Service Terms
These Terms and Conditions (“Service Terms”) apply to the use of Services offered by National Capital Internet Exchange o/a Ottawa-Gatineau Internet Exchange (“OGIX”) to peering participants (individually, “Participant” and collectively, “Participants”). The Service Terms together with any Service Orders, and the Policies constitute the “Service Agreement” between OGIX and Participants. In the event of a conflict or inconsistency between the constituent parts of the Service Agreement, the inconsistency will be resolved by first giving precedence to an executed Service Order, then to the Service Terms, then to the Policies.
By using or receiving Services, Participant agrees to the Service Terms.
Terms of Service
1. Definitions
“Affiliates” means the definition of “Affiliates” in the Canada Business Corporations Act;
“Business Days” means any day other than a Saturday, Sunday or a day which is a statutory holiday in the Province of Ontario, Province of Quebec or Canada;
“Confidential Information” means any data, documentation or other information of a proprietary or confidential nature of a Disclosing Party, or which is treated as confidential by a Party whether or not identified as being confidential or proprietary, which is disclosed or made available to the Receiving Party in connection with the negotiation, preparation or performance of this Service Agreement. Confidential Information excludes information which is: (i) in the public domain at the time of disclosure; (ii) becomes publicly available through no fault of Receiving Party; (iii) is known to Receiving Party prior to receipt thereof from the Disclosing Party, free of any confidentiality obligation; or (iv) is available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, if that source or its source is not in breach of any obligations of confidentiality to the Disclosing Party. Confidential Information also excludes Participant’s (or Participant’s employees’, agents’ or representatives’) name, address, phone number, fax number, email address and any data or documentation that is required by Participants to peer with one another at an Exchange Point, including, without limitation, the identity of Participants and corresponding Autonomous System numbers, IPv4 and IPv6 Internet Protocol numbers, and contact information for Participants’ peering contacts.
“Contact Information” means Participant’s business name and corporate address as well as the title, phone number, mailing address and email address of all assigned contact persons for the Participant who are designated as the addressees for notices necessary under the Service Agreement;
“Disclosing Party” means a Party (or, if applicable, any of its Affiliates) that discloses Confidential Information to the other Party, that gives the other Party access to Confidential Information or the Confidential Information of which is otherwise obtained by the other Party relating to the Service Agreement or Services;
“Exchange Points” means the following physical locations where Services are provided and Participants can engage in authorized peering activities that comply with Section 2 of the Service Terms:
- PureColo Inc., 390 March Road, Ottawa, Ontario K2K 0G7
- Additional – as commissioned
and any other physical locations that may be substituted for any of the foregoing locations or added from time to time where Services are provided and Participants can engage in authorized peering activities that comply with Section 2 of the Service Terms.
“Laws” means any federal, provincial municipal laws as well as regulations, rules, decisions, orders or policies made or promulgated there under or under any successor legislation, all as the same may be amended from time to time;
“OGIX Parties” means OGIX, its Affiliates, partners, licencors, dealers, representatives, suppliers and agents (and their respective employees, officers, directors, shareholders and representatives);
“Party” means OGIX or Participant;
“Policies” means policies, rules and regulations passed by OGIX from time to time concerning the Services and their use;
“Receiving Party” means a Party that receives Confidential Information relating to the Service Agreement or Services;
“Service Orders” means an order form for Services which may be provided by OGIX or its Affiliates to the Participant from time to time and agreed to by both Parties in writing, setting out additional terms and conditions for the provision of Services;
“Services” means network services and connections necessary for Participant to establish direct interconnection at the Exchange Points as well as any related support (professional, technical and customer), billing and other services which may be provided by OGIX or its Affiliates to the Participant from time to time;
“Website” means all webpages accessible from the http://www.ogix.ca domain.
2. Participant Obligations and Representations
2.1 Participants must adhere to the following non-technical requirements:
(a) Participants must provide OGIX with Contact Information prior to receiving Services and must ensure that Contact Information on record with OGIX is accurate and up to date at all times;
(b) Participants must bear their own costs for the provision of routing capacity and hardware systems at their own end of links utilizing Services;
(c) Participants must remain in good standing by paying all applicable Service Fees, as defined in Section 4 of the Service Terms;
(d) Participants must comply with all Policies;
(e) Participants must comply with all applicable Laws;
- Participants must not interfere with or cause interference with or disruption to Services, the Exchange Points or other Participants;
2.2 If Participant is an individual, he or she represents and warrants that he or she is of the age of majority in the province of Ontario, which is 19 years of age, and that he or she possesses the legal right and ability to enter into the Service Agreement and use the Services in accordance with the Service Agreement.
