Davinci Broadband Inc.

This Agreement governs the terms by which potential users of the high speed internet service provided by DaVinci and described in more detail in section 2 below (the "Services") gain access to and the continued right to utilize the Services. This Agreement is in addition to the Terms of Use applicable to the website of DaVinci and the use of the Internet through the Services, which terms are located at www.davincibb.net (“the Site”) and to the Privacy Policy of DaVinci located at the Site, as such agreements and policies may be modified from time to time. In the event of any inconsistency between this Agreement, the Terms of Use, and the Privacy Policy, the terms of this Agreement shall govern

This is a fairly lengthy document, and it contains many important provisions that affect your rights and obligations in connection with the Services. By clicking “yes” at the end of this document or establishing an account with DaVinci or using the Services, you agree to be bound by this Agreement, and agree to utilize the Services only in accordance with this Agreement, the Terms of Use, the Privacy Policy, and the other policies and agreements that we may establish from time to time by posting them on the Site. We encourage you to print a copy of the Agreement for your records.

This Agreement remains in full force and effect until terminated in accordance with section 10 below. If at any time the terms and conditions of this Agreement are no longer acceptable to the Client, you should discontinue use of the Service, click “no” at the end of this Agreement if this is the on-line version or follow the termination procedures set forth below under “Termination of Account”, as applicable

For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Client and DaVinci agree as follows:

1. Access to Services

DaVinci provides the Services to users who pay a monthly or other periodic fee to subscribe to the Services. The Services include: Internet access via one of DaVinci’s Internet Access Plans, electronic mail ("email") and email addresses and such other services as may be more particularly or additionally described in Schedule “A” to this Agreement, if attached. Your user names and email addresses are our property and we may alter or replace them at any time. The wireless access service offered by DaVinci requires the installation of equipment on the Client’s computer and the installation of an external antenna and cable. The Client is responsible for such installation, as well as for providing firewall security and hardware that satisfies the technical requirements specified in the Subscriber Application Form and posted on the Site to enable access to the Services and prevent unauthorized access by other Internet users to the Client’s computer systems. DaVinci assumes no liability for your equipment or property resulting from the installation of equipment necessary to receive the Services. The parties shall enter into separate agreements for any hardware leased or software licensed to you by DaVinci. DaVinci shall not provide the access referred to in this section until the Web, e-mail and firewall servers and communications connections referred to in this Agreement have been installed, configured and tested to DaVinci’s satisfaction.

2. Registration Requirements

You must be at least 18 years old to register for the Service.
You must provide us with accurate and complete billing information, including your legal name, address, telephone number and credit card / billing information. You must report to us all changes to this information within 30 days of the change.
You are responsible for all charges to your account until you terminate your account in accordance with this Agreement.

3. Fees

Fees for recurring Services are payable monthly, quarterly or annually in advance depending on your Service plan and are billed to your credit card or debit card, as applicable. Some business network plans may allow for the invoicing of Services. DaVinci billing cycles are based on Client activation date and fees paid are non-refundable except as specifically provided otherwise. All Clients shall have one valid credit card on file with DaVinci against which all recurring Services will be charged. You represent and warrant that: (i) the credit card information that you have supplied is true, correct and complete, and will be kept current by you during the term of this Agreement; (ii) the charges incurred by you under this Agreement will be honored by your credit card company; and (iii) you shall pay any and all charges incurred by you at the rates in effect on the Rate Card at the time incurred, including all applicable taxes.
You acknowledge and agree that charges will be billed to your credit card each month for the Service's basic service(s), and any additional usage. You accept the credit card terms of this Agreement and authorize this automatic billing by DaVinci. You remain personally liable for all usage fees if your credit card charge is declined or revoked by your bank, and agree to promptly pay DaVinci any fees it is unable to collect from your credit card. You agree to reimburse DaVinci for its reasonable costs of collection and legal fees and disbursements should DaVinci need to pursue collection of your unpaid account.
Current prices for DaVinci’s Services are posted on our Rate Chart on the Site. They may also be obtained by calling (403) 255-2245. We reserve the right to change prices and institute new fees at any time upon thirty (30) days prior notice, which may be given by updating our online Rate Chart.
If your account is delinquent, it may be suspended or cancelled at our sole discretion. If you suspend your account, regular charges continue to accrue until you terminate your account as provided in this Agreement. We may charge a reasonable fee to reinstate a suspended account.
All prices, charges and other expenses payable under this Agreement are exclusive of GST, provincial sales tax or other applicable taxes, duties or withholding taxes. Interest charges of 1.5% per month (% per annum) will accrue daily on any unpaid balance that is more than 30 days old.
If you have questions about any charges to your account, you must contact our Client Services Group at (403) 255-2245. All charges are considered valid unless disputed in writing within sixty (60) days of the billing date. Adjustments will not be made for charges that are more than 60 days old.

