All capitalized terms contained herein shall have the meanings given to them in the Beanfield Services Agreement to which these Terms of Service are deemed to form a part of, upon activation of Services to the Subscriber.
1. Subscriber obligations
The Subscriber shall:
- Be responsible for all persons they authorize or give access to use its Beanfield Service.
- Acknowledge that the acts or omissions of all persons they authorize or give access to use its Beanfield Service will be treated as the Subscriber’s acts or omissions.
- Provide Beanfield reasonable access to their location to perform necessary maintenance or repairs. Beanfield will provide Subscriber with a minimum of five (5) days advance notice when access is required, except for instances where emergency repairs are required to maintain service availability. All such access is subject to site-specific access and security regulations.
- Not tamper with or change the Services as delivered by Beanfield or any equipment provided by Beanfield.
2. Service obligations
- Disclaimer - Subscriber acknowledges that Beanfield does not warrant uninterrupted or error free Services, or the content, availability, accuracy or any other aspect of any information including all data, files and all other information or content in any form, accessible or made available to or by the Subscriber or any other persons using the Subscriber's Service.
- Alternative Service - During the Term of any Services Agreement, Beanfield may migrate any Service to an alternative service or technology, as long as the alternative service or technology provides the same functionality and reliability as the current Service. If Beanfield plans to migrate the Subscribers Service to an alternative service or technology, Beanfield will provide the Subscriber with ninety (90) days advance notice. If the Subscriber does not wish to subscribe for the alternative service or have its original Service delivered by the proposed alternative technology, the Subscriber may terminate the Service on the cut-over date to the new service or technology, as the case may be, on not less than thirty (30) days notice to Beanfield.
- Service Interruption - The Subscriber also acknowledges that Beanfield may interrupt the Services from time to time as specified in any Services Agreement, to perform maintenance or repairs on the Services, provided that Beanfield provides the Subscriber with five (5) days advance notice. All non-emergency maintenance and repairs shall be scheduled on a Sunday between 1:00 a.m. and 6:00 a.m., local time unless the parties otherwise agree.
3. Month to month after expiry
If Services are provided by Beanfield to the Subscriber after the expiry of the Term and no renewal or extension agreement has been entered into by the parties, the Services Agreement will continue on a "month to month" basis, terminable by either party upon sixty (60) days advance notice to the other party. Beanfield reserves the right at any time during the last sixty (60) days of the Term or at any time during the month to month renewal period(s), to increase the Service Charges on sixty (60) days advance notice to the Subscriber.
4. Service relocation
If the Subscriber requests the relocation of a Service to another municipal address within Beanfield's service area, the Subscriber will be responsible for any new installation charges associated and Beanfield will advise the Subscriber of the estimated cost thereof. If Beanfield is unable to provide Service at the new location or the Subscriber does not wish to pay for the relocation costs, the Subscriber shall remain responsible for Service Charges for the remaining months in the Services Agreement unless the Subscriber pays a lump sum early termination fee as agreed to by the parties.
5.1 Either party may by notice terminate this Services Agreement if the other party breaches or fails to observe or perform any of its material obligations set out in this Services Agreement and fails to cure such breach or failure within ten (10) days after notice from a party, force majeure delays excepted.
5.2 If at any time prior to the expiry of the Term the Subscriber discontinues the Services or terminates this Services Agreement for any reason other than as permitted in 5.1 above, or if Beanfield terminates this Services Agreement due to Subscriber default pursuant to 5.1 above, including, but not limited to, a default in payment, the Subscriber shall immediately pay to Beanfield upon receipt of invoice, as liquidated damages and not as a penalty, an amount which is equal to the sum of:
- seventy five percent (75%) of the monthly Service Charges for the terminated Services multiplied by the number of months remaining in the Term from the effective date of termination;
- any costs which Beanfield must continue to pay to third parties for the remainder of the Term;
- any Capital Costs which the Subscriber has not fully paid for as of the effective date of termination; and
- a lump sum representing the aggregated total of any waived or discounted installation, one-time or monthly recurring charges associated with the terminated Services in consideration of the Subscriber’s commitment to the Term.
5.3 Beanfield may suspend, withdraw or restrict all or part of the Services at any time until further notice to the Subscriber in any of the following events
- If the Subscriber is bound by an Acceptable Use Policy for their specific Service, as indicated on “Schedule A” of their Services Agreement and the Subscriber is in violation of the Acceptable Use Policy (available at www.beanfield.com/aup.)
- The provision of the Services would cause the Beanfield to be in violation of any applicable law;
- In the reasonable opinion of the directors of Beanfield it is necessary to suspend the Services in order for Beanfield to
- carry out scheduled maintenance, repair or upgrade any equipment or facility forming part of the Beanfield Network, where Beanfield has given the Subscriber at least five (5) days advance notice, or as much notice as is commercially reasonable in the circumstances or;
- protect the overall integrity of the Network and its users or;
- carry out any emergency service, unplanned maintenance, repair or upgrade of any equipment or facility forming part of the Beanfield Network, where Beanfield has given the Subscriber as much notice as is commercially reasonable in the circumstance, which may be none depending on the severity of the situation.
5.4 Beanfield may suspend, withdraw or restrict all or part of the Services at any time until further notice to the Subscriber in any of the following events
- The Subscriber is on the receiving end of a Denial of Service Attack (DOS), or a Distributed Denial of Service Attack (DDOS) from somewhere on the Internet and it is causing problems for other user’s of the Beanfield Network.
- The Subscriber or any person having access to the Subscriber’s Services, harass, threaten or abuse any Beanfield employee.
5.5 The Subscriber's obligation to pay Services Charges shall continue during periods of service suspension under Sections 5.3 or 5.4.
6. Subscriber credits
The Subscriber must notify Beanfield within ninety (90) days of an invoice being issued with respect to any questions or discrepancies. Failure to notify Beanfield within this time period will constitute the Subscriber's acceptance of such Service Charges.
7. Representations and warranties
- Each Party represents and warrants to the other that: (i) it has full right and authority to enter in to the Agreement and that by entering into the Agreement, it is not in violation of its organizational documents, or any law, regulation or agreement by which it is bound or to which it is subject; (ii) its execution, delivery and performance of the Agreement has been duly authorized by all requisite corporate action; (iii) that the individuals signing the Agreement on behalf of the parties are authorized to do so; (iv) it is a business entity duly organized, validly existing and in good standing under the laws of its jurisdiction of organization or incorporation; (v) there are no actions, suits or proceedings pending or threatened against it before any court or administrative agency that would materially impair its performance under the Agreement; and (vi) all personal information collected by a party or provided by either party to the other, shall be used strictly in order to perform the gathering or receiving party's obligations under this agreement and use or disclosure of such information shall be in compliance with the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5
- Beanfield represents and warrants that it will provide the Services in a manner consistent with generally accepted standards for the type of Service.
- THE WARRANTIES PROVIDED IN THIS AGREEMENT REPLACE ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AVAILABILITY OR RELIABILITY OF THE SERVICES.
8. Limitation of liability
- EXCEPT FOR DAMAGE TO PROPERTY OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OR WILFUL MISCONDUCT OF BEANFIELD OR ITS AGENTS, WHICH SHALL NOT BE LIMITED, BEANFIELD’S LIABILITY FOR OTHER DAMAGES, COSTS, EXPENSES, OR LOSSES (COLLECTIVELY “DAMAGES”) UNDER THIS AGREEMENT, SHALL NOT EXCEED AN AMOUNT EQUAL TO 6-MONTHS’ FEES CHARGED FOR THE SPECIFIC SERVICE THAT THE DAMAGES RELATE TO.
- NOTWITHSTANDING ANYTHING IN THIS AGREEMENT, IN NO EVENT WILL ANY PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTAL DAMAGES WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS SERVICES AGREEMENT, INCLUDING LOST PROFITS, ANTICIPATED OR LOST REVENUE, LOSS OF DATA, LOSS OF USE OF ANY INFORMATION SYSTEM, FAILURE TO REALIZE EXPECTED SAVINGS, OR ANY COMMERCIAL OR ECONOMIC LOSS, OR ANY THIRD PARTY CLAIM, WHETHER ARISING IN NEGLIGENCE, TORT, STATUTE, EQUITY, COMMON LAW, OR ANY OTHER LEGAL THEORY EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBLE DAMAGES.
