Legal

Copyright

The Acceptable Use Policy of SPYR Network Ltd. (“SPYR”) applies to the Subscriber under any agreement for Services (“Services Agreement”) and any of its employees, agents, contractors, or anyone using the Subscriber’s Services (the “Users”).

All Users will comply with SPYR’s Acceptable Use Policy. Failure to comply with SPYR’s Acceptable Use Policy can result in speed throttling and service termination.

IMPORTANT NOTE: SPYR may modify the provisions of the Acceptable Use Policy at any time without notice by posting a new version at www.spyr.ca/legal. Accordingly, The Subscriber should consult this document regularly to ensure that their activities conform to the most recent version. BY SUBSCRIBING TO SERVICES PROVIDED BY SPYR THE CUSTOMERS AGREES TO THE SERVICES AGREEMENT, THE SUBSCRIBER HAS AGREED THAT THE TERMS OF THIS ACCEPTABLE USE POLICY WILL BE BINDING ON ANY USER.

Email

Sending unsolicited mail messages, including, without limitation, commercial advertising and informational announcements, is explicitly prohibited, unless, however the user ensures that such transmissions comply with all applicable provincial, federal and international regulations, rules and laws, without limitation, the U.S CAN-SPAM Act of 2003. 

Any User may not use the Services in such a way that will result in them being listed on a recognized SPAM abuse list, or SPAM community website.

A User shall not use another site’s mail server to relay mail without the express permission of the site.

Illegal use

The Services may be used only for lawful purposes. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorization, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws.

Tortious behaviour

The Services may not be used to publish or disseminate information that constitutes slander, libel or defamation.

The Services may not be used to publicize the personal information of likeness of a person without their consent.

The Services also may not be used to violate the privacy rights of any person.

System and network security

Violations of system or network security are prohibited, and may result in criminal and civil liability. SPYR will investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following:

Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network.

Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network.

Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks. Forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting.

Usenet

Posting the same or similar message to one or more newsgroups (excessive cross-posting or multiple-posting, also known as “SPAM”) is explicitly prohibited.

Indirect or attempted violations of the policy, and actual or attempted violations by a third party on behalf of a User, shall be considered violations of the policy by such Subscriber.

Complaints regarding email, USENET abuse, SPAM, Illegal Use of System or Network Security issues should be sent to [email protected].

Enforcement

SPYR may immediately suspend, throttle, and/or terminate the customer’s service for violation of any provision of this policy upon verbal or written notice, such notice may be provided by voicemail or email. Prior to suspension or termination, SPYR attempts to work with our customers to cure violations of this policy and ensure that there is no recurrence; however, SPYR reserves the right to suspend or terminate based on a first offence.

Services and Term

1.1. Pursuant to the Customer Subscriber Agreement (CSA), SPYR will provide the Services to Customer for the Service charges. Customer’s signature on the Order Form or use of the Service or SPYR Network constitutes its acknowledgement and agreement to be bound by the CSA. Capitalized terms are defined at the end of these Terms.

1.2. Each Service’s Initial Term is indicated on the applicable Order Form. Customer will be deemed to have accepted the Service as of the Service Date. At the end of the Initial Term, the CSA will renew on a month-to-month basis until terminated as provided herein.

1.3. Customer may order additional Services or locations in North America through additional Order Forms, which will be governed by this CSA. Customer’s account must be current in order to make changes to Services or order additional Services.

Service Charges and Billing

2.1. Service charges are on the Order Form and do not include applicable Taxes unless so indicated. New services or upgrades/relocations will result in additional fees/charges. If a prior Service location remains installed after a new Service location is installed, Customer will be responsible for Service charges for both Service locations until terminated as provided for each Service.

2.2. Invoices are sent monthly in advance. Customer agrees to pay all charges and applicable Taxes for the Service upon receipt of the invoice without counterclaim, set-off or deduction.  Payments past due date will be subject to an interest charge stipulated on the invoice and such interest charge shall accrue from and after the due date of payment to the date that the payment is made to SPYR.  In no event shall the interest charged on overdue amounts exceed 3% plus the prime rate of interest per annum designated as such from time to time by the main branch of Royal Bank in Regina, Saskatchewan, as such rate may vary from time to time, compounded monthly.  SPYR may change the specifications, Terms or charges for the Service for any upcoming Renewal Term by providing Customer at least sixty (60) days advance written notice. Customer agrees that its obligation to pay service charges and Taxes under this CSA shall survive the termination of the CSA.

2.3. Customers claiming tax exemption must provide SPYR with a properly executed exemption form.

Service Use and Interruption

3.1. Customer’s use of SPYR’s Services or Network may only be for lawful purposes and must comply with SPYR’s Acceptable Use Policy (AUP). Transmission of any material in violation of any law, regulation or the AUP is strictly prohibited. Access to other networks connected to SPYR’s Network must comply with such other networks’ rules.

