DediCa Terms and Conditions
Terms of Service
DediCa.ca ("DediCa") offers certain services under the DediCa brand (the
"DediCa Service(s)" or the "Service(s)"), the terms of which are found
in this DediCa Service Schedule. This DediCa Service Schedule (the "Service
Schedule") is an attachment to and forms an integral part of the DediCa Master
Services Agreement (the "Agreement") and the Customer agrees to be bound by the
terms and conditions set out in this Service Schedule as well as the DediCa
Master Services Agreement which can be found at www.dedica.ca/terms.html#msa.
THIS SERVICE SCHEDULE IS SUBJECT TO THE LIMITATION OF LIABILITY CONTAINED IN
THE DEDICA MASTER SERVICES AGREEMENT. THE CUSTOMER MUST READ AND ACCEPT THESE
TERMS AND CONDITIONS OF USE BEFORE USING THIS INTERNET SITE OR SUBSCRIBING TO
THE SERVICE. THESE TERMS AND CONDITIONS OF USE CREATE AN AGREEMENT BETWEEN THE
CUSTOMER AND DEDICA. THESE TERMS AND CONDITIONS OF USE GOVERN THE CUSTOMER'S
USE OF THIS INTERNET SITE ("SITE") AND THE SERVICES OFFERED, INCLUDING THE
SERVICE SOFTWARE, EQUIPMENT, ASSOCIATED MEDIA, ANY PRINTED MATERIALS, DATA,
FILES AND INFORMATION AND ANY ONLINE OR ELECTRONIC DOCUMENTATION ("SOFTWARE").
EACH TIME THE CUSTOMER USES THIS SITE OR THE SERVICES, THE CUSTOMER
ACKNOWLEDGES THAT IT HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THESE
TERMS AND CONDITIONS OF USE. THESE TERMS AND CONDITIONS MAY BE UPDATED AND
CHANGED WITHOUT NOTICE TO THE CUSTOMER. THIS AGREEMENT TAKES PRECEDENCE OVER
ANY OTHER AGREEMENT OR TERMS EMBEDDED WITHIN THE SOFTWARE.
The following terms and conditions apply to all of the DediCa Services unless
specifically noted in the section title as applying only to a particular
1. General Terms for all DediCa Services
1.1. Definitions. All defined terms, if not specifically defined in
this Schedule, shall have the same meaning as set out in the DediCa Master
1.2. Fees and Charges.
1.2.1. The fees and charges for each Service shall be set out in the
description of each Service or bundled Services at www.dedica.ca
1.2.2. Additional charges that may apply to Services, which may include
bandwidth fees, storage fees, access fees or activation fees, shall be
listed at www.dedica.ca
1.2.3. DediCa reserves the right to change fees or charges without notice
to you. Your continued use of the Service after a change in fees shall
constitute your acceptance of such change in fees
1.2.4. All fees and charges shall be charged to you monthly and paid in
accordance with your payment methods set up in your Customer Account.
1.2.5. Refund policy shell be listed at http://dedica.ca/refund.html
1.3. Acceptable Use Policy. The Acceptable Use Policy for the Services
can be found at www.dedica.ca/terms.html#acceptableuse
2. Service Interruption Credits
2.1. If Services are interrupted for a period of at least 24 hours after
notice by the Customer to DediCa, an allowance equal to 1/30th of any fixed
billing cycle charges for the affected Service shall apply to each full 24
hour period during which the interruption continues. Credit in any billing
period shall not exceed the total average monthly charges for that period
for the affected Service. No allowance shall apply to any non-recurring or
usage charges. The Customer's sole and exclusive remedy for Service
interruption shall be the credit outlined above.
2.2. The Customer must request credit within thirty (30) days of the
validated interruption, failing which the Customer forever waives its right
to any credit for such outage. DediCa reserves the right to determine in its
sole and absolute discretion if an interruption is considered a validated
2.3. At no time will multiple remedies be provided to the Customer for same,
similar or related troubles for the same service. Customer payables must be
current prior to the Customer receiving any credits.
2.4. No credit shall be provided for interruptions due to the following:
2.4.1. the failure of any component, software, network or system provided by
the Customer or a third party;
2.4.2. network maintenance by DediCa;
2.4.3. Force Majeure events;
2.4.4. acts or omissions, negligent or otherwise, of the Customer or a
third party, or any breach of any term or condition by the Customer of
the Master Services Agreement or any schedules or addenda attached thereto.
MASTER SERVICES AGREEMENT
This Master Services Agreement and all Service Schedules hereto form the
agreement ("Agreement") between White Falcon Communications operating as
DediCa.ca ("DediCa") and the customer ("Customer" or "you") for the
provision and use of the DediCa services (the "Services").
1. SERVICE SUBSCRIPTION
1.1. The Customer agrees to subscribe to the Services offered by DediCa
as set out in the schedules to this Master Services Agreement (the "Service
Schedules"). The terms and conditions set out in this Master Services
Agreement and the Service Schedules govern the Customer's use of the Services
and Customer must read and accept these terms and conditions prior to using
any of the Services.
