Terms of Service

• "Demarcation Point” means the operational interface and location to which the Services are delivered;
• “Equipment” means the cable, circuits, instruments, equipment and other facilities owned by the County and required for the purposes of providing the Services to Subscriber;
• “Off-Net Location” means any location where the County uses a third party carrier to provide local access circuits to the County backbone network or where the County is required to do a fibre build to the location;
• “On-NET Location” means any location where the County owns local access circuits which are directly connected to the County backbone network;
• “Parties” means the County and the Subscriber, and “Party” means either one of them;
• “Services” means any broadband internet, voice, or video services provided by the County to Subscriber pursuant to a Service Order, which services shall include, without limitation, installation and maintenance of the Equipment and any temporary services provided while installation and/or maintenance is taking place;
• “Service Location” means the address of the Subscriber properties to which Services are provisioned;
• “Service Order(s)” means one or more service order form(s) setting out the Services that Subscriber has requested the County to provision; and
• “Taxes” means all taxes, levies, fees, import duties, charges, surcharges assessments, or withholdings of any kind or nature levied or imposed upon the County, its network, Equipment, facilities, or arising from or relating to the provision by the County of the Services or use thereof by Subscriber (including, without limitation, sales and excise taxes, real property, gross receipts, and license fees), together with any penalties, fines or interest thereon by any federal, provincial or local government, public authority, including its agencies, commissions and tribunals, having jurisdiction.

In consideration of the mutual covenants and agreements contained herein and in each Service Order, the County shall provide the Services to the Subscriber.

Subscriber acknowledges that certain Services delivered within the service area or to the Service Location may be provided on behalf of the County, including by its partners, or other affiliates or agents of the County (collectively “County Providers”).  Notwithstanding that the Services may be provided by County Providers, the County will be solely responsible for ensuring all of its obligations set forth in this Agreement are met.

Charges: The charges for, and term applicable to, the Services are as set out in the applicable Service Order. Once the service installation provided by the County is complete in all respects and the Services are ready to be delivered pursuant to a Service Order, the County shall notify Subscriber in writing or via electronic transmission. The County shall then have the right to initiate billing to Subscriber within 48 hours.

Taxes: Subscriber shall be responsible for all applicable Taxes which are related to the Services. If Subscriber is entitled to an exemption from any applicable Taxes, Subscriber is responsible for presenting the County with a valid exemption certificate (in a form reasonably acceptable to the County).  The County will give effect to any valid exemption certificate provided in accordance with the foregoing sentence to the extent it applies to any Services billed by the County to Subscriber following the County’s receipt of such exemption certificate.

Payments: The County shall invoice Subscriber for the Services, as described in each Service Order, and payments shall be due and payable to the County within forty (40) days after the date of the County invoice to Subscriber. Amounts owing after the due date are subject to a late payment interest charge in accordance with The County’s accounts receivable policy.  Subscriber shall have ninety (90) days following receipt of each invoice within which to dispute any sums appearing in that invoice; failure on the part of the Subscriber to do so shall be deemed a waiver of Subscriber’s right to dispute such sums.  Unless otherwise specified in a Service Order, all amounts due for Services shall be billed in Canadian dollars.

Subscriber agrees as follows:

