General Terms and Conditions for SwitchWorks Services

Last updated April 8th, 2010

Definitions

“Services” or “service” means, collectively, the services and products that you have selected and are receiving from SwitchWorks.

“Customer” or “you” or “your” means and refers to you, the subscriber to the Service.

“We” or “our” or “us” or “SwitchWorks” means and refers to SwitchWorks Technologies Inc., its subsidiaries and affiliates.

How the Terms and Conditions Apply

By using the Service, you agree to comply with all of the terms and conditions herein.

The terms and conditions of use include additional terms applicable to your services. Additional terms include the Acceptable Use Policy and terms and conditions specific to your services. These terms and conditions represent the complete agreement between us with respect to the Service and supersede any previous agreement.

SwitchWorks reserves the right to revise at any time the terms and conditions applicable to the Services. Such changes shall be effective immediately upon notice by us, which may be given by any means including, but not limited to, posting on our website, or by electronic or conventional mail. Use of the Services by you after such notice shall constitute acceptance by you of the revised terms and conditions.

Customer Responsibilities

The Customer is solely responsible for all access to, and use of, the Services subscribed to by the Customer including any breach of the terms and conditions by the Customer or any user of the Customer’s subscribed services.

The Customer agrees to provide SwitchWorks with a valid email address and to monitor that address for correspondence from SwitchWorks. All e-mail correspondence from SwitchWorks will be sent to the e-mail address you provide. It is your responsibility to notify us of changes to your e-mail address.

You are responsible for paying all charges to use and access the Service. We will recognize only you as the person or business authorized to accept, utilize, manage, modify or terminate the Service.

Invoices and Payment Terms

We will invoice you in advance for services. Payment for services is due in full on or before the due date shown on your invoice. If payment is not received by the due date, your service will be suspended on the next business day. You will then have five (5) business days to restore your service by contacting us, and paying the amount due plus a $20 re-activation fee. Your service will be re-activated once your payment has cleared. If you do not contact us and pay the amount due, your service will be disconnected permanently. You remain responsible for paying the amount owing on your account.

If you are a new customer, you must make your first payment by credit card. Subsequent payments may be made by any of our other accepted payment types.

Payment types accepted are credit card (Visa, MasterCard or American Express), direct debit, online banking, cash, certified cheque, money order, or cheque. Should a payment be rejected by your financial institution for any reason, you will be charged an administration fee of $20.00.

If you pay by cheque and your cheque is denied by your financial institution as non-negotiable, you must pay your account and all future invoices with one of our other accepted payment types. 

You must bring invoice disputes to our attention within 30 days of the invoice date. If you do not submit a dispute within 30 days of the invoice date, it will constitute acceptance of the invoice as accurate.

If you are a residential customer, invoices will be sent to you by e-mail.

Term of Service

The Service is for an initial term as agreed to by you and SwitchWorks and shall automatically renew at the end of the initial term on a month-to-month basis unless terminated by either party in accordance with these terms and conditions. The renewal will be on the same plan (if still available) or the then comparable plan.

Cancellation or Termination of Service

You will have entered into a binding contract with SwitchWorks when your order for service is confirmed.

If you cancel your order subsequent to order confirmation and prior to activation of the Service, you will be charged a $50 cancellation fee. The cancellation fee is a reasonable estimate of costs associated with the administration and preparation for your service setup.

We reserve the right to terminate any service to you immediately and without notice for cause in the event that you breach these terms and conditions. We may, at our sole discretion, suspend service while we investigate the alleged breach of this Agreement.

You must provide us with not less than seven (7) days written notice prior to the next due date of your invoice to advise us of your decision to terminate service.  

There are no refunds for early cancellation, partial terms, or for any fees.

To cancel your service, your cancellation request must be sent by email to accounts@switchworks.com.

Service Calls - Charges

Troubleshooting a problem with your service is a process that requires your assistance. We will work with you to resolve the problem. If the problem cannot be resolved remotely, it may be necessary to place a service call with Bell on your behalf.

It is the Bell technician’s job to confirm and troubleshoot Bell’s portion of your service. Bell's portion of your service consists of the connectivity from the Bell demarcation point on your premesis to Bell's local point of presence. The wiring and equipment (modem, router, ATA, PC, etc.) inside your premises are NOT included in Bell’s portion of your service. It is important that you work with us to the best of your ability to resolve the problem prior to calling Bell because you may be charged for Bell services even if Bell cannot solve your problem.

Once a service call is placed with Bell, Bell may deem it necessary to dispatch a technician to your premises. If a Bell technician is dispatched and the technician finds that the service proves operational from Bell’s demarcation point on your premesis to Bell's local point of presence, you will be charged a Bell Service Diagnostic Maintenance Charge of $99.95. Your approval (whether written, verbal, or electronic) to place a service call with Bell constitutes your agreement to pay this charge for each dispatch that Bell makes where they find their services to be functioning properly. The Bell demarcation point may be outside your premises which means the technician may be able to perform maintenance without your involvement. In these cases you may not be aware that the service call has taken place, however, you are still responsible for the charges.

Privacy

We collect and use personal information about you and your use of our products and services to:

  1. initiate and maintain our relationship with you in connection with our products and services.

  2. administer billing and accounting services and security measures in relation to your business with us.

  3. promote and market additional products and services offered by us, including by means of direct marketing.

  4. provide you with personalized features and services.

  5. comply with any legal and regulatory requirements.


