Shield 4 UC, INC.
1. PAYMENT OF RATES
1.1. Invoices — Shield will bill for Shield Services in accordance with rates identified in the Shield Contract. Customer agrees to pay each Shield invoice for Shield Services in full, without deduction or offset of any kind, on or before the due date set forth on each Shield invoice to Customer (“Due Date”). All payments due hereunder shall be made in currency. If payment is not received by Shield on or before the Due Date, interest charges of 1% per month or 12% on an annual basis will be applied to all charges not paid as of the Due Date. The late payment charge rate is subject to change from time to time by Shield. A service charge of $20.00 will be applied to all insufficient fund payments. Shield shall have the right, without notice, to draw payment(s) in the amount due from any Customer deposit in the event Customer fails to make payment by the Due Date.
Monthly base charges if applicable will be invoiced in advance and usage fees will be invoiced in arrears. For Shield Services that are flat rated associated with a MMC, the Customer will be invoiced in full, one month in advance, in the case of delivery service the customer shall always be and pay one month in advance.
1.2. Rates and Charges — Shield will measure usage of the Shield Services in accordance with Shield’s policies and practices in effect from time to time and may amend policies relating to measuring usage on thirty (30) days’ advance notice to the Customer. Shield may increase or decrease the Customer charges with respect to services regulated by the CRTC or FCC as required by tariffs. Shield will endeavor to advise Customer of any fee increase or decrease as a result of CRTC or other regulatory body decision issuing written notification at least thirty (30) days prior to any change taking effect. All rates and charges provided in the Schedules are computed by Shield, exclusive of any applicable taxes. Customer will pay all sales and value-added taxes, duties or levies imposed by any governmental body in connection with the Shield Services provided under the Shield Contract.
1.3. Tax Exemption — Where applicable, Customer will provide Shield with a valid tax exemption certificate to exempt Customer, under applicable law, from taxes that would otherwise be paid by Customer. Shield will invoice Customer for taxes that are not covered by any tax exemption certificate filed by Customer with Shield. Should Customer not provide Shield with the applicable tax exemption certificate, it will be Customer’s responsibility to seek to obtain any tax credits directly from the agency concerned.
1.4. Multiple Locations — Where Shield provides Shield Services to multiple locations of Customer or affiliates of Customer (‘affiliate’ as defined in the Canada Business Corporations Act), one of Customer’s accounts must be designated the ‘Main Account’ for the purpose of the Shield Contract, and must accept financial responsibility for all affiliate accounts included under the Shield Contract. In the event that an associate or affiliate account fails to pay Shield, the ‘Main Account’ shall be liable for all charges and accrued interest incurred as a result of the associate or affiliate account’s use of the Shield Services.
2. CUSTOMER OBLIGATIONS
2.1. Billing Disputes — Customer must bring invoice inquiries and disputes to Shield’s attention in writing within thirty (30) days of the Invoice Date. After that time, Customer will be deemed to have agreed to the contents of the invoice and will have no right to challenge any element of the invoice. Billing disputes will be settled in accordance with Section 21 of this Appendix 1. Customer must pay the undisputed portion of an invoice and subsequent invoices in accordance with the Shield Contract.
2.2. Illicit Use — Under no circumstances shall Customer use, and Customer shall ensure that its clients do not use, the Shield Services fraudulently or otherwise illegally including, without limitation: a) falsely reducing or avoiding in whole or in part the regular charges for Shield Services b) obtaining, accessing, altering or destroying data files, programs, procedures or other information of Shield or Shield ‘s customers; c) interfering with Shield Services or affecting Shield ‘s customers; d) to directly or indirectly violates any law, rule, code or regulation or aids any unlawful act or undertaking.
Customer shall indemnify and hold Shield harmless for any damages, costs, loss expenses, legal fees and other liabilities arising from the breach of this Section, including any third party claims.