3.2. SPYR’s obligations and Customer’s exclusive remedies for failure of SPYR’s Network or any Service are stated in the SPYR SLA if applicable to the customer’s service.

Termination, Restriction or Suspension

4.1. Prior to the Service Date, SPYR may terminate the CSA if not approved by SPYR corporate management (including credit check). SPYR also may restrict, suspend or terminate the CSA, Customer’s use of or access to any Service, or both, at any time if (a) Customer is in material breach of the CSA (including but not limited to the AUP) and, in SPYR’s sole judgment, an immediate restriction or suspension is necessary to protect the SPYR Network or SPYR’s ability to provide services to other customers; or (b) Customer’s account is unpaid thirty (30) days after date of invoice; or (c) SPYR facilities at Customer’s location are unavailable, (i.e., no connectivity and building access).

4.2. Either Party may terminate the CSA: (a) at the end of an Initial Term or Renewal Term by providing the other Party with at least fourteen (14) days prior written notice (notices provided during a monthly Renewal Term will not be effective until the end of the next month (i.e., notice received April 20th is effective June 1st); or (b) except as otherwise stated herein, during an Initial Term or Renewal Term if the other Party breaches any material term or condition of this CSA and fails to cure such breach within fourteen (14) days after receipt of written notice of the same.

4.3. If a Service is terminated prior to the Service Date, Customer shall pay SPYR for all Initial Costs for such Service. If the Service is terminated after the Service Date, Customer shall pay SPYR (a) for the Service up through the date of termination; and (b) except in the case of termination by Customer as provided in Section 4.2 above, or by SPYR due to loss of connectivity or building access at Customer’s building(s) under Section 4.1 (c) above, the Initial Costs (unless already paid) and the Termination Charge. Customer acknowledges that because actual damages to SPYR caused by early termination of a Service order are uncertain and would be difficult to determine, the Termination Charge is a reasonable liquidated damage and is not a penalty. Any reconnections of the Service shall result in additional reconnection charges to Customer at SPYR’s then-prevailing rates.

4.4. If Customer defaults in any of its payment obligations under the CSA, Customer agrees to pay SPYR’s reasonable expenses, including but not limited to legal and collection agency fees, incurred by SPYR in enforcing its rights. All termination notices by Customer must be sent separately for each Service (including terminating one Service location after a Service is switched to a new Service location) and must be submitted by filling out the Cancellation Form found at SPYR.ca/contact

Disclaimer of Warranty and Limitation of Liability

5.1. Except as otherwise expressly set forth herein, the services are provided “as is,” and neither SPYR nor any of its providers, licensors, officers, employees, or agents makes any warranty, condition or guarantee with respect to the Services or as to the results to be obtained from the use of the Services, under this CSA or otherwise. The Services are purchased with knowledge of this warranty limitation. SPYR expressly disclaims all other warranties, conditions or guarantees of any kind, either express or implied, including, but not limited to any warranties or conditions of merchantability,  non-infringement, satisfactory quality, and/or fitness for a particular purpose. SPYR does not monitor, and disclaims all liability and responsibility for, the content of any communication transmitted by Customer or others, and disclaims all liability and responsibility for unauthorized use or misuse of the Services.

 5.2. Without prejudice to or limiting of SPYR’s right to receive payment for Services, SPYR’s entire liability for all claims of whatever nature (including claims based on negligence) arising out of this agreement and all others between Customer and SPYR, and the provision by SPYR of facilities, transmission, data, services or equipment including, but not limited to, damage to real/personal property, shall not exceed the lesser of (a) the amount paid by Customer for the Service at issue in the prior six (6) months to the action giving rise to the claim, or (b) one hundred thousand dollars ($100,000.00) in total; provided, however, that the foregoing limitations shall not apply for death or personal injury caused by SPYR, or for any other liability which may not be excluded or limited under applicable law.

