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Terms of Service
Last updated: August 14, 2012
The following are the terms and conditions that govern the use of BCN’s Internet services (herein referred to as “BCN” or “our”) and constitute the understanding with the customer (“you” or “your”).
Section 1 - Services
By using BCN services, including its Internet services and/or any other of BCN’s related services (collectively or individually, the "Services") provided by BCN, you agree to the following terms and conditions of service (the "Terms of Service"):
By activating the Services, you acknowledge that you have read, understand and agree to these Terms of Service as set out below. It is recommended that you print a copy of these Terms of Service and the Acceptable Use Policy applicable to the Services of BCN. If you wish you may also contact our office at any time, to obtain a printed copy of this documentation.
If you do not wish to be bound by these Terms of Service (or any future modification of these Terms of Service) do not activate (or use the Services and immediately terminate service by contacting BCN). BCN may modify these Terms of Service at any time and will make available updated versions on our website (http://www.gobcn.ca/).
Continued use or non-termination of the services after the effective date of any changes made constitutes your acceptance of these terms of services as modified by such changes.
In addition to the terms contained in these Terms of Service, these Terms of Service are also subject to the terms and conditions set out in the BCN Acceptable Use Policy and Payment Terms and Conditions Policy, and are available at http://www.gobcn.ca/.
Section 2 - Use of the Services
The Services may only be used in accordance with the BCN Acceptable Use Policy.
The Equipment, technology and/or processes provided to you may be subject to intellectual property rights reserved by BCN or third parties. Nothing contained in these Terms of Service shall grant to you any right, license, title or ownership of, in or to any intellectual property rights of BCN or any third party in such Equipment, technology or processes.
Federal law provides severe civil and criminal penalties for the unauthorized reproduction, distribution or exhibition of copyrighted motion pictures and certain programming and BCN shall not be liable for the same, nor is BCN granting you any rights in that regard whatsoever.
Section 3 - BCN's Provision of Services
BCN is not required to provide the Services where:
- the Service Location is located outside of BCN's service area;
- you have failed to make payment of the amounts due for the Services and/or the Equipment; or
- BCN would have to incur unusual expenses to bring the Services to the Service Location, which you do not agree to pay.
Section 4 - Service Interruption/BCN's Right of Entry
BCN and/or its agents may interrupt and/or inspect the Equipment and/or the Services at any time for any duration of time, without notice or liability to you in order to install, inspect, repair, replace or perform necessary maintenance on the Equipment, its facilities and/or network, or for other technical reasons as may be required.
You agree to provide BCN access to the Equipment (including reasonable access to the location the Services are provided ("Service Location") as may be reasonably necessary under the circumstances. BCN's employees/agents will show identification prior to entering the Service Location. BCN is only required to provide you reasonable notice if BCN needs access inside the Service Location. If you are not the owner of the Service Location, it is your responsibility to obtain and maintain access rights for the purpose of enabling BCN employees and/or agents to install, maintain and provide the Services at such Service Location.
You understand that the Services do not function in the event of a power failure and regardless of where the power failure arises. In addition, a power failure or disruption may require BCN to reset or reconfigure the Equipment, its facilities and/or network to reactivate the Services.
BCN does not warrant uninterrupted use of the Services.
Section 5 - Equipment Installation, Maintenance and Return Responsibilities
BCN may install or cause to be installed the Equipment in the Service Location. The Equipment is provided solely for your use of the Services. You may use the Equipment only at the Service Location address you have indicated to BCN at the time you subscribed to the Services. You will not re-arrange, disconnect, remove, repair or otherwise interfere with the Equipment nor will you relocate the Equipment to another address without BCN's approval.
All Equipment and devices purchased and paid for by you, which are neither returnable to nor refundable by BCN, and that you are required to supply for access and use of the Services or that you use in connection with the Services, shall be and remain your responsibility. You agree that BCN is not responsible for any damage or loss to Your Equipment arising from your use of the Services.
