HighSpeed Systems Corporation
Terms and Conditions of Service
This is an agreement between you and HighSpeed Systems Corporation (“HIGHSPEED SYSTEMS”). It sets out the terms and conditions (the “Service Terms”) that apply to your use of the Internet access services and associated telecommunications services that HIGHSPEED SYSTEMS provides (the “Services”), and any equipment provided to you for use with the Services. The Service Terms, together with HIGHSPEED SYSTEMS rules and policies applying to the use of the Services, form the agreement between you and HIGHSPEED SYSTEMS for the Services (the “Agreement”).
By using the Services you are agreeing to the terms of this Agreement. IF YOU DO NOT AGREE TO THESE SERVICE TERMS, YOU MAY NOT USE THE SERVICES. For the purposes of these Service Terms, “you” refers to the person or business whose name appears on the bill.
Amendments to this Agreement
1. HIGHSPEED SYSTEMS reserves the right to amend these Service Terms, including rates and additional charges, at any time by giving 30 days notice. HIGHSPEED SYSTEMS will notify you of amendments to these Service Terms by posting notice of the amendment at HighSpeedSystems.com/serviceterms (the “Service Web Site”), or by sending you notice on your monthly bill or email bill notice that the Service Terms have been amended, directing to where the amendment may be consulted. If you have access to the Internet, it is your responsibility to go to the Service Web Site at least every month in order to become aware of any amendments posted on the site, and you agree to consult any amendments notified to you in accordance with the directions received on your monthly bill or email bill notice. You are not obliged to continue using the Services after an amendment to the Service Terms is made; however, in the event you choose not to accept the changes, your sole remedy is to cancel the Services, effective at the end of your current billing period. Your continued use of the Services following any amendment shall be deemed to be your acceptance of the amended Service Terms, waiver of any additional notice requirements and agreement to pay for the Services in accordance with the amended Service Terms.
2. You represent and warrant that you have reached the age of majority (at least 18 or 19 years of age) in the province or territory in which you reside and that you possess the legal right and ability to enter into this Agreement and use the Services in accordance with this Agreement.
3. As the Services account holder, you are responsible for your account and the maintenance of all passwords related to your account. You are solely responsible and liable for any and all activities that occur under your account including, without limitation, all activities of any sub-account holders. You are also responsible for maintaining the confidentiality of your account and all passwords related to your account. You agree to immediately notify HIGHSPEED SYSTEMS, by means specified on the Services Web Site, of any unauthorized use of your account or any passwords related to your account or of any other breach of security and to provide assistance to HIGHSPEED SYSTEMS, as requested, to stop and/or remedy any breach of security.
4. You hereby consent to the collection, use and disclosure by HIGHSPEED SYSTEMS and its agents of your personal information collected in connection with provision and/or use of the Services, and acknowledge that such use or disclosure includes the exchange of your account and usage information with other HIGHSPEED SYSTEMS companies and their affiliates or dealers, for the purpose of offering additional services or products to meet your communications and entertainment needs.
By using the Services and incurring charges for such use, you authorize HIGHSPEED SYSTEMS to obtain information about your credit history from credit reporting agencies, credit grantors and other HIGHSPEED SYSTEMS companies from time to time, and consent to the disclosure of your credit history with HIGHSPEED SYSTEMS to such entities at any time.
You agree to provide us with your current email address (and to inform us if that email address changes) so we can provide you with tools and services to manage your HIGHSPEED SYSTEMS account, communicate with you about account-related items on a timely basis, provide news and offers from HIGHSPEED SYSTEMS and its partners, and seek your views on HIGHSPEED SYSTEMS’ products and services.
5. You agree to provide true, current, accurate and complete customer information as prompted by HIGHSPEED SYSTEMS’ registration processes or as otherwise requested by HIGHSPEED SYSTEMS or its agents and you agree to promptly notify HIGHSPEED SYSTEMS, by means specified on the Services Web Site, of any changes to this information as required to keep it current, complete and accurate.
Billing and Payment
6. HIGHSPEED SYSTEMS may provide you with a monthly bill in electronic format made available to you over the Internet, setting forth the charges incurred for use of the Services. Your monthly bill will be sent in paper form if electronic billing is not made available by HIGHSPEED SYSTEMS. If HIGHSPEED SYSTEMS makes your bill available over the Internet, it is your responsibility to create an online account management profile, to subscribe to electronic bill notification, and to check your online account every month for your bills. Regularly recurring charges are billed in advance and charges incurred on a per-use basis are billed in arrears. If your bill is lost or if you do not receive a bill, you are still responsible for making the required payment to HIGHSPEED SYSTEMS.
7. The Services are provided to you subject to payment of all applicable service rates and any additional charges identified to you at the time you applied for the Services or otherwise in accordance with these Service Terms, including installation and activation fees, together with all applicable taxes and other government charges. Additional charges authorized by these Service Terms may be charged on a one-time, monthly or per-use basis, as HIGHSPEED SYSTEMS may determine from time to time.
Provided there is no deception in order to avoid payment, you are not responsible for paying an unbilled or under-billed portion of a charge unless HIGHSPEED SYSTEMS correctly bills the charge within one year from the date it was incurred. In these circumstances, HIGHSPEED SYSTEMS will not charge any interest on the amount of the unbilled or under-billed charge owing until the correct charge has been billed to your account. All charges and credits to your account shall be deemed validly incurred unless you dispute the charge or credit within 90 days after receiving the bill that includes the charge or credit.
8. All bills are due upon receipt. Bills made available through the Internet are received when they are posted. Charges not paid before the end of the grace period shown on your bill are assessed a late payment charge of 2% per month (26.82% per year), calculated from the billing date for those charges, which you must pay in addition to all other amounts owing to HIGHSPEED SYSTEMS. Administrative and collection charges may apply, in accordance with HIGHSPEED SYSTEMS rules and policies, if your account goes into arrears, including as a result of returned or rejected payments or your failure to inform HIGHSPEED SYSTEMS of any change to your account information for pre-authorized payments. If you subscribe to a pre-authorized payment method, you waive pre-notification of the amounts and dates of debits from your account. HIGHSPEED SYSTEMS may require you to make interim payments for non-recurring charges you have incurred in the period between two monthly bills, for such Services as are identified to you with the demand for payment. The grace period for the payment of charges so identified expires three days after you receive the demand for payment.
9. HIGHSPEED SYSTEMS may require a security deposit from you (i) before the Services are provided, if you do not have a satisfactory credit history with HIGHSPEED SYSTEMS or do not provide other proof of creditworthiness satisfactory to HIGHSPEED SYSTEMS, or (ii) at any time this Agreement applies, if you have an unsatisfactory credit rating with HIGHSPEED SYSTEMS as a result of your payment practices, or (iii) if you clearly present an abnormal risk of loss. Interest on any security deposit required by HIGHSPEED SYSTEMS, at a rate equal to the rate established on January 1 and July 1 of each year for daily interest savings accounts at a chartered Canadian bank, shall be credited to your account monthly. HIGHSPEED SYSTEMS may apply any portion of the security deposit against unpaid charges on your account at any time and, upon termination of this Agreement or where the conditions justifying the security deposit no longer apply, will refund any outstanding security deposit, with accrued interest, retaining only the amount then owing on your account.
10. The Services offer a variety of access speeds and service plans. All services are subject to the availability of suitable equipment and facilities and consequently all services are not available at all locations. Also, to ensure fair network access to all users, HIGHSPEED SYSTEMS may manage network resources using methods including, but not limited to:
allocation of bandwidth, which may limit the availability or speed of service;
filtering for spam and malicious content, which may occasionally result in unintended blocking of inoffensive content; and
restricting the network access available to specific transmission protocols.
11. Final confirmation of service availability for Services high speed services cannot occur until the Services high speed equipment is installed at your premises. If such equipment is installed by a HIGHSPEED SYSTEMS installer, you hereby authorize the installer to disclose to HIGHSPEED SYSTEMS the necessary information to confirm service availability for your premises.
12. It is your responsibility to ensure that your equipment and software meet the current minimum system requirements specified by HIGHSPEED SYSTEMS as being necessary for access to the Services. HIGHSPEED SYSTEMS shall post such minimum system requirements on the Services Web Site or otherwise notify you of such requirements. You acknowledge that such requirements may change from time to time, without notice, at HIGHSPEED SYSTEMS’ sole discretion.
13. You are not permitted to operate an e-mail, web, news or other similar server through a Services account, except where such use is expressly permitted under your service plan.
14. Reverse engineering of the Services high speed service is not permitted. This means that you cannot have a higher upload than download speed.
15. HIGHSPEED SYSTEMS does not guarantee that the Services will operate with all equipment or software including, without limitation, all Internet applications and appliances.
16. You acknowledge that signal range and penetration of Services’ wireless capabilities will depend on factors such as the number and density of walls and ceilings in the networked area and the distance between the high speed wireless gateway and your computer(s). The high speed wireless gateway may be susceptible to interference from other devices such as cordless phones, microwave ovens and electric motors.
17. You acknowledge and agree that when using Services’ wireless capabilities to access the Internet or any other online network or service, there are certain risks that may allow other service users or Internet users to gain access to your computer system or Services account. You should take all appropriate security precautions when using such wireless capabilities including, without limitation, encrypting your network, installing a firewall and an anti-virus solution, selecting secure passwords, allowing only pre-approved computers and users on your network, and disabling computer file sharing capabilities when moving your computer outside of your home network. HIGHSPEED SYSTEMS shall not be responsible or liable for any claims, damages, losses or expenses relating to use or misuse of Services’ wireless capabilities including, without limitation, those resulting from your use of file sharing, print sharing or other functions that may allow others to gain access to your computer, network or the contents of your transmissions.
General Practices and Limits
18. You acknowledge that HIGHSPEED SYSTEMS may establish general practices and limits concerning use of the Services including, without limitation, the maximum size of any e-mail message that may be sent from or received by a Services account, the maximum disk space that will be allotted on HIGHSPEED SYSTEMS’ servers on your behalf, the maximum amount of data that may be sent from or received by a Services account and the maximum number of days that e-mail messages will be stored on HIGHSPEED SYSTEMS’ servers. Such general practices and limits shall be posted on the Services Web Site or otherwise made available to you. You agree to comply with all such general practices and limits. You acknowledge that such general practices and limits may differ for different portions of the Services and may be set at different levels for different users based upon factors that may be determined in HIGHSPEED SYSTEMS’ sole discretion. HIGHSPEED SYSTEMS reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice. You further agree that violating such practices or exceeding such limits may result in suspension, restriction or termination of your account, removal of content, information or materials from HIGHSPEED SYSTEMS’ servers, or the imposition of additional charges (additional charges are described on the Services Web Site).
High Speed Service Installation
19. Installation options available for Services (e.g. customer self-installation, HIGHSPEED SYSTEMS installation without a network interface card (“NIC”), HIGHSPEED SYSTEMS installation with a NIC) will depend upon your Customer Access Location and your service plan. Not all installation options are available at all Customer Access Locations or with all service plans. Details regarding available installation services, including applicable fees, are posted on the Services Web Site.
20. You authorize HIGHSPEED SYSTEMS, its employees, agents, contractors and representatives, to enter your premises and access your equipment and software for the purpose of installing, maintaining, inspecting, repairing or removing any equipment or software as reasonably required for the provision of the Services. Access to your premises will be at a time that is mutually convenient for you and HIGHSPEED SYSTEMS.
21. You agree to comply with the terms of the quick install guide included on the HIGHSPEED SYSTEMS install wizard CD.
22. In no event will HIGHSPEED SYSTEMS be responsible or liable for any claims, damages, losses or expenses including, without limitation, lost wages or missed work, in the event that an installation appointment for the Services is missed, either by HIGHSPEED SYSTEMS or by any third party installer.
HIGHSPEED SYSTEMS Equipment
23. You hereby agree not to sell, transfer, lease, assign any interest in, or encumber all or any part of any HIGHSPEED SYSTEMS-owned high speed equipment (e.g. wireless gateway, high speed modem, POTS splitter) that has been provided for your use as part of the Services.
Customer Equipment and Software
24. The Services high speed service must be connected to a suitable NIC installed at your premises. If you are supplying and installing the NIC yourself, you must install the NIC as appropriate prior to the installation of the high speed modem or wireless gateway, as applicable. Alternatively, if you purchase the NIC along with installation of the NIC from HIGHSPEED SYSTEMS when ordering the Services, you must ensure that there is a suitable free NIC slot available in your computer prior to arrival of the HIGHSPEED SYSTEMS installer at your premises. HIGHSPEED SYSTEMS will not remove NICs from or rearrange NICs in your computer.
25. You are required to show that your computer is functioning properly prior to HIGHSPEED SYSTEMS doing any work on your computer, where applicable.
26. You agree that HIGHSPEED SYSTEMS is not responsible for any damage to or loss of your data, equipment or software arising from installation or maintenance of the Services or from other services provided at your premises. HIGHSPEED SYSTEMS recommends that you back-up all existing computer files by copying them to a different storage device prior to the installation or maintenance of any Services high speed equipment or software.
27. You agree to the installation of diagnostic software on your equipment for the purposes of assisting HIGHSPEED SYSTEMS in remotely determining the cause of any service or maintenance issue, maintaining interactive communications during a diagnostic session and sending instructions to your equipment to correct improper settings, if required. You agree that HIGHSPEED SYSTEMS may install updated versions of the diagnostic software on your equipment without notice, for the same purposes.
28. The Services high speed service may interrupt the functioning of some home or business security systems which use the same phone line(s) as the Services. You agree that HIGHSPEED SYSTEMS is not responsible for any such problems or interruptions. You are responsible for ensuring that your premises are appropriately wired to ensure proper functioning of any home or business security systems, prior to installation of the Services.
29. You acknowledge and agree that, except as otherwise explicitly stated in this Agreement, HIGHSPEED SYSTEMS is not responsible for the installation, operation, maintenance or support of any equipment or software owned or used by you including, without limitation, any equipment or software used in connection with the Services.
Software Supplied by HIGHSPEED SYSTEMS
30. You agree that any and all software and documentation that forms part of the Services or that is supplied by HIGHSPEED SYSTEMS, its agents or representatives for use in connection with the Services (the “Software”) is protected by applicable intellectual property laws, remains the sole property of HIGHSPEED SYSTEMS or its suppliers and is supplied subject to the terms of this Agreement including, without limitation, the Disclaimers and Limitation of Liability herein, and the terms of any applicable Software license made available to you by HIGHSPEED SYSTEMS. Unless otherwise authorized by HIGHSPEED SYSTEMS or in the applicable Software license, you agree not to:
1. copy, modify, rent, lease, loan, sell, assign, sublicense, grant a security interest in or otherwise transfer any right or interest in the Software;
2. distribute, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover the source code, of the Software;
3. remove any proprietary notices or labels on or in the Software; or
4. allow any other person or entity to engage in any of the foregoing activities.
31. The Services Help Desk will provide telephone assistance on a reasonable efforts basis, via the telephone number and during the hours specified on the Services Web Site. Assistance is limited to your problems using the Services and may exclude problems related to certain equipment and software, as specified by HIGHSPEED SYSTEMS, in its discretion. You acknowledge that charges may apply to certain support services, as specified by HIGHSPEED SYSTEMS. HIGHSPEED SYSTEMS cannot guarantee the resolution of any particular problem or Services interruption.
32. You acknowledge and agree that from time to time HIGHSPEED SYSTEMS may e-mail updates and notices regarding the Services to you.
33. During the term of this Agreement, HIGHSPEED SYSTEMS will provide on-site support (including, at HIGHSPEED SYSTEMS’ option, repair or replacement of equipment that is defective in material or workmanship) for all HIGHSPEED SYSTEMS-owned equipment.
34. You acknowledge that it is possible that the access numbers used by your dial modem to connect to the Services may be telephone numbers that result in additional and/or long distance charges being billed to you. You are solely responsible for determining whether the access numbers you are using are subject to any additional and/or long distance charges and you agree to pay all such charges including, without limitation, those that may be billed to you by a third party. HIGHSPEED SYSTEMS will not reimburse you for any charges incurred by you as a result of selecting access numbers that are subject to additional and/or long distance charges. Information concerning additional and long distance charges is available on the Services Web Site.
35. You acknowledge that the Services provide access to content, information and materials that are uncensored. You acknowledge that some of the content, information and material that is available through the Services and the Internet may be inaccurate, offensive, harmful or in violation of applicable laws. HIGHSPEED SYSTEMS recommends that minors using the Services be supervised by an adult.
Acceptable Use of the Services
36. The Services may be used only for lawful purposes. You agree that you will not:
1. post, upload, reproduce, distribute or otherwise transmit unauthorized or unsolicited commercial e-mail, junk or bulk e-mail, chain letters or other “spam”;
2. maintain a relay service open to the general public;
3. scan or probe another computer system;
4. obstruct or bypass computer identification procedures;
5. engage in unauthorized computer or network trespass;
6. engage in denial of service attacks;
7. post, upload, reproduce, distribute or otherwise transmit any data, information or software that constitutes a virus, trojan horse, worm or other harmful component;
8. export equipment, software or data outside of Canada or the United States in contravention of applicable export control legislation;
9. post, upload, reproduce, distribute or otherwise transmit information or materials where such activity gives rise to civil liability, or otherwise violate the rights or assist others to violate the rights of HIGHSPEED SYSTEMS or any third party; such violations include but are not limited to engaging in copyright infringement, trade-mark infringement, patent infringement, misappropriation of trade secrets and defamation;
10. post, upload, reproduce, distribute, or otherwise transmit information or materials where such activity constitutes a criminal offence, or otherwise engage in or assist others to engage in any criminal offence; such offences include, but are not limited to, public incitement or willful promotion of hatred, pyramid selling, unauthorized use of a computer, mischief in relation to data, fraud, defamatory libel, obscenity, child pornography, harassment, stalking and uttering threats;
11. otherwise violate HIGHSPEED SYSTEMS’ Acceptable Use Policy at http://www.HighSpeed Systems.com/aup , as it may be updated from time to time;
12. use or register HIGHSPEED SYSTEMS’ trade-marks, trade names, trade dress, or logos, including without limitation any such trade-marks, trade names, trade dress, or logos displayed on any web site(s) operated by HIGHSPEED SYSTEMS, without HIGHSPEED SYSTEMS’ express prior written permission;
13. use or register HIGHSPEED SYSTEMS’ trade-marks, trade names, trade dress, or logos, including without limitation any such trade-marks, trade names, trade dress, or logos displayed on any web site(s) operated by HIGHSPEED SYSTEMS, without HIGHSPEED SYSTEMS’ express prior written permission;
14. share (except as necessary for use of your Services in a home network), resell, reproduce, copy, distribute or redistribute any portion of, use of or access to, the Services or exploit the same for any commercial purposes, except where expressly authorized by HIGHSPEED SYSTEMS; or
15. allow any other person or entity to engage in any of the foregoing activities while using your Services account.
37. If at any time you become aware of any violation, by any person or entity, of the acceptable use rules set out in Section 36 above, which involves your account, you agree to immediately notify HIGHSPEED SYSTEMS and provide HIGHSPEED SYSTEMS with assistance, as requested, to stop and/or remedy such violation.
38. Without limiting any of HIGHSPEED SYSTEMS’ rights to suspend, restrict or terminate your Services account as described elsewhere in this Agreement, HIGHSPEED SYSTEMS may suspend, restrict or terminate your Services account without notice if, in HIGHSPEED SYSTEMS’ sole and absolute discretion, you have violated any of the acceptable use rules set out in Section 36 above. You acknowledge and agree that HIGHSPEED SYSTEMS shall not be responsible or liable to you or any third party for any suspension, restriction or termination of your account.
39. You acknowledge that content including, but not limited to, text, software, music, sound, photographs, video, graphics or other material accessed through the Services or the Internet is protected by applicable copyrights, trade-marks, patents, trade secrets and/or other proprietary rights and laws. You further acknowledge that, except where expressly stated otherwise, all programs, services, processes, designs, technologies, materials and all other things comprising the Services are owned by HIGHSPEED SYSTEMS, its licensors or its suppliers and are protected by applicable copyrights, trade-marks, patents, trade secrets and/or other proprietary rights and laws.
40. HIGHSPEED SYSTEMS does not claim ownership of information, materials, software or other content (collectively, the “Content”) that you post, upload, input, provide, submit or otherwise transmit to HIGHSPEED SYSTEMS or any third party, using the Services. However, you agree that by posting, uploading, inputting, providing, submitting or otherwise transmitting the Content to HIGHSPEED SYSTEMS or any third party, using the Services, you have thereby granted HIGHSPEED SYSTEMS a royalty-free, non-exclusive license to use, copy, distribute, transmit, display, edit, delete, publish and translate such content to the extent reasonably required by HIGHSPEED SYSTEMS to provide the Services to its customers or to ensure adherence to or enforce the terms of this Agreement.
41. You acknowledge that, except where otherwise specified by HIGHSPEED SYSTEMS, e-mail addresses, IP addresses and personal web page addresses assigned to you by HIGHSPEED SYSTEMS during the term of this Agreement remain the property of HIGHSPEED SYSTEMS at all times.
42. You understand that the technical processing and transmission of the Services, including your content, materials or other information, may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices. You further acknowledge that any content, materials or information that you may access through the Services may be subject to “caching” at intermediate locations on the Internet.
43. You acknowledge that HIGHSPEED SYSTEMS has no obligation to censor or monitor use of the Services by you, any customer or any third party, including, without limitation, any obligation to censor or monitor any content, material or other information sent, received or accessible through the Services or the Internet. However, you agree that HIGHSPEED SYSTEMS has the right to, without notice, monitor use of the Services and monitor, review and retain such content, material or information if HIGHSPEED SYSTEMS believes in good faith that such activity is reasonably necessary to provide the Services to customers, ensure adherence to or enforce the terms of this Agreement, comply with any laws or regulations, respond to any allegation of illegal conduct or claimed violation of third party rights, or protect itself or others.
44. In the event that HIGHSPEED SYSTEMS receives a complaint relating to use of the Services by a customer, HIGHSPEED SYSTEMS may, in its sole and absolute discretion and without notice or liability, investigate the complaint, restrict, suspend or terminate the account(s) involved and/or remove any content, information or materials from its servers.
45. You agree that HIGHSPEED SYSTEMS may, without notice or liability, disclose to third parties any customer information or any content, information or materials associated with a Services account, if HIGHSPEED SYSTEMS believes in good faith that such activity is reasonably necessary to provide the Services to customers, ensure adherence to or enforce the terms of this Agreement, comply with any laws or regulations, respond to any allegation of illegal conduct or claimed violation of third party rights, or protect itself or others.
46. You agree that, to maintain or improve the Services or for other business reasons, HIGHSPEED SYSTEMS may change the Services rates, service plan features, e-mail addresses, minimum equipment and software requirements and any other aspect of the Services at any time, without notice or liability, at HIGHSPEED SYSTEMS’ sole and absolute discretion.
47. Notwithstanding the foregoing, HIGHSPEED SYSTEMS will use reasonable efforts to notify you via e-mail to your primary HIGHSPEED SYSTEMS e-mail address, of any material increases in the recurring, regular Services rates for your account.
48. You acknowledge and agree that:
1. All use of the Services is at your own risk;
2. The Services are provided on an “as is” and “as available” basis;
3. HIGHSPEED SYSTEMS does not guarantee error-free or uninterrupted operation of the Services;
4. Neither HIGHSPEED SYSTEMS nor its suppliers are responsible or liable for loss, deletion or alteration of any transmissions or data including, without limitation, any e-mail messages, for any material or data sent or received or not sent or received, or for any transactions entered into through or using the Services including, without limitation, domain name registrations, renewals and transfers;
5. HIGHSPEED SYSTEMS is not responsible or liable for any act or omission of any third party, including, but not limited to, any threatening, defamatory, obscene, offensive or illegal conduct or any infringement of another’s rights, including without limitation intellectual property rights;
6. Neither HIGHSPEED SYSTEMS nor its suppliers are responsible for any content that is transmitted through the networks of HIGHSPEED SYSTEMS or others or that is sent, received or accessed using the Services, by you or any third party; and
7. HIGHSPEED SYSTEMS is not responsible or liable for loss or damage to your equipment, software or data arising directly or indirectly out of installation or maintenance of the Services.
8. The information you provide may be stored electronically on a server outside of Canada. The information will be protected with appropriate security safeguards, but may be subject to access under the laws of the foreign jurisdiction.
49. HIGHSPEED SYSTEMS makes no conditions, warranties or representations about the suitability, reliability, usability, security, quality, capacity, performance, availability, timeliness or accuracy of the Services, any other products or services supplied under this Agreement or the networks of third parties. HIGHSPEED SYSTEMS expressly disclaims all conditions, warranties and representations, express, implied or statutory including, but not limited to, implied conditions or warranties of merchantability, fitness for a particular purpose, durability, title and non-infringement, whether arising by usage of trade, course of dealing, course of performance or otherwise.
50. The HIGHSPEED SYSTEMS web site(s) which you may visit while using the Services may contain links to other web sites. These links are provided solely as a convenience to you and the inclusion of any such link does not imply endorsement, investigation or verification by HIGHSPEED SYSTEMS of such web sites or the information contained therein. HIGHSPEED SYSTEMS is not responsible for the contents of any such web sites and makes no representations, conditions or warranties regarding any other web sites. If you decide to access other web sites, you do so at your own risk.
Limitation of Liability
51. In the event of any material breach of this Agreement by HIGHSPEED SYSTEMS, your exclusive remedy shall be to receive payment from HIGHSPEED SYSTEMS for your actual and direct damages resulting from such breach, to a maximum amount equal to the lesser of one hundred dollars ($100) or the total fees paid hereunder by you to HIGHSPEED SYSTEMS during the three (3) months immediately preceding the relevant breach.
52. Except as set out in Section 51 above, in no event shall HIGHSPEED SYSTEMS, its parents, subsidiaries, affiliates and their respective officers, directors, agents, employees, suppliers, resellers and distributors (collectively, the ” HIGHSPEED SYSTEMS entities” and each, a ” HIGHSPEED SYSTEMS entity”) be liable for any direct, indirect, special, incidental, consequential or punitive damages, or any other damages or losses whatsoever including, without limitation, damages for loss of profits, goodwill, opportunity, earnings, use or data, arising directly or indirectly from or related to this Agreement or the Services, regardless of the cause of action and even if one or more of the HIGHSPEED SYSTEMS entities have been advised of the possibility of such damages or losses including, but not limited to, damages or losses arising from or in any way related to the following:
1. The performance of the Internet;
2. The content or accuracy of any material, information or data (including without limitation any software) viewed, downloaded, accessed or transmitted over or through the Internet or the Services including, without limitation, material which infringes the rights of others or otherwise violates laws or regulations;
3. The viewing, downloading, transmitting, accessing, purchasing or by any other means acquiring any information, material, product or service accessible through the Internet or the Services;
4. Delays, errors, interruptions, mistakes, omissions, non-delivery, incorrect delivery, viruses or defects in the transmission of any information, material or data over or through HIGHSPEED SYSTEMS’ systems or networks or the systems or networks of third parties; and
5. Installation or maintenance of the Services, by you, HIGHSPEED SYSTEMS or third parties.
53. Some jurisdictions do not allow the disclaimer of certain warranties or conditions or the limitation of certain types of liability so some of the disclaimers and limitations in this Agreement may not apply to you.
54. You agree to indemnify and hold harmless each of the HIGHSPEED SYSTEMS Entities from all demands, claims, awards, actions, proceedings, damages, losses, costs, charges and expenses, including legal fees, incurred by or made against the applicable HIGHSPEED SYSTEMS Entity, which result from or relate to:
1. access to or use, by you or any third party, of your Services account; or
2. any of your acts or omissions including, without limitation, breach or non-performance of this Agreement and any violation of third party rights.
Term and Termination
55. Upon the expiry of the term of this Agreement, your Services will continue on a month to month basis until you notify HIGHSPEED SYSTEMS that you wish to cancel service. The terms and conditions then applicable, including all rates and charges, will apply to your month to month service.
You may terminate this Agreement at any time by notifying HIGHSPEED SYSTEMS of the date you want the cancellation to be effective. Cancellation fees may apply. If you cancel your service or if HIGHSPEED SYSTEMS cancels it for any of the reasons listed below, you remain responsible for any applicable cancellation charges and for all amounts chargeable to your account up to the time the service is cancelled. Any recurring charges that were billed at the beginning of your billing cycle or any credit balance under five dollars will not be refunded when your service is cancelled. If you want the Services reconnected after cancellation, a reconnection fee may apply.
HIGHSPEED SYSTEMS may suspend the Services if you contravene any provision of these Service Terms, including your obligation to pay for the Services as charges become due. HIGHSPEED SYSTEMS may terminate the Services (i) immediately and without notice, where HIGHSPEED SYSTEMS determines that you are using the Services contrary to the acceptable use provisions of this Agreement, (ii) upon three days written notice to you, if any amount owing under this Agreement or any other agreement for services provided to you by HIGHSPEED SYSTEMS is in arrears, (iii) if you do not remedy any other breach of these Service Terms within 15 days of receiving written notice of the breach from HIGHSPEED SYSTEMS, (iv) if you become a bankrupt or, if you are a business customer, a receiver or receiver-manager is appointed to manage the affairs of your business, or (v) for any reason, upon 30 days written notice to you.
