BY USING THIS SERVICE WITH niagara.com
YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS
1. DEFINITIONS Throughout this agreement:
"Customer" means a Person who uses, receives or is given access to any service from niagara.com;
"niagara.com" means anyone related to or affiliated with niagara.com, including its employees, agents,
representatives, dealers, subcontractors or suppliers.
"Person" includes individuals, partnerships, firms, corporations, proprietorships, government departments or
agencies and the legal representatives of such person.
"Service" means data transmission and communications access which niagara.com furnishes, and any related
hardware, software, labour, advice and consultations.
Dial-up” means connections established via a standard modem and regular telephone line. Dial up data transfer
rates can vary depending on telecommunications conditions.
Data Transfer Rates” with residential DSL service will provide you with up to a maximum of 5000 Kbps
downstream and up to 800 Kbps upstream. Upstream refers to data from your computer. Downstream refers to data
to your computer. The speed performance that you will experience at any time is dependent on DSL line
conditions and other Internet factors such as Web site congestion, especially for those very popular, very
busy sites. niagara.com does not guarantee that you will achieve maximum data transfer rates at any time.
Bandwidth Limitations are limits to the total aggregate data trasfered on either the downstream traffic or
upstream traffic. Limitations are calculated in GB/month. Limitations for residential ADSL clients is subject
to enforcement at any time. Limits for Residential are locked at 15 GB/month per stream (down/up) and 25
GB/month per stream (down/up) for Business.
2. SUBSCRIPTION: Upon niagara.com’s acceptance of this Agreement, the agreement shall constitute a
subscription by the Customer for the Service.
3. RULES & REGULATIONS
a) The Customer agrees to strictly abide by all the Rules and Regulations niagara.com may issue or adopt, from
time to time.
b) niagara.com will make these Rules and Regulations available to the Customer through its website at:
http://www.niagara.com/aup
c) The Rules and Regulations are subject to change at any time without notice. All changes are binding on the
Customer as soon as niagara.com makes them available.
d) By using or having access to the Service, the Customer acknowledges responsibility for reading the Rules
and Regulations currently in effect or modifications made periodically.
e) Connectivity is provided for the Customer only. The customer shall not resell connectivity to any other
person.
4. RATES AND CHARGES
a) The Customer agrees to pay niagara.com for the use of the Service at the time and in the amounts specified
herein.
b) The rates for the Service are set out in niagara.com’s current RATE SHEET. niagara.com has furnished the
Customer with the current RATE SHEET with this Agreement. All changes will be binding on the Customer as soon
as niagara.com makes the revised RATE SHEET available on it’s web site.
d) The Customer shall pay all fees, rates, charges, and other amounts in accordance with the RATE SHEET
current at the time the Customer uses the Service from niagara.com.
e) Service is invoiced by e-mail in advance. The Customer shall pay prior to the beginning of the period for
which Service is provided (pre-paid service).
f) Unused connection time for any month or block of service cannot be transferred to another month or block of
service.
g) All pre-purchased usage and setup fees are non-refundable.
5. LIMITATION OF LIABILITY
a) The Customer assumes all risk and liability for loss or damage arising through the use of the service. The
Customer agrees to indemnify and hold niagara.com harmless from and against any claims arising from use of the
service
6. RENEWAL AND TERMINATION OF THIS AGREEMENT
a) This agreement shall automatically renew for successive monthly terms on the expiry of the initial
subscription period month, unless the Customer or niagara.com gives the other notice of termination as
specified in the following paragraph.
b) This Agreement may be terminated without cause by either the Customer or niagara.com on 30 days written
notice. Such notice shall be sent to the address on the previous page by courier or by registered mail.
Alternatively, notice may
be given via e-mail to ICN at sales@niagara.com, (this address is subject to change), and to the Customer at
its niagara.com e-mail address.
c) If the Customer defaults under this Agreement or breaches it in any way:
i) niagara.com reserves the right to cancel all or any portion of the Service to the Customer immediately,
without notice. niagara.com shall have the sole discretion and right to determine whether there has been any
default or breach by the Customer;
ii) the Customer agrees to pay all of niagara.com’s expenses reasonably incurred in enforcing this Agreement,
including service charges, late payments, NSF, legal and collection agency fees.
d) Notwithstanding the termination hereof the Customer agrees to pay forthwith all amounts owing under this
Agreement to niagara.com at the date of termination and to return any and all rental equipment (e.g. DSL modem
kits and peripherals);
e) The Customer has a period of seven days to terminate the contract without penalties on prepaid services.
7. ADDITIONAL TERMS AND CONDITIONS
a) This Agreement shall in all respects be governed by and interpreted pursuant to the law of the Province of
Ontario.
b) The Customer acknowledges that this Agreement is the complete and exclusive understanding between parties
relating to the Service. This Agreement supersedes all prior agreements, oral or written, and all other
communications between the parties.
c) Any use by the Customer of the Service constitutes the Customer’s binding acceptance of this Agreement.
d) The Customer shall pay interest at 2% per month (24% per annum) on any outstanding balance.
e) This Agreement shall be binding upon and for the benefit of the parties hereto, their lawful successors and
assigns.
