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Terms and Conditions

 

Specific Service Clauses

 

1. Fiber Local Loop

Fiber Connections

All equipment necessary to deliver fiber-optic connectivity shall be installed and configured at the connection address by the Service Provider's technical staff and terminated with Standard demark. All equipment required to deliver the connectivity to Standard demark remains the property of the Service Provider. Equipment connected at the Standard demark remains the responsibility of the Client. The Standard demarcation is an RJ-45 Ethernet jack or other as specified in the Description of Services section of the Agreement.

 

The Client must have proper facilities in place such as, but not limited to, inside conduits and entry conduits to deliver fiber to the designated termination room. Some construction fees or rights of passage may apply.

 

2. High-Availability/High-Quality Bandwidth

High-Availability/High-Quality Bandwidth service is for high-demand, high performance, and high availability bandwidth needs. This service is multi-homed, i.e. it is connected to two (2) or more IP transit networks. The Service Provider uses BGP4 as a routing protocol to ensure full redundancy in the event that one (1) IP transit provider was to fail. The Service Provider undertakes to use the most performing network at all times, based on parameters such as but not limited to, latency, packet loss, and the shortest path.

 

Unmetered Bandwidth

The unmetered Bandwidth network helps you manage your costs through the predictability of a fixed monthly charge for bandwidth consumption. Unmetered bandwidth does not mean unlimited or infinite. Unmetered means you can use/transfer as much bandwidth as needed without bandwidth overages or extra charges. The maximum amount of transfer is only limited by the physical access to the Service Provider's network.

 

95th percentile Committed Rate – per Mbps

Committed-rate bandwidth service is billed in 1Mbps increments. The committed rate in Mbps is specified by the Client. The rate is bi-directional and billing is based on the greater of inbound or outbound network traffic.

  • The network traffic is measured on a 95th percentile basis. If the 95th percentile measurement exceeds the committed rate, the excess shall be billed at the excess rate specified in the Agreement; otherwise, it will be billed at the committed rate.
  • The committed rate bandwidth may only be changed in 1 Mbps increments, between 1Mbps and 10Gbps.
  • The committed rate may be increased following a two (2) day prior written notice to the Service Provider at the following email address: sales@fibrenoire.ca. The new rate shall be pro-rated to the number of days in the current billing cycle, typically one (1) month.
  • The monthly billing for committed rate service is based on the sustained usage level during the month, as determined by the traffic samples taken approximately every five (5) minutes over the course of the month. The Client’s monthly charge is determined by the usage level under which ninety-five percent (95%) of the samples fall during the billing month.
  • The committed rate fees do not include access or local loop charges.
  • The network traffic may burst up to the maximum rated capacity of the connection due to Client’s usage or a third party (i.e. malwares, viruses, etc.). The Service Provider is not responsible for network traffic levels and the Client is solely responsible for maintaining and controlling traffic burst usage levels.
  • The burstable committed rate usage is measured by the Service Provider’s bandwidth billing system at the borders of its Autonomous System (“AS”) (only where it interfaces to the external networks). The traffic metered at all border points is aggregated for billing purposes.

 

3.  Service Level Objective (“SLO”)

The SLO is a standard for the Services delivered to eligible clients.

The SLO covers availability (“uptime”) of the Client’s Internet connection each month, including the local loop; The Service Provider’s POP; and Internet Backbone Network up to the borders of its Autonomous System (“AS”). The Client’s Local Area Network (“LAN”) is not covered under the SLO.

 

Procedure in the Event of Service Failure

The Client must immediately notify the Service Provider’s Customer Support of any outages or problems regarding the Services, by using the communication channels defined in the below SLO MTTr section. The time of commencement of an outage or problem regarding the Services shall begin following such immediate notification of the problem by the Client and the latter’s confirmation to the Service Provider’s Customer Support that the Client is not experiencing a problem, such as but not limited to an electric outage or a hardware and/or software problem and only once the Client has provided the Service Provider, as the case may be, with any necessary information and/or has conducted any necessary action at the Service Provider’s request in order to resolve the problem.

 

SLO Coverage Eligibility

The Client must have one or more of the following Services installed:

Internet over fiber Optic Connection SLO takes effect following the installation of the service and payment of all one-time installation fees if any.

 

SLO Coverage Exclusions

The SLO coverage excludes:

  • Scheduled maintenance by the Service Provider’s technical support. The Service Provider will provide at least a 72hrs notice in advance.
  • Problems outside the Service Provider network, including but not limited to failures outside the border of its AS.
  • Client problems including but not limited to unplugged cables; software crashes; Client hardware and/or administration failures.
  • Degraded or slow service on the Internet outside the borders of the Service Provider's network.
  • An act of God (force majeure).

 

SLO Mean-Time-To-Repair (“SLO MTTR”)

The SLO includes an MTTR (Mean Time To Repair) for all eligible services. The MTTR is an indicator as an “industry best practice” to guarantee that the Service Provider shall make best efforts to repair outages within the timeframe below:

  • Dedicated Fiber Optic: Four hours (4hrs)

 

SLO Mean-Time-To-Respond (“SLO MTTr”)

The SLO includes an MTTr (Mean Time To Respond) for all eligible services. The MTTr is an indicator as an “industry best practice” to guarantee that the Service Provider shall make best efforts to respond to the support request within the timeframe below:

  • Through the Service Provider’s Emergency 24/7 Phone System: Fifteen (15) minutes.
  • By phone: Thirty (30) minutes
  • By email: Sixty (60) minutes (during business hours, 9:00 am to 5:00 pm, Monday through Friday)

 

4.  SLO for Internet Backbone Network Availability

The Service Provider's Internet Backbone Network consists of multiple physical network connections and network equipment between the borders of its AS, which interface with the Service Provider's IP transit networks and the local loops of its clients.

 

The Service Provider standards are at least ninety-nine and ninety-nine percent (99.99%) Internet Backbone Network uptime in each calendar month.

 

5.  SLO for Fiber Optic Local Loop

The Fiber Optic Local Loop consists of a network connection between the demarcation point at the Client's premises and the Service Provider's Internet Backbone Network. The Fiber Optic Local Loop is composed of a physical connection, i.e. fiber optics, and network equipment.

 

The Service Provider standards are at least ninety-nine and nine percent (99.9%) Fiber Optic Local Loop uptime in each calendar month.

 

6.  IP Subnet

Subnet Allocation

A standard block of IP refers to eight (8) IP Subnet (five (5) useable IPs). The Service Provider can also provide subnets of :

  • 256 IPs (/24 Netmask)*
  • 128 IPs (/25 Netmask)*
  • 64 IPs (/26 Netmask)*
  • 32 IPs (/27 Netmask)*
  • 16 IPs (/28 Netmask)*
  • 8 IPs (/29 Netmask)
  • Other smaller or larger subnets if required by the Client.

* Additional charges apply. Contact the Service Provider Customer Service for more information.

 

Notes about IP Allocation

  • The Service Provider requires justification from the Client for any given IP assignment.
  • The Service Provider’s standard allocation is a “/29” (8 IPs, 5 usable).
  • Assignment and configuration of IP addresses shall take a minimum of twenty-four (24) hours.
  • The Service Provider provides IP Assignments up to class C in size (256 IPs). All assignments are governed by the American Registry of Internet Numbers (“ARIN”) allocation policies.
  • The number of planned IPs to be used in the next three (3) months is necessary information for the Service Provider to justify IP assignation.

 

General Clauses

 

7.  Notice

Method of delivery: Any notice, consent or request required hereunder shall be properly given or delivered if sent by registered mail or by a bailiff to the addresses indicated on the first page of the Agreement.

 

8.  Obligations of the Service Provider

The Service Provider undertakes to the Client that the Services shall be provided in a professional manner, in accordance with generally accepted industry practices, and based upon the Description of Service(s) and that it shall use the means at its disposal to ensure the provision of the Services.

 

9.  Obligations of the Client

The Client shall fully cooperate with the Service Provider and provide the latter with all information required in order to ensure that the Services are provided in a proper and complete manner. In the event that the Client's representative is replaced during the performance of the Agreement, the Client shall immediately notify the Service Provider of same.