1.2. BY ACTIVATING OR USING ANY OF THE SERVICES, YOU REPRESENT THAT YOU ARE
OF LEGAL AGE IN YOUR PROVINCE OF RESIDENCE TO ENTER INTO THIS AGREEMENT AND
THAT YOU HAVE READ AND UNDERSTOOD FULLY ITS TERMS AND CONDITIONS. IN ORDER
TO ACCESS OUR SERVICES, YOU ARE REQUIRED TO PROVIDE CURRENT AND FACTUAL
IDENTIFICATION, CONTACT, AND OTHER INFORMATION AS PART OF THE REGISTRATION
PROCESS. YOU ARE RESPONSIBLE FOR THE CONFIDENTIALITY OF YOUR ACCOUNT
INFORMATION AND FOR ALL ACTIVITIES THAT OCCUR UNDER YOUR ACCOUNT. YOU ARE
SOLELY RESPONSIBLE FOR ALL CONTENT WITHIN YOUR ACCOUNT. YOU AGREE TO
IMMEDIATELY NOTIFY DEDICA OF ANY UNAUTHORIZED USE OF YOUR ACCOUNT OR ANY
OTHER BREACH OF SECURITY. DEDICA WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE
AS A RESULT OF YOUR FAILURE TO PROVIDE US WITH ACCURATE INFORMATION OR TO
KEEP YOUR ACCOUNT SECURE.
2. DEDICA FACILITIES
2.1. DediCa is the owner of all right, title and interest in all facilities,
networks, equipment and software provided by DediCa or utilized in the
provision of the Services (the "DediCa Facilities") or has obtained the
right to make the DediCa Facilities available for use by the Customer from a
third party and the Customer shall have no rights therein.
2.2. It is the Customer's responsibility to provide, prepare and maintain
the Customer's locations, facilities and equipment for the installation of
DediCa Facilities and for DediCa to provide the Services to the Customer.
Such provision, preparation and maintenance shall comply with DediCa'
specifications and shall be at the Customer's expense.
2.3. In the event that the Customer fails to provide, prepare or maintain
the locations, facilities, equipment or network for the installation of
DediCa Facilities or any DediCa Services, or fails to do so in a timely
manner as DediCa may deem necessary in the circumstances, DediCa shall not be
liable for any resulting delay in commencing the Services or any service
interruption and related damages, and the Customer shall be liable for any
additional costs incurred by DediCa in order to install or restore the Services.
2.4. The Customer shall not, without DediCa' written consent and then subject
to such conditions as DediCa may require, make any alternation, addition or
repair to DediCa Facilities or permit access to DediCa Facilities by any
person not approved by DediCa.
2.5. The Customer shall be responsible for the security of and any loss or
damage to DediCa Facilities located on the Customer's premises.
2.6. If, in connection with a particular Service or under a specific Schedule,
the Customer purchases any of the DediCa Facilities from DediCa, the terms
and conditions related thereto shall be specified in the Schedule. However,
all DediCa Facilities remain the property of DediCa until Customer has paid
for such DediCa Facilities in full.
2.7. DediCa shall bear the expense of maintenance and repairs required due
to normal wear and tear to DediCa Facilities.
2. INSPECTION AND MAINTENANCE
3.1. DediCa may, from time to time and without notice to the Customer,
upgrade, maintain, or migrate the Services or the DediCa Facilities.
3.2. In the event DediCa determines that it is necessary to interrupt
the Services or that there is a potential for Services to be interrupted
for the performance of system maintenance, DediCa will use reasonable
commercial efforts to notify the Customer prior to such interruption.
DediCa will use reasonable commercial efforts to schedule system maintenance
during non-peak hours (midnight to 6 a.m. local time). In no event shall
interruption for system or emergency maintenance constitute a failure of
performance by DediCa.
4.1. In addition to the DediCa Facilities which are owned by DediCa, for
certain Services, Customer may purchase or rent hardware or equipment from
4.2. The Customer shall cause the Equipment to be operated in compliance
with the general operating specifications and standards of the manufacturer,
and all applicable laws.
4.3. The Customer will not sell, lease or otherwise dispose of the Equipment
(or any part thereof) and will keep the Equipment free of all encumbrances.
In the case of purchased Equipment, the Customer may sell, lease or otherwise
dispose of the Equipment after all amounts owing to DediCa have been satisfied.
4.4. At all times, the Customer will use the Equipment only in the manner for
which it is designed and as a prudent and careful owner would.
4.5. The Customer will bear the risk of loss, destruction or confiscation to
the Equipment from the time the Equipment is delivered to the Customer and the
Customer is responsible for insuring the Equipment as of the date of such
4.6. Upon termination of this Agreement, or termination of a certain Service
hereunder, the rental Equipment related to the Service must be returned to
DediCa within fifteen (15) days from the date of termination, failing which,
the Customer will be charged the full purchase price of the Equipment.
Returned Equipment must include all original cables and power adapters, must
not have any physical damage and must be in good working order.
5.1. Software License
5.1.1 At the time of subscription, Customer shall receive or shall be
entitled to download the software required to run and operate the Service
5.1.2 Subject to the terms and conditions of this Agreement, DediCa grants
to Customer a non-exclusive, non-transferable, revocable, limited license to
use the Software.
5.1.3 Customer shall have no right to transfer, assign or sublicense the
5.2 Restrictions on altering the Software or the code in any way
Except as otherwise specified in this Schedule , the Customer may not:
(i) copy the Software, other than one copy which is permitted as a backup;
(ii) Modify or create any derivative works of any Software, Service or
documentation, including translation or localization (code written to
published application programming interfaces or APIs); (iii) Sublicense or
permit simultaneous use of the Service by more than one user; (iv) Reverse
engineer, decompile, or disassemble or otherwise attempt to derive the
source code for any Software related to the Service;(v) Redistribute,
encumber, sell, rent, lease, sublicense, or use the Software or the
Service in a timesharing or service bureau arrangement, or otherwise
transfer the Software or any rights to the Software; (vi) Remove or alter
any trademark, logo, copyright or other proprietary notices, legends,
symbols or labels in the Software or Service; or (vii) Publish any results
of benchmark tests run on any Software to a third party without DediCa' prior
5.3 Ownership of Software and Service
All right, title and interest in the copyright, patents and intellectual
property rights in the Software and the Service or any part thereof remain
with DediCa or the original owner of such rights, as the case may be.