• Service Location: Subscriber will obtain and maintain in place access to the service location, including the Demarcation Point, for the County, its employees, agents, contractors and subcontractors for the purpose of providing the Services, and will provide electrical power and outlets at the Service Location as the County shall reasonably require for the provision of the Services. Subscriber is solely responsible for the payment of any and all electrical charges associated with the Services and access charges at the Service Location.
• Equipment: The location of any parts of the Services to be installed at the Service Location shall be determined by the County in consultation with Subscriber. Subscriber shall take all steps reasonably required in order to protect the Equipment from trespass or damage by Subscriber or other persons where such Equipment is located at the Service Location.
• Cable Wiring: Subscriber shall be responsible for and shall pay for any and all cable wiring and equipment required to interconnect the Equipment from the Demarcation Point to Subscriber's equipment, if applicable, in order to permit Subscriber to use the Services.  Subscriber will be responsible for use of the Services beyond the Demarcation Point.
• Property Ownership: Unless a Service Order specifically indicates that the Equipment is being sold to Subscriber, any and all Equipment provided by the County in connection with the provision of the Services at or to the Service Location shall remain the property of the County and shall not by reason of the attachment, installation or connection of any part thereof to any realty become or be deemed a fixture appurtenant to such realty nor the property of Subscriber. The County shall remove the  Equipment from the Service Location upon termination or expiry of the term for the provision of any Services.
• Responsibility: If the Equipment is damaged or destroyed by the negligence or willful acts or omissions of Subscriber, or its employees, users, agents or contractors, then Subscriber will be responsible for any such damage and shall compensate the Country for such damage upon request.

• Subscriber will not permit any of the Equipment to be re - arranged, disconnected, removed, repaired or otherwise interfered with, except with the County’s prior approval.
• Subscriber will not use the Services or Equipment, nor permit them to be used, for any purpose contrary to law, these Terms of Service or the County’s Acceptable Use Policy.
• Subscriber shall not have the right to use County  trademarks or trade names in any manner unless the County gives prior written consent and/or grants the appropriate license.  The County shall not have the right to use Subscriber’s trademarks, or trade names in any manner without the Subscriber’s prior written consent.
• Subscriber shall at all times ensure that the Services are used by it and its personnel, customers and users in accordance with the County’s Acceptable Use Policy set out at www.foothillsfibre.ca , copies of which are available upon request.

The Subscriber is responsible for, and shall indemnify and hold the County harmless against, any and all losses, liability, claims, damages, judgments, expenses and costs, of any kind whatsoever, including legal fees and disbursements, suffered or incurred by the County arising from claims of any third party (including without limitation Subscriber’s users) on any basis whatsoever and arising from or in connection with any event, including but not limited to:

• use of the Services by Subscriber or its customers, personnel, or end- users or by any third party authorized by Subscriber;
• the Subscriber’s (or its customer’s, personnel’s or end-user’s) data, equipment, computer network and other facilities;
• the negligence or willful misconduct of Subscriber, its customers, personnel, end- users or any third party authorized by Subscriber in connection with use of the Services;
• claims made by Subscriber against any third party who in turn claims contribution or indemnity from the County; and
• claims by any third party for libel, slander, passing off or infringement of copyright, trademark or patent or other intellectual property right, illegal, improper or unauthorized use of the Services arising from the content of the video, voice or data carried by Subscriber, or its customers, personnel or end- users, or otherwise via Subscriber’s account.

Subscriber, furthermore, indemnifies the County against all losses, liability, claims, damages, judgments, expenses and costs, of any kind whatsoever, including reasonable legal fees and disbursements, suffered or incurred by the County arising from the breach of Clause 7 (a) below.

Subscriber acknowledges and agrees that the County shall not be liable for any Services delivered in the territory of Canada and Subscriber warrants that it shall not seek recourse and remedies in contravention of this stipulation. Further, Subscriber acknowledges and agrees that the County shall not be liable for any Service and the Subscriber warrants that it shall not seek recourse and remedies in contravention of this stipulation.

Except with respect to loss or damage caused as a direct result of gross negligence by the County, Subscriber agrees that the County will not be liable to Subscriber in relation to:

• any act or omission of any carrier or person other than the County;
• any act or omission of the Subscriber or its customers, personnel, or end- users;
• any claims related to defamation, infringement of copyright, trademark or other intellectual property right, or the violation of any third party rights arising from use of the Services;
• infringement of patents or other intellectual property rights arising from combining or using Subscriber- provided facilities with the Services or the Equipment where the Services or the Equipment would pose no infringement in the absence of such combination or use; or
• any unauthorized use of the Services.

