Terms & Conditions
This is an agreement between you as the customer (“you“, “your” or “Customer“) and 5D Networks Inc. By using or subscribing to any of the Internet services (the “Services“) provided by 5D Networks Inc. or provided through 5D Networks Inc. partners, resellers, or providers (collectively, “5D Networks Inc.“), you agree to the following terms and conditions of service (the “Terms of Service”). Please read all the Terms of Service before using the Services. If you do not wish to be bound by these Terms of Service or any modifications or amendments from time to time, do not subscribe for or use the Services. You will be bound by these Terms of Service even if you do not read all of the terms. If you continue to use the Services after any change or amendment to these Terms of Service, you will be bound by the changed or modified terms.
5D Networks Inc. has retained certain independent contractors or marketers to advertise and promote the Services. You may have dealings with such independent contractors or marketers, however, ultimately you are entering into these Terms of Service with 5D Networks Inc. and 5D Networks Inc. is providing you with the Services.
“CCTS Deposit and Disconnection Code” is the code at https://www.ccts-cprst.ca/wp-content/uploads/2017/06/Deposit-and-Disconnection-Code.pdf or such updated code from time to time;
“Notice” means written notice from one party to another party under these Terms of Service, and in the case of the Customer, means the mailing address or email address as shown in the most recent receipt or invoice issued to Customer by 5D Networks Inc., and in the case of 5D Networks Inc means: 304, 333 Terminal Ave, Vancouver, BC, V6A 4C1, E-mail: [email protected], or such updated contact information as posted in 5D Network’s “Contact Us” page on our site;
“Pricing Document” means the rate sheet, service schedule, service order, payment check-out page approved by Customer and 5D Networks Inc., or the invoice issued by 5D Networks Inc., as applicable, which lists the pricing applicable to the Services;
“Purchased Hardware” means hardware, devices, equipment provided to you by 5D Networks Inc. under a sales arrangement.
“Rental Hardware” means hardware, devices, equipment provided to you by 5D Networks Inc. under a rental arrangement.
“Services” is defined above, and includes any Internet access services, technical support, or related services under these Terms of Services. If the Customer has agreed to obtain virus protection, spam control, spyware protection, VoIP Services, long distance services, or other ancillary services, and 5D Netowrks Inc. has agreed to supply such services, then such services are included within the definition of “Services”;
“Term” means the term applicable to Customer’s Service subscription, as set forth in the Pricing Document applicable to the Customer;
“VoIP Services” is defined in Section 3.
Your Account. You will have access to the Services during the Term of this agreement. You are responsible for all uses of your account with 5D Networks Inc.
Acceptable Use. The Services may only be used in accordance with the 5D Networks Inc. Acceptable Use Policy attached to these Terms of Service, as may be updated from time to time. The most recent version of the Acceptable Use Policy will be published at www.5dnet.ca
5D Networks Inc. customer support will provide telephone support to Customers during the Term of this agreement on a reasonable efforts basis, via the telephone number and during the hours specified on 5D Networks’ site, or as set forth in any Service Level Commitment Policy or support policy published by 5D Networks Inc.
If support is provided, it is expressly limited to the Services and (if applicable) Rental Hardware, and resolution of Customer issues related directly to use of the Services, from the designated service demarcation point. 5D Networks Inc. does not provide on-site visits, nor does it provide maintenance, support, or repairs of third-party hardware, equipment and software, Internet availability or capacity (including third-party networks, cabling, facilities and equipment past the designated service demarcation point) or other issues beyond the reasonable control of 5D Networks Inc.
5D Networks Inc. customer support may create a ticket and refer Customer to third-party providers where support is escalated to any tier above the level of support provided by 5D Networks Inc., or as set forth in any support policy published by 5D Networks Inc.
Change to Services. 5D Networks Inc. may from time to time, upon Notice to the Customer, add, create, amend, change, or delete any Service, including changing pricing for any Services, introducing new Services, substituting old Services for new Services, changing any Service features and deleting any Services, provided that the minimum level of Services and maximum level of pricing as set forth in the applicable Pricing Document are maintained for the duration of the remaining then-current term of this agreement.
Right of Termination. If the Customer does not agree with such changes, the Customer may, without liability to itself whatsoever, terminate its account pursuant to Section 14.
General Practices and Limits.
The Customer acknowledges that 5D Networks Inc. may establish general practices and limits concerning the use of the Services as outlined in the Acceptable Use Policy, the attached Service Level Commitment Policy (as may be updated from time to time), or other applicable policies including: the maximum size of any e-mail message or other data that may be sent from or received by an account; the maximum disk space that will be allotted on 5D Networks Inc.’s servers on the Customer’s behalf; the maximum amount of data, speed of data or type of data that may be sent from or received using the Services or account; and the maximum number of days that e- mail messages, voice messages or other data will be stored on 5D Networks Inc.’s servers.
High Speed Services have transfer rate limits as described in the Pricing Document and any applicable policies issued by 5D Networks Inc.. If the Customer’s transfer rate exceeds these limits, extra fees may be charged per gigabyte, or 5D Networks Inc. may elect to terminate or suspend the Customer’s Services or account in accordance with Section 15.
The Customer agrees to comply with all such general practices and limits, provided that:
All such general practices and limits comply with the negotiated limits outlined in the Pricing Document and any applicable policies issued by 5D Networks Inc.; and,
Customer receives Notice of such general practices and limits.
The Customer agrees that violating such practices or exceeding such limits may result in suspension, restriction or termination of the Customer’s account or the imposition of additional charges.
All Services are subject to the availability of suitable equipment, facilities and infrastructure, and consequently all Services are not available at all locations.