Installation of the Equipment may require drilling holes and other modifications to the residence or commercial building where the Equipment is installed. Such modifications are authorized with the full knowledge that if the Equipment is removed BCN will not be required to return the building to its original state. Notwithstanding the foregoing, BCN shall use reasonable care to minimize modifications required. You are responsible to maintain the Equipment on or in your home or business. You warrant that all authorizations for the Installation of equipment have been obtained prior to BCN’s scheduled Installation date.
BCNs’ obligations hereunder do not extend to any relocation, maintenance, repairs, modifications, or adjustments which may be required, that are due to, resulting from, or related in any way to:
- damage, misuse or failure on your part to maintain adequate electrical power, temperature, or a suitable operating environment for the Equipment;
the attachment, interconnection or use of the Equipment with accessories, equipment or services not provided by BCN;
- an event of Force Majeure ("Force Majeure" means an event of fire, flood, earthquake, lightning damage, element of nature, natural disaster, explosions, acts of God, power outages, storms, acts of civil, military, governmental or regulatory authorities, labour disruptions, acts of vandalism, sabotage or other unlawful acts beyond the reasonable control of a Party);
- long term wear and tear of outdoor equipment;
- interference from other competing wireless radio systems or interference in general; or
- interference with, changes in or obstruction of line-of-sight requirements of BCN, such as by foliage growth or building construction;
- or any other cause that is external to the Equipment.
Any maintenance or repairs performed by BCN due to any of the foregoing shall be at your expense at BCNs’ prevailing rates and terms.
Section 6 - Relocation
If you are moving you are responsible to notify BCN at least 30 days prior to the date you are moving. If you move to a location that is outside of the area served by BCN, these Terms of Service shall be terminated. The ability to transfer the Services to a new location is dependent on the availability of the Services at the new location.
Section 7 - Safety
BCN reserves the right to refuse to commence or continue any work which, in its opinion, would have to be done in hazardous conditions. BCN shall not be responsible in any way to you for any refusal to work in or adjacent to hazardous conditions.
Section 8 - Content
BCN does not warrant the condition or content you are able to access on the Internet through the use of BCN Services. You acknowledge that there may be content that you may find offensive and you agree that by viewing and/or using of such content it is at your own risk. Some content may not be suitable for minors and you agree to supervise all minors whom you permit to access the content through your account with BCN.
Section 9 - Charges and Payment Terms
You agree to pay BCN the total charges for use of the Services, including, without limitation: fees applicable to installation; equipment costs, deposits, or non-return charges; processing fees, costs incurred by BCN and interest charges, if your account is past due; plus any applicable federal, provincial or regulatory taxes or surcharges, incurred in connection with the use of the Services (as all such fees may be changed from time to time). BCN will bill you on the first of each month for the services.
You agree to pay all amounts by the due date indicated on your invoice by using any of the payment methods accepted by BCN. Payments made after the statement date on your invoice will be reflected on your next invoice. Amounts owing after the due date are subject to a late payment interest charge calculated on the outstanding amount at 2% per month (26.8% per year) until paid in full. If your account remains unpaid for 90 days you agree to pay a processing fee of $25.00 for services relating to down-grading or terminating your Services. Overdue accounts are subject to termination of the Services by BCN.
You agree to pay BCN $25.00 if your credit card is denied or if your cheque is returned due to non-sufficient funds. Payment of the full amount due will be required before the Services may be restored; BCN is not under any obligation to restore the Services to any person who continues to fail to make timely payment of the amounts due or abuses BCN's Acceptable Use Policy.
You are responsible to ensure that the billing information you provide to BCN is accurate. You agree to promptly notify BCN of any changes in your billing information.
You are responsible for any costs, including legal fees and expenses, collection agency fees or payments and Court costs incurred by BCN to collect any amounts owing under these Terms of Service.
You must bring billing invoice questions and disputes to BCN's attention within 60 days of the invoice date. Your failure to contact BCN regarding any invoice will constitute your acceptance of the invoice.
Section 10 - Customer-Initiated Termination
You may terminate the Services for any reason at any time by providing BCN no less than 30 days advance notice of your desire to terminate. Applicable Service charges continue to apply until the later of (1) the end of the notice period, or (2) such time as the Services are no longer accessible.
You agree that if the Services are terminated for any reason you will pay BCN in full any amounts due and outstanding for your use of the Services.
Section 11 - BCN-Initiated Termination or Suspension
BCN may restrict, block, suspend or terminate all or any part of the Services immediately where you:
- fail to make timely payment on your account for the Services and such failure continues for more than 60 days;
- become bankrupt or otherwise insolvent;
- fail to provide BCN with reasonable entry and access to install, inspect, repair, replace or to perform necessary maintenance on the Equipment, or BCN's facilities or network;
- are in breach of any term or condition of these Terms of Service or of BCN's Acceptable Use Policy; or
- if you relocate, alter, abuse or disconnect the Equipment.
For the situations listed above, BCN will attempt to notify you using the information shown on your account stating the reason and date scheduled for the suspension or termination.
Despite the above, BCN will not provide you notice of a proposed restriction, block, suspension or termination:
- if immediate action must be taken to protect BCN's facilities, Equipment, or network, or if suspension is required by legal requirement, court order, ordinance or regulatory authority;
- if BCN believes that extreme circumstances exist, or that there is an abnormal risk of loss involved in delaying the suspension or termination;
- if you misuse or abuse or permit others to misuse or abuse the Services for purposes that are contrary to law, these Terms of Service or BCN's Acceptable Use Policy applicable to the Services you subscribe to; or
- in an emergency situation.
If the Services are restricted, blocked, suspended or terminated for cause, BCN is not obligated to restore the Services. If BCN agrees to restore your Services, a reconnection service charge may be applied.
Section 12 - BCN's Liability
BCN shall not be liable for:
- any interruption or unavailability of the Services;
- any act or omission of any third party including, but not limited to, any connecting carrier or underlying carrier or other provider of connections, facilities or services;
your conduct, acts or omissions;
- any event beyond the reasonable control of BCN including acts of God, inclement weather (including lightning), power failures, labour disputes, riots or civil disputes, war or armed conflict, any law, governmental order, decision or regulation, or order of any court of competent jurisdiction;
- BCN's failure, for any reason, to activate the Services on the activation date you requested or date provided to you by BCN;
- any defacement of, or damage to, the Service Location resulting from the attachment of any instruments, apparatus or associated wiring and/or the Equipment furnished by BCN, or removal thereof, when such defacement or damage is not wholly caused by BCN's negligence; and
- any damages you incur as a result of the operation or failure of Your Equipment, facilities, wiring or other devices you use with the Services, including without limitation if any of Your Equipment, facilities, wiring or other devices that you use with the Services are now or later become incompatible with the Equipment and/or the Services.
Section 13 - Limitation of Liability
IN THE EVENT OF ANY BREACH BY BCN, INCLUDING ANY BREACH OF A FUNDAMENTAL TERM OR ANY NEGLIGENCE BY BCN, YOUR EXCLUSIVE REMEDY SHALL BE TO RECEIVE FROM BCN PAYMENT FOR ACTUAL AND DIRECT DAMAGES TO A MAXIMUM AMOUNT EQUAL TO THE FEES PAID BY YOU TO BCN IN THE PAST THREE MONTHS FOR THE SERVICES.
UNDER NO CIRCUMSTANCES SHALL BCN BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS AND LOSS OF BUSINESS OPPORTUNITIES, THAT RESULT IN ANY WAY FROM THESE TERMS OF SERVICE, INCLUDING YOUR USE OF THE EQUIPMENT AND/OR SERVICES, OR YOUR RELIANCE ON OR USE OF ANY INFORMATION, SERVICE, MERCHANDISE OR MATERIAL VIEWED OR PROVIDED ON OR THROUGH USE OF THE SERVICES, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN RECEPTION OR TRANSMISSION OR TRANSMISSION, OR FAILURE OF PERFORMANCE OF THE SERVICES.