4. Use of the Service

You agree to abide by the terms of DaVinci’s then current Terms of Use as posted on the Site, the terms and conditions of which are expressly incorporated into and made a part of this Agreement. You and members of your household or firm are the only authorized users of your DaVinci account, and no one else may access the Services through your account. You must ensure that all users of your account comply with this Agreement. You are responsible for maintaining the confidentiality of your passwords and for any and all items or statements transmitted, posted or received through your account, and their content, even if transmitted, posted, received or created by someone other than the Client. If the Client is a corporation, it shall be responsible for ensuring that its directors, officers, employees, agents, contractors and affiliates are at all times in compliance with the Client’s obligations under this Agreement.
You will not use the Services or permit others to use the Services through your account in any way that violates any law or regulation, subjects DaVinci to liability, or violates our Terms of Use or other policies, and you will adhere to the laws of Alberta and Canada in using the Services, including but not limited to those laws regarding:
1. court ordered publication bans,
2. restrictions on publishing, printing, distributing, possessing, selling, advocating, promoting, or exposing, obscene material, child pornography, or hate propaganda and the Client understands that these situations could generate criminal liability;
3. restrictions on the use of trade-marks, trade names or other intellectual property;
4. restrictions on the use of copyright work, including, without limitation, images and software;
5. restrictions on defamation, libel, harm to reputation, violation of privacy, misuse or failure to protect personal information, violation of secrecy, unfair competition and other situations which could generate civil liability; and
6. export and import restrictions.
Servers including, but not limited to, UTTP servers, FTP servers, Web servers and News servers are not allowed on the network. You agree to comply with all of DaVinci’s security procedures and standards and to be bound by the terms and conditions of our then current form of Software License Agreement for any software provided to you.
The documents and information on the Site are copyrighted materials of DaVinci Broadband, Inc. and its information providers. Such materials (including, but not limited to text, content, photographs, graphics, video and audio content) are protected by copyright as a collective work or compilation under the copyright laws of Canada and other countries by treaty. All individual articles, content and other elements comprising the Site are also copyrighted works. You must abide by all additional copyright notices or restrictions contained on the Site. You may not copy, reproduce, redistribute, publish, enter into a database, display, perform, modify, create derivative works, transmit, or in any way exploit any part of such materials, except that you may download material from the Site for your own personal, non-commercial use as follows: you may make one machine-readable copy and/or one print copy of materials included on the Site. Without limiting the generality of the foregoing, you may not distribute any part of such materials over any network, including a local area network, nor sell or offer it for sale. In addition, such materials may not be used to construct any kind of database.
You agree that by posting messages, uploading files, inputting data, or engaging in any form of communication using the Services, you grant to the public an unrestricted license to use, copy, modify, adapt or document in any form any communications, information or any underlying work in which you may possess proprietary rights, subject to applicable trademark, copyright and other intellectual property laws. You shall have absolutely no recourse against DaVinci as the Service provider for any alleged or actual infringement of any proprietary rights to which you may claim ownership.
DaVinci shall have all ownership rights, title and interests including copyright, in and to all hardware, software, services, websites, servers, telecommunications lines, and other materials or equipment used in connection with providing the Service.

5. Monitoring the Service

DaVinci has no obligation to monitor the Services, but we may do so and may disclose information regarding use of the Services for any reason if, in the sole discretion of DaVinci, we believe that it is reasonable to do so, including to: satisfy laws, regulations, or governmental or legal requests; operate the Services properly; ensure compliance with the terms of this Agreement; or protect DaVinci and its subscribers. DaVinci, in its sole and absolute discretion, may remove or refuse to post any information or materials, in whole or in part.
DaVinci agrees that except as provided in this Section and in the Privacy Policy, neither DaVinci nor its employees or agents shall disclose or otherwise make available any such personal, proprietary or confidential information to any third party without the Client’s prior written consent.

6. Client Indemnity

The Client hereby agrees to defend, indemnify and to save harmless DaVinci and its affiliates and their respective directors, officers, employees and agents in respect of any third-party claim, suit, proceeding, demand or action:

that any software or other materials delivered to DaVinci by the Client under this Agreement infringe:
1. a copyright in any country;
2. any valid patent registered as of the Effective Date in Canada or the United States; or
3. any trade-mark in Canada or the United States; or
results from the Client’s or any of its affiliates’ or their respective directors’, officers’, employees’, agents’ or contractors’ breach of any of the terms of this Agreement.