2.3 If Participant is a corporation, Participant represents and warrants that it has the authority and corporate power resulting from all necessary corporate actions to authorize the execution, delivery and performance of the Service Agreement.
3. Term, Suspension and Termination
Subject to the Service Agreement, Services are provided on an ongoing basis for an indeterminate term.
OGIX may at any time without prior notice suspend all or part of Services to Participant where: (1) Participant owes Service Fees and / or Late Payment Charges that are past due; (2) Participant is under default of any of its obligations under the Service Agreement; (3) necessary or perceived as necessary by OGIX, at its sole discretion, to protect the integrity of Services, Exchange Points and the facilities, equipment and networks of OGIX and / or other Participants. Suspensions will be lifted and Services resumed within a reasonable period of time when the underlying cause for suspension has been resolved to OGIX’s satisfaction. OGIX may require Participant to pay Service Fees associated with reconnection charges, as may be included in the Schedule Fee posted on the Website.
Either Party may terminate the Service Agreement at any time by providing written notice to the other Party.
Upon termination of the Service Agreement by either Party for any reason, Participant must pay all outstanding Service Fees and Late Payment Charges, as defined in Section 4.
If the Service Agreement is terminated by Participant for any reason or by OGIX for cause (i.e. Participant’s breach of the Service Agreement) or due to actual or imminent insolvency or bankruptcy or ceasing to do business in the ordinary course, the portion of Service Fees that have been paid yearly in advance, in accordance with Section 4, are non-refundable.
If OGIX terminates the Service Agreement without cause, Participant will receive a pro-rated refund for the portion of applicable yearly Service Fees for which Services have not been provided.
4. Fees and Billing
Services are subject to the fees set out in the “Fee Schedule” published on the Website (“Fees”) in addition to all applicable taxes (“Taxes”) (combined, Fees and Taxes are referred to as “Service Fees”). As set out in the Fee Schedule, certain Service Fees are billed yearly, in advance, on a calendar-year basis. For example, in the first year of Services, the invoice for yearly Service Fees will be prorated based on the number of remaining days in the calendar year (i.e. up to December 31st). Thereafter, annual invoices for yearly Service Fees shall be issued on January 1st of each year.
Certain Service Fees relate to one-time charges which are billed retroactively within three (3) to thirty business days (30) from the day the charges are incurred.
Participants must pay all invoices for Service Fees in full by the due date printed on the invoice. Any Service Fees not paid when due are subject to late payment charges in the form of interest accruing at a rate of two percent (2%) per month, being 26.82% annually, or the highest rate allowed by applicable law, whichever is lower (“Late Payment Charges”).
OGIX may change the Fee Schedule at any time by giving thirty (30) days written notice to Participants. Any changes to the Fee Schedule will not result in any adjustments and / or refunds to yearly Service Fees that have already been paid in advance. However, changes to the Fee Schedule will apply going forward for subsequent payments of yearly Service Fees.
5. Warranties
To the maximum extent permitted by Laws, OGIX does not guarantee or warrant to Participants: (i) the performance, availability, reliability, quality, uninterrupted use, security, pricing of Services; (ii) third-party information, data, files, pictures or content in any form (collectively “Content”), or the availability, accuracy or any other aspect of any information including all data, files and all other information or third party Content in any form, accessible or made available to or by the Participant through the use of the Services.
Participant understands that OGIX may, from time to time, whether according to maintenance schedules or on an emergency basis, need to interrupt the Services for maintenance and other reasons, and that the Participant shall not receive any compensation for such interruptions.
The Service Agreement consists of the entire agreement between OGIX and Participant. Except for the express warranties set forth in the Service Agreement, OGIX makes no other warranties, express or implied, and disclaims all other warranties, express or implied, including without limitation warranties of title, non-infringement, merchantability and fitness for a particular purpose, availability or reliability of Services, and any warranties arising from a course of dealing, usage, or trade practice.