2.3. Liability — If any of Customer’s obligations under The Shield Contract are breached, Customer shall be liable to Shield for all costs (including legal fees) incurred by Shield in remedying the breach. In the event that Customer’s client breaches any of the provisions of the Shield Contract, Customer shall take reasonable steps to remedy the breach and to prevent continuing breaches, which may include issuing such notices to cure the default as are legally required, and termination of the client’s entitlement to utilize the Shield Services.
2.4. Client Cooperation — In the case of carriers or resellers, Customer shall ensure that its clients will comply, at all times, with the Terms and Conditions to the extent that Customer’s client makes use of the Shield Services.
2.5. Customer Facilities and Local Access — Customer has sole responsibility for the installation, testing, operation of, and costs associated with, any facilities, services and equipment (the ‘Customer Facilities’). In no event will the untimely installation or non operation of Customer Facilities relieve Customer of its obligation to pay charges for the Shield Services. Unless otherwise specified within the respective Schedules(s), Customer assumes full responsibility for local access arrangements (including costs) which are adequate to the requirements for interconnecting with Shield Services. Cancellation of Request for Shield Services – Customer may cancel a request for Shield Services prior to the intended date for installation of such Shield Services, by (30) days written notice, if Customer agrees to pay Shield all pass-through charges incurred by Shield in provisioning the Shield Services, including the full amount of charges for any non-cancelable commitments made by Shield to Contractors (“Contractor” means any third party from which Shield has acquired any service or facilities used in providing the Shield Services), plus reasonable administrative costs.
2.6. Fraudulent Calls – Customer shall indemnify and hold Shield harmless from and against all costs, expenses, claims or actions arising now and in the future from fraudulent calls of any nature carried by means of the Shield Services. Customer shall not be excused from paying Shield charges for Shield Services provided to Customer, or any portion thereof, on the basis that fraudulent calls comprised a portion of the Shield Services. In the event Shield discovers fraudulent calls and or data transmission are being made, or reasonably believes fraudulent calls and or data transmissions are being made, in respect of the Shield Services, Shield shall notify Customer in writing of such fraudulent use and Customer shall use all commercially reasonable efforts to prevent or terminate the fraudulent use. If Customer does not terminate the fraudulent use within seven (7) days of receiving notice from Shield, Shield will have the right with notice to Customer, to take immediate action such as suspension of the Shield Services of such other action that is reasonably necessary to prevent or terminate such fraudulent use from taking place.
3. REGULATORY COMPLIANCE
Both parties are responsible for obtaining and keeping current all licenses, approvals, filings and regulatory authorities required in respect of the regulation of telecommunications federally, per state and provincially, in the United States and Canada in conjunction with the Shield Services. If either party is prohibited, on a temporary or long-term basis, from conducting its telecommunications operations as a result of a breach by either party of any regulatory requirements, the offending party shall immediately notify the affected party in writing, and the affected party a shall have the right to terminate the Shield Contract forthwith without further notice.
4. SHIELD OBLIGATIONS
4.1. Service Interruption Credit — In the event that the Customer has experienced an “Interruption” of Shield Service exceeding 2 hours for a single incident, Shield may, at its sole discretion, give the Customer a credit on its invoice within (60) days of the Shield Services service interruption. Such credit will be applicable to Shield Services provided under the Schedules for Internet Services, Frame Relay and Private Line. The amount of the credit shall be calculated as twice the hourly rate for the interrupted Shield Service (which hourly rate is calculated based on 720 hours in a month) multiplied by the duration of the interruption, determined to the nearest tenth of an hour. No allowance shall be given in respect of any non-recurring charges.
4.2. Definition of Interruption — “Interruption” in the Shield Contract shall mean the inability of Shield to complete network connections due to equipment malfunctions or human errors. Interruption does not include, and no allowances shall be given for, interruptions arising from the failure of any service or facilities provided by the Customer or an entity other than Shield (provided that, for this purpose only, “Shield ” shall be deemed to include any third party from which Shield has acquired any service or facilities used in providing the Shield Services), or from the negligence or willful act or omission of the Customer. Interruption does not include the termination of the Shield Services by Shield, pursuant to the terms of the Shield Contract for non-payment of amounts or deposits due, for unlawful or improper use of facilities or Shield Services by the Customer, or for any other reason provided under Shield Contract or applicable law.