The Client shall pay settlement costs, court costs, damages and legal fees on a solicitor and client basis, including disbursements incurred by DaVinci or its affiliates or their respective directors, officers, employees or agents in connection with such indemnified matters.
DaVinci will use reasonable efforts to give the Client prompt written notice of any such third-party claim, suit, proceeding, demand or action, and allow the Client to participate, and will fully cooperate with the Client in, the defense of such claim and all related settlement negotiations.

7. No Warranties

Except for certain products and services specifically identified as being offered by DaVinci, DaVinci does not control any materials, information, products, or services on the Internet. You therefore assume full responsibility and risk for use of the Services and the Internet, and acknowledge that the Services are provided on an "AS IS" and "AS AVAILABLE" basis. DaVinci does not warrant that the Services will be uninterrupted or error-free or that any information, software, or other material accessible via the Service is free of viruses, or other harmful components.
DAVINCI MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, OR ENDORSEMENTS INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, PRIVACY OR IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE REGARDING ANY MERCHANDISE, INFORMATION, OR SERVICES PROVIDED THROUGH DAVINCI, THE SITE OR ON THE INTERNET GENERALLY, OR THOSE ARISING OUT OF A COURSE OF DEALING OR USAGE OF TRADE. No advice or information given by DaVinci or its representatives shall create a warranty. DaVinci and its employees are not liable for any costs or damages arising directly or indirectly from your use of the Services or the Internet including any indirect, incidental, exemplary, multiple, special, punitive or consequential damages. In any event, DaVinci’s cumulative liability to you or any other subscriber for any and all claims relating to the use of the Services shall not exceed the total amount of service fees paid by such subscriber during a one year period.
The Internet contains unedited materials, some of which are sexually explicit or may be offensive to you or others accessing the Services through your account. DaVinci will have no control over and accepts no responsibility for such materials. All content accessed by you through the Services is accessed and used by you at your own risk, and DaVinci and its parent, affiliates, subcontractors, employees and agents, shall have no liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to access to such content by you. DaVinci specifically disclaims any responsibility for the accuracy, quality and confidentiality of information obtained through the Services. You are solely responsible for evaluating the accuracy, completeness, and usefulness of all services, products, and other information, and the quality and merchantability of all merchandise provided through the Services or on the Internet.
You should be aware of the possibility that other Service subscribers may be able to access and/or monitor your use of the Service. This risk of eavesdropping exists on the Internet and other services to which access is provided by DaVinci as part of the Services. Any sensitive or confidential information (such as credit card numbers or other financial information, medical information or trade secrets) sent by you or to you is sent at your sole risk, and DaVinci and its affiliates, subcontractors, employees or agents, shall have no liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to such actions.
You should also be aware that when using the Services to access the Internet or any other online service, there are certain applications, such as FTP, HTTP, proxy, or gateway server applications, which may be used to allow other Services users and Internet users to gain access to your computer. DaVinci and its affiliates, subcontractors, employees or agents, shall have no liability whatsoever for any claims, losses, actions, damages, suits or proceedings resulting from, arising out of or otherwise relating to the use of such applications by you, including, without limitation, damages resulting from others accessing your computer.

8. Your Remedies

If you are dissatisfied with the Services or any of our terms, conditions, rules, policies, guidelines or practices, your sole and exclusive remedy is to terminate your account with DaVinci and this Agreement by one of the methods outlined in the Termination of Account section below, and discontinue using the Services.
Our cumulative liability to you for any and all claims relating to the Services shall not exceed the total amount of the Services fees you have paid to DaVinci within the prior year. UNDER NO CIRCUMSTANCES ARE WE OR OUR EMPLOYEES, AFFILIATES OR CONTRACTORS LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, MULTIPLE, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES THAT RESULT IN ANY WAY FROM ANY USE OF YOUR ACCOUNT OR THE SERVICES. The limitations in this section shall apply whether or not the alleged breach or default is a breach of a fundamental condition or term, or a fundamental breach, or if any limited warranty or limited remedy fails in its essential purpose.

9. Term of Agreement

This Agreement is effective when you click the "Yes" button at the end of this Agreement, when you sign the Subscription Agreement or when you first use the Services, whichever is first. If you are a current DaVinci client when this Agreement is activated, your continued use of the Services means you accept this Agreement. The Agreement continues until terminated in accordance with its terms.