6. USE OF THE SERVICE
6.1. System Requirements
The Customer is responsible for ensuring that Customer's computer and systems,
home phone, mobile phone, and any other equipment to be supplied by Customer
for the usage of the Service(s) (the "Customer Systems") meet the minimum
system requirements to run the selected Service(s) which can be found on the
Service's website. If the Customer System does not meet these requirements,
DediCa is not responsible for any connection difficulties or Service delays,
deficiencies, interruptions or related damages the Customer may have as a
The Customer is responsible for the download and installation of the Software
and the Service, where applicable. Customer acknowledges that all installation
and downloads of the Software are at your own risk. DediCa is not responsible
for and will not be liable for any Customer System, or third party software
or system damages or malfunctions that may arise from the installation,
download or use of the Software or the Services.
6.3 Third Party Software and Downloads
6.3.1 DediCa is not responsible for third party software downloads or
hardware installed by the Customer which may alter the Service connection,
the Customer's computer configuration or which may prevent or alter internet
connection, speed, or service or have any other impact on the Service
6.3.2 DediCa is not responsible for any spyware, malware or virus the Customer
contracts on his/her Customer System from using the internet or the World
6.3.3 DediCa assumes no responsibility whatsoever for any internet or email
or other connection software the Customer may run on its Customer System.
DediCa assumes no responsibility for any damages that may result from the
use of such software.
7.1. DediCa offers varying types of support for the Service. The Customer
should review the "FAQ" section of the Service's website to address Service
support related questions. Further, the Customer may contact DediCa directly
with Service related questions at the email or telephone number indicated in
the "Contact" section of the website.
7.2. With respect to Equipment, DediCa will offer technical assistance and
support for degradation or malfunction due to normal wear and tear to the
Equipment rented or purchased from DediCa unless otherwise specified.
7.3 DediCa will not provide support for third party services, hardware,
equipment, software, PC repair services, enhancements, upgrades or
modifications that are not purchased, rented or licensed from DediCa.
7.4 DediCa will not in any event be held responsible to correct or fix any
problems or errors relating to or caused by the installation, configuration
or modification of the Customer's equipment or system or any components
thereof or to incur any costs related thereto.
8.1 The fees for the Services shall be set out in the applicable Service
Schedule or on the Service's website.
8.2 All fees are subject to change at DediCa' discretion. Where required
by law, notification of changes will be sent to you via the email address
on file with DediCa in your Customer Account.
8.3 All fees paid are non-refundable.
9. ACCOUNT INFORMATION, BILLING AND PAYMENT
9.1 To subscribe for any Service, the Customer shall register for an
account ("Customer Account") by providing all requested information in the
application process for the Service, whether on-line or by phone.
9.2 Customer is responsible for providing accurate information and for
updating any information in the Customer account. DediCa reserves the
right to suspend or terminate the Customer's account if provided with
incomplete or inaccurate information at the time of subscription or any
9.3 The fees and charges for the Services, Equipment or any other services
or products purchased by Customer in connection with this Agreement and the
Service Schedules ("Charges"), shall be payable by the Customer by credit
card (Visa or MasterCard) or by Pre-authorized debit payments. All Charges
9.4 Charges for one-time purchases that require immediate payment shall be
charged at time of purchase and Customer will be provided with an electronic
receipt of payment, where Customer has provided his/her email address.
9.5 Charges for Services with recurring monthly charges shall commence on
the date of the initial activation of the Service and Customer will be
billed, in advance for the month, on that same day of the month (eg. 1st),
each month. All Services with recurring Charges require pre-authorized
payment by credit card or pre-authorized debit payments. Customer gives
DediCa authority to charge his/her credit card or bank account on the
first and then each successive billing date.
9.6 Charges for Services that are usage based, such as long distance charges,
or other fees that are not billed in advance, will be charged monthly, in
arrears, to Customer's credit card or bank account.
9.7 Customer shall notify DediCa of any changes to your bank account, billing
address, credit card number or expiration date. If credit card or
pre-authorized payment is not honoured for any reason, and if alternative
billing has not been established, the Customer Account and the Services may
be suspended until payment is received. DediCa shall not be liable for any
costs, damages, delays, interruptions or claims arising from any suspension
of any Service caused by non-payment by the Customer.
9.8 Customer is liable for all Charges to your account, including shipping
and handling, applicable taxes, interest on overdue amounts, and charges
for returned cheques, none of which are included in the Charges.
9.9 All bills and receipts will be sent to Customer electronically at the
current email address provided by Customer in the Customer Account. Customer
is responsible to keep such email address up to date with DediCa.
9.10 Any underbilled or unbilled Charge shall be payable by Customer when
correctly billed. DediCa may bill for Charges up to one (1) year from the
date the Charge was incurred.
9.11 Interest will accrue on any amount not paid for thirty (30) days
following the billing date, as and from the billing date at a rate of 2%
per month (26.82% per annum) or the maximum legal rate, if less.
9.12 Additional charges, such as third party charges incurred by DediCa for
the Customer in connection with the Services are subject to change and
DediCa reserves the right to pass on such charges to the Customer. In the
event DediCa, at the request of the Customer, incurs unusual expenses in
the provision of a Service to the Customer, for example and without
limitation, for special construction, the Customer shall be notified and
shall approve such expenses and then shall be liable for such expenses.
9.13 If the Customer has any disputes concerning any DediCa Charges, it
shall make full payment of the undisputed portion of the Charges and shall
give written notice to DediCa within thirty (30) business days of the billing
date, together with any supporting documentation substantiating the disputed
amount. After that time, the Customer will be deemed to have agreed to the
Charges and will have no right to challenge any element of the Charges.
DediCa will endeavor to resolve a dispute within thirty (30) business days
after DediCa receives written notice of the dispute from the Customer. Any
dispute resolved in favour of the Customer shall be credited to the Customer's
account on the next invoice following resolution of the dispute. Any disputed
amounts determined to be payable to DediCa will be due within five (5)
business days of the resolution of the dispute. The Customer must pay any
undisputed Charges and subsequent Charges in accordance with this Agreement.
9.14 Administrative charges may be levied for administration or account
processing activities in connection with your Customer Account, including
as a result of the following: collection efforts and legal fees related to
any unpaid Charges, returned or rejected payments, and restoration of Service.
9.15 DediCa reserves the right to check the credit history of Customer.
Customer consents to such credit checks and shall provide all necessary
information to complete such credit checks.
9.16 Upon notice to Customer, DediCa may assign, change or remove a credit
limit on the Customer Account. Services may be suspended, at any time, if
Customer's outstanding balance for Charges or any other amounts owing to
DediCa exceed this credit limit. Recurring Charges continue to apply during
any suspension of Services.
9.17 DediCa may require a deposit at any time or impose other payment or
credit requirements at any time and on such terms as determined in DediCa'
sole discretion. For example, for Services with recurring charges, Customer
will be required to pay the last month's charges in advance as a deposit.
Customer will not earn any interest on any deposits or other payments held by
DediCa. If Customer's Service is terminated, DediCa will apply any deposits
or other payments against the outstanding final balance on the Customer
10. Resale and Restrictions on Use
10.1 The Customer may make use of the Services for his/her own personal,
business use. The Customer is permitted to resell the Services or otherwise
make the Services available to third parties for value.
10.2 The Customer shall ensure that Customer and anyone allowed by Customer
to use the Service (collectively, the "End Users") comply with the terms of
this Agreement, the applicable Schedules and DediCa' Acceptable Use Policy
which can be found at on the website. The Customer shall be responsible for
the End Users' use of the Services and the content of End User information
passing through the Services to the same extent as the Customer would be
10.3 The Customer will not, nor will it permit others or assist others to,
tamper with, alter or rearrange the Services or the DediCa Facilities required
to provide the Services, or otherwise abuse or fraudulently use the Services,
including, without limitation, using the Services:
10.3.1 in any manner which interferes with the DediCa Facilities or access
thereto by other persons;
10.3.2 contrary to reasonable instructions communicated to the Customer
10.3.3 for any purpose or in any manner, directly or indirectly, in
violation of applicable laws or in violation of any third party rights; or
10.3.4 in a manner to avoid the payment of Charges.
10.3.5 use any domain names with the string DediCa.
10.4 Notwithstanding anything to the contrary herein, if in DediCa' sole
judgment, the Customer or the End Users violate this Article, and such
violation or failure to comply poses an immediate threat of harm to or
destruction of DediCa Facilities or Services, violates existing law or
regulation, or puts DediCa Facilities or Services at risk with its providers
of network services or other customers, DediCa shall have the right to
immediately take any and all steps reasonably necessary to remove such
threat, including but not limited to suspension or termination of the Services
immediately and without notice.
10.5 In the event of abusive activity DediCa will take action shutting down
a users server to protect the other customers. This may occur in the
10.5.1 any server which Network (PPS) exceed 20,000 for 5 minutes;
10.5.2 any server which CPU (%) equals 100% for 30 minutes;
10.5.3 any server which Disk iops exceed 500 iops for 30 minutes;
10.6 The Customer shall indemnify and hold harmless DediCa for illegal
activities caused by the Customer and End Users using DediCa Facilities
and/or the Services. DediCa shall not: (i) have any obligation or liability
to the Customer or any third party for any unlawful or improper use of the
Services by Customer or an End User; nor (ii) have any duty or obligation
to exercise control over the use or the content of information passing
through the Services.
11. Customer responsibility
11.1 The Customer shall be solely responsible for the following:
11.1.1 Maintaining the security and privacy of the Customer's property and
Customer's transmissions using the Services, or the DediCa Facilities; and
11.1.2 Protecting against any breaches of security or privacy or other risks
involved in installing, using, maintaining or changing the Services or the
12. Term and Termination
12.1 The Services will be provided for the period and pursuant to the terms
set out in the applicable Schedules (the "Service Term"). The Schedules
will be renewed for the period set out in the applicable Schedule (the
"Renewal Period") on the same terms and conditions set forth therein
unless either party gives the other party written notice of its intention
to terminate the applicable Schedule thirty (30) days prior to the expiry
of the Service Term or the then current Renewal Term, as the case may be.
This Agreement, as it applies to a Schedule, will continue so long as any
Service Term under a Schedule remains in effect.
12.2 Without incurring liability, DediCa may suspend, restrict or terminate
any or all Services:
12.2.1 if the Customer fails to pay any undisputed amount when due and has
not remedied such breach for a period of ten (10) business days from the due
12.2.2 at any time if the Customer breaches a material obligation of this
Agreement and/or a Schedule, which would include a violation of the
restrictions on use or the Acceptable Use Policy referred to herein;
12.2.3 immediately if Customer commits an act of bankruptcy or insolvency,
is placed into liquidation or receivership, passes a resolution for its
winding up (otherwise than for the purpose of amalgamation or reconstruction)
or makes any assignment or arrangement for the benefit of its creditors; or
12.2.4 immediately where any law or court order or other authority prohibits
DediCa from furnishing such Services.
12.2.5 immediately with out refund where the customer makes any attempt to
tamper or hack the DediCa web panels.
12.3 Customer may terminate this Agreement by notice in writing to DediCa:
12.3.1 If DediCa breaches a material obligation of this Agreement and has
not remedied such breach within thirty (30) business days of receipt of the
written notice; or;
12.3.2 immediately if DediCa commits an act of bankruptcy or insolvency,
is placed into liquidation or receivership, passes a resolution for its
winding up (otherwise than for the purpose of amalgamation or reconstruction)
or makes any assignment or arrangement for the benefit of its creditors;
12.4 Upon termination or expiration of this Agreement:
12.4.1 all amounts owing by the Customer shall immediately become due and
12.4.2 the Customer shall immediately cease using the Services;
12.4.3 the Customer shall return to DediCa, at the Customer's expense, and
make no further use of, any DediCa Facilities or rental Equipment at the
Customer's premises or in the Customer's control, or any copies of any
documentation or material or confidential information relating to the
Services in the Customer's possession or control.
12.5 Termination of a Schedule and/or this Agreement through any means for
any reason shall not relieve either party of any obligation accrued prior to
12.6 With respect to a Service that has a fixed Service Term, if the
Customer terminates the Service under a the Service Schedule or this
Agreement, without cause, or if DediCa terminates this Agreement or a
Schedule for cause, the Customer shall pay to DediCa, as liquidated
damages and not as a penalty, an amount which is equal to the sum of:
the greater of 50% of (i) the average monthly charges for the terminated
Service(s) (as determined over the previous three months) multiplied by
the number of months remaining in the Service Term from the effective date
of termination or (ii) if applicable, the minimum monthly commitment for
the terminated Service(s) for the balance of the Service Term (prorated,
in the case of a yearly minimum monthly commitment) calculated from the
effective date of termination;
any cost which DediCa is liable to continue to pay to third parties for
the remainder of the applicable Service Term incurred by DediCa with the
knowledge and/or approval of the Customer for the provision of the
terminated Service(s); and
a lump sum representing the aggregated total of any installation, one-time
or monthly recurring charges associated with the terminated Service(s) which
have been waived or discounted by DediCa in consideration of the Customer's
commitment to the Service Term for such Service(s). The Customer acknowledges
that the termination fees described in this Agreement represent liquidated
damages and not a penalty
13.1 The Customer does not have property rights in dial numbers and in some
cases "IP" numbers or domain names assigned to them. DediCa may change such
numbers or domain names assigned to the Customer provided that DediCa is
requested to do so by a legal or regulatory authority, including without
limitation, the Canadian Radio-television and Telecommunications Commission
(CRTC), the Federal Communications Commission (FCC) or a court order, and
provided that DediCa promptly notifies the Customer of any such action.
13.2 Any software and accompanying documentation provided by DediCa to the
Customer remains the property of DediCa or its licensors. The Customer shall
take reasonable steps to protect such software or documentation from theft,
loss or damage. The Customer must review and agree to any applicable end user
license agreement (provided separately or in a Service Schedule) before
installing or using the software or documentation. Unless otherwise provided
in the applicable end user license agreement, all software licenses will
terminate upon termination of this Agreement.
14. NO WARRANTY
14.1 DEDICA DOES NOT GUARANTEE ERROR-FREE OR UNINTERRUPTED OPERATION OF THE
SERVICES NOR SHALL IT BE LIABLE FOR ANY FAILURE, BREAKDOWN, INTERRUPTION OR
DEGRADATION IN A SERVICE OR IN THE NETWORK OR ANY OTHER NETWORK OR CONNECTION
INVOLVED IN THE PROVISION OR USE OF SERVICES WHATEVER THE CAUSE OF SUCH
FAILURE, BREAKDOWN, DEGRADATION OR INTERRUPTION AND HOWEVER LONG IT LASTS.
NEITHER DEDICA NOR ANY OF ITS AFFILIATES, EMPLOYEES, AGENTS OR REPRESENTATIVES
MAKES ANY WARRANTIES, REPRESENTATIONS ,CONDITIONS OR GUARANTEES OF ANY NATURE
WHATSOEVER REGARDING ANY SERVICE, PRODUCT EQUIPMENT OR DEDICA FACILITIES
PROVIDED BY DEDICA TO THE CUSTOMER, EITHER EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, THOSE RELATING TO: (I) FITNESS FOR A PARTICULAR PURPOSE
OR MERCHANTABILITY WITH RESPECT TO THE SERVICES; (II) NETWORK TRANSMISSION
CAPACITY; (III) THE SECURITY OF ANY TRANSACTION; (IV) THE FAULT TOLERANCE
OF THE SERVICES OR THE SUITABILITY OF SAME FOR HIGH RISK ACTIVITIES; OR
(V) THE RELIABILITY OR COMPATIBILITY OF THE DEDICA FACILITIES AND EQUIPMENT
OR SOFTWARE OF THIRD PARTIES WHICH MAY BE UTILIZED BY DEDICA IN PROVIDING,
OR BY THE CUSTOMER IN USING, THE SERVICES, AND ALL WARRANTIES, REPRESENTATIONS
AND CONDITIONS, EXPRESS OR IMPLIED, ARE, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, HEREBY EXCLUDED. THE CUSTOMER ACKNOWLEDGES THAT IS HAS NOT RELIED UPON
ANY REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE MADE BY DEDICA.
15. Limitation of Liability
15.1 For the purposes of this Article 15 and Articles 16 and 17 , "DediCa"
shall include DediCa, any affiliated or subsidiary companies of DediCa,
and the directors, officers, employees, consultants, contractors and agents
of all of them.
15.2 Except with regard to direct damages to real or tangible personal
property, or for bodily injury or death proximately caused by DediCa'
negligence, DediCa' entire liability to the Customer, the End Users or
any third party in connection with the Services(s), the Equipment and DediCa
Facilities or the provision or non-provision thereof is limited to the
Customer's proven direct damages, such amount not to exceed per claim
(or in the aggregate during any three (3) month period) the amount paid
by the Customer for one month of the affected Service(s)) (such amount to
be based on average monthly charges paid by the Customer over the six (6)
months prior to the month in which the damages was incurred or the length
of the Agreement, whichever is less).
15.3 Without limiting the generality of the foregoing, DediCa shall not be
15.3.1. defamation or copyright or trademark infringement or the violation
of any third party rights arising from the use of the Services or material t
ransmitted or received over DediCa' network;
15.3.2. infringement of patents arising from combining or using Customer or
End User equipment with the Services or DediCa Facilities;
15.3.3. any act or omission of any connecting carrier, underlying carrier,
local exchange telephone company, local access provider, or acts or
omissions of any other providers of connections, facilities (including
equipment), or service other than DediCa', which are used by DediCa, the
Customer or the End Users under this Agreement;
15.3.4. delays with respect to the installation of Services or the transfer
of existing Services;
15.3.5. capacity shortages not directly caused by DediCa;
15.3.6. any unauthorized use of the Services;
15.3.7. Service interruptions, errors, delays or defects in transmission or
failure to transmit caused by power fluctuations or power failure at the
Customer's or the End Users' location(s);
15.3.8. Service interruptions, errors, delays or defects in transmission or
failure to transmit caused by DediCa in the performance of system or emergency
maintenance under Section 5.2 hereof; or
15.3.9. Service interruptions, errors, delays or defects in transmission or
failure to transmit caused by an act of God, fortuitous event, war,
insurrection, riot, strike, walkout, lockout or other labour unrest affecting
DediCa or its suppliers, storm, fire, flood, explosion, lightning, government
restraint, delays in producing supplies, shortages of suitable labour,
equipment or materials, power shortages or interruptions or any other event
beyond the reasonable control of DediCa.
15.4 UNDER NO CIRCUMSTANCES SHALL DEDICA BE LIABLE FOR ANY LOSS, COST,
CLAIM OR DAMAGE (INCLUDING, BUT NOT LIMITED TO, EXEMPLARY, PUNITIVE,
CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, LOST SAVINGS, LOST PROFITS,
DAMAGES FOR HARM TO BUSINESS, ANTICIPATED REVENUE OR LOST REVENUE OR THE
LOSS OF ANY DATA/INFORMATION) SUFFERED OR INCURRED BY THE CUSTOMER OR ANY
THIRD PARTY (INCLUDING, BUT NOT LIMITED TO THE END USERS) AND ARISING OUT
OF ANY FAULTS, INTERRUPTIONS OR DELAYS IN THE SERVICES OR OUT OF ANY
INACCURACIES, ERRORS OR OMISSIONS IN THE INFORMATION CONTAINED IN THE
SERVICES WHETHER OR NOT DEDICA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
15.5 DediCa will not be liable for any damages arising out of or relating to:
facilities, equipment, software, applications, services or content provided by
the Customer, the End Users or third parties; unauthorized access to or theft,
alteration, loss or destruction of the Customer's, the End User's or third
parties' applications, content, data, programs, information, network or
systems by any means (including without limitation viruses); or any act,
omission or failure of the Customer.
15.6 In no event shall DediCa be liable for the use of the Services by the Customer, the End Users or any third party for unlawful or illegal purposes.
15.7 These limitations of liability shall apply regardless of the form of action, whether in contract, warranty, strict liability, or tort, including without limitation negligence of any kind, whether active or passive, or any combination thereof, and shall survive failure of an exclusive remedy.
16. Liability of the Customer
16.1 For the purposes of this Article and Articles 16, 17 [?] and 18, "Customer" shall include the Customer and any affiliated or subsidiary companies of the Customer, and the directors, officers, employees, consultants, contractors and agents of all of them.
16.2 The Customer shall be liable to DediCa for all damages caused to real or tangible personal property, or for bodily injury or death caused by the Customer or an End User.
16.3 UNDER NO CIRCUMSTANCES SHALL THE CUSTOMER BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, OR SPECIAL DAMAGES, INCLUDING DAMAGES FOR HARM TO BUSINESS, LOST PROFITS, LOST SAVINGS OR LOST REVENUES, WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF SUCH DAMAGES.
17.1 The Customer shall defend, indemnify and hold harmless DediCa from and against all damages, liabilities, obligations, losses, injuries, claims, demands, penalties, costs and expenses (including reasonable legal fees and disbursements) arising from any and all claims by any person, including without limitation any End User, based on: the content of any transmissions by the Customer or any End User using the Services; the use of the Service by the Customer or any End User, including without limitation, in contravention of the restrictions outlined in Article 4; the Customer's or a End User's facilities or connections provided by the Customer or a End User; or the breach by the Customer or any End User of any term, condition or warranty of the Agreement.
18. Confidentiality of information & Privacy
18.1 Unless the Customer provides express consent or disclosure is required pursuant to a legal power, all information kept by DediCa regarding the Customer, other than the Customer's name, address, and listed telephone number, is confidential and may not be disclosed by DediCa to anyone other than
18.1.1. the Customer;
18.1.2. a person who, in the reasonable judgment of DediCa, is seeking the information as an agent of the Customer;
18.1.3. another telephone company, provided the information is required for the efficient and cost-effective provision of telecommunication service and disclosure is made on a confidential basis with the information to be used only for that purpose;
18.1.4. a company involved in supplying the Customer with telephone or telephone directory related services, provided the information is required for that purpose and disclosure is made on a confidential basis with the information to be used only for that purpose;
18.1.5. an agent retained by DediCa to evaluate Customer's creditworthiness, to assist in the collection of the Customer's account, or to perform other administrative functions, provided the information is required for and is to be used only for that purpose;
18.1.6. a law enforcement agency whenever DediCa has reasonable grounds to believe that the Customer has supplied false or misleading information or is otherwise involved in unlawful activities;
18.1.7. a public authority or agent of a public authority, for emergency public alerting purposes, if a public authority has determined that there is an imminent or unfolding danger that threatens the life, health or security of an individual and that the danger could be avoided or minimized by disclosure of information; or
18.1.8. an affiliate, agent or contractor of DediCa involved in supplying the Customer with telecommunications and/or broadcasting services, provided the information is required for that purpose and disclosure is made on a confidential basis with the information to be used only for that purpose.
18.3 For certain Services that are provided in conjunction with a specified branding partner, DediCa may share information with the branding partner in order to offer customers products and services that they may find attractive. In the Service Schedule, Customer shall be informed about the branding partner and Customer's consent shall be sought for the collection, use, and disclosure of Customer's personal information by and between DediCa and the branding partner (and their respective affiliates, agents and contractors) for the following purposes:
18.3.1. to provide a positive Customer experience, and deliver, bill for, and collect payment for products and services;
18.3.2. to understand Customer requirements and preferences and make information available regarding products and services offered by DediCa, the branding partner and their affiliates, agents and contractors;
19.1 Force Majeure. DediCa will not be liable to the Customer by reason of any failure in performance under this Agreement (other than a failure to pay money) if such failure arises out of causes beyond the reasonable control of DediCa, provided DediCa makes reasonable efforts to limit or remedy such effect. Such causes may include, but are not limited to, acts of God, acts of the public enemy, acts of civil or military authority, fires, strikes, unavailability of energy source, delay in transportation, riots or war.
19.2 Notice. Any communication required to be given under this Agreement must be given in writing and either delivered personally, or sent by prepaid registered post, overnight and/or express courier, or facsimile or other electronic communication to the person at the relevant address detailed as follows:
The Customer: as set out in the applicable Schedule or to such other person or address as notified in writing by a party from time to time. Any notice or other communication is deemed to be received:
if delivered personally or by overnight and/or express courier, on delivery;
if sent by prepaid registered post, five (5) business days after the date of posting unless actually received earlier;
by facsimile or electronic communication, the day following transmission.
19.3 Governing Law. This Agreement shall be governed by the laws of Ontario and the laws of Canada applicable therein, without reference to its principles of conflict of laws, and the parties shall attorn to the jurisdiction of the Courts of Ontario for all matters arising under this Agreement.
19.4 Entire Agreement. This Agreement together with all schedules attached hereto from time to time contains the entire contractual arrangements between the parties with respect to the subject matter of this Agreement and supersedes all other communications, negotiations, correspondence, arrangements, understandings, or representations, oral or written, between the parties relating to same.
19.5 Severability. Any provision of this Agreement that is unenforceable at law will be ineffective to the extent of such unenforceability without invalidating the remaining provisions of this Agreement. It is the intention of the parties that any provision found to be illegal or unenforceable should not be terminated but should be amended to the extent necessary to render it valid and enforceable.
19.6 Relationship of Parties. The relationship between DediCa and the Customer is that of independent contractors. Neither this Agreement nor the provision of Services by DediCa creates, nor shall be deemed to create, an agency, partnership, joint understanding or joint venture between DediCa and the Customer. The Customer does not have, and will not hold itself out as having, any authority to act for or create any obligation of, or make any representation on behalf of or in the name of, DediCa. No agents or employees of the Customer shall be deemed to be agents or employees of DediCa.
19.7 Waiver. No failure by DediCa to exercise any right under this Agreement or to insist upon full compliance by the Customer with its obligations under this Agreement will constitute a waiver of any provision of this Agreement.
19.8 Assignment. Customer may not assign this Agreement without the prior written consent of DediCa. This Agreement will be binding upon, and will enure to the benefit of, the parties and their respective successors and permitted assigns.
19.9 Order of Preference. In the event of conflict between this Agreement and any other Schedule attached hereto by reference, the terms and conditions of the applicable Schedule will prevail to the extent of the conflict.
19.10This Agreement has been drawn up in the English language at the express request of the parties.
20.1 The terms of this Agreement, including fees, charges, features, content or any other aspects of a Service, may change at any time and without prior notice. The Customer is responsible for frequently reviewing this Agreement posted on DediCa' web site to obtain timely notice of any such changes.
21 Contacts and Questions?
21.1 If you have any questions about this Agreement, please e-mail DediCa at hello@DediCa.ca.
ACCEPTABLE USE POLICY
When using DediCa' Internet access services, hosting services, internetworking services, or any other message or communication services that may be available to the Customer on or through DediCa' systems (collectively, the " Services"), the Customer is prohibited from engaging in certain activities which include, but are not limited to, those described in this Acceptable Use Policy.
For the purposes of this Acceptable Use Policy, "DediCa" means DediCa.ca and its affiliates and subsidiaries. A "Customer" is an individual or organization that has a service agreement or contract with DediCa for use of the Services, or otherwise uses the Services.