8. LIMITATION OF LIABILITY
a) niagara.com does not warrant:
i) Uninterrupted working of the Service or other communication transmission services, equipment or software
that niagara.com provides, rents, or sells;
ii) Uninterrupted working or data transfer rates of the transmission services or equipment of any other
communications or telephone company, carrier or system whose services or equipment niagara.com or any Customer
in connection with the Service utilizes; or
iii) The privacy of any communications relying in whole or in part on the Service or other communication
transmission service or equipment which niagara.com provides, rents, or sells, or on the transmission services
or equipment of any other telecommunications or telephone company, carrier or system whose services or
equipment niagara.com, or any customer in connection with the Service utilizes;
and no such warranty or condition, whether expressed or implied by statute or otherwise, shall form a term or
condition upon and under which niagara.com offers such transmission service or equipment to any Customer, user
or any other Person.
b)niagara.com shall not be liable to any Customer or any other Person for any damages or loss whatsoever
(including without limitation, direct, indirect, special incidental or consequential damage or damages for
damage to or loss of property, loss of earnings, loss of profits, loss of business opportunities, personal
injury, mental suffering, or loss of life) howsoever arising or resulting out of the provision or the use or
in connection with the Service or telecommunications transmission service or out of the use or installation or
equipment or software niagara.com provides, rents, sells, or installs including, without limitation from
defects, malfunctions or complete breakdown in transmission; incorrect installation or operation of
transmission equipment or facilities; or from negligent, tortuous or delictual conduct of niagara.com or any
other act or omission which might give rise to a civil cause or action.
c) If an interruption or complete failure of niagara.com’s transmission services shall occur that results in
an interruption or complete failure of the Service or other telecommunications transmission service that
niagara.com provides to the Customer, niagara.com shall, in the case of such an interruption to or failure of
transmission service lasting 24 hours or more from the time niagara.com is advised of the interruption or
failure, make a refund of charges proportionate to the length of the interruption or failure of service.
Provided however these undertakings represent the sole extent of liability to niagara.com.
d) The limitations of liability set forth in paragraph (a) hereof apply equally to data, voice, and other
telecommunications or transmission services provided to the Customer by any other Internet Service operator
pursuant to any agreement niagara.com enters into with such other Internet communications service operator. In
this regard, paragraph (b) is to be read as if every reference to niagara.com includes a reference to such
other data communication service operator (it being acknowledged by each of the parties that for the purposes
of this paragraph only. niagara.com is contracting as agent on behalf of such other Internet service
operator(s)).
9. SURVIVAL
a) The limitations of liability and the Customer’s obligations as set out above shall survive the expiry or
other termination of this Agreement.
b) niagara.com’s rates and charges may be subject to the Canadian Radio-Television and Telecommunications
Commission’s (CRTC) approval. Notwithstanding anything to the contrary herein contained, ICN may also
terminate Service to the Customer and this Agreement without notice to the Customer if performing this
Agreement would result in non-compliance with any applicable statue or regulation or the regulations or
requirements of the CRTC or other regulatory authority having jurisdiction.
c) Time is of the essence with respect to this Agreement and no waiver by niagara.com of any default shall
constitute a waiver of any other default by the Customer or waiver of niagara.com’s rights. Except as provided
herein, this Agreement may not be amended except in writing and shall be binding upon and ensure to the
benefit of the parties hereto, their permitted successors and assigns.
d) If any provision of this Agreement is determined to be unenforceable or invalid, that unenforceability or
invalidity shall not affect the remaining portions of this Agreement and such unenforceable or invalid
provision shall be deemed to be severed from the remainder of this Agreement.
RULES AND REGULATIONS
1) The customer shall only use the niagara.com services for lawful purposes. Transmission of any data in
violation of any federal or provincial law is prohibited. This includes, but is not limited to, data of any
kind that is copyright protected, defamatory, threatening, obscene or protected by trade secret or governed by
security prohibition. Damage to any computers or network accessed through your connection is a violation of
the Canadian criminal code.
2) The Customer shall comply with the rules of any system or network accessed through niagara.com. The
Customer shall be responsible for locating and becoming familiar with such rules and regulations and abiding
by them.
3) The Customer shall refrain from sending unsolicited e-mail (commonly known as SPAM) about any product,
service, or information. The sending of such unsolicited mail will not be tolerated and will result in the
immediate locking of the customer’s account and the assessment of fees associated with the time required for
niagara.com’s staff to clean up the damages caused by the sending of such communications. No compensation for
time locked will be provided. niagara.com shall have the sole authority to determine whether or not the
account will be re-opened.
niagara.com, 3-2 Secord Dr., St. Catharines, ON. L2N 1K8
Voice: 905-988-9909 Fax: 905-988-1090
www.niagara.com
E-mail: sales@niagara.com
January 2002