10. Termination of Account

You may terminate your DaVinci account and this Agreement by providing notice of intent to terminate to DaVinci by the following methods only: An authorized person may submit 30 days prior to termination a written notice by email, fax or registered mail. Your termination will only be complete upon your receipt of a confirmation letter. You will receive verbal confirmation if you cancel by telephone and a written reply through regular mail if you cancel by mail. On termination, you must return all information, materials and equipment provided by us in good working order.
You may cancel your account at the end of your billing cycle. The actual cancellation of your account will occur at the end of the billing cycle in which we receive notification of your desire to cancel. [During the first 30 days after activation, if you are not completely satisfied with the Service, you may cancel your service and receive a full refund for monthly access fees and equipment charges if the equipment is returned to us in good condition.]
Without prior notice, DaVinci may terminate this Agreement, your password, your account, or your use of the Services for any reason, including, without limitation, if DaVinci, in its sole discretion, believes you or any person who has access to the Services through your account, have violated this Agreement, our Terms of Use, or any of the applicable user policies, or if you fail to pay any fees or other charges when due.
Any incoming email sent to cancelled accounts will not be bounced back or forwarded to another account. If your account included space on DaVinci’s servers, anything stored on this space will be deleted upon termination.
DaVinci may provide termination or other notice to you by: email addressed to your email account contained in our registration information or by Canada Post or private courier service to the address registered for the Services. All notices to you shall be deemed effective on the first (1st) calendar day following the date of electronic mailing or on the fourth (4th) calendar day following the date of mailing or deposit with a courier service.
DaVinci may, in its sole discretion and from time to time, suspend all or part of the Services for repair or maintenance work. DaVinci will give as much notice as reasonably practicable to you in the circumstances and we will endeavour to carry out such works during the scheduled maintenance periods published by DaVinci on the Site from time to time.

11. General

This Agreement shall be binding upon and enure to the benefit of both you and us and our respective successors and permitted assigns. You shall not assign this Agreement without first obtaining our written consent, which consent may be unreasonably withheld. DaVinci shall have the right to assign and subcontract with others for the performance of any of our rights and obligations under this Agreement.
Neither us shall be liable to the other for any delay or failure to perform its obligations under this Agreement (other than an obligation to pay monies when due) due to strikes, labour disputes, inability to obtain labour, utilities or services, riots, storms, floods, explosions, terrorism, fire, act of God, war or any other similar cause or causes which are beyond the reasonable control of such party nor shall DaVinci be liable to you for any delay or failure in the performance of any of DaVinci’s approved subcontractors or suppliers. We shall each use our commercially reasonable efforts during the term of this Agreement to avoid or, if unavoidable, minimize the effects of any force majeure upon the performance of our respective obligations under this Agreement.
Any and all disputes, claims or controversies arising out of or in any way connected with or arising from this Agreement which cannot be amicably resolved, even if only one of us declares that there is a difference, will be referred to and finally settled by private and confidential binding arbitration held in Calgary in English and governed by Alberta law pursuant to the Arbitration Act (Alberta) as amended, replaced or re-enacted from time to time. The arbitrator shall be a person who is legally trained and who has experience in the information technology field in Canada and is independent of either of us.
This Agreement will be governed by and construed in accordance with the laws of Alberta and shall be treated, in all respects, as an Alberta contract. The parties submit to the exclusive jurisdiction of the courts of the Province of Alberta respecting the subject matter of this Agreement. You agree to waive any right you may have to commence or participate in any class action against DaVinci related to Internet access or this Agreement and, where, applicable, you also agree to opt out of any class proceedings against DaVinci or its licensors. The parties have required that this Agreement and all documents relating thereto be drawn up in English. Les Parties ont demandé que cette convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais.
No amendment or modification to this Agreement or the Terms of Use by you shall be valid or binding on us unless we agree to it in writing. We reserve the right to amend, alter, or modify this Agreement, the Terms of Use, the Privacy Policy, the Rate Chart or any other user policies and agreements, at any time and in any manner. Any amendment, alteration, or modification is effective ten (10) days after posting on the Site.
This Agreement, the Rate Chart, the Terms of Use, the Privacy Policy, and our other user policies and agreements constitute the entire agreement between you and us with respect to the Services and supersede all prior or collateral oral or written representations or agreements. In the event that any provision of this Agreement is found to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision shall, as to that jurisdiction and as between you and DaVinci, be severed from the remaining provisions of this Agreement, which shall continue in full force and effect. Except as otherwise provided, no term or provision of this Agreement shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented.