberni | |
| Chestermere | Surrey | Courtenay/Comox | |
| Okotoks | Richmond | Powell River | |
| High River | District of North Vancouver | Cumberland | |
| Edmonton | City of North Vancouver | Gabriola | |
| Edmonton | West Vancouver | Ladysmith | |
| Sherwood Park | Port Coquitlam | Nanoose | |
| Nisku | Coquitlam | Qualicum Beach | |
| St. Albert | Port Moody | Bamberton | |
| Spruce Grove | New Westminster | Cordova Bay | |
| Morinville | Maple Ridge | Lake Cowichan | |
| Westlock | District of Langley | Langford | |
| Barrhead | City of Langley | Merchosin | |
| Drayton Valley | Abbotsford | North Saanich | |
| Vegreville | White Rock | Saanich (Royal Oak) | |
| Jasper | Mission | Sooke | |
| Edson | Bowen Island | Winnipeg | |
| Rocky Mountain House | Agassiz | Winnipeg | |
| Fort McMurray | Squamish | Stonewall | |
| Lloydminister | Meritt | Selkirk | |
| Vermillion | Aldergrove | Steinbeck | |
| Saprae Creek | Clearbrook | Portage La Prairie | |
| Beaumont | Fraser Valley | ||
| Bon Accord | |||
| Fort Saskatchewan | |||
| Gibbons | |||
| Leduc | |||
| Stony Plain | |||
Date Modified: 2004-10-01
- Date modified: