Residential PowerGATE Internet Service Agreement
IMPORTANT NOTE: Compton Cable T.V. Limited reserves the right to revise the Residential PowerGATE Internet Service Agreement and Acceptable Use Policy attached as Schedule A to this Agreement at any time, effective upon posting of the new or revised version on the Compton website at
http://www.compton.net. Questions regarding this Agreement or Acceptable Use Policy can be directed to
customerservice@compton.net.
By using PowerGATE Internet Service, you will be deemed to have agreed to be bound by the terms and conditions of this Agreement and of Compton's Acceptable Use Policy. If you do not agree with the terms and conditions of this Agreement and of the Acceptable Use Policy, you must immediately stop using PowerGATE Internet Service and notify Compton customer support that you are terminating this agreement. Compton Cable T.V. Limited (operating as Compton Communications) (“Compton”) is pleased to provide PowerGATE (the “Services”) to customers (the “Customer”) on the terms and conditions set out below. The Services consist of high-speed access to a suite of content, including the Internet, and is delivered to your PC or Mac (“Computer”) over cable via a cable modem. Compton agrees to make the Services available to customers on the following terms and conditions.
1. Computer equipment requirement. Customer acknowledges and agrees that he/she has the minimum Computer requirements necessary to operate the Services as outlined in the consumer informational literature provided by Compton or verbally explained by a Compton Customer Service Representative.
2. Services provided. The equipment provided by Compton (the “Equipment”) will provide the Customer with the following, collectively called the Services:
a) Internet access;
b) Up to seven (7) e-mail addresses;
c) Up to 5 Megabytes of space on the Compton World Wide Web Server with a 30 Megabyte traffic limit per month; and
d) Microsoft Internet Explorer browser software.
The Customer acknowledges that the Customer may incur charges while using the services. For example, charges may be incurred as a result of accessing
certain information, or purchasing or subscribing to certain offerings, via the Services. The Customer agrees that all charges, including all applicable taxes, shall be paid by the Customer and are not the responsibility of Compton.
3. Contract Term. This contract is entered into on a month-to-month basis. The Customer, if receiving the Free Modem Rental and Installation discount, agrees to subscribe to the Service for a period of no less than 3 months from the time billing for the Service begins.
4. Payment Terms.
a) Agreement to Pay. The monthly rate includes the use of the Services, rental of one extra cable outlet and may include the rental of the cable modem. For rental equipment, Compton reserves the right to change out the cable modem, at its own expense, as necessary. Customer agrees to pay, during each month, an additional fee for each Megabyte of usage above the bandwidth limitation as set out in the Acceptable Use Policy. The fee for each additional Megabyte used each month will be established by Compton from time to time.
b) Payment methods. By subscribing to the Services, the Customer agrees to pay Compton in accordance with the payment terms on the back of the invoice received by Customer for the Services or as discussed with a Compton representative at the time of installation.
5. Access to the Customer’s Premises. The customer authorizes Compton and its employees, agents, contractors and representatives to enter the Customer’s premises in order to install, maintain, inspect, repair and remove the equipment. All such services will be conducted at a time mutually agreed to by Compton and the Customer.
6. Relocating Equipment. The Customer shall not relocate the Equipment. Notwithstanding the foregoing, upon receipt of a request by the Customer, Compton may relocate the Equipment for the Customer within the Customer’s home at a time mutually agreed to by Compton and the Customer. If the Customer decides to move residence, the Customer shall notify Compton that this agreement shall be terminated and the provisions of section 15 shall apply to such termination. In all cases, the Customer shall notify Compton as provided in section 7.
7. Contact Address. For any inquiries or notices in connection with this Agreement, the Customer should contact Compton via telephone at (905) 985-8171, e-mail at help techsupport@powergate.ca or in writing to Manager Customer Service, POWERGATE, P.O. Box 73, Port Perry ON, L9L 1A2.
8. Amendment. Compton may, in its sole discretion, change, modify, add or remove portions of this Agreement or Acceptable Use Policy at any time, effective upon posting of the new or revised version on the Compton website at http://www.compton.net. The Customer’s continued use of the Service following notice of such change, modification or amendment shall be deemed to be the Customer's acceptance of any such modification. If the Customer does not agree to any modification of this Agreement, the Customer must immediately stop using the Services and notify Compton customer support that you are terminating this agreement.
