Gate West Terms Of Service (TOS)
Document last modified: November 19, 2001
1. Services.
The customer requests Gate West ("GW") and Gate West
is pleased to provide to its customer, Dial-up, DSL or other High
Speed access to the Internet, Web hosting and other available services
(the "Services"), subject to the terms and conditions
contained herein.
2. Access Services Provided and Payment Terms.
a) By accessing the Services, you agree to the terms and conditions
set out below. If you do not agree with any of the following terms
and conditions, you may not access or use the Services. You acknowledge
that all services obtained by you over the Internet and charges
for such services are your responsibility.
b) GW may change portions of this Agreement from time to time upon
reasonable notice to you. It is further acknowledged that this Agreement
is subject to terms and conditions that may be required by statute,
regulation, or CRTC (or other regulatory body) pronouncement. GW
may disclose any information as is necessary to: satisfy any legal,
regulatory or other governmental request; operate the services properly;
or protect GW or its customers.
c) You agree to pay GW the applicable monthly or yearly fees and
installation fee, referred to herein, plus applicable taxes, incurred
in connection with the use of the Services.
3. Customer's Computer.
It is your responsibility to ensure that your computer equipment
meets the requirements set out by GW as may be amended from time
to time, that are necessary to use the Services.
4. Limited Warranty.
ALL EQUIPMENT AND SERVICES ARE PROVIDED BY
GW "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES
OR CONDITIONS OF ANY KIND. GW DOES NOT WARRANT UNINTERRUPTED USE
OR OPERATION OF THE EQUIPMENT OR SERVICES. GW DOES NOT WARRANT THAT
ANY DATA OR FILES SENT BY OR TO YOU WILL BE TRANSMITTED IN UNCORRUPTED
FORM OR WITHIN A REASONABLE PERIOD OF TIME, OR THAT ANY CONTENT
OR OTHER MATERIAL ACCESSIBLE ON THE SERVICES IS FREE OF VIRUSES.
ALL REPRESENTATIONS, WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR
ANY IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF FITNESS
FOR A PARTICULAR PURPOSE AND MERCHANTABLE QUALITY WITH REGARD TO
ANY MERCHANDISE, INFORMATION OR SERVICE AND THOSE ARISING FROM A
COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXCLUDED.
5. Acceptable Use of the Service by Customer.
You agree to comply with the policies respecting permitted and
prohibited use of the Service as may be posted from time to time
on the Gate West website at www.gatewest.net/aup (the "Acceptable
Use Policy"). Without limiting the generality of the foregoing,
you agree not to:
a) invade another person's privacy; unlawfully use. Possess, post
transmit, or disseminate content which is unlawful, threatening,
abusive, libellous, slanderous, defamatory or otherwise offensive
or objectionable; unlawfully promote or incite hatred; or post,
transmit or disseminate objectionable information, including, without
limitation, any transmissions constituting or encouraging conduct
that would constitute a criminal offence, give rise to civil liability,
or otherwise violate any municipal, provincial, federal, or international
law, order or regulation;
b) access any computer, software, data, or any confidential, copyright
protected or patent protected materials of any other person, without
the knowledge and consent of such person;
c) alter, modify or tamper with the equipment or Services;
d) upload, post, publish, deface, modify, transmit, reproduce, or
distribute in any way, information, software, or other material
obtained through the Service which is protected by copyright, or
other proprietary right, or related derivative works, without obtaining
permission of the copyright owner or right-holder;
e) restrict, inhibit or otherwise interfere with the ability or
any person to use or enjoy the equipment, the Services or the Internet,
including, without limitation: posting or transmitting any information
or software which contains a virus, lock, key, bomb, worm, Trojan
horse or other harmful or debilitating feature, distributing mass
or unsolicited e-mail ("Spamming"), or otherwise generating
levels of traffic sufficient to impede other's ability to send or
retrieve information;
f) disrupt GW's backbone network modes or network services, or otherwise
knowingly disrupt the Service;
g) share, resell or provide the GW services to any third party,
The Services are for personal use only and you agree not to use
the Service for operation of an Internet Service Provider business
or for any business enterprise in competition with the Service;
h) host an Internet Server at your premises using the GW Dial-up,
DSL or other High Speed service. Engaging
in one or more of these activities may result in termination of
this Agreement.
6. No Liability For Content.
You acknowledge that there is certain content on the Internet and
other Services which may be offensive to some customers, or which
may not be in compliance with all local laws, regulations and other
rules. All content accessed by you through the Service is accessed
and used by you at your own risk. GW assumes no liability whatsoever
for any claims or losses arising out of or otherwise relating to
access to or use of such content by you. You agree to hold GW harmless
from all liabilities and expenses related to any breach of this
Agreement by you or any other user of your computer or in connection
with your or such other users use of the Service.
7. Access to the Customer's PC by Other Users.
You acknowledge that when accessing the Internet, there are certain
applications that are designed to allow other users to gain unauthorized
access to your PC. You assume the responsibility for such matters.
8. Limitation of Liability.
(a) In the event of any breach by GW, its affiliates or its agents,
including any breach of a fundamental term or any negligence by
GW, your exclusive remedy shall be to receive from GW payment for
actual and direct damages to a maximum amount equal to the fees
paid by you to GW in the past three months.
(b) Under no circumstances shall GW, its affiliates or its agents
be liable to you or to any third party for any direct, indirect,
special, or consequential damages, including loss of profits and
loss of business opportunities, that result in any way from this
Agreement, including your use of the Service or to access the Internet
or any part thereof, or your reliance on or use of information,
services or merchandise provided on or through the Service, or that
result from mistakes, omissions, interruptions, deletion of files,
errors, defects, delays in preparations, or transmission, or failure
of performance.
