Master Service Agreement
Master Service Agreement
This AGREEMENT is between Digitcom Telecommunications Canada Inc. (“DIGITCOM”) and (“CUSTOMER”) and sets out the terms and conditions upon which CUSTOMER will purchase telecommunications, audio/visual, collaboration and related services from DIGITCOM.
The Services, the prices for those Services that will apply during the initial term of this AGREEMENT are described in above pricing schedule. Any additional services that CUSTOMER elects to order from DIGITCOM shall be provided upon the terms and conditions of this AGREEMENT, together with such additional terms and conditions as the parties agree upon (the services described in this AGREEMENT, such Attachments and such additional services are referred to in this AGREEMENT as the “Services”). DIGITCOM shall perform the Services in a good and workmanlike manner in accordance with customary industry standards. DIGITCOM shall use its commercially reasonable efforts to correct any deficiency within a reasonable period of time.
1.2. Changes to and Interruption of Services.
The Services shall be subject to such modifications, additions and deletions as DIGITCOM may determine from time to time. To maintain or improve the Services, to prevent fraud, on any material breach by CUSTOMER of this AGREEMENT (including any non-payment), DIGITCOM may restrict, interrupt, modify or terminate the Services provided hereunder without notice, provided that DIGITCOM shall make commercially reasonable efforts to give advance notice thereof. Digitcom does not perform planned maintenance to the network or services during business hours.
CUSTOMER acknowledges their former carrier will not accept line cancellation orders from unauthorized third parties. In the event that pre-existing analog or other lines need to be cancelled as a result of changes based on this AGREEMENT, it is the CUSTOMER’s responsibility to cancel those lines after the installation work on this order has been completed.
CUSTOMER acknowledges that problems beyond the control of DIGITCOM (including, without limitation, facility problems, incorrect or incomplete Customer information supplied by CUSTOMER or unavailability) may delay installation dates for the Services. DIGITCOM shall schedule all installations, where required, by appointments with CUSTOMER based upon the information supplied by CUSTOMER to DIGITCOM.
CUSTOMER agrees to pay to DIGITCOM the fees and other charges described relating to the Services set forth in this AGREEMENT. All prices set forth in this AGREEMENT are exclusive of applicable federal and provincial taxes. CUSTOMER shall be responsible for all installation and monthly charges for each Service ordered for the duration of the term and amendments thereto as agreed by the parties. Charges will commence as of the activation date for the applicable Services. DIGITCOM will invoice CUSTOMER monthly for charges for the Services on the customary billing date, except that CUSTOMER may not be invoiced until the charges are $2.00 or more. CUSTOMER will not be responsible for paying any charge for Services that is first invoiced more than 365 days after the date on which the charge was incurred. CUSTOMER must pay amounts invoiced by the due date specified on the invoice, failing which CUSTOMER will be charged interest on outstanding past due amounts at the rate of 2% per month (24% per annum), or such other rate as DIGITCOM may set from time to time. The invoice will include, and CUSTOMER will be responsible for paying, applicable taxes, interest on overdue amounts and charges for returned payments (this includes, but is not limited to, cheques, credit cards and pre-authorized debits) ($15.00 per returned cheque).
2.2. Price Protection.
Except as expressly set forth in this AGREEMENT, the standard prices for the Services will be firm throughout the initial term of this AGREEMENT. DIGITCOM will not increase Fees during the term of this AGREEMENT. In any subsequent term, DIGITCOM may only increase the Fees during the subsequent term if they have provided at least thirty (30) days written notice of the Fee increase prior to the commencement of the subsequent term.
2.3. Billing Procedure.
On the customary billing date DIGITCOM will provide to CUSTOMER an invoice for all Fees relating to the Services for the applicable billing period and CUSTOMER shall pay all such amounts within thirty (30) days following the date of the invoice. CUSTOMER must bring invoice inquiries and disputes to Digitcom’s attention within 45 days of the invoice date or CUSTOMER will be deemed to have accepted the invoice as accurate in all respects. DIGITCOM will review any disputed charge, provided CUSTOMER continues to pay the undisputed portion and subsequent invoices.