- THE SUBSCRIBER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS BEANFIELD, ITS DIRECTORS, OFFICERS, EMPLOYEES AND AUTHORIZED AGENTS FROM AND AGAINST ANY THIRD PARTY CLAIMS ARISING OUT OF THE SUBSCRIBERS USE OF THE SERVICE AND WILL REIMBURSE BEANFIELD FOR ALL LEGAL AND OTHER EXPENSES, INCLUDING LEGAL FEES, INCURRED IN CONNECTION THEREWITH; PROVIDED THAT: (I) BEANFIELD PROVIDES SUBSCRIBER WITH REASONABLE WRITTEN NOTICE OF THE CLAIM; (II) SUBSCRIBER HAS SOLE CONTROL OF THE DEFENSE AND ALL RELATED SETTLEMENT NEGOTIATIONS (EXCEPT THAT BEANFIELD SHALL HAVE THE RIGHT, AT ITS OWN EXPENSE TO PARTICIPATE IN SUCH DEFENSE OR SETTLEMENT THROUGH COUNSEL OF ITS OWN CHOOSING) AND SUBSCRIBER HAS, WITHOUT LIMITATION, THE SOLE DISCRETION TO SETTLE SUCH CLAIM WITHOUT CONTRIBUTION FROM BEANFIELD; AND (III) BEANFIELD PROVIDES SUBSCRIBER, UPON SUBSCRIBER’S REQUEST, WITH THE ASSISTANCE, INFORMATION AND AUTHORITY NECESSARY TO PERFORM SUBSCRIBER'S OBLIGATIONS UNDER THIS PARAGRAPH. REASONABLE OUT-OF-POCKET EXPENSES INCURRED BY BEANFIELD IN PROVIDING SUCH ASSISTANCE WILL BE REIMBURSED BY SUBSCRIBER IF PRE-APPROVED BY SUBSCRIBER. THIS INDEMNITY SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
- This Services Agreement and all documents, data, information, maps and other materials which are disclosed by one party to the other party in fulfilling the provisions and intent of such Services, are and shall be confidential (the “Confidential Information”). Neither party shall divulge or otherwise disclose the Confidential Information to any third party without the prior consent of the other party, except that either party may make disclosure on a need-to-know basis to those employees required for the implementation or performance of the Services. In addition, either party may make disclosure as required by a court order or as otherwise required by law or in the performance of a party's obligations (or those of its Affiliates) as a public company. If either party is required by law or similar process to disclose any Confidential Information, it will, to the extent legally permissible, provide the other party with prompt written notice of such request or requirement so that such party may seek an appropriate protective order and/or waive compliance with this “Section 9”. The party whose consent to disclose information is requested shall respond to such notice request, within five (5) Business Days of the request by either authorizing the disclosure or advising of its election to seek a protective order, or if such party fails to respond within the prescribed period the disclosure shall be deemed approved.
- Section 9(a) shall not apply to information that: (a) is publicly available other than through a breach of this Services Agreement, (b) is lawfully in the possession of the recipient before disclosure by the other party and is not otherwise subject to a confidentiality undertaking, (c) is obtained through a third party that is free to disclose it, and (d) is required by law to be disclosed (and then, to the extent legally permissible, only after reasonable advance notice to the disclosing party).
- Upon expiration of the Term or, if earlier, upon a written request of a party, the other party shall either return to the other party or destroy all Confidential Information, and any copies of the same.
- Nothing herein shall be construed as granting any right or license under any copyrights, trademarks, service marks, trade names, inventions, or patents now or hereafter owned or controlled by either party.
- Neither party shall, without first obtaining the other party’s written consent, use any trademark, service mark, trade name, inventions or patents of the other party or refer to the subject matter of the Agreement or the other party in any marketing, promotional or advertising material or activity, or otherwise, nor disclose to others any specific information about the subject matter of this Services Agreement.
This Agreement may not be assigned by the Subscriber without the prior written consent of Beanfield, such consent not to be unreasonably withheld; provided that Subscriber may, without consent, assign this Agreement in connection with a corporate reorganization or merger or to any entity that controls, is controlled by or is under common control with the assigning Party or to a purchaser of all or substantially all of its assets or business, and in any such event, the assigning Party shall not be released from its obligations hereunder.
The Subscriber understands that signing a Services Agreement does not guarantee availability of that particular Service, since availability can only be determined during the provisioning process. If Beanfield cannot provide the Services, or a mutually agreed upon equivalent solution, within thirty (30) days of any proposed installation date, the Subscriber may terminate the Service without liability upon notice to Beanfield. Installation dates will only ever be provided once a formal site visit/facilities check has been completed by Beanfield.