 5.3. Customer recognizes that the internet consists of multiple participating networks that are separately owned and not subject to SPYR’s control. Customer agrees that SPYR shall not be liable for damages incurred or sums paid when the Services are temporarily or permanently unavailable due to malfunction of, or cessation of, internet services by network(s) or internet service providers not subject to SPYR’s control, or for transmission errors in, corruption of, or the security of customer information carried on such networks or internet service providers. SPYR shall have no liability hereunder for damages incurred or sums paid due to any fault of Customer or any third party, or by any harmful components (such as computer viruses, worms, computer sabotage, and ‘denial of service’ attacks). SPYR is not liable for any breach of security on the Customer’s network, regardless of whether any remedy provided in this CSA fails of its essential purpose. Customer agrees that it will not hold SPYR responsible for any selection or retention of, or the acts or omissions of, third parties in connection with the Services (including those with whom SPYR may contract to operate the Services), or hold a third party responsible for any selection or retention of, or the acts or omissions of, SPYR in connection with the Services. without limiting the foregoing, Customer agrees that it will not hold SPYR responsible for (a) third party claims against Customer for damages, (b) loss of or damage to Customer’s records or data or those of any third party, or (c) loss or damage to Customer associated with the inoperability of Customer’s equipment or applications with any component of the Services or the SPYR Network. Customer agrees to make all claims related to the services directly against SPYR, and waives any right to recover damages (directly or by indemnity) related to the Services by claiming against or through a third party to this CSA.

 5.4. Neither SPYR nor anyone else involved in creating, producing, delivering (including suspending or discontinuing Services) or supporting the Services shall be liable to Customer, any representative, or any third party for any indirect, incidental, special, punitive or consequential damages arising out of the Services or inability to use the Services, including, without limitation, lost revenue, lost profits, loss of technology, rights or services, even if advised of the possibility of such damages, whether under theory of contract or tort (including negligence, strict liability or otherwise).

5.5. No action or proceeding against SPYR may be commenced by the Customer more than one (1) year after the last day on which the Service which is the basis for the action is rendered, and Customer acknowledges that this limitation constitutes an express waiver of any rights under any applicable statute of limitations which would otherwise afford additional time for such a claim.

Indemnity

6.1. Customer will indemnify, defend and hold harmless SPYR and its directors, officers, employees, affiliates, and its agents and subcontractors from and against any claims, suits, actions, and proceedings from any and all third parties, and for payment of any Losses, to the extent such Losses arise (a) as a result of non-compliance by Customer with its obligations under the CSA; (b) from any and all claims by any of Customer’s customers or other third party end users in connection with a Service (including, without limitation, any claims regarding content transmitted using a Service or violation of data protection legislation), regardless of the form of action, whether in contract, tort, warranty, or strict liability; provided, however, that Customer will have no obligation to indemnify and defend SPYR against claims for damages for bodily injury or death caused by SPYR’s gross negligence or willful misconduct; or (c) from claims of copyright infringement and all manner of intellectual property claims, defamation claims, claims of publication of obscene, indecent, offensive, racist, unreasonably violent, threatening, intimidating or harassing material, and claims of infringement of data protection legislation, to the extent such Losses are based upon (i) the content of any information transmitted by Customer or by any of Customer’s customers or authorized end users, (ii) the use and/or publication of any and all communications or information transmitted by Customer or by any of Customer’s customers or authorized end users, or (iii) the use of Service(s) by Customer in any manner inconsistent with the terms of this CSA, including without limitation the AUP.

Additional Provisions

7.1. Except as to payment obligations of Customer, neither Party shall have any claim or right against the other Party for any failure of performance due to Force Majeure.

7.2. Neither Party is the agent or legal representative of the other Party, and this CSA does not create a partnership, joint venture or fiduciary relationship between SPYR and Customer. Neither Party shall have any authority to agree for or bind the other Party in any manner whatsoever. This CSA confers no rights, remedies, or claims of any kind upon any third party, including, without limitation, Customer’s subscribers or end-users.

7.3. This agreement shall be governed by, and construed in accordance with, the laws in force in the Province of Saskatchewan, and the laws of Canada applicable therein. The Parties attorn to the jurisdiction of the Courts of Saskatchewan, and agree that any action or proceeding brought by either party to enforce this Agreement shall be commenced in Saskatchewan.

7.4. Notices, if required, must be sent in writing by email, courier or first class mail (postage prepaid) to the appropriate contact point listed on the Order Form, and are considered made when received at that address; provided, that termination notices to SPYR must be sent in accordance with Section 4.4 above. In the event of an emergency, SPYR may only be able to provide verbal notice first; such verbal notice will be followed by written notice. Customer is responsible for accuracy of its information on the Order Form, including points of contact.

7.5. Customer may not assign this CSA without SPYR’s prior written consent, which consent shall not unreasonably be withheld. Any such assignment without SPYR’s prior written consent shall be void.

7.6. Without limiting any other obligation which expressly survives the expiration or prior termination of the term of the CSA, the expiration or prior termination of the term of the CSA shall relieve both Parties of any further obligations hereunder, except with respect to Sections 2, 3, 4.3, 4.4 and 5 through 7, which shall survive any expiration or termination of these Terms.

7.7. If (but only if) required by SPYR’s or Customer’s agreement with Customer’s Landlord: (a) any cessation or interruption in SPYR’s Service does not constitute a default or constructive eviction by Customer’s Landlord, and (b) Customer agrees to waive and release Landlord and its related parties from any liability in connection with any damages whatsoever incurred by Customer, including lost revenues, which arise, or are alleged to arise, out of any interruption of or defect in the SPYR Service, REGARDLESS OF WHETHER SUCH INTERRUPTION OR DEFECT IS CAUSED BY THE ORDINARY NEGLIGENCE (BUT NOT THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF A RELEASED PARTY.

7.8.    The SPYR Network is owned by SPYR, or its licensors, and is protected by copyright and other intellectual property laws. Customer agrees that title to and ownership of the Services, in any form, shall at all times and in any event be held exclusively by SPYR. Customer shall be entitled to only such rights with respect to the Services as are specifically granted herein.

7.9. This CSA and such other written agreements, documents and instruments as may be executed in connection herewith are the final, entire and complete agreement between Customer and SPYR and supersede all prior and contemporaneous negotiations and oral representations and agreements, all of which are merged and integrated into this CSA.

7.10. This CSA and any Addendum thereto may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument.

Definitions:

AUP- SPYR’s Acceptable Use Policy available upon request from SPYR, reserves the right to amend its AUP at any time, effective upon posting on the SPYR website (www.spyr.ca/legal).

SPYR- SPYR Network Ltd. or its subsidiaries or affiliates.

SPYR Network- The telecommunications network and network components owned, operated or controlled by SPYR, including SPYR’s fiber backbone, metropolitan fiber networks, any equipment connected to such fiber, and the software, data and know-how used by SPYR to provide the Services. Where SPYR services a building through its own facilities, the SPYR Network includes those facilities. The SPYR Network does not include customer premises equipment, customer-ordered telephony circuits, and any networks or network equipment not operated and controlled by SPYR.

Customer- Person or Business subscribing to a SPYR Service

CSA- The entire Customer Subscriber Agreement between SPYR and Customer for provision of the Service, including any of the following: Order Form, the Terms, the applicable product rider and the SLA.

Equipment- Customer premise equipment, if any.

Force Majeure- Causes beyond a Party’s control, including but not limited to: acts of God; fire; explosion; vandalism; cable cut; storm; flood or other similar occurrences; any law, order, regulation, direction, action or request of any government, including federal, state, provincial, municipal and local governments claiming jurisdiction over a Party or the Service, or of any department, agency, commission, bureau, corporation, or other instrumentality of any such government, or of any civil or military authority; national emergencies; unavailability of materials or rights-of-way; insurrections; riots, terrorist acts or wars (declared/undeclared); or strikes, lock-outs, work stoppages, or other labor difficulties, supplier failures, shortages, breaches or delays.

Initial Costs- Greater of (a) installation fees (if not paid); or (b) all third-party costs and charges incurred by or charged to SPYR on behalf of Customer for the Service, including but not limited to local loop fees, cross-connect charges, and wiring fees.

Initial Term- Initial length of term for the Services as indicated on the Order Form.

Landlord- Customer’s landlord, building owner or property/telecom manager.

Losses- Costs, fees, liabilities, losses, damages or penalties, including reasonable legal fees.

Order Form- Quoted services to which these Terms apply, identifying the specific Service(s) to be delivered.

Party or Parties- SPYR and/or Customer.

Renewal Term- Subsequent length of term for the Services after completion of the Initial Term.

Service(s)- Services provided by SPYR under the Customer Subscriber Agreement.

Service Date- Earlier of date on which (a) SPYR deems that the Service is available for Customer’s use at either the SPYR-defined demarcation point or last-available test point; or (b) Customer first uses the Service or the SPYR Network.

SLA- The Service Level Agreement available upon request from SPYR for Customer’s specific Service(s). SPYR reserves the right to amend the Service SLAs at any time, effective upon posting on the SPYR website.

Space- Rented rack space from SPYR, if any.

Tax or Taxes- All taxes arising in any jurisdiction, including without limitation all: sales, use, excise, gross receipts, value added, access, bypass, franchise, telecommunications, property (for co-location customers), consumption, or other taxes, fees, duties, charges or surcharges (however designated) which are imposed on or based on the provision, sale or use of the Service(s), including such taxes imposed directly on SPYR or for which SPYR is permitted to invoice Customer in connection with SPYR’s performance under the CSA. Taxes do not include SPYR’s income taxes.

Termination Charge- Single payment equal to any third-party cancellation charges and the total remaining dollar value of the applicable Service order through the Initial Term or Renewal Term, as applicable.

Terms- Terms and conditions that apply to the Services SPYR provides to Customer .