4.3. Where any of the Shield Services contained in computer programming or software (the “Resident Software”), Shield hereby grants to Customer and Customer’s clients a non-exclusive, non-transferable royalty-free license to use, during the Term of the Shield Contract, the Resident Software for the sole purpose of enabling Customer and Customer’s client to obtain the Shield Services. Customer recognizes that the Resident Software constitutes valuable trade secrets of Shield and its licensors, and that Shield and its licensors own all of the technology, know-how and intellectual property rights associated with such Software, the Shield Services and the Equipment. Customer shall use its best efforts to protect and keep confidential the Resident Software used by it, and shall make no attempt to examine, copy, alter, reverse engineer, tamper with or otherwise misuse the Resident Software.
4.4. Trade Marks and Trade Names — Customer shall not display or otherwise use any trade mark, trade name, logo, symbols, coined word or combination of words used by Shield or permit the same to be displayed or otherwise used in connection with any business conducted or controlled by Customer except as may be specified or approved in advance by Shield in writing.
It is recognized that technical, financial, commercial, legal or other information (collectively the “Confidential Information”) may be disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) whether orally or in any other media form between Parties during the course of the Shield Contract. The Receiving Party shall not disclose the Confidential Information to any third party without the prior express written consent of the Disclosing Party, unless compelled by law or order of a court or regulatory body having jurisdiction. Any Confidential Information disclosed shall remain the property of the Disclosing Party. Notwithstanding the foregoing, where Shield is the Receiving Party, it may use Confidential Information received from the Customer for the purposes of providing the Shield Services to the Customer and may use or disclose such Information in any manner otherwise permitted or authorized by an applicable municipal, provincial or federal law.
6.1. By Both Parties — If either Party does any of the following: (I) breaches any of its obligations under The Shield Contract or any Schedule to the Shield Contract and fails to correct the breach within thirty (30) calendar days after receiving written notice from the affected Party to do so; or (ii) should become insolvent, bankrupt or subject to any process, proceeding or arrangement for the benefit of its creditors, including any reorganization, receivership or liquidation proceedings, then the Party not in breach may terminate the Shield Contract by giving the other Party written notice of termination.
6.2. Relocation of Shield Services — If Customer wishes to relocate all of the Shield Services or only a portion of the Shield Services as set forth in one or more Schedules to the Shield Contract, Customer may make such relocation request to Shield. Subject to Shield being able technically and economically to provide the Shield Services at the Customer’s desired location and subject to Shield and Customer being able to agree upon the terms and conditions that would apply to any relocation, the Shield Services or the applicable portion of the Shield Services will be relocated.
6.3. Substitute Service — If Customer wishes to substitute different Shield Services for all or any portion of the Shield Services as set forth in one or more Schedules to the Shield Contract before the Term for all or any one or more Schedules for the Shield Services has expired, Customer may do so without being required to pay to Shield termination charges determined according to Section 6.4.2 hereof if Shield can provide the requested Shield Services at the Customer’s desired location, the Customer signs a new Schedule for the Shield Services and the revenues that will accrue to Shield under the new Shield Services Schedule for the service term chosen by the Customer are substantially equivalent, as determined by Shield , to the revenues remaining due to Shield for the Shield Services Customer is substituting for over the unexpired balance of the service term for such Shield Services being substituted for.