BCN SHALL NOT BE LIABLE FOR, AND YOU SHALL INDEMNIFY AND SAVE BCN HARMLESS FROM AND AGAINST ALL SUITS, CLAIMS OR JUDGMENTS HOWSOEVER ARISING OUT OF ANY OF THE FOLLOWING;
- CLAIMS FOR LIBEL, SLANDER, INFRINGEMENT OF COPYRIGHT, TRADEMARK 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 THE SERVICES;
- ANY LOSSES, DAMAGES, EXPENSES OR COSTS (INCLUDING LEGAL FEES) ARISING OUT OF OR IN CONNECTION WITH ANY CLAIM, OR OTHER PROCEEDING BASED ON A CONTENTION THAT THE USE OF THE EQUIPMENT AND/OR THE SERVICES BY YOU OR A THIRD PARTY INFRINGES ANY INTELLECTUAL PROPERTY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY; OR
- CLAIMS BY THOSE TO WHOM YOU PROVIDE ACCESS TO THE EQUIPMENT AND/OR THE SERVICES.
FOR THE PURPOSES OF THIS SECTION 13, ANY REFERENCE TO "BCN" SHALL INCLUDE BCN, ITS PARTNERS OR ASSOCIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS OR AGENTS.
Section 14 - Limited Warranty
ALL EQUIPMENT AND THE SERVICES ARE PROVIDED BY BCN "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND. BCN DOES NOT WARRANT UNINTERRUPTED USE OR OPERATION OF THE EQUIPMENT AND/OR THE SERVICES. BCN DOES NOT WARRANT THAT ANY DATA OR COMMUNICATION 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 OR FROM THE SERVICES ARE FREE OF DEFECT, ERROR OR VIRUSES. BCN DOES NOT WARRANT THAT THE CONTENT, INCLUDING WITHOUT LIMITATION CONTENT OF ANY PROGRAMMING AND/OR ADVERTISING THAT IS ACCESSIBLE ON OR FROM THE SERVICES. ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR NONINFRINGEMENT, OR ANY IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABLE QUALITY WITH REGARD TO ANY MERCHANDISE, INFORMATION, PROGRAMMING, ADVERTISING, CONTENT OR SERVICE AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXCLUDED.
Section 15 - Disputes and Governing Law
ANY DISPUTES BETWEEN BCN AND YOU WILL BE REFERRED TO AND DETERMINED BY ARBITRATION TO THE EXCLUSION OF THE COURTS. IF YOU HAVE A DISPUTE YOU SHOULD GIVE WRITTEN NOTICE TO BCN AT SUITE 100, 55 DONALD ST, WINNIPEG, MB R3C 1L8 ATTENTION: LEGAL DEPARTMENT.
ARBITRATION SHALL BE CONDUCTED IN ACCORDANCE WITH THE ARBITRATION ACT (MANTIOBA), BY A SINGLE ARBITRATOR APPOINTED BY A JUSTICE OF THE MANITOBA COURT OF QUEEN’s BENCH. THE DECISION OF THE ARBITRATOR SHALL BE FINAL AND BINDING UPON THE PARTIES AND THE EXPENSE OF THE ARBITRATION SHALL BE PAID AD THE ARBITRATOR DETERMINED.
THESE TERMS OF SERVICE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF MANITOBA AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN AND YOU HEREBY CONSENT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF SUCH JURISDICTION. THESE TERMS OF SERVICE CONSTITUTE THE ENTIRE UNDERSTANDING BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS OF SERVICE AND SUPERCEDES AND REPLACES ANY AND ALL PRIOR WRITTEN OR VERBAL UNDERSTANDINGS.
Section 16 - General
You may not assign, resell or transfer the Services to any person without prior written consent of BCN. These Terms of Service will ensure to the benefit of, and be binding upon, your respective heirs, executors, administrators, successors and permitted assignees and for the purpose of BCN shall benefit to any party that controls, is controlled by or under common control with BCN.
Upon termination of these Terms of Service, all accrued obligations or liabilities and the provisions which by their nature are intended to continue beyond such termination will remain in effect. Without limiting the generality of the foregoing and the terms of BCN Acceptable Use Policy applicable to the Services you subscribed to shall survive the expiration and/or earlier termination of these Terms of Service.
The failure of either party to insist upon strict interpretation of these Terms of Service or to exercise any options 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.
Section 17 - Confidentiality
BCN may disclose any information as is necessary to:
- satisfy any legal, regulatory or other governmental request;
- operate the Services properly;