 

The Client undertakes to use the Services only for legal purposes and in accordance with the laws and regulations. Without limiting the generality of the foregoing, the Client shall not use the Services to transmit or to receive any communication, information or material whose transmission, reception or possession would constitute a criminal offense, a violation of the law or that would incur civil liability. If the Service Provider determines that the Client uses the Services in contravention with the present paragraph, the Service Provider shall be entitled to terminate the Agreement in accordance with Section 16 and the Client shall be responsible to pay all penalties described in the Agreement in the event of an early termination.

 

10.  Responsibility

Notwithstanding any of the terms hereto, the Service Provider is not responsible for any indirect damages including, without limitation, financial loss, loss of profits or loss of data. The Service Provider is not responsible for any damages resulting from any kind of outages on the Backbone Network or on the Fibre Optic Local Loop.

 

11.  Confidentiality Clause

The Client agrees to assure and preserve the confidential nature of the present Agreement and to not communicate or disclose it's content to anyone, except to the Authorized Persons, as such term is hereinafter defined, such persons must be advised by the Client of the confidential nature of the Agreement and assure their commitment to maintain and preserve the confidentiality. For the purposes of the present Agreement, the Authorized Persons of the Client are: the directors and officers, its legal and accounting counsels, its bankers and the employees he enables to process financial information of his company. The Client recognizes and accepts that the definition of Authorized Persons is subject to a restrictive interpretation and cannot, in any way, include any of the Service Provider’s competitors even though such corporations might be authorized to handle confidential information from the Client as a consultant, agent, mandatory, employee or as a representative.

 

The Client also undertakes to keep confidential and to not disclose to any person or corporation, save and except for the Authorized Persons, any offers or quotes issued at any time by the Service Provider regarding the Services or any additional services, the invoices issued, the data and information communicated by the Service Provider to the Client, any plan or business objective communicated by the Service Provider to the Client during the term of the Agreement as well as any additional information, strategy or operation of the Service Provider regarding the management of the Services, the Client’s support, customer service and as the management of any incident or outage.

 

12.  Useful Information

The Client acknowledges that before the signing of this Agreement the Service Provider has provided it with all useful information regarding the Services that the Service Provider has undertaken to provide.

 

13.  Business Hours

The Service Provider's administration and sales office business hours are from 9:00 am to 5:00 pm, from Monday through Friday. The Service Provider's Network Operation Center ("NOC") is available twenty-four (24) hours a day, seven (7) days a week, solely for emergency purposes.

 

14.  Fees, Charges, and Interests

The Client agrees to pay all charges and fees incurred in connection with the use of the Services outlined in the Agreement without compensation. The Client shall receive monthly invoices for the services reflecting the charges and applicable taxes in accordance with the Agreement. The Client agrees, in advance, that the Service Provider’s invoices shall be sent electronically and only by the Service Provider’s platform. Upon the Client’s request, the Service Provider shall provide copies of the invoices by mail. Past due amounts shall bear interest at the annual rate of eighteen percent (18%) until full payment thereof and interest thereon.

 

15.  Suspension of Services or Termination of Agreement

In the event that the Client neglects and/or refuses to respect the obligations provided for herein including, without limitation, to pay the Service Provider all applicable fees and costs for the Services provided for, the default for one of the Services shall constitute default for all the Services and the Service Provider shall have the following options:

 

Suspension of Services

The Service Provider shall send a twenty-four (24) hour prior written notice of default to the Client detailing the default hereunder. Following the expiration of the twenty-four (24) hour notice period, the Service Provider may suspend the performance of the Services, without further notice or delay, the whole without prejudice to any of the Service Provider's other rights. Despite any provision to the contrary, the Service Provider is not responsible for any damages, including, but not limited to, direct or indirect financial or business loss, resulting from the suspension of the performance of the Services.

 

OR

Termination of Agreement

The Service Provider may terminate this Agreement following any default hereunder upon giving the Client a five (5) business day prior written notice. Notwithstanding any provision to the contrary, the Service Provider shall not be held liable for any damages, including, but not limited to, direct or indirect business or financial losses resulting from the cancellation of the Services and the termination of the Agreement. The Client acknowledges and agrees that upon termination of the Agreement for non-payment, the following shall immediately become due and payable by the Client: (i) all arrears, (ii) any unpaid activation fees, (iii) all penalty fees set forth in the Term of Agreement section of the Agreement and (iv) as the case may be, any other expenses incurred by the Service Provider with respect to this Agreement.

 

16.  Termination

The Customer cannot unilaterally terminate without cause the Services and hereby expressly waives its rights under Section 2125 of the Quebec Civil Code. However, the Customer has the right to terminate the Services at any time, in whole or in part, provided that the Customer pays immediately to the Service Provider, an amount equal to the termination fees mentioned in the "Term of the Agreement". The termination shall take effect fifteen (15) days following the receipt of the written notice by the Service Provider.

 

17.  Moving Clause

In the event that the Client moves to another location, the Agreement shall continue to remain in force. If the Service Provider is able to provide the Client with equivalent service at the Client's new address, the Service Provider shall activate the Services at the Client's new address and the Client shall pay the Service Provider for any and all activation fees and other fees related to moving the services to the Client's new address including any installation and construction costs of the fiber optics for the Client's new address. If the Service Provider cannot provide the Client with an equivalent service at the Client's new address or is unable to provide any service at the Client's new address, the Client shall terminate the agreement by immediately paying the Service Provider all termination penalty fees set forth in the Term of Agreement section of the Agreement.

 

18.  Force Majeure

The Service Provider is not responsible for any delay or default under the terms of the Agreement that result from a Force Majeure Event. For the sake of the Agreement, « Force Majeure Event » means a cause beyond the Service Provider’s reasonable control, including, fire, lightning, flood, earthquake, civil unrest, shortages, sabotage, the unavailability or the delay in delivery not resulting from the failure of the Service Provider to place the order, fibre cuts by third parties or other acts of God or Nature.

 

19.  Legal Fees

In addition to any other amount due and payable under this Agreement, should the Service Provider require the assistance of legal counsel to enforce the terms hereof, the Client acknowledges and agrees that it shall reimburse the Service Provider for all reasonable professional and legal fees incurred by it with respect thereto.

 

20.  Intellectual Property Rights

The Client acknowledges and agrees that the Service Provider retains all intellectual property rights which it may have and no such rights are transferred or licensed unless such transfer is specifically mentioned in the Agreement.

 

21.  Assignment

No rights and obligations of the Client hereunder may be transferred or assigned without the prior written consent of the Service Provider, any transfer or assignment in violation hereof being null and void insofar as the Service Provider is concerned and rendering the option to the Service Provider to consider the Client in default under the terms herein. For the sake of the Agreement, an unauthorized transfer or assignment includes any mandate, service contract, agency contract, management contract or any similar agreement entered into by the Client with a competitor of the Service Provider that bears the objective of i) managing or validating the contractual relationship between the Service Provider and the Client, ii) review or coordinate the Services or the invoices, or iii) coordinate or negotiate any of the Services or the Agreement, or iv) coordinate or manage the performance of the Services, the service support or the incident management (the « Third Party Mandate »). As such, any request formulated by the Client to the Service Provider in order for the latter to deal, directly or indirectly, with a competitor, any request made in order for the Service Provider to provide to a competitor with any information, document, invoice, offer, quote, proposal or order and any request made to the Service Provider to accept a modification or a proposal to the Services, to the invoices or to the Agreement by a competitor, in the name of the Client, shall be null and void insofar as the Service Provider is concerned. In the event of a Third Party Mandate, the Service Provider shall be entitled to terminate the Agreement with a five (5) days written notice if i) the Client refuses to terminate the Third Party Mandate or ii) the Service Provider has a reasonable reason to believe that a Third Party Mandate exists. If the Service Provider terminates the Agreement in relation to a Third Party Mandate, all applicable early termination fees under the Agreement shall be due and payable by the Client to the Service Provider subject to the Service Provider’s other rights and remedies.

 

22.  Governing Law and Language

Governing Law

The Agreement shall be construed and enforced in accordance with the laws in force in the Province of Quebec. The Parties have further expressly agreed to elect the judicial district of Montreal for the purposes of the Agreement.

 

Language

The Parties have expressly agreed that the Agreement as well as all other documents relating thereto be drawn up only in English. Les parties ont expressément convenu que ce contrat de même que tous les documents s'y rattachent soient rédigés en anglais seulement.