Ancillary Services. Certain ancillary services may be provided to you during the Term of this agreement under the applicable Pricing Document issued by 5D Networks Inc.. The Customer acknowledges that virus protection, spam control, or spyware protection these features are network-level services that attempt to filter such content before reaching the Customer’s equipment; thus, further acknowledges, that such Services will not protect the Customer’s equipment from any malicious, surreptitious or disabling code, virus, Trojan horse, spyware or spam, capable of circumventing such filters. The Customer acknowledges that 5D Networks Inc.’s installation obligations will be limited to the specific services listed in the applicable Pricing Document, and Customer is responsible for meeting minimum requirements, configuring, and maintaining the necessary systems before and after installation.
Internet-based Services. The Customer acknowledges that the Services provided depend on Internet availability and capacity (including networks, cabling, facilities and equipment that is not in the control of 5D Networks Inc.) that depend on third-party providers; accordingly:
Any representation made by 5D Networks Inc. regarding access performance, speeds, reliability, availability, use or consistency of the Services are on commercially reasonable efforts basis;
5D Networks Inc. cannot guarantee any minimum level regarding such performance, speed, reliability, availability, use or consistency, but shall undertake at all times to provide commercially reasonable efforts to ensure the minimum standards outlined in the Pricing Document and any applicable policies are maintained; and
The speed and reception of WIFI signal may vary depending on the location and configurations of the wireless modem router, the location and capabilities of the wireless devices, the number of neighbouring wireless networks, the number of WIFI devices on the network and the building materials of the residence. 5D Networks Inc. cannot guarantee that the WIFI enabled modem purchased or rented by the Customer will provide total coverage of the Customer’s residence. The Customer may be required to purchase a third-party WIFI booster/extender/access point to achieve desired WIFI connectivity. 5D Networks Inc. is not responsible for the cost associated with purchasing these third-party WIFI booster/extender/access point; as stated in 2.3 (a) 5D Networks Inc. does not provide support for third-party hardware, equipment and software; and
Any data, messages, information or materials sent over the Internet (such as calls made using VoIP Services, or e-mail messages sent or received) may not be completely private, and the Customer’s anonymity is not guaranteed.
Interoperability. 5D Networks Inc. does not guarantee or make any representation or warranty that any Service will operate with any particular equipment or software, including all Internet applications, devices and appliances. It is the Customer’s responsibility to ensure that the Customer’s equipment and software meet the current minimum requirements specified from time to time by 5D Networks Inc. as being necessary for access to any of the contemplated Services (however, compliance with such minimum requirements does not guarantee compatibility with the Services).
Changes to Requirements. From time to time, the equipment or software required to access the Services may change. Accordingly, the Customer’s equipment or software may cease to be adequate to access the contemplated Services. In such circumstances, the Customer may choose to upgrade the Customer’s equipment or software, the cost of which will be borne by the Customer; alternatively, the Customer may choose to terminate the Customer’s account in accordance with Section 14.
Risks. The Services or any equipment used to access the Services may interrupt the functioning of some home or business security systems or other devices that use the same phone line(s), communications hardware or protocols. 5D Networks Inc. will endeavor to warn Customer prior to any (potential) interruptions that may occur to the best of its knowledge and ability. The Customer acknowledges that 5D Networks Inc. is not responsible for any such problems or interruptions. The Customer is responsible for ensuring that the Customer’s premises are appropriately wired to ensure proper functioning of any such security systems or other devices prior to installation of the Services.
VOIP SERVICE-SPECIFIC PROVISIONS
IF THE SERVICES INCLUDE VOICE-OVER-INTERNET-PROTOCOL (VOIP) SERVICES (“VoIP Services”), THIS SECTION APPLIES, AND CONTAINS IMPORTANT PROVISIONS, INCLUDING THOSE REGARDING 911 ACCESS. PLEASE READ CAREFULLY.
Description. VoIP Services allow the Customer to make or receive telephone calls over the Internet to or from the public switched telephone network (“VoIP Calls“). The nature of VoIP Calls, while appearing similar to traditional telephone calling services, create unique limitations and circumstances and the Customer acknowledges that differences exist between traditional telephone service and the VoIP Services, including the lack of traditional 911 services and other privacy issues.
911 Service. Because of the unique nature of VoIP Calls, emergency calls to 911 through the VoIP Service (a “911 Call“) will be handled differently than traditional phone service. The following provisions describe the differences and limitations of 911 Calls:
Placing a 911 Call. When an individual makes a 911 Call, the VoIP Service will attempt to automatically route the Customer’s 911 Call through a third-party service provider to the Public Safety Answering Point (“PSAP”) corresponding to the address on record with the Customer’s account. However, due to the limitations of the VoIP System, the Customer’s 911 Call may be routed to a different location than that which would be used for traditional 911 dialing. For example, the Customer’s call may be forwarded to a third-party, specialized call centre that handles emergency calls. This call centre is different from the PSAP that would answer a traditional 911 call, and the Customer may be required to provide the Customer’s name, address, and telephone number to the call centre.
How the Customer’s Information is Provided. The VoIP Service will attempt to automatically provide the PSAP dispatcher or emergency service operator (a “Dispatcher”) with the name, address and telephone number associated with the Customer’s account. However, for technical reasons, the Dispatcher may not be able to capture or retain the Customer’s name, phone number or physical location. Therefore, when making a 911 Call, an individual must immediately inform the Dispatcher of their location (or the location of the emergency, if different). If the individual is unable to speak, the Dispatcher may not be able to locate the Customer.
Correctness of Information. The Customer is responsible for providing, maintaining and updating correct contact information (including name, residential address and telephone number) associated to the Customer’s account. If the Customer does not correctly maintain or update this information, 911 Calls may be misdirected to an incorrect Dispatcher.
Disconnections. The caller must not disconnect the 911 Call until told to do so by the dispatcher, as the dispatcher may not have the Customer’s number or contact information. If the call is inadvertently disconnected, the individual must call back immediately.
Connection Time. For technical reasons, including network congestion, it is possible that a 911 Call will produce a busy signal or will take longer to connect when compared with traditional calls.
911 Calls May Not Function. For technical reasons, the functionality of a 911 Call may cease or be curtailed in various circumstances, including:
Failure of Service or Service Access Device – if the Customer’s Service Access Device fails or is not configured correctly or if the Customer’s VoIP Service is not functioning for any reason, including in the event of power outage, VoIP Service outage, suspension or disconnection of the Customer’s Service due to billing issues, network or Internet congestion, or network or Internet outage, in the event of a power, network or Internet outage, the Customer may need to reset or reconfigure the Service Access Device before being able to use the VoIP Service, including for a 911 Call;
Changing Location of Service Access Device – if the Customer moves the Customer’s Service Access Device to a location other than that described in the Customer’s account information or otherwise on record with 5D Networks Inc.; and,
Use outside of Canada or the United States – if the Customer moves the Customer’s System Access Device to a location other than one located in the USA or Canada (excluding Alaska, Hawaii, the Northwest Territories, Yukon and Nunavut).
Alternate Services – if the Customer is not comfortable with the limitations of 911 Calls, 5D Networks Inc. recommends that the Customer terminate the Services or consider an alternate means for accessing traditional 911 services.
Inform Other Users – the Customer is responsible for notifying, and the Customer agrees to notify, any user of the Customer’s VoIP Services of the nature and limitations of 911 Calls on the VoIP Services as described herein.
No Liability and Indemnity – the Customer acknowledges that 5D Networks Inc. will not be liable for any service outage or inability to place 911 Calls using the Customer’s VoIP Service or to access emergency service personnel due to the limitations of 911 service described herein.
Privacy. The Customer acknowledges that VoIP Calls and VoIP Services utilize, in whole or in part, the public Internet and third-party networks to transmit voice and other communications, which transmissions may be intercepted by other parties.
411 Service. The 411-information service is available at 5D Networks Inc.’s current rates as set by 5D Networks Inc.’s website, any changes to the said rate shall be subject to the Notice to the Customer.
900 and 976 Numbers. VoIP Calls to certain special service phone numbers, including 900- and 976- numbers, may be limited and 5D Networks Inc. reserves the right to limit the Customer’s ability to call any such number at its discretion.
Telephone Number Portability. The Customer may be able to transfer an existing telephone number to the Customer’s VoIP Service or the Customer’s VoIP Service telephone number to another service provider, provided that the Customer’s account is in good standing. However, 5D Networks Inc. will not be responsible for any termination fees imposed by any other service provider as a result of the Customer transferring or instructing 5D Networks Inc. to transfer the Customer’s existing number to the Services. 5D Networks Inc. cannot guarantee or warrant the timeliness or date of any transfer, nor can it guarantee that the Customer will be able to transfer the said number.
Directory Services. 5D Networks Inc. will make the Customer’s name, address and telephone numbers available to publishers of paper and electronic telephone directories and to providers of operator services, in accordance with legal, contractual or regulatory requirements.
Limit on Usage Patterns. 5D Networks Inc. reserves the right to terminate, curtail or suspend the Customer’s VoIP Services if the Customer’s calling patterns materially exceed the negotiated limits outlined in the Pricing Document or applicable policies, or, if the Customer breaches any part of this agreement.
Bandwidth Usage. VoIP calls require high-speed Internet bandwidth, which may affect throughput over any High-Speed Services and will count towards the Customer’s bandwidth usage for all High-Speed Services.
Specific Prohibitions. The Customer is prohibited from using any VoIP Services for: automatic-dialing announcing devices and unsolicited voice and facsimile calls made for the purpose of solicitation; or, any application with continuous or excessive calling patterns for telemarketing (including charitable and political solicitation and polling), fax broadcasting or fax blasting
Long Distance Services. Some of the Services may include the ability for the Customer to place long-distance telephone calls. By dialing or placing a long-distance telephone call, the Customer agree to pay 5D Networks Inc.’s then-current rates and fees for such calls. Section 3.8 also applies to long distance services.
IF THE SERVICES INCLUDE SUPPLY OF RENTAL HARDWARE, THIS SECTION APPLIES, AND CONTAINS IMPORTANT PROVISIONS. PLEASE READ CAREFULLY.
If Rental Hardware is provided to you under the applicable Pricing Document issued by 5D Networks Inc., you agree to the following additional terms:
These Terms of Service govern any Rental Hardware provided to you during the Term of this agreement.
5D Networks Inc. may install or cause to be installed the Rental Hardware in the Service Location identified in the Pricing Document. The Rental Hardware is provided for your use of the Services and will at all times remain the property of 5D Networks Inc.. You will not sell, lease, transfer or assign the Rental Hardware, nor permit any lien or encumbrance on such equipment. You may use the Rental Hardware only at the Service Location address you have indicated to 5D Networks Inc. at the time you subscribe to the Services. You will not re-arrange, disconnect, remove, repair or otherwise interfere with the Rental Hardware nor will you relocate the Rental Hardware to another address without 5D Networks Inc.’s prior written consent.
You may be required to pay a Rental Hardware deposit prior to providing you with the Rental Hardware. You may be required to provide access to the Rental Hardware as may be reasonably necessary under the circumstances for installation, maintenance or repair purposes.
5D Networks Inc.’s employees, agents or personnel will show identification prior to entering any location where the Rental Hardware is located. 5D Networks Inc. will make all reasonable efforts to provide you with reasonable notice before accessing any such location. You are responsible to obtain access rights for 5D Networks Inc. employees, agents or personnel for purposes of installation, maintenance or repair of the Rental Hardware.