The County’s total cumulative liability, if any, to Subscriber for damages related to the provision of Services pursuant to any Service Order (including fundamental breach or otherwise), negligence, any act or omission by the County or its representatives, or under any other theory of law or equity will be limited to those damages actually proven as directly attributable to the County and will in no event exceed the aggregate of three (3) months of fees and charges paid by Subscriber for the affected Services under such Service Order.

NOTWITHSTANDING ANYTHING IN THESE TERMS OF SERVICE OR ANY SERVICE ORDER, IN NO EVENT WILL THE COUNTY BE LIABLE TO SUBSCRIBER OR ANY THIRD PARTY FOR PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OR DAMAGE TO DATA, EVEN IF SUBSCRIBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

EXCEPT AS EXPRESSLY STATED IN A SERVICE ORDER, THE COUNTY MAKES NO WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN RELATION TO THE SERVICES AND, WITHOUT LIMITATION ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT ALL REQUIREMENTS OF CUSTOMER WILL BE MET WITH RESPECT TO ANY SERVICES PROVIDED BY THE COUNTY HEREUNDER, ARE HEREBY DISCLAIMED BY THE COUNTY AND EXCLUDED FROM THE AGREEMENT BETWEEN THE PARTIES.

Either Party may terminate any and all Service Order(s) without penalty on written notice to the other Party if the other Party has filed a petition in or has been assigned into bankruptcy or insolvency legislation, or makes an assignment for the benefit of creditors, or makes any arrangements or otherwise becomes subject to any proceedings under applicable bankruptcy laws with a trustee, or receiver appointed in respect of a substantial portion of the property of the other Party, or in the event the other Party liquidates or winds up its daily operations for any reason whatsoever.

Subscriber may terminate the Services, upon thirty (30) days written notice to the County.

The County may suspend delivery of the Services, or terminate any or all Service Order(s), at its option and without penalty if:

Subscriber fails, within the time set forth in any written notification to Subscriber by the County, to make full payment of any invoice that remains unpaid in accordance with the terms of payment set out in a Service Order or the Terms of Service (other than charges which are being disputed by Subscriber in good faith); or Subscriber has failed within five (5) days following written notification to Subscriber by the County to remedy any breach of a  term or condition of a Service Order, or the Terms of Service of Acceptable Use Policy of the County.

Governing Law: Any dispute between the County and Subscriber, with respect to a Service Order or these Terms of Service, shall be governed by, and construed in accordance with, the laws in force in the Province of Alberta, and the laws of Canada applicable therein. Subscriber agrees to attorn to the jurisdiction of the Courts of the Province Alberta, and agrees that any action or proceeding brought by either the County or Subscriber to enforce any provision of a Service Order shall be commenced in Alberta.

Successors and Assigns: A Service Order may not be assigned by Subscriber without the prior written consent of the County, such consent not to be unreasonably withheld.

Force Majeure: Any delay or failure of either Party to perform its obligations under a Service Order or the Terms of Service shall be excused, to the extent that the delay or failure is caused by an event or occurrence beyond the reasonable control of the Party and without its fault or negligence, such as by way of example and not by way of limitation, acts of God, action by any governmental authority, fires, floods, war, acts of terrorism, insurrection, pandemic, revolution, nuclear reaction, windstorms, explosions, riots, natural disasters, inability to obtain power, material, labour, Equipment or transportation, or court injunction provided that, written notice of the delay shall be given by the affected Party to the other Party within ten (10) days.

Purchase Orders: Notwithstanding any contrary language in any purchase order or similar document issued by the Subscriber to the County with respect to the Services, any such purchase order or similar document shall be deemed for the Subscriber's internal use only and the provisions thereof shall have no affect whatsoever upon the provisions of the applicable Service Order or the Terms of Service.

Severability: Each provision of any applicable Service Order(s) or the Terms of Service shall be severable. If any provision of a Service Order or the Terms of Service is illegal or invalid, the illegality or invalidity shall not affect the validity of the remainder of such Service Order or the Terms of Service. In the event that a Service Order is a tripartite agreement, then such Service Order shall be divisible in relation to the Parties insofar as the Service Order can be performed without the collaboration of the excluded Party.