6. Policies
From time to time, OGIX may establish Policies. OGIX will publish all applicable policies on the Website. Participant’s continued use of Services after an amendment has taken effect constitutes Participant’s consent to the amendment. If Participant does not agree with a new Policy, Participant may terminate the Service Agreement in accordance with Section 3 of the Service Terms.
7. Limitations of Liability
OGIX PARTIES’ TOTAL CUMULATIVE LIABILITY FOR DAMAGES, EXPENSES, COSTS, LIABILITY, CLAIMS OR LOSSES (COLLECTIVELY, “DAMAGES”) ARISING OUT OF OR IN CONNECTION WITH THE SERVICE AGREEMENT OR THE PROVISION OF SERVICES, WHETHER ARISING IN NEGLIGENCE, TORT, STATUTE, EQUITY, CONTRACT, COMMON LAW, OR ANY OTHER CAUSE OF ACTION OR LEGAL THEORY EVEN IF OGIX PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, IS LIMITED TO DIRECT, ACTUAL, PROVABLE DAMAGES AND WILL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE TOTAL AGGREGATE AMOUNTS PAID BY PARTICIPANT ON A PRORATED BASIS, AS APPLICABLE, TO OGIX FOR THE SERVICE(S) GIVING RISE TO THE DAMAGES (LESS ALL DISCOUNTS AND CREDITS AND AMOUNTS PAID FOR PREVIOUS DAMAGES FOR SUCH SERVICE, IF ANY, FOR THE SPECIFIC SERVICE(S) THAT GAVE RISE TO THE DAMAGES), DURING THE THREE (3) MONTH PERIOD BEFORE THE EVENT GIVING RISE TO THE DAMAGES.
OGIX PARTIES ARE NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THE SERVICE AGREEMENT OR THE PROVISION OF SERVICES (INCLUDING LOST PROFITS, ANTICIPATED OR LOST REVENUE, LOSS OF DATA, LOSS OF USE OF ANY INFORMATION SYSTEM, FAILURE TO REALIZE EXPECTED SAVINGS OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS, OR ANY THIRD PARTY CLAIM), WHETHER ARISING IN NEGLIGENCE, TORT, STATUTE, EQUITY, CONTRACT, COMMON LAW, OR ANY OTHER CAUSE OF ACTION OR LEGAL THEORY EVEN IF OGIX PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
8. Indemnifications
PARTICIPANT AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS OGIX PARTIES AND DEFEND ANY ACTION BROUGHT AGAINST SAME WITH RESPECT TO ANY CLAIM, DEMAND, CAUSE OF ACTION, DEBT OR LIABILITY, INCLUDING REASONABLE ATTORNEYS’ FEES, TO THE EXTENT THAT SUCH ACTION IS BASED UPON A CLAIM THAT: (I) IF TRUE, WOULD CONSTITUTE A BREACH OF ANY OF PARTICIPANT’S REPRESENTATIONS, WARRANTIES, OR AGREEMENTS HEREUNDER; (II) ARISES OUT OF THE NEGLIGENCE OR WILLFUL MISCONDUCT OF PARTICIPANT; OR (III) IS BROUGHT AGAINST OGIX PARTIES BY A THIRD PARTY IN CONNECTION WITH THE SERVICES OR OTHER MATTERS RELATED TO THIS AGREEMENT.
IN CLAIMING ANY INDEMNIFICATION HEREUNDER, OGIX SHALL PROMPTLY PROVIDE PARTICIPANT WITH WRITTEN NOTICE OF ANY CLAIM WHICH OGIX BELIEVES FALLS WITHIN THE SCOPE OF THE INDEMNIFICATIONS HEREUNDER, AT ITS OWN EXPENSE, ASSIST IN THE DEFENCE IF IT SO CHOOSES, PROVIDED THAT PARTICIPANT SHALL CONTROL SUCH DEFENCE AND ALL NEGOTIATIONS RELATIVE TO THE SETTLEMENT OF ANY SUCH CLAIM AND FURTHER PROVIDED THAT ANY SETTLEMENT INTENDED TO BIND THE OGIX PARTIES SHALL NOT BE FINAL WITHOUT OGIX’ WRITTEN CONSENT, WHICH SHALL NOT BE UNREASONABLY WITHHELD.