You are required to return the Rental Hardware to 5D Networks Inc. in good working order as follows (i) if your Services have expired or are terminated, within thirty (30) days of your Services being disconnected, (ii) if 5D Networks Inc. has replaced or upgraded your Rental Hardware, within thirty (30) days of the replacement or upgrade order, or (iii) if 5D Networks Inc. has provided you Rental Hardware for self-install and you do not install such Rental Hardware, within thirty (30) days of the self-install order.
You are responsible for the safekeeping of the Rental Hardware. If, while in your care, the Rental Hardware is damaged, lost or stolen, or you fail to return the Rental Hardware, you agree to pay 5D Networks Inc. the full cost, including the costs incurred by 5D Networks Inc. to recover, repair or replace the Rental Hardware. You hereby authorize 5D Networks Inc. to charge your account and process payment for all Rental Hardware charges, plus applicable taxes, using any of the payment methods accepted by 5D Networks Inc. for your account (including pre-authorized credit card or bank withdrawal).
Should you choose to purchase the Rental Hardware during your term, 5D Networks Inc. will credit 50% of your previously paid rental fees towards the purchase price of the Rental Hardware.
If Customer chooses the option to purchase any Purchased Hardware under the applicable Pricing Document issued by 5D Networks Inc., you agree to the following additional terms:
5D Networks Inc. agrees to supply and the Customer agrees to purchase the Purchased Hardware subject to these terms and any additional terms in the Pricing Document issued by 5D Networks Inc..
5D Networks Inc. shall deliver the Purchased Hardware to Customer EXW Calgary, Alberta, via common carrier to the shipping address supplied in the Pricing Document. 5D Networks Inc. shall not be liable in any claim asserted by Customer with respect to delivery. Partial deliveries or deliveries in stages will be permitted. If Purchased Hardware does not correspond in quantity, type or price to those itemized in the corresponding Pricing Document, Customer will notify 5D Networks Inc. within 5 days after receipt.
If installation is part of the services in the Pricing Document, 5D Networks Inc. will install or cause to be installed the Purchased Hardware in the Service Location identified in the Pricing Document.
5D Networks Inc.’s employees, agents or personnel will show identification prior to entering any location where the Purchased Hardware is located, for the purposes of installation (if applicable). 5D Networks Inc. will make all reasonable efforts to provide you with reasonable notice before accessing any such location. You are responsible to obtain access rights for 5D Networks Inc. employees, agents or personnel for purposes of installation of Purchased Hardware.
Title to Purchased Hardware shall pass to Customer when the purchase price is paid in full, or when Purchased Hardware is made available to the common carrier for shipment from 5D Networks Inc.’s facility whichever is first. After delivery to Customer, the Purchased Hardware will be the sole responsibility of Customer.
If the Purchased Hardware fails to operate within 6 months of the date of purchase, 5D Networks Inc. will replace the hardware with a similar type and model, free of charge. Any hardware failures after this 6 month term will be the sole responsibility of the customer.
During the Term of this agreement you agree to pay 5D Networks Inc. the total charges for use of the Services as set forth in the applicable Pricing Document from 5D Networks Inc., including, without limitation the following (if applicable): fees applicable to installation, support, Rental Hardware, Purchased Hardware, deposits, or non-return charges; processing fees, costs incurred by 5D Networks Inc. and interest charges, if your account is past due; service calls; toll or long distance uses; plus any applicable federal, provincial, or regulatory taxes or surcharges, incurred in connection with the access to or use of the Services (as all such fees may be changed from time to time).
You must pay all amounts by the due date indicated on the applicable Pricing Document. Amounts owing after the due date are subject to a late payment interest charge calculated and compounded monthly on the outstanding amount at 2% per month (26.8% per year) from the date of the first bill on which it appears until paid in full.
5D Networks Inc. will provide you with the applicable Pricing Document (invoice) on a monthly basis, which will be posted to your My Account Portal for you to download and save. You will also receive a billing notification email informing you that your monthly invoice has been posted.
Your invoice will include charges and adjustments for all services supplied to you under your chosen Internet Services plan, as well as other charges as set out in these Terms of Service.
Subject to applicable laws, you remain liable for all charges on your invoice, including if you do not receive your invoice on time, or at all, for any reason. This includes, without limitation, an interruption in Internet services or postal services, or a situation where we do not have your correct Contact Information.
Our ability to invoice you on a monthly basis is dependent upon the ISP Wholesaler providing us with the necessary information in a timely manner. You acknowledge and agree that 5D Networks Inc. will not be liable for any billing delay caused by the ISP Wholesaler’s failure to provide necessary information in a timely manner.
Unless otherwise indicated on the applicable Pricing Document at the time you place your order, all sales are final and no fees will be refunded if you cancel your Services.
Paper Invoice Charge. A $3.25 charge per service, will be added to your monthly invoice, if you request that a paper copy of your invoice be mailed to your address. This charge is subject to change without notice.
If your account remains unpaid for 30 days, 5D Networks Inc. may take steps to enforce payment including: we may suspend or disconnect your account in accordance with the CCTS Deposit and Disconnection Code, we may refer your account to a collections agency, and for enforcement of any late payments, you agree to pay a fee of $45.00 for administration, processing, and service costs for your account (for example, collections efforts due to NSF, non-payment or suspension, disconnection or reactivation of your Services). In the special case of the first invoice: if account remains unpaid for 7 days past the notification of non-payment, 5D Networks Inc. may take steps to suspend your account. If your first invoice remains unpaid until the day before the next statement date of the following invoice, 5D Networks Inc. may take steps to disconnect your service altogether. A fee of $45.00 for administration, processing, and service costs are applicable.
If your account is restarted after suspension, payment of the full amount due in addition to a $25 reconnection fee may be required before the Services may be restored, provided 5D Networks Inc. is not under any obligation to restore the Services to any customer who repeatedly fails to make timely payment of the amounts owing, or abuses 5D Networks Inc.’s Acceptable Use Policy, or any other applicable policy published by 5D Networks Inc..
You are responsible to ensure that the billing information you provide 5D Networks Inc. is accurate. You agree to promptly provide Notice to 5D Networks Inc. of any changes in your billing information.
If we have to take extra enforcement steps then you will be responsible for those additional costs including legal fees and expenses, collection agency fees or payments and court costs incurred by 5D Networks Inc. to collect any amounts owing under these Terms of Service.
If you are receiving the Services through a trial period or promotional offer, you agree that upon the expiry of such trial or promotional period, you will be abide by the payment obligations in the invoice or order confirmation from 5D Networks Inc..
You must bring billing invoice questions and disputes to 5D Networks Inc.’s attention within 60 days of the invoice date. Your failure to contact 5D Networks Inc. regarding any invoice will constitute your acceptance of the invoice.
PRE-AUTHORIZED DEBIT (“PAD”) PAYMENTS
By entering into these Terms of Service you are also providing authorization for PAD payments to be withdrawn from your bank account to pay your invoices during the Term of this agreement. As such:
YOU HEREBY ACKNOWLEDGE THAT YOU ARE PROVIDING YOUR EXPRESS AUTHORIZATION FOR THE BENEFIT OF 5D Networks Inc. AND YOUR BANK, TO PROCESS INVOICE PAYMENTS AND CREDITS AGAINST YOUR BANK ACCOUNT IN ACCORDANCE WITH THE RULES OF THE CANADIAN PAYMENTS ASSOCIATION;
YOU HEREBY WARRANT AND REPRESENT THAT THE DIGITAL SIGNATURE ON THESE TERMS OF SERVICE ALSO ACTS AS A SIGNATURE TO AUTHORIZE YOUR PAD PAYMENTS;
YOU ARE HEREBY AUTHORIZING YOUR BANK TO PROCESS PAD PAYMENTS FOR 5D Networks Inc. TO WITHDRAW FROM OR DEPOSIT INTO YOUR ACCOUNT WITH THE BRANCH OF THE FINANCIAL INSTITUTION WHERE YOU MAINTAIN A BANK ACCOUNT;
In order to set up your PAD payments, you will need to provide a void cheque to 5D Networks Inc. that sets out your name, current address, and bank account information. The name on your void cheque must match your name on these Terms of Service;
You acknowledge and agree that your bank is not required to verify that each PAD payment has been issued in accordance with the particulars of your authorization including, but not limited to, the amount of your monthly payment;
You acknowledge and agree that your bank is not required to verify that 5D Networks Inc. has fulfilled its obligations under these Terms of Service prior to issuing any PAD payment;
On your bank statement, your PAD payments will be identified as being made to “5D Networks Inc.” for Internet services payments;
5D Networks Inc. shall not assign this authorization, whether directly or indirectly, except if it sells its business, and only after providing you with 10 days written Notice. Unless 5D Networks Inc. sells its business, it will not share any of your banking information;
You agree to provide Notice to 5D Networks Inc. in writing of any change to your bank account information at least 10 days prior to the next due date of your PAD payment, or as soon as possible if a change is made within 10 days of the next due date;
You may revoke your PAD authorization at any time by providing 5D Networks Inc. with Notice a least 10 days prior to the next due date of your PAD payment. If Notice is not provided to 5D Networks Inc. in time, one further payment may be withdrawn from your bank account;
Revocation of this PAD payment authorization does not terminate any of the other terms of these Terms of Service. If you have an outstanding amount due and payable to 5D Networks Inc., you must provide 5D Networks Inc. with another form of payment; and
You have certain recourse rights if any debit does not comply with this section. For example, you have the right to receive reimbursement for any PAD payment that is not authorized by or is not consistent with this section or these Terms of Service. For more information on your recourse rights you may contact your bank or visit www.cdnpay.ca.
CREDIT AND SECURITY DEPOSIT
5D Networks Inc. reserves the right to examine your credit records at any time, whether before or after providing you the Services, and to require a security deposit, pursuant to the CCTS Deposit and Disconnection Code.
Security Deposit. A Security Deposit may be required in accordance with the following provisions:
a Customer may be required to provide a Security Deposit if:
the Customer has no credit history,
the Customer has a poor credit rating, or
the Customer’s previous Internet service access was cancelled for non-payment;
Security Deposit will be taken in the amount of $200
5D Networks Inc. will debit the full amount of the Security Deposit from a Customer’s bank account prior to service activation and the service will not be activated until the Security Deposit has been paid in full;
the Security Deposit will be fully refundable by 5D Networks Inc., if you cancel this Agreement during the regulated 10-day cancellation period;
the Security Deposit will be held in a 5D Networks Inc. non-interest bearing trust account and refunded to you in full if you make 12 consecutive required payments without default;
if you default on any of your payments while 5D Networks Inc. is holding your Security Deposit, 5D Networks Inc. may use all or a portion of your Security Deposit to cover your outstanding payment amount.
INTELLECTUAL PROPERTY RIGHTS
5D Networks Inc. owns its trademarks and logos and does not grant any trademark rights to you under these Terms of Service. The Services, or content provided to you through the Services may be subject to intellectual property rights of 5D Networks Inc. or others. You are not granted a license or right to use any other intellectual property rights of 5D Networks Inc. or any third party by virtue of these Terms of Service.
You should be aware that federal law provides severe civil and criminal penalties for the infringement or unauthorized reproduction or distribution of copyrighted content. 5D Networks Inc. will not be liable for any infringement or unauthorized reproduction or distribution of copyrighted content that takes place through your account.
5D Networks Inc. or its agents may interrupt the Services at any time for any duration of time, without notice or liability to you, in order to install, inspect, repair, replace or perform necessary maintenance on the 5D Networks Inc. facilities or network, or for other technical reasons as may be required. 5D Networks Inc.’s service providers may interrupt the Services at any time for any duration of time for similar reasons.
You should be aware that the Services cannot function in the event of a power failure regardless of where the power failure arises.
Notwithstanding anything to the contrary in these terms, 5D Networks Inc.’s responsibility or liability for any Service interruption, suspension, delay or network outage will be to provide a credit (if applicable) to Customer’s account, as outlined in the attached Service Level Commitment Policy, or the applicable Pricing Document.
LIMITS ON PROVISION OF SERVICES
5D Networks Inc. is not required to provide the Services where:
You are located outside of 5D Networks Inc.’s service or licensed geographic area;
You have failed to make payment of the amounts due for the Services or the Rental Hardware; or
5D Networks Inc. would have to incur unusual expenses to bring the Services to your location, which you do not agree to pay.
SOFTWARE AND FIRMWARE UPDATES
You expressly agree to receive software and firmware updates in relation to the Services. Such updates may change, add or remove features or functionalities of Rental Hardware, other connected equipment or the Services.
CONFIDENTIALITY & PRIVACY
satisfy any legal or regulatory requirement or governmental request;
obtain, deliver, operate and market the Services; or
protect 5D Networks Inc., its partners, affiliates, or its customers.
CHANGES TO TERMS OF SERVICE
If Customer Moves Locations. Customers are responsible to provide Notice to 5D Networks Inc. at least 30 days prior to the date of moving addresses or locations. Where applicable, Customer agrees to pay 5D Networks Inc. for all charges and administrative fees associated with a change in location. If you move to a location that is outside of the area served by 5D Networks Inc. and are not subject to a service agreement, these Terms of Service shall be terminated and you must return all Rental Hardware to 5D Networks Inc. (if applicable).
Changing the Name on Your Account.
You agree and represent that you are the account holder in relation to the Services or are authorized by the account holder in relation to the Services and have the authority to enter into these Terms of Service. We are relying on this representation for the purposes of these Terms of Service.
If you change your name legally, or as a result of marriage or divorce, you may change your name on your account and with respect to these Terms of Service, by providing us with evidence of your name change such as a copy of your marriage certificate or updated government issued photo identification like a driver’s license or passport.
The name associated with your account and these Terms of Service must match the name associated with your bank account used to pay for the Services.
Adding a Contact Person to Your Account.
You may add another person to your account, whom you authorize to make decisions regarding your account and these Terms of Service (your “Additional Contact“). You agree that 5D Networks Inc. may fully rely on, and that you will be bound by, the decisions, information and directions provided by your Additional Contact. This may include contacting us to discuss your invoices, making decisions about rates or updating banking or personal information (such as email address etc.).
Your Additional Contact may not open or close an account in your name. Your Additional Contact’s name will not be displayed on the invoice but will be noted in our records.
Changes to the Agreement. We reserve the right to amend the terms of these Terms of Service from time to time. We will provide you with notice of any changes to these Terms of Service. You acknowledge and agree that we may provide you with formal notice:
on one of your monthly invoices;
included with one of your monthly invoices; or
sent by email to the most recent email address you have provided to us.
In relation to residential accounts, you may terminate the Services at any time by providing advance written Notice to 5D Networks Inc., provided that Customer pays 5D Networks Inc. all unpaid charges for such Services and any required termination charges. Account cancellation by the Customer within the first 30 days after activation will be subject to payment of a $100 administration fee.
In relation to business accounts, you may terminate the Services as follows:
Where the total charges for use of the Services in the preceding month is less than $2,500, you may terminate the Services at any time by provide advance written Notice to 5D Networks Inc. of your desire to terminate, provided that Customer pays 5D Networks Inc. all unpaid charges for such Services and any required termination charges; or
Where the total charges for use of the Services in the preceding month is greater than $2,500, you may terminate the Services at any time by providing 5D Networks Inc. no less than 30 days’ written Notice of your desire to terminate, in which event Customer will pay to 5D Networks Inc. all unpaid charges for such Services and any required termination charges.
Account cancellation by the Customer within the first 30 days after activation will be subject to payment of a $100 administration fee.
You agree that if the Services are terminated for any reason you will:
pay 5D Networks Inc. in full for any amounts due and outstanding for your use of the Services, plus applicable taxes, including any applicable early termination fees; and
return the Rental Hardware to 5D Networks Inc. (if applicable).
On or after expiry or termination of the Services for any reason, if your account has a credit balance less than ten dollars ($10.00), this credit balance will not be automatically refunded to you when Services expire or are terminated. If your account has a credit balance of ten dollars ($10.00) or more, we will refund that balance to you within thirty (30) days by processing the refund via PAD or another refund method that we may implement from time to time. It is your responsibility to obtain the refund through the designated platform within the specified time. Unclaimed refunds may result in forfeiture to 5D Networks Inc. of the credit balance amount.
5D Networks Inc. INITIATED TERMINATION OR SUSPENSION
5D Networks Inc. may terminate these Terms of Service without cause on 30 days’ written Notice to the Customer; and may disconnect, restrict, block, suspend or terminate all or any part of the Services immediately where you:
fail to make timely payment on your account for the Services and, in the case of a termination, such failure has continued for more than 60 days; provided, however, that in the case of suspension or termination when your account balance is more than $50, such failure has continued for more than 30 days;
become bankrupt or otherwise insolvent;
fail to provide 5D Networks Inc. with reasonable entry and access to install, inspect, repair, replace or to perform necessary maintenance on the Rental Hardware, or 5D Networks Inc.’s facilities or network;
are in breach of any term or condition of these Terms of Service or of 5D Networks Inc.’s Acceptable Use Policy, or any other policies applicable to the Services to which you subscribe;
have been, during any 12 month period, in breach three or more times of any term or condition of these Terms of Service or of 5D Networks Inc.’s Acceptable Use Policy, or any other policies applicable to the Services to which you subscribe, whether or not any breach is cured or remedied; or
if you relocate, alter, abuse or disconnect the Rental Hardware (if applicable).
For the situations listed above, 5D Networks Inc. will attempt to notify you using the information shown on your account stating the reason and date scheduled for the suspension or termination.
Despite the above, 5D Networks Inc. will not provide you notice of a proposed restriction, block, suspension or termination:
if immediate action must be taken to protect 5D Networks Inc.’s facilities, Rental Hardware, or network, or if suspension is required by legal requirement, court order, ordinance or regulatory authority;
if 5D Networks Inc. believes that extreme circumstances exist, or that there is an abnormal risk of loss involved in delaying the suspension or termination;
if you misuse or abuse or permit others to misuse or abuse the Services for purposes that are contrary to law, these Terms of Service or 5D Networks Inc.’s Acceptable Use Policy; or
in an emergency situation.
If all or any part of the Services are disconnected, restricted, blocked, suspended or terminated for cause, 5D Networks Inc. is not obligated to restore the Services. If 5D Networks Inc. agrees to restore your Services, a reconnection service charge may be applied. Any disconnection will be conducted in compliance with the CCTS Deposit and Disconnection Code.
On or after expiry or termination of the Services for any reason, if your account has a credit balance of less than ten dollars ($10.00), this credit balance will not be automatically refunded to you when Services expire or are terminated. If your account has a credit balance of ten dollars ($10.00) or more, we will refund that balance to you within thirty (30) days by processing the refund via PAD or another refund method that we may implement from time to time. It is your responsibility to obtain the refund through the designated platform within the specified time. Unclaimed refunds may result in forfeiture to 5D Networks Inc. of the credit balance amount.
5D Networks Inc.’S LIABILITY
5D Networks Inc. shall not be liable for:
any interruption or unavailability of the Services;
any act or omission of any third party including, but not limited to, any other local telephone company, any connecting carrier or underlying carrier or other provider of connections, facilities or services;
your conduct, acts or omissions;
any event beyond the reasonable control of 5D Networks Inc. including acts of God, inclement weather (including lightning), power failures, labour disputes, riots or civil disputes, war or armed conflict, any law, governmental order, decision or regulation, or order of any court of competent jurisdiction;
5D Networks Inc.’s failure, for any reason, to activate the Services on the activation date you requested or date provided to you by 5D Networks Inc.;
any damage to any location resulting from the installation or attachment of any instruments, apparatus or associated wiring or the Rental Hardware furnished by 5D Networks Inc., or removal thereof, when such defacement or damage is not wholly caused by 5D Networks Inc.’s negligence;
any damages you incur as a result of the operation or failure of equipment owned or provided by customer, or other hardware, facilities, wiring or other devices that you use with the Services; and
any incompatibility of any Rental Hardware or equipment owned or provided by customer, or other hardware, facilities, wiring or other devices.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL 5D Networks Inc. BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS AND LOSS OF BUSINESS OPPORTUNITIES, THAT RESULT IN ANY WAY FROM THESE TERMS OF SERVICE, INCLUDING YOUR USE OF THE RENTAL HARDWARE OR SERVICES, OR YOUR RELIANCE ON OR USE OF ANY INFORMATION, SERVICE, MERCHANDISE OR MATERIAL VIEWED OR PROVIDED ON OR THROUGH USE OF THE SERVICES, OR THAT RESULT FROM NETWORK OUTAGES, POWER OUTAGES, MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, FAILURES OR DELAYS IN RECEPTION OR TRANSMISSION, OR FAILURE OF PERFORMANCE OF THE SERVICES.
5D Networks Inc. SHALL NOT BE LIABLE FOR, AND YOU SHALL INDEMNIFY AND SAVE 5D Networks Inc. HARMLESS FROM AND AGAINST ALL SUITS, CLAIMS OR JUDGMENTS HOWSOEVER ARISING OUT OF ANY OF THE FOLLOWING:
CLAIMS FOR DEFAMATION, INFRINGEMENT OF COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY OR BASED ON ANY OTHER LEGAL THEORY HOWSOEVER ARISING FROM THE MATERIAL, DATA OR OTHER CONTENT FROM THE SERVICES
ANY LOSSES, DAMAGES, EXPENSES OR COSTS (INCLUDING LEGAL FEES) ARISING OUT OF OR IN CONNECTION WITH ANY CLAIM, OR OTHER PROCEEDING BASED ON A CONTENTION THAT THE USE OF THE RENTAL HARDWARE OR THE SERVICES BY YOU OR A THIRD PARTY INFRINGES ANY INTELLECTUAL PROPERTY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY;
BREACH BY YOU OF THE ACCEPTABLE USE POLICY OR OTHER APPLICABLE POLICIES; OR
CLAIMS BY THOSE TO WHOM YOU PROVIDE ACCESS TO THE RENTAL HARDWARE OR THE SERVICES.
FOR THE PURPOSES OF THIS SECTION, ANY REFERENCE TO “5D Networks Inc.” SHALL INCLUDE 5D Networks Inc., ITS PARTNERS, RESELLERS, PROVIDERS OR ASSOCIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS OR AGENTS, SUCCESSORS AND ASSIGNS.
5D Networks Inc. does not provide any warranties of any kind with respect to content that you may access through the Services. You acknowledge that there may be programming content or other content that you may find offensive and you agree that your viewing or use of such content is at your own risk. Some programming or content may not be suitable for minors and you agree to supervise all minors whom you permit to view the programming or access the content from the Internet through your account with 5D Networks Inc..