Rights Arising from Service Order(s): Nothing herein expressed or implied is intended nor shall be construed to confer on or to give any person, other than the Parties and their respective successors and permitted assigns, any rights or remedies under or by reason of any Service Order(s) or the Terms of Service.

Agency Limitations: Any Service Order(s) does not constitute any Party a partner, employee, agent or legal representative or joint venturer with the other, and no Party may act on behalf of the other in any manner nor assume or create any obligation of any kind express or implied, on behalf of the other Party nor bind the other Party in any respect whatsoever, except in accordance with such Service Order(s).

Waiver and Indulgence: Waiver by any Party of any violation or breach of a Service Order or the Terms of Service in any instance shall not be taken or held to be a waiver of any subsequent violation or breach or as a waiver of the provision itself that is breached, nor shall any delay or omission on the part of any Party to exercise any right arising from such violation or breach alter or impair that Party’s right’s to the same or any future violation or breach. Similarly, no indulgence or goodwill of any kind by a Party not contemplated by a Service Order or the Terms of Service shall be taken or construed as a right that can be enforced against such Party by the other.

Notices: Any notice or other written communication provided or permitted hereunder shall be in writing and given by personal delivery (against receipt), or sent by registered mail (against receipt) postage prepaid, or transmitted by facsimile, addressed to the other Party as set out on the applicable Service Order(s). Any notice so given shall be deemed to have been received on the date on which it was delivered in person, or, if transmitted by facsimile during the regular business hours of the party receiving the notice, on the date it was transmitted, or if transmitted after business hours, on the next business day, or if sent by registered mail on the fifth business day thereafter.

Privacy and Confidentiality: The County is a public body within the meaning of and subject to the Freedom of Information and Protection of Privacy Act (Alberta) and the regulations made thereunder, as such legislation may be amended, re-enacted, replaced, substituted or succeeded from time to time (collectively, "FOIP").

If the County receives a request for information under FOIP that includes information provided by any other party (including, without limitation, information provided by or relating to Subscriber), the County will respond to such request in accordance with FOIP including giving such party notice of the request and allowing for it to provide its views on the disclosure of the requested information. The party will have twenty (20) calendar days to respond to such notice, failing which, the County will proceed to process the request for information in accordance with FOIP.

If the County's response to a request under FOIP is appealed to the Alberta Office of the Information and Privacy Commissioner, in accordance with the provisions of FOIP, the applicable party shall have the burden of proof as to exemption from disclosure as set out under FOIP, and the applicable party shall be responsible for all costs of such appeal and all costs related to its confidentiality requirements.

Regulatory Approval: In the event that a Service Order or the Terms of Service become subject to regulatory approval by various provincial or federal agencies in Canada, as applicable, the Parties shall cooperate, to the extent reasonable and lawful, in providing such information as is necessary to complete any required filing or in obtaining any required regulatory approval.

Legality: Nothing contained in any Service Order or the Terms of Service shall be construed so as to require the commission of any act or the payment of any compensation which is contrary to law, as applicable, which may, from time to time, be in effect and by its terms controlling of the applicable Service Order(s). If there is any conflict between any provision of Service Order and any such applicable law the latter shall prevail and the provisions of such Service Order affected shall be modified to the extent (but only to the extent) necessary to remove such conflict and permit such compliance with the law.

Cumulative Remedies: No remedy conferred upon or reserved in favour of a Party shall exclude any other remedy herein or existing in law or in equity or by statute, but each shall be cumulative and in addition to every other remedy given hereunder or now hereafter existing.

Non- Variation: No amendment or consensual cancellation of a Service Order or any provision or term thereof or of any agreement, bill of exchange or other document issued or executed pursuant to or in connection with a Service Order shall be binding unless recorded in a written document signed by a duly authorized representative from all Parties. The Parties acknowledge having read and understood each Service Order and are not entering into such Service Order on the basis of any representations not expressly set forth in it. No Party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded in a Service Order or the Terms of Service whether it induced the contract between the Parties or not.