9. Confidentiality
9.1 General Confidentiality
Confidential Information shall remain the property of the Disclosing Party. The Receiving Party shall use commercially reasonable efforts to protect the confidentiality of all Confidential Information, using at least the same standard of care as it uses to protect its own Confidential Information, but in any event, a reasonable standard of care. Neither Party shall at any time, without the prior written consent of the other Party, disclose or use (except as expressly permitted by, or required to achieve the purposes of, the Service Agreement) the Confidential Information of the other Party. The obligation to keep Confidential Information shall survive termination or expiration of this Agreement, however caused, for a period of five (5) years or, in the case of trade secrets, until such time as the Confidential Information does not qualify as a trade secret. A Party may disclose Confidential Information if required by a governmental agency, by operations of law, or if necessary in any proceeding to establish rights or obligations under this Agreement, provided that the Party required to make the disclosure gives the other Party reasonable prior written notice sufficient to permit that other Party an opportunity to contest such disclosure. The Receiving Party shall cooperate with the Disclosing Party in such party’s reasonable efforts to limit the disclosure by means of a protective order or a request for confidential treatment. Since a breach of this Section 9 of the Service Terms by either Party may cause irreparable harm to the other Party for which monetary damages may be inadequate, in addition to other available remedies, the non-breaching Party may seek injunctive relief for any apprehended or actual violation hereof in addition to any other remedies available at law. As soon as practicable, Receiving Party shall notify Disclosing Party of any breach of this Section 9 of the Service Terms.
10. General
10.1 Amendments. OGIX may amend any part of the Service Agreement at any time, at its sole discretion. Amendments to the Service Agreement will be posted on the Website. Participant’s continued use of Services after an amendment has taken effect constitutes Participant’s consent to the amendment If Participant does not agree to an amendment made by OGIX, Participant may terminate the Service Agreement in accordance with Section 3 of the Service Terms.
10.2 Assignment. OGIX may assign all or part of the Service Agreement at any time without prior notice or consent of Participant. Participant may not transfer or assign the Service Agreement or Services without OGIX’ prior written consent.
10.3 Severability. If any part of the Service Agreement is void, prohibited or unenforceable, the Service Agreement shall be construed as if such part had never been part of the Service Agreement; and the remaining provisions thereof shall remain in full force and effect and shall not be affected by the void, prohibited, or unenforceable provision or by its severance therefrom. Furthermore, in lieu of such void, prohibited, or unenforceable provision, there shall be added automatically as part of the Service Agreement a provision as similar in its terms to such void, prohibited, or unenforceable provision as may be possible and be legal, valid and enforceable.
10.4 Survival. All terms and provisions of the Service Agreement, which should by their nature survive the termination of the Service Agreement, including for additional certainty Section 9, shall so survive.
10.5 Relationship of Parties. The relationship between OGIX and Participants is that of independent contractors, and nothing in the Service Terms shall be construed to constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or a common undertaking.
10.6 Consent to receive commercial electronic messages. By entering into the Service Agreement, Participant agrees to receive commercial electronic messages from OGIX. Participant may, at any time, unsubscribe from commercial electronic messages by using the unsubscribe mechanism contained in such messages. However, Services rely heavily on electronic messaging with Participants. Unsubscribing to commercial electronic messages from OGIX may therefore impede or prevent OGIX from delivering Services to Participant.
10.7 Notices. All notices to OGIX necessary under the Service Agreement shall be given by mail or email at the following coordinates:
Mail:
National Capital Internet Exchange o/a Ottawa-Gatineau Internet Exchange
320 March Road, Suite 604
Kanata, Ontario
K2K 2E3
Email: [email protected]
All notices to Participant necessary under the Service Agreement shall be given by mail or email using the Contact Information.
10.8 Governing Law and choice of venue. The laws of Ontario and federal laws of Canada applicable in that province govern the Service Agreement. Participant consents to the exclusive personal jurisdiction of and venue in a court located in Ottawa, Ontario for any suits or causes of action connected in any way, directly or indirectly, to the subject matter of the Service Agreement.
10.9 Language. The parties hereto have requested that this agreement and all correspondence and all documentation relating to this agreement, be written in the English language. Les parties aux présentes ont exigé que la présente entente, de même que toute la correspondance et la documentation relative à cette entente, soient rédigées en langue anglaise.