(c) GW shall not be liable for, and you shall indemnify and save
GW harmless from and against all suits, claims or judgements howsoever
arising out of any of the following:
i. claims for libel, slander, infringement of copyright, trade-mark
or other intellectual property rights or contractual rights of any
third party or based on any other legal theory howsoever arising
from the material, data or other content from your transmissions
from using the Services;
ii. any losses, damages, expenses or costs (including legal fees)
arising out of or in connection with any claim, or other proceeding
based upon a contention that the use of the Equipment or Services
by you or a third party infringes any intellectual property rights
or contractual rights of any third party; or
iii. claims by those to whom you may provide services.
9. Personal Pages (included with all personal accounts).
a) You may create personal pages on our World Wide Web Server (the
"Site"). On the Site, you can conceive, design, create,
maintain, and publish texts, diagrams, illustrations, audio clips,
and related materials (the "Content") for access by a
global audience.
b) You warrant that the Content on your Site is suitable for publication,
is not libellous or defamatory, does not breach the intellectual
property rights (including, without limitation, copyright) of any
third party, and complies with all laws, regulations, court orders,
and other legal requirements.
c) While it is your responsibility to regulate and control Content,
we may decide to suspend or delete your home page without your consent
if you violate this Agreement. In addition, if we determine that
it is appropriate, we may either(i) issue a warning to you; (ii)
suspend your access to some or all of the Services; or (iii) terminate
this Agreement.
10. Business or Corporate Pages (included with iNet or web hosting
accounts only).
a) You may create Business or Corporate pages on our World Wide
Web Server (the "Site"). On the Site, you can conceive,
design, create, maintain, and publish texts, diagrams, illustrations,
audio clips, and related materials (the "Content") for
access by a global audience.
b) You warrant that the Content on your Site is suitable for publication,
is not libellous or defamatory, does not breach the intellectual
property rights (including, without limitation, copyright) of any
third party, and complies with all laws, regulations, court orders,
and other legal requirements.
c) While it is your responsibility to regulate and control Content,
we may decide to suspend or delete your home page without your consent
if you violate this Agreement. In addition, if we determine that
it is appropriate, we may either (i) issue a warning to you; (ii)
suspend your access to some or all of the Services; or (iii) terminate
this Agreement.
11. Termination and Expiration.
Excluding previously agreed upon service contracts, you may terminate
this Agreement at any time by providing GW with 30 days written
notice of such termination. GW may suspend or terminate this Agreement
at any time in the event that you are in breach of any terms or
conditions of this Agreement. You agree that upon termination of
this Agreement:
a) you will pay GW in full for your use of the equipment and Services
up to the date of termination of this Agreement, including all applicable
penalties and surcharges.
b) You will permit GW to access your premises at a mutually agreed
upon time to remove GW's equipment and other material provided by
GW. You will return or destroy all copies of any software provided
to you.
12. Usage of Services after Termination.
If for any reason you use the Services past the date of termination,
you will be charged at the regular monthly or yearly rate plus applicable
taxes, and will be responsible for the payment of this usage.
13. Overdue Account Fees.
All monthly accounts are paid one month in advance. All payments
must be received no later than the 10th of each month. Failure to
do so will result in the account being in default and may be put
on hold until the account is paid in full. If any monthly account
is not paid by the end of the month, the outstanding balance will
incur interest charges of 2% per month for six months thereafter.
If payment is still not received after this time, the balance will
be forwarded to a collection agency and the total balance plus all
charges incurred by the collection agency will be the responsibility
of the customer to pay.
14. Ownership of Addresses.
GW owns all addresses provided to you, including but not limited
to IP addresses, e-mail addresses and personal web page addresses.
GW may modify or change such addresses at any point in time and
shall in no way be required to compensate you for such changes.
15. End User Licenses.
You agree to comply with the applicable terms and conditions of
all end user license agreements accompanying any software or plug-ins
to such software distributed in connection with the Service.
16. Multiple Users.
You acknowledge that you are executing this Agreement on behalf
of all persons who use the Service through your or any other PC.
You assume all liability for such use of the Services and are responsible
for ensuring that all such other users understand and comply with
the terms and conditions of this Agreement.
17. Survival.
Upon termination of this Agreement, all accrued obligations or
liabilities and the provisions that by their nature are intended
to continue beyond such termination, will remain in effect. Without
limiting the generality of the foregoing, the provisions of Sections
5, 7,8,9, 10 and 11 shall survive the termination of this Agreement
for any reason.
18. Waiver.
The failure of either party to insist upon strict interpretation
of this Agreement or to exercise any option herein, shall not act
as a waiver of any right or option, but the same shall continue
to be in full force and effect. No waiver by either party of any
breach shall be effective unless expressed in writing.
19. General.
In the event that GW amends any of the provisions of the Agreement,
your continued use of the Services following such amendment shall
be deemed its acceptance of such amendments. If you do not agree
with any of the amendments to this Agreement, you agree to stop
using the Services. This Agreement shall be governed by and construed
in accordance with the laws of the province in which your billing
address located and the federal laws of Canada applicable therein.
This Agreement, the Acceptable Use Policy, and all Schedules attached
to this Agreement constitute the entire Agreement and understanding
between the parties with respect to the subject matter of this Agreement
and supersede and replace any and all prior written or verbal agreements.
This Agreement may not be assigned or transferred by you.
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