6.4. Early Termination/Cancellation
6.4.1. Entire Contract — If prior to the expiry of the Term of the Shield Contract, Shield terminates The Shield Contract for the failure of Customer to fulfill its obligations under this Agreement or Customer desires to terminate the Shield Contract and all of the Shield Services early, Customer shall pay to Shield as liquidated damages and not as a penalty, for all Shield Services Schedules that have a Minimum Monthly Commitment an amount equal to fifty (50%) per cent the total monthly charges for such Shield Services for the remainder of the service term from the date of termination for such Shield Services. For Schedules for which there is no MMC or MMBF, Customer shall pay to Shield an amount equal to fifty (50%) per cent of the total monthly charges for the Shield Services for each Schedule being terminated for the remainder of the Term of each such Schedule determined from the date of termination based on the total monthly charge for the Shield Service in the month immediately preceding the date of termination for the Shield Service being terminated. Such amounts are agreed by the Customer to be genuine liquidated damages and not a penalty. Additionally, Customer shall continue to be responsible to pay to Shield for all Shield Services being terminated amounts owing by Shield to third parties for such things as local loops required to provide the Shield Services being terminated for so long as Shield is obligated to pay such third party charges.
6.4.2. Termination of One or More Service Schedules — If prior to the expiry of the service term for any one or more Schedule for the Shield Services, Shield terminates one or more of such Schedules, but not the entire Contract, for failure of Customer to fulfill its obligations under the Shield Contract, or Customer desires to terminate any one or more Schedules early (before the expiry of the Term), Customer shall pay to Shield as liquidated damages and not as a penalty, an amount equal to fifty (50%) per cent of the MMC or MMBF, and for Schedule not having a MMC or MMBF, an amount equal to fifty (50%) per cent of the total monthly charges for the Shield Services being terminated for the remainder of the Term for such Shield Services determined from the date of termination based on the total monthly charge for the Shield Service in the month immediately preceding the date of termination for the Shield Service being terminated. Additionally, for each such Shield Services Schedule being terminated, Customer shall continue to be responsible to pay Shield all amounts owing by Shield to third parties for such things as local loops required to provide to the Customer the Shield Services being terminated, for as long as Shield is obligated to pay such third party charges.
6.4.3. Shield’s Obligation to Provide Services Shield’s obligation to provide the Equipment and the Shield Services is subject to Shield being able to obtain and maintain upon commercially reasonable terms, the necessary facilities and services to be able to provide the Shield Services to the Customer. Notwithstanding any other provision of the Shield Contract or any Schedules hereto, in the event Shield is unable to obtain or maintain on commercially reasonable terms the required facilities and services to provide the Equipment and the Shield Services to the Customer or the required facilities and services are no longer available then Shield may at its option, upon thirty (30) days prior written notice to the Customer, either terminate the affected Shield Services Schedule or this Contract as a whole or propose to the Customer revised pricing for the Shield Services taking into consideration the increased price of such facilities and services to Shield . If Shield elects to re-price the Shield Services (which Shield shall not be obligated to do as opposed to choosing instead to terminate the affected Shield Services Schedule or Contract as a whole), and such revised Shield Services Schedule or this Contract as a whole where there is one Shield Services Schedule then in effect, shall terminate upon communication by the Customer of non-acceptance of the proposed revised Shield Services pricing to Shield. The Customer shall communicate its acceptance or non-acceptance of any proposed revised Shield Services pricing to Shield within five (5) business days of receipt of notice of such revised pricing from Shield. If the Customer fails to do so, then Customer shall be deemed not to accept such revised Shield Services pricing and Contract shall terminate. Any termination of the Contract pursuant to this paragraph shall be without the requirement for the payment of any termination charges or early cancellation fees by the Customer, other than any cancellation fee that Shield must pay to any third party. Customer shall remain obligated to reimburse Shield for any such fees where the Contract is terminated by the Customer pursuant to this paragraph or is deemed to have terminated.
7. RETURN OF MATERIALS
Upon the expiration or earlier termination of the Contract, Customer shall cease all use of the Resident Software, and Customer will permit Shield to remove from Customer’s premises the Resident Software and all material in whatever form or whatever medium that contain or disclose any information relating to the Shield Services Where the site(s) is on the premises of a client of Customer, Customer shall ensure that Shield may exercise the same rights to enter and remove the Software and all material in whatever form or whatever medium that contain or disclose any information relating to the Shield Services and the Equipment.