56. HIGHSPEED SYSTEMS shall have no responsibility to notify any third party including, without limitation, any third party providers of services, merchandise or information, of any suspension, restriction or termination of your account. In the event your account is terminated, HIGHSPEED SYSTEMS shall have no obligation to forward any unread or unsent messages to you or any third party or to maintain any messages, information or other content related to your account and you acknowledge that all such messages, information and content may be immediately deleted. Without limiting the generality of the foregoing, you acknowledge that upon termination of your account, all e-mail and web page addresses related to your account may be immediately deleted and/or reassigned to other customers. HIGHSPEED SYSTEMS’ policies regarding handling of customer e-mails upon suspension and termination of customer accounts can be found on the Services Web Site.
57. Any termination of your account shall not relieve you from any amounts owing or other liability accruing under this Agreement prior to the time that such termination becomes effective.
58. You agree to return any HIGHSPEED SYSTEMS-owned high speed modems, wireless gateways and associated components to a HIGHSPEED SYSTEMS approved depot within 14 days of termination of a Services high speed service account, unless otherwise directed by HIGHSPEED SYSTEMS. If you do not return such equipment in accordance with the foregoing, if such equipment is returned damaged, or if you have assigned, encumbered, sold, transferred or leased such equipment, you agree to pay a $99.95 charge, plus applicable taxes. The location of HIGHSPEED SYSTEMS approved depots can be obtained by contacting HIGHSPEED SYSTEMS by phone at the phone number specified on the Services Web Site.
59. In relation to all telecommunications services provided by HIGHSPEED SYSTEMS hereunder, unless you provide express consent or disclosure is pursuant to a legal power, all information kept by HIGHSPEED SYSTEMS regarding you, other than your name, address and listed telephone number, is confidential and may not be disclosed by HIGHSPEED SYSTEMS to anyone other than you; a person who, in the reasonable judgment of HIGHSPEED SYSTEMS is seeking the information as your agent; another telephone 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; a company involved in supplying you 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; an agent retained by HIGHSPEED SYSTEMS to evaluate your creditworthiness or collect your account, provided the information is required for and is to be used only for that purpose; or to a public authority or agent of a public authority, if in the reasonable judgment of HIGHSPEED SYSTEMS it appears that there is imminent danger to life or property which could be avoided or minimized by disclosure of the information. Express consent may be taken to be given by you where you provide written consent, oral confirmation verified by an independent third party, electronic confirmation through the use of a toll-free number, electronic confirmation via the Internet, oral consent where an audio recording of the consent is retained by HIGHSPEED SYSTEMS, or consent through other methods, as long as an objective documented record of your consent is created by you or by an independent third party.
60. For the purposes of the foregoing Section 59, you hereby expressly consent to the collection, use and disclosure by HIGHSPEED SYSTEMS and its agents of your information, content and materials (including, without limitation, your personal information) solely to the extent such collection, use and disclosure is authorized under Sections 4 and 45 of this Agreement.
Mediation and Arbitration
61. Any unresolved dispute arising out of the marketing, sale or provision of the Services by HIGHSPEED SYSTEMS or relating in any way to this Agreement, except the collection by HIGHSPEED SYSTEMS of charges owing for the Services, may only be referred to a single mediator chosen by the parties, subject to any dispute resolution procedure established by Canadian telecommunications service providers generally to address customer complaints. Should the mediation not result in a settlement, the dispute will then be determined by private, confidential and binding arbitration by the same person originally chosen as mediator. The fees of the mediator and arbitrator shall be shared equally by the parties. By agreeing to mediation and arbitration of disputes, you waive any right you may have to commence or participate in any class action against HIGHSPEED SYSTEMS, to the extent the waiver of such rights is permitted by applicable law.
62. The federal laws and regulations of Canada, and applicable provincial laws and regulations, govern this Agreement. You may not assign or transfer this Agreement without HIGHSPEED SYSTEMS’ prior written consent. If any provision of these Service Terms is prohibited or unenforceable in certain circumstances, the remaining Service Terms shall apply and be construed in those circumstances as if such provision had never been written. The failure of HIGHSPEED SYSTEMS to require or enforce strict performance of any provision of these Service Terms in a particular instance shall not be construed, in other circumstances, as a waiver of any right conferred upon HIGHSPEED SYSTEMS.