9. Governing Law. This Agreement shall be exclusively governed by, and construed in accordance with, the laws of the province of Ontario and the laws of Canada applicable herein. The courts within the applicable province shall have the exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. The Customer hereby: (i) submits and attorns to the exclusive jurisdiction of such courts, (ii) waives trial by jury; and (iii) waives any right, claim, or entitlement to any punitive or exemplary damages whatsoever. The Customer may not bring any claim, suit or proceeding more than one (1) year after the date the cause of action arose.
10. General. This Agreement and all Schedules attached to this Agreement constitute the entire agreement and understanding between the parties with respect to the subject matter of this Agreement and supersede and replace any or all prior written or verbal agreements. In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance within applicable law as nearly as possible to reflect the original intentions of the parties and the remainder of the provisions shall remain in full force and effect. Any failure by Compton to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement. This Agreement may not be assigned or transferred by the Customer.
11. Customer Information.
a) Credit Inquiries. Customer authorizes Compton to make inquiries and to receive information about the Customer’s credit experience from others and to enter this information in the Customer’s file and to disclose such information concerning the Customers to third parties. The Customer acknowledges that Compton might, on a regular basis, provide credit experience information regarding the Customer’s account to others seeking this information. The Customer further acknowledges that pending approval of credit, Compton may require a security deposit.
b) Disclosure for Promotional Purposes. In order to respond in a timely fashion to Customer’s needs, Compton may, from time to time, market to Customer, directly or indirectly or through Compton related companies, additional products and services. In connection with the offering of these products and services, Customer authorizes Compton to disclose any information in Customer’s file to its agents, dealers or related companies. Should Customer not wish to be contacted for such purposes, Customer can notify the POWERGATE help desk at techsupport@powergate.ca.
12. Termination and Expiration.
a) Termination Rights. Either party may terminate this Agreement at any time by providing the other party with no less than twenty-four (24) hours written notice of such termination.
b) Customer Obligations Upon Termination. The Customer agrees that upon termination of this Agreement:
I. the Customer will pay Compton in full for the Customer’s use of the Equipment and Services up to the later of the effective date of termination of this Agreement and the date on which the Services and Equipment have been disconnected and returned to Compton. The Customer agrees to pay Compton on a pro-rated basis for any use by the Customer of the Equipment or Services for a part of a month;
II. the Customer will permit Compton to access the Customer’s premises during Compton’s regular business hours to remove the Equipment and other material provided by Compton. Such removal will be conducted by Compton at a mutually agreed time;
III. the Customer will ensure the return of all Equipment to Compton, including, without limitation, all software provided by Compton. The Customer will return or destroy all copies of any software provided by Compton pursuant to this Agreement, including all back-up copies, and will sign a document provided by Compton certifying that all such software has been returned or destroyed and that no such software remains in the possession of the Customer. Ethernet card, if provided by Compton, may be retained by Customer; and
IV. the Customer, if receiving the free modem rental and installation discount, agrees to pay the prorated amount of three (3) months service if wishing to terminate this agreement prior to the completion of three months from the commencement of regular billing for the service.
13. Limited Warranty. ALL EQUIPMENT AND SERVICES ARE PROVIDED BY COMPTON CABLE T.V. LIMITED (OPERATING AS COMPTON COMMUNICATIONS) “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND. COMPTON DOES NOT WARRANT UNINTERRUPTED USE OR OPERATION OF THE EQUIPMENT OR SERVICES. COMPTON DOES NOT WARRANT THAT ANY DATA OR FILES SENT BY OR TO THE CUSTOMER WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD OF TIME. ALL REPRESENTATIONS, WARRANTIES, ENDORSEMENTS AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE OR NON INFRINGEMENT AND ANY IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF FITNESS FOR PURPOSE AND MERCHANTABLE QUALITY AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXCLUDED.
14. Back-up Requirements. The installation, use, inspection, maintenance, repair
and removal of the Equipment may result in service outages or potential damage
to the Customer’s Computer. The Customer therefore agrees to back-up all
existing Computer files by copying them to another storage medium prior to
installation of the Equipment. Compton shall have no liability whatsoever for
any damage to or loss or destruction of any of the Customer’s software, files,
data, or peripherals.
15. Damage to and Encumbrances on Equipment, Computer, Software. All Equipment, except for equipment purchased and paid for in full by the Customer, will at all times remain the property of Compton. The Customer may not mortgage, sell, transfer, lease, encumber or assign all or part of the Equipment to any third party. The Customer shall pay for the full retail cost of the repair or replacement of any lost, stolen, unreturned, damaged, mortgaged, sold, transferred, leased, encumbered or assigned Equipment or part thereof, together with any costs incurred by Compton in obtaining or attempting to obtain possession of any such Equipment, up to a maximum of $700.00 plus applicable taxes. The Customer hereby authorizes to charge his/her VISA, MasterCard, other credit card or debit his/her bank account for any outstanding Service and Equipment charges due to Compton.
Signature:
Should the hardware of the Customer’s Computer be damaged as a result of the gross negligence of Compton, Compton agrees to pay for the repair or replacement of the damaged parts up to a maximum of $6,000.00. Compton shall have no liability whatsoever for any damage to or loss or destruction of any software, files or data.
16. Viruses. For those Customers who have chosen the Full Installation option, Compton may run third party virus check software on the Customer’s Computer. Compton does not represent, warrant or covenant that the virus check software will detect or correct any or all viruses. Moreover, if a virus is found, Compton may treat the virus using the third party virus check software, and this may result in damage to the Customer’s software, files and data. In addition, software or other content downloaded from the Services may contain a virus, lock, key, bomb, worm, trojan horse or other harmful or debilitating feature and it is the Customer’s sole responsibility to take appropriate precautions to protect the Customer’s Computer from damage to its software, files and data as a result of any such virus, lock, key, bomb, worm, trojan horse or other harmful or debilitating feature. Compton shall have no liability whatsoever for any damage to or loss or destruction of any software, files or data resulting from any virus, lock, key, bomb, worm, trojan horse or other harmful or debilitating feature.
17. No Compton Liability for Content. The Customer should be aware that there is some content on the Internet and the other services which may be offensive to some Customers, or which may not be in compliance with all local laws, regulations and other rules. For example, it is possible to obtain access to content that is pornographic, obscene, or otherwise inappropriate or offensive, particularly for children. Compton assumes no responsibility for and exercises no control over the content contained on the Internet and other Services. In particular and without limiting the generality of the foregoing, Compton neither censors nor monitors the legality of any such content. All content accessed by the Customer through the Services is accessed and used by the Customer at the Customer’s own risk, and Compton 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 the Customer.
18. No Compton Liability For:
a) Eavesdropping. The cable network is a shared resource amongst other cable and POWERGATE customers. Because of this, there is a risk that the Customer could be subject to “eavesdropping”. This means that other cable and POWERGATE subscribers may be able to access, monitor and/or decode the Customer’s POWERGATE traffic. This risk of eavesdropping exists not only over the POWERGATE network, but on the Internet and the other services to which access is provided by Compton as part of the Services. Because of this risk, the Customer should not send any sensitive or confidential information, such as credit card numbers or other financial information, medical information or trade secrets, over the Compton POWERGATE network. Any information sent by the Customer over the POWERGATE network is sent at the Customer’s sole risk, and Compton shall have no liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to such actions by the Customer.
b) Multiple Computer Connections. When a Customer’s Computer is connected to a cable modem, it constitutes a “local” segment. All Customer’s Ethernet traffic on this local segment will be reflected by the cable modem in an unencrypted form onto the cable network and be subject to eavesdropping, as previously described in subsection 18(a) above. For example, if a Customer’s Computer and printer are connected to the local Ethernet segment, then any documents sent from the Customer’s Computer to the Customer’s printer will be reflected in an unencrypted form onto the cable network. Because of this risk, Compton recommends that only Customers who have a single, stand-alone Computer connected to the local Ethernet segment should subscribe to the Services. Any Customer who chooses to subscribe to the Services using other than a single, stand-alone Computer connected to the local segment hereby acknowledges and agrees that the Customer does so at the Customer’s own risk, and that Compton shall have no liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to such use by the Customer.
c) File and Print Sharing. The POWERGATE network functions as a Local Area Network (LAN) in that each Customer is a node on the network. As such, users
outside the Customer’s home may be able to access the Customer’s Computer. As well, some software includes capabilities that permit other users across a network such as POWERGATE and the Internet to gain access to the Customer’s Computer and to the software, files and data stored on the Computer. For example, operating systems such as Windows 95/98/ME/XP, Windows NT/2000 and Apple Macintosh include file sharing and print sharing capabilities which, when enabled, will permit other users to gain access to the Customer’s Computer even if the Customer is not using POWERGATE (this is not an exhaustive list of applications or operating systems which include such capabilities). Compton therefore recommends that the Customer connect only a single Computer to the Services and that the Customer disables file and print sharing and other capabilities that allow users to gain access to the Customer’s Computer. Compton further recommends that the Customer obtain personal firewall software. Any Customer who chooses to use the Services using other that a single Computer or who chooses to enable capabilities such as file sharing, print sharing, or other capabilities that allow users to gain access to the Customer’s Computer, hereby acknowledges and agrees that the Customer does so at the Customer’s own risk, and that Compton shall have no liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to such use by the Customer.
19. Ownership of Addresses. Compton owns all addresses provided to the Customer, including but not limited to IP addresses, e-mail addresses and personal web page addresses. Compton reserves the right, at its sole discretion, to modify or change such addresses at any point in time and shall in no way be required to compensate the Customer.
20. Limitation of Liability. Unless otherwise specifically provided in this Agreement, Compton will not be liable to the Customer or to any third party for:
a) any direct, indirect, incidental, special, punitive or consequential losses or damages, including loss of profits, loss of earnings, loss of business opportunities and personal injuries (including death), resulting directly or indirectly out of, or otherwise arising in connection with, the use of the Services by the Customer or any other use of the Equipment or Services, including, without limitation, any damage resulting from or arising out of the Customer’s reliance on or use of the Equipment or Services, or the mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, transmission, or any failure of performance of the Equipment or Services; and
b) any losses, claims, damages, expenses, liabilities or costs (including legal fees) resulting directly or indirectly out of, or otherwise arising in connection with, any allegation, claim, suit or other proceeding based upon a contention that the use of the Equipment or Services by the Customer or a third party infringes the copyright, patent, trade-mark, trade secret, confidentiality, privacy, or other industrial or intellectual property rights or contractual rights of any third party.
This limitation applies to the acts, omissions, negligence and gross negligence of Compton, its officers, employees, agents, contractors or representatives which, but for this provision, would give rise to a cause of action against Compton in contract, tort or any legal doctrine. The Customer’s sole and exclusive remedies under this Agreement are as expressly set out in this Agreement.
21. Installation. In order to install the network card, it may be necessary to open the Customer’s Computer. In addition, as part of the installation process for the software, as when most software is installed on a Computer, system files on the Customer’s Computer, such as .INI, .BAT, .SYS and .DLL files may be modified. Compton does not represent, warrant, nor covenant that such modifications will not disrupt the normal operations of the Customer’s Computer. For these and other reasons, Compton recommends, and the Customer agrees, that the Customer shall back-up all files in accordance with Section 14 prior to installation of the Services. Compton shall have no liability whatsoever for any damage resulting from the above or other file modifications. Further, Compton shall have no liability whatsoever for the voiding of any warranty on the Customer’s Computer that might occur upon opening the Customer’s Computer.
22. Multiple Users. The Customer acknowledges that the Customer is executing this Agreement on behalf of all persons who use the Services through the Customer’s Computer. The Customer shall have sole responsibility for ensuring that all such other users understand and comply with the terms and conditions of this Agreement. The Customer further acknowledges and agrees that the Customer is solely responsible and liable for any and all breaches of the terms and conditions of this Agreement, whether such breach is the result of use of the POWERGATE Services and/or Equipment by the Customer or by any other user of the Customer’s Computer.