5D Networks Inc. does not provide any warranties of any kind with respect to ethernet devices, digital cable terminals, digital video recorders, devices, equipment, hardware or software of third parties (including any ethernet devices, digital cable terminals, digital video recorders, devices, equipment, hardware or software owned by you) used in conjunction with the Services.
5D Networks Inc. does not warrant uninterrupted use of the Services and will not apply any rebate for service interruptions.
ALL RENTAL HARDWARE AND THE SERVICES ARE PROVIDED BY 5D Networks Inc. “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND. 5D Networks Inc. DOES NOT WARRANT UNINTERRUPTED USE OR OPERATION OF THE RENTAL HARDWARE OR THE SERVICES. 5D Networks Inc. DOES NOT WARRANT THAT ANY DATA OR COMMUNICATION SENT BY OR TO YOU WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD OF TIME, OR THAT ANY CONTENT OR OTHER MATERIAL ACCESSIBLE ON OR FROM THE SERVICES ARE FREE OF DEFECT, ERROR OR VIRUSES. 5D Networks Inc. DOES NOT WARRANT THE CONTENT, INCLUDING WITHOUT LIMITATION CONTENT OF ANY PROGRAMMING OR ADVERTISING THAT IS ACCESSIBLE ON OR FROM THE SERVICES. ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR NONINFRINGEMENT, OR ANY IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABLE QUALITY WITH REGARD TO ANY MERCHANDISE, INFORMATION, PROGRAMMING, ADVERTISING, CONTENT OR SERVICE AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXCLUDED.
DISPUTES AND GOVERNING LAW
ANY DISPUTES OR CLAIMS (“CLAIMS”) WHATSOEVER BETWEEN 5D Networks Inc. AND YOU WILL BE REFERRED TO AND DETERMINED BY ARBITRATION TO THE EXCLUSION OF THE COURTS. IF YOU HAVE A CLAIM YOU SHOULD GIVE WRITTEN NOTICE TO ARBITRATE TO 5D Networks Inc. AT
ARBITRATION WILL BE CONDUCTED BY ONE ARBITRATOR PURSUANT TO THE LAWS AND RULES RELATING TO COMMERCIAL ARBITRATION IN THE PROVINCE OF ALBERTA. YOU AGREE TO WAIVE ANY RIGHT YOU MAY HAVE TO COMMENCE OR PARTICIPATE IN ANY CLASS ACTION AGAINST 5D Networks Inc. RELATED TO ANY CLAIM. YOU ALSO AGREE TO OPT OUT OF ANY CLASS PROCEEDINGS AGAINST 5D Networks Inc.. IF 5D Networks Inc. HAS A CLAIM, 5D Networks Inc. WILL GIVE YOUR NOTICE TO ARBITRATE AT YOUR BILLING ADDRESS. IF THE CLAIM RELATES TO A MATTER THAT SHOULD BE BROUGHT BEFORE THE CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION (CRTC) OR OTHER CUSTOMER COMPLAINTS BODY SET UP TO ADDRESS SUCH MATTERS, YOU AGREE THAT THE CRTC OR SUCH BODY WILL RESOLVE THE CLAIM. THIS PARAGRAPH IS SUBJECT TO ANY PROHIBITIONS UNDER APPLICABLE LAW.
COMMISSIONER FOR COMPLAINTS FOR TELECOM-TELEVISION SERVICES (CCTS)
CCTS is an independent agency whose mandate is to resolve complaints of individual and small business customers about their broadcasting and telecommunications services, free of charge. If you have a complaint about your telephone, wireless, Internet or TV service, you must first try to resolve it directly with your service provider. If you have done so and have been unable to reach a satisfactory resolution, CCTS may be able to help you. To learn more about CCTS, you may visit its website at www.ccts-cprst.caor call toll-free at 1-888-221-1687.
These Terms of Service, together with any documentation referenced herein represents the entire agreement between us. These Terms of Service supersede any prior agreements, representations or warranties.
These Terms of Service are governed according the laws of the Province of Alberta. The parties to these Terms of Service attorn to the jurisdiction of the courts of Alberta.
This agreement shall enure to the benefit of and shall be binding upon the successors, permitted assigns, heirs, executors, and personal and legal representatives of the parties.
Any obligations relating to fees, charges, penalties, or otherwise owed by you to 5D Networks Inc. pursuant to these Terms of Service will survive any expiration or cancellation of these Terms of Service.
You may not assign, resell, or transfer the Rental Hardware or the Services to any person without prior written consent of 5D Networks Inc..
These Terms of Service will enure to the benefit of, and be binding upon, your respective heirs, executors, administrators, successors and permitted assignees and, for the purpose of 5D Networks Inc., these Terms of Service shall benefit to any party that controls, is controlled by or under common control with 5D Networks Inc..
Upon termination of these Terms of Service, all accrued obligations or liabilities and the provisions which by their nature are intended to continue beyond such termination will remain in effect. Without limiting the generality of the foregoing, the terms of 5D Networks Inc. Acceptable Use Policy applicable to the Services you subscribed to shall survive the expiration or earlier termination of these Terms of Service.
The failure of either party to insist upon strict interpretation of these Terms of Service or to exercise any options set out in these Terms of Service, shall not act as a waiver of any right or option, but the same shall continue to be in full force and effect. No waiver by either party of any breach shall be effective unless expressed in writing.
5D Networks Inc. does not grant you any right to use 5D Networks Inc.’s logos, trademarks or trade names in any manner unless 5D Networks Inc. gives you prior written consent or grants you an appropriate license to use.
In addition to the terms contained in these Terms of Service, these Terms of Service are also subject to the terms and conditions set out in the 5D Networks Inc. Acceptable Use Policy applicable to the Services, and available at www.5dnet.ca or as may be required by statute or regulation.
END OF TERMS