1. Consequences of Breach of this Acceptable Use Policy
If the Customer engages in any of the prohibited activities described below it may, at the sole discretion of DediCa and without notice to the Customer, result in the immediate (1) restriction, suspension or termination of the Customer's use of the Services without compensation to the Customer, (2) blocking or filtering of the Customer's content, data or materials, (3) application of complaint processing fees, disconnection fees and additional service charges to the Customer's account, (4) deletion of the Customer's content, data or materials from DediCa' servers, or (5) involvement of law enforcement agencies. Such activities may also result in civil or criminal liability. The foregoing applies notwithstanding any language or term to the contrary contained in any agreement that the Customer may have with DediCa.
The Customer is responsible for use of the Services by any third party who directly or indirectly utilizes the Services provided by DediCa to the Customer, whether or not such use has been authorized by the Customer.
2. Disclaimer and Assumption of Risk
Nothwithstanding this Acceptable Use Policy, the Customer makes use of the Services at its own risk. These risks include, among other things, credit card theft, identity theft, fraud, solicitation, stalking, invasion of privacy, unwanted receipt of offensive or obscene material, trespass to chattels or denial of service attacks. DediCa expressly disclaims any obligation to monitor its Customers and other Customers with respect to violations of this Acceptable Use Policy. DediCa accepts no responsibility, whether in contract, tort or otherwise for any damage sustained by the Customer or any Customers in using the Services.
3. Cooperation with Other Providers and Law Enforcement Authorities
DediCa may cooperate with other on-line service providers to discourage and resist abuses of acceptable use policies. DediCa reserves the right to report illegal activities to governmental authorities and to assist them in any prosecution.
4. Criminal Offences
While using the Services, the Customer is prohibited from posting, uploading, reproducing, distributing or otherwise transmitting information or materials where such activity constitutes a criminal offence or from otherwise engaging in or assisting others to engage in any criminal offence including, but not limited to, those offences listed below:
Unauthorized use of a computer
Invasion of privacy
Mischief in relation to data
Violations of the Canadian Anti-Spam Legislation (CASL)
5. Civil Offences and Violations of the Rights of Others
While using the Services, the Customer is prohibited from posting, uploading, reproducing, distributing or otherwise transmitting information or materials where such activity gives rise to civil liability or from otherwise violating the rights or assisting others to violate the rights of DediCa or any third party, including, but not limited to, the violations listed below:
Misappropriation of trade secrets
6. Injurious Code
Customers may not use the Network to distribute, receive communications or data gleaned from, or execute any action directed by any type of injurious code, including but not limited to:
Denial of service attacks
Flood or mail bombs
Any other actions which DediCa reserves the sole right to determine to be malicious in intent.
7. Spamming and Email Violations
In addition to being forbidden from performing any acts made illegal by the Canadian Anti-Spam Legislation (CASL), Customers may not send bulk email utilizing their Network resources unless they maintain a double-authorized list of subscribed members including IP addresses and relevant contact information, along with following guidelines for including removal links with all sent emails according to the Canadian Anti-Spam Legislation (CASL). Customers are forbidden from taking any action that would result in their IP addresses, or any IP address associated with DediCa or other Customers, being placed on any blacklist.
8. Other Prohibited Activities
While using the Services, the Customer is prohibited from engaging in or assisting others to engage in any activity that: (1) violates applicable policies, rules or guidelines of DediCa or other on-line service providers, (2) disrupts or threatens the integrity, operation or security of any Service or any computer or Internet system, (3) elicits complaints from other Internet users or Internet service providers, (4) is contrary to any law or regulation, or (5) is otherwise objectionable. Examples of such prohibited activity include, but are not limited to:
Scanning or probing another computer system
Obstructing or bypassing computer identification or security procedures
Engaging in unauthorized computer or network trespass
Maintaining a relay service open to the general public
Engaging in denial of service attacks
Posting, uploading, reproducing, distributing or otherwise transmitting any data, information or software that constitutes a virus, trojan horse, worm or other harmful or disruptive component
Exporting equipment, software, or data outside of Canada or the U.S. in contravention of applicable export control legislation
Falsifying address information, modifying message headers to conceal the Customer's identity or impersonating others, for the purpose of circumventing this Acceptable Use Policy
Posting, uploading, reproducing, distributing, otherwise transmitting, or collecting responses from unauthorized or unsolicited duplicative e-mail messages, junk or bulk e-mail messages, chain letters, newsgroup postings or other "spam"
Engaging in any conduct that directly or indirectly encourages, facilitates, promotes, relies upon or permits the foregoing prohibited activities including, without limitation, failing to implement reasonable technical or administrative measures to prevent spam, viruses and worms
The Customer will indemnify and hold harmless DediCa from all demands, claims, proceedings, awards, action, damages, losses, costs, charges and expenses, including legal fees, incurred by or made against DediCa, which result from or relate to violation by the Customer of this Acceptable Use Policy. The Customer shall give DediCa prompt notice of any such demand, claim or proceeding that the customer is aware of.
10. Use of Subscribers
Customer is responsible for the acts of others utilizing their Network access, and will be held responsible for violations of this AUP by their subscribers, sub-users or persons who gain access to the Network using the Customer's access codes. Any activity that a Customer is prohibited from performing by this AUP is equally prohibited to anyone using the Network-access of the Customer. Accordingly, Customers agree to take the following actions to control the activities of those who connect to the Network by any means.
The terms of this Acceptable Use Policy may change at any time and without prior notice. The Customer is responsible for frequently reviewing this Acceptable Use Policy posted on DediCa' web site to obtain timely notice of any such changes.
11. Contacts and Questions
If you have any questions about this Acceptable Use Policy or to report any Internet abuses, please e-mail DediCa at hello@DediCa.ca.