2.4. Early Termination and Other Fees.
If CUSTOMER terminates the Services prior to the expiry of the Term, CUSTOMER shall pay to DIGITCOM in one lump sum a deficiency fee equal to 100% of the Monthly Rate for such services times the number of months remaining in the Term. CUSTOMER shall be liable for all costs incurred by DIGITCOM arising from Early termination of any connectivity ordered BY CUSTOMER from DIGITCOM. DIGITCOM shall have the right to apply any deposits, advance payments or other credit balances attributable to CUSTOMER in satisfaction of any termination or other Fees arising under this AGREEMENT
This AGREEMENT shall automatically be renewed at the end of the Initial Service Term on the same terms and conditions for the consecutive renewal period(s) set out in that Service Schedule on the expiration of any term unless, at least 60 days prior to the expiration, DIGITCOM or CUSTOMER delivers a cancellation and non-renewal notice to the other party, in which event this AGREEMENT shall terminate at 11:59 p.m. on the day of expiration.
3.2. Termination by Either Party.
Either party may terminate this AGREEMENT upon written notice to the other in the event that the other party (i) is in material breach of a provision hereof and such breach is not cured within thirty (30) days after written notice of such breach (and for purposes of this clause, late or non-payment by CUSTOMER constitutes a material breach), or (ii) CUSTOMER becomes bankrupt or insolvent, or makes an assignment for the benefit of creditors, if such proceedings are not dismissed within sixty (60) days after commencement.
3.3. Termination by Digitcom
DIGITCOM may at its discretion refuse to provide Services to CUSTOMER where:
- DIGITCOM will incur unusual costs or expenses which CUSTOMER will not pay, for example, for securing rights of way or rights of access, acquiring space in buildings, or for special construction;
- CUSTOMER owe amounts to DIGITCOM that are past due;
- CUSTOMER does not provide a security deposit or satisfy alternate security measures when requested by DIGITCOM;
- DIGITCOM has terminated services to CUSTOMER in the past; or
- DIGITCOM the requested service is not available in the location requested by CUSTOMER.
For the situations in Section 3.3, DIGITCOM will provide reasonable notice to CUSTOMER stating:
- the reason for the proposed suspension or termination, and the amount in arrears (if any);
- the scheduled suspension or termination date; and
- the reconnection charge (if applicable).
4.1. Security Disclaimer.
Although DIGITCOM may provide basic installation and operational security guidelines with its Services, CUSTOMER shall be solely and exclusively responsible for the control, operation and security of communications made through access to or use of the Services, however caused. CUSTOMER is responsible and liable for all charges and for all the Services furnished to the CUSTOMER by DIGITCOM, including without limitation, all calls and services: (a) originating from or accepted at its telephone lines or terminal equipment; (b) made using any number, calling card number, or authorization code given to the CUSTOMER; or (c) made using any facility used to provide access to the DIGITCOM services from the terminal equipment of the CUSTOMER. The CUSTOMER shall be responsible and liable for paying for all calls originating from and charged calls accepted at its lines or terminals, regardless of who made or accepted them, whether such calls are made or accepted with or without the authority, knowledge or consent of the CUSTOMER. DIGITCOM will apply, at request of CUSTOMER, a billing cap limiting the maximum billing to be applied in a billing period. This limit request must be requested in writing by CUSTOMER, acknowledged as received by DIGITCOM and forms part of this AGREEMENT.
By subscribing to this service, CUSTOMER accepts all liability for any service related charges billed to CUSTOMER’s account, including user-caused damage to the telephone line or central office equipment as a result of attaching faulty or unauthorized equipment to the line.
DIGITCOM shall not be liable for any claim by or against CUSTOMER arising out of or related to the actions of any person resulting in: (i) alteration, theft or destruction of computer programs, information, data files, procedures or other property of CUSTOMER, or (ii) any losses or damages CUSTOMER may suffer in connection with CUSTOMER’s use or inability to use the Services. DIGITCOM may interrupt your Services at any time for any duration of time, without any notice or liability, in order to install, inspect, repair, replace or to perform necessary maintenance on the telecommunications equipment, facilities or network, or for other technical reasons as may be required. DIGITCOM’s liability for negligence, breach of contract, tort or other causes of action, or any loss, omissions, delays, errors, defects or failures in the Services, equipment or facilities, or for any other action or inaction of DIGITCOM, is limited to a refund of charges for the affected Services proportionate to the length of time the problem existed, upon request. Under no circumstances shall DIGITCOM be liable for any indirect, special, consequential, exemplary or punitive damages whatsoever, including any interruption of business or lost profits, even if such damages were reasonably foreseeable. DIGITCOM is not liable for:
- any disruption or unavailability of the Services, including without limitation, any disruption or unavailability of emergency 911 service;
- any act or omission of any third party (including any other local telephone company, any connecting carrier or underlying carrier or other provider of connections, facilities, or service);
- CUSTOMERs conduct, acts or omissions, or the operation or failure of your equipment or facilities;
- DIGITCOM’s failure, for any reason, to activate any Services on the activation date CUSTOMER requested or activation date provided to CUSTOMER by DIGITCOM; or
- any defacement of, or damage to, your premises resulting from the attachment or removal of any instruments, apparatus or associated wiring or equipment furnished by DIGITCOM on your premises.
4.2. Directory Listings
- If CUSTOMER subscribes to DIGITCOM local service, CUSTOMER’s telephone numbers may be published in the telephone directory for your area unless CUSTOMER makes appropriate arrangements to have such telephone numbers removed from the directory (unlisted), and pay any corresponding service charges when due.
- In the case of errors or omissions in the directory listings, whether or not the error or omission is with regard to telephone numbers, individual names or business names, DIGITCOM’s liability with regard to any such errors or omissions is limited to a refund or credit of any charges associated with the listings in question for the period during which the error or omission occurred.
4.3. No Indirect Damages, Etc.
Under no circumstances will DIGITCOM be liable to CUSTOMER for any indirect, special or consequential damages, exemplary, aggravated or punitive damages, compensation for loss of profits, anticipated revenue, savings or goodwill, other economic loss of CUSTOMER or any costs, expenses or interest related thereto, under any theory of law or equity, arising out of or in any way related to the Services. CUSTOMER obtains no proprietary right or interest in, any particular facility, service, equipment, telephone number or code associated with the Services.
4.4. Force Majeure.
Notwithstanding any other provision set forth in this AGREEMENT, DIGITCOM shall not be liable for any failure or delay in its performance under this AGREEMENT (including any changes to or failure to continue to provide the Services or services contemplated herein) due to any cause beyond DIGITCOM’s reasonable control, including, without limitation, acts of God, earthquake, inclement weather including lightning, flood, fire, sabotage, labor dispute, riots or civil disputes, war or armed conflict, any law, governmental act or order, decision or regulation, or order of any court of competent jurisdiction; or change in regulatory requirements affecting telecommunications companies similarly situated with DIGITCOM generally, or failure of third-party telecommunications transport facilities or of power generation or transmission; provided, however, that DIGITCOM shall (i) give CUSTOMER prompt notice of such cause, and (ii) use DIGITCOM’s reasonable commercial efforts to correct promptly such failure or delay in performance to the extent consistent with then applicable law and regulatory requirements.
E911 Service Notification:
If CUSTOMER subscribes to IP based services provided by DIGITCOM, CUSTOMER is advised VoIP services, while appearing similar to traditional telephone calling services, creates unique limitations and circumstances. CUSTOMER acknowledges and agrees differences exist between traditional telephone service and VoIP telephone services and acknowledges having read, understand and accepts the 911 service information at http://www.hostedpbx.ca/911-info/
DIGITCOM MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES REGARDING ANY SERVICE, PRODUCT OR FACILITIES PROVIDED BY DIGITCOM TO CUSTOMER (INCLUDING WITHOUT LIMITATION, THOSE RELATING TO:
(i) NETWORK TRANSMISSION CAPACITY;
(ii) WHETHER DATA WILL BE TRANSMITTED IN AN UNCORRUPTED FORM;
(iii) THE SECURITY OF ANY TRANSACTION;
(iv) THE FAULT TOLERANCE OF THE SERVICE OR THE SUITABILITY OF SAME FOR HIGH RISK ACTIVITIES; OR
(v) THE RELIABILITY OR COMPATIBILITY OF THE FACILITIES (INCLUDING EQUIPMENT) OR SOFTWARE OF THIRD PARTIES WHICH MAY BE UTILIZED BY DIGITCOM IN PROVIDING, OR BY THE CUSTOMER IN USING, THE SERVICE), WHETHER EXPRESS OR IMPLIED IN LAW OR IN FACT, OR IN WRITING, EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT. THE CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE MADE BY DIGITCOM OUTSIDE OF THIS AGREEMENT.
The parties hereto have reviewed the terms and conditions of this AGREEMENT and have caused their duly authorized representatives to execute this AGREEMENT as of the date first set forth above. The customer understands the AGREEMENT including the general terms and conditions, and any other schedules as found on DIGITCOM’s web site at www.digitcom.ca
To review our standard Terms and Conditions, click here.