8. SUSPENSION OF SERVICES
Notwithstanding any other provision of these Terms and Conditions in the event payment in full is not received from Customer by the Due Date, Shield shall also have the right, after giving Customer three (3) days written notice, to suspend all or any portion of the Shield Services to Customer until such time as Customer has paid in full all charges then due, including late fees. Following such payment, Shield shall be required to reinstitute the Shield Services to Customer only upon the provision by Customer to Shield of satisfactory assurance (such as a deposit) of Customer’s ability to pay for Shield Services, and Customer’s advance payment of the cost of reinstituting Shield Services including Shield administrative costs. If Customer fails to make such payment by a date determined by, and acceptable to, Shield, Customer will be deemed to have cancelled the Shield Services effective as of such date. Such cancellation shall not relieve Customer of payment liability pursuant to Section 6.42 above.
9. LIMITATION OF LIABILITY
CUSTOMER ACKNOWLEDGES AND AGREES NEITHER SHIELD NOR ANY OF ITS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES OR REPRESENTATIVES OR AGENTS OR ANY OF THEIR SUCCESSORS AND ASSIGNS WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS OR SAVINGS, LOSS OF DATA, OR LOSS OF USE) IN CONNECTION WITH THIS AGREEMENT, THE SHIELD SERVICES OR THE EQUIPMENT OR ANY OTHER INFORMATION, MATERIAL OR SERVICES PROVIDED BY SHIELD TO CUSTOMER UNDER OR RELATED TO THE SHIELD CONTRACT, WHETHER ARISING OUT OF CONTRACT, TORT OR OTHER BASIS. IF DESPITE THE FOREGOING LIMITATIONS, SHIELD OR ANY OF ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES OR AGENTS SHOULD BECOME LIABLE TO CUSTOMER OR ANY OTHER PERSON IN CONNECTION WITH THE SHIELD CONTRACT FOR ANY REASON, THEN THE MAXIMUM AGGREGATE LIABILITY OF SHIELD, ITS MEMBERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND REPRESENTATIVES OR AGENTS AND ANY OF THEIR SUCCESSORS AND ASSIGNS FOR ALL SUCH THINGS AND TO ALL SUCH PARTIES, WILL BE LIMITED TO THE LESSER OF THE ACTUAL AMOUNT OF LOSS OR DAMAGE SUFFERED BY THE CLAIMANT OR THE AMOUNT PAYABLE BY CUSTOMER TO SHIELD FOR ONE MONTH OF SERVICE UNDER THE SHIELD CONTRACT.
Customer will indemnify and save harmless Shield and its shareholders, directors, officers, employees, agents, contractors, representatives and each and any of their successors and assigns from and against all damages, losses, costs and expenses (including actual legal fees and costs), fines and liabilities incurred by or awarded, asserted or claimed against Shield or any of its or agents, shareholders, directors, officers, employees, representatives and each or any of their successors and assigns in connection with Customer’s negligence, activities or omissions, or breaches of its obligations under the Shield Contract, including any third party claims and without limiting the generality of the foregoing, any claims brought by a person using or relying upon any advice given or publication produced and distributed by Customer.
11. THIS SECTION WAS LEFT BLANK INTENTIONALLY.
Any notice, request, demand consent or other communication provided or permitted under the Shield Contract shall be in writing and shall be deemed to be sufficiently given if personally delivered, sent by facsimile, or sent by registered mail, postage prepaid, to the Party for which it is intended at its address specified in the Shield Contract. Any notice so given shall be deemed to have been received on the date on which it was delivered in person, or sent by facsimile, or, if sent by registered mail only (which method of service shall not be a valid form of providing notice during a postal strike), on the fifth business day after the sending.
Any notice by Shield to the Customer regarding a rate change or invoicing for the Shield Service may be communicated by email address of the Customer set for in the Shield Contract Any such notice communicated by email to the Customer is deemed to have been received by the Customer on the day such notice is sent. It is the Customer’s responsibility to inform Shield of any change in its email address from time to time for the purpose of receiving such email notices relating to rate changes or invoicing issues regarding the Shield Service.
Customer may not assign, transfer or otherwise dispose of the Shield Contract or any interest therein without the prior, express written consent of Shield, which consent shall not be unreasonably withheld. Shield may assign its rights under the Shield Contract.
14. GOVERNING LAW
The Shield Contract shall be interpreted in accordance with and be governed in all respects by the laws of the Province of British Columbia and the laws of Canada applicable therein. The courts of British Columbia shall have non-exclusive jurisdiction to entertain any action or proceeding brought by the Parties in connection with t or any alleged breach of the Shield Contract.
15. CUSTOMER RISK ACKNOWLEDGEMENT
Customer acknowledges that it accepts all risk of any unauthorized or illegal use of the Shield network or any inter-connected network by third parties. Shield will use reasonable commercial efforts to assure a reasonable level of security for its network. However, Shield provides no warranties, makes no representations, and accepts no liability for the unauthorized or illegal access or interference with Customer’s network unless such access or interference is caused by the intentional unlawful acts of Shield, its agents or employees.
Notwithstanding termination of the Shield Contract by the Parties, the terms and conditions contained in the Shield Contract, that by their sense and context are intended to survive the performance by the Parties, shall so survive the completion of performance and termination of the Shield Contract, including, without limitation, provisions for indemnification and the making of any and all payments due hereunder.
Customer may choose to interconnect Shield Services with services and/or facilities of other authorized communications carriers and/or with private systems where those services and/or facilities comply with general industry standards. Unless explicitly agreed to by Shield, Shield Services do not form part of any joint undertaking with other such carriers or private systems.
The Shield Contract and the relationship established hereunder, does not constitute a partnership, joint venture, relationship of franchisor and franchisee, relationship of principal and agent, or relationship of employer and employee, between Shield and Customer or between Shield and any officers, directors, employees, agents, clients or contractors of Customer. Customer shall have no authority to bind Shield or to assume or create any obligation or responsibility, expressed or implied, on Shield’s behalf, or in its name, nor shall it represent to anyone that it has such power or authority.
19. FORCE MAJEURE
a. Each Party shall be relieved from the performance of its obligations under the Shield Contract if, and for so long as, it is unable to perform such obligations due to circumstances beyond its reasonable control, including, but not limited to, power surges or failures, acts of God, acts or omissions of any common carrier, labor disputes, regulatory restrictions, changes in law or regulation, or other acts of governmental authority. An event of force majeure shall not in any way be an acceptable excuse for a failure to pay or a delay by Customer in paying any amount when due under the Shield Contract and Customer’s payment obligations under the Shield Contract shall remain unaffected by any such event.
b. In no event will either Shield, any supplier of services to Shield or any landlord or licensor of Shield where Shield equipment or facilities are located, be liable in any manner or upon any basis to Customer for any loss or damages, whether direct or indirect, incidental, special or consequential, resulting from an interruption in the Services provided by Shield to the Customer, caused by or attributable to, directly or indirectly, fire or other perils or factors beyond the reasonable control of Shield and any of its suppliers, landlords or licensees.
20. NO WAIVER
The failure of either party at any time to require performance by either party of any provision, condition or covenant in the Shield Contract shall in no way affect its right thereafter to enforce the provision, condition or covenant, nor shall the waiver by either party of any breach of any provision, condition or covenant in the Shield Contract shall not be taken or held to be a waiver of any future breach of the same provision, condition or covenant.
The Shield Contract shall be binding upon and inure to the benefit of the Parties hereto, their respective heirs, successors, assigns, and legal representative of any type whatsoever.
22. LANGUAGE OF CONTRACT
Shield and Customer confirm that they wish to have the Shield Contract written in English only.
23. UNENFORCEABLE PROVISIONS
The provisions of the Shield Contract are severable. If a provision in the Contract is found to be unenforceable, the Contract will be deemed amended to the minimum extent necessary to make the Contract fully enforceable so long as the Contract as amended is consistent with the Parties’ original interest and expectations.
Except as provided for in the Shield Contract, the Shield Contract may be amended only with the written consent of both Parties.