Minimum System Requirements

The minimum system requirements to access and use the service may change from time to time. You understand and acknowledge responsibility to ensure that your equipment meets the latest minimum requirements stated by us as being necessary to use the service. Accordingly, should your equipment no longer be adequate to access the service, you must upgrade and/or replace your equipment at your own expense. You expressly agree and acknowledge that, should you decide to forego upgrading and/or replacing your equipment, your sole recourse shall be the cancellation of the service in accordance with the cancellation terms contained herein.

Warranty

Under normal use and conditions we warrant:

  • purchased equipment and VDSL2 modems against defects in material or workmanship for 12 months from date of purchase.

  • purchased aDSL and aDSL2+ modems against defects in material or workmanship for as long as you remain a customer.

Your sole remedy for warranty is that we will replace any defective equipment.

SwitchWorks shall not be liable for any indirect or consequential damages whatsoever resulting from the installation and/or removal of our equipment from your premises or from the presence of, or operation of, our equipment on your premises.

Our Services are provided on the basis of, and are subject to, service, facility and equipment availability. We reserve the right not to provide one or more services where necessary facilities, equipment or services are not available for any reason whatsoever.

Service Interruption

We may temporarily suspend our service for technical reasons or to maintain our network, equipment or facilities. We shall not bear any liability whatsoever for:

  1. any such suspensions of service.

  2. the termination of service pursuant to these terms and conditions.

  3. suspension or termination of service due to your non-payment of amounts due.

  4. suspension or termination of service due to your unlawful or improper use of facilities or service by you.

  5. your inability to access any services.

Force Majeure

We shall not be liable for any delay, interruption or failure in the performance of our obligations if caused by acts of God, strikes, lock-outs or other labour or industrial disturbances, accidents, fires, explosions, weather conditions materially preventing or impairing work, inability to secure fuel, power, materials, contractors or labour, mechanical breakdown, failure of equipment or machinery, delays in transportation, wars, civil commotion, riot, sabotage, applicable legislation and regulations there under, interruptions by government or court orders and future orders (lawful or otherwise) of any regulatory body of competent jurisdiction, or other similar events beyond our reasonable control that may prevent or delay such performance, but shall not include financial difficulty.

Copyright

All the information contained or accessible through this website is protected by copyright of SwitchWorks or its content suppliers. Users of this website shall not otherwise use, redistribute, retransmit, reproduce or publish such information without the written consent of the copyright holder.

Trademarks

SwitchWorks, Whip TV and Prestige Internet are trademarks; and WHIP and Whip The Web are registered trademarks of SwitchWorks Technologies Inc. All other products, services and company names mentioned in this website may be trademarks of other owners.

Users of this website may not use any logos or product or service names displayed on this Web site without the written permission of SwitchWorks or the relevant owner of the trademark or registered trademark.

Governing Law

The rights and obligations of the parties pursuant to these Terms and Conditions is governed by, and shall be construed in accordance with, the laws of the Province of Ontario, and the Federal laws of Canada applicable in said Province.

The Service originates in Canada and is directed to residents of Canada and USA.

You may be subject to other local, provincial, State and national laws. You hereby irrevocably submit to the exclusive jurisdiction of the Courts of the Province of Ontario for any dispute arising under or relating to this Agreement and waive your right to institute legal proceedings in any other jurisdiction. We shall be entitled to institute legal proceedings in connection with any matter arising under this Agreement in any jurisdiction where you reside, do business or have assets.

CRTC 

Telecommunications services in Canada are regulated and supervised by the Canadian Radio-television and Telecommunications Commission (CRTC). The terms and conditions of the Services may change without notice to accommodate CRTC orders, decisions and policies.

Limitation of Liability

SWITCHWOKS SHALL NOT BE LIABLE TO THE CUSTOMER FOR PUNITIVE, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, OR LOSS OR DAMAGE TO DATA, ARISING OUT OF THE USE OR INABILITY TO USE SERVICES, EVEN IF SWITCHWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

SWITCHWORKS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, DURABILITY AND FITNESS FOR A PARTICULAR, OR ANY, PURPOSE AND THE SERVICES ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS.

THE CUSTOMER AGREES, ACKNOWLEDGES AND CONFIRMS THAT THE LIMITATIONS OF LIABILITY SET OUT IN THIS SECTION ARE FAIR AND REASONABLE IN THE COMMERCIAL CIRCUMSTANCES OF THIS AGREEMENT AND THAT SWITCHWORKS WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE CUSTOMER'S AGREEMENT TO LIMIT SWITCHWORKS' LIABILITY IN THE MANNER, AND TO THE EXTENT, PROVIDED FOR HEREIN.

Indemnification of SwitchWorks

The Customer indemnifies and holds SwitchWorks, its directors, officers and employees harmless against all claims, loss, damages, liability or expenses that SwitchWorks and/or the Customer may suffer or incur, directly or indirectly, arising out of, resulting from or in connection with the Customer’s use of the Services. Indemnification includes, but is not limited to, claims by third parties, the installation, presence, maintenance, and removal of any and all equipment, the violation by the Customer of the Agreement in force from time to time, and legal fees, disbursements and all other reasonable costs incurred by SwitchWorks in connection with any legal, collection or other proceedings brought by SwitchWorks against Customer related to this Agreement.

Enurement/Assignment

These terms and conditions are binding upon, and shall enure to, our benefit and that of our respective successors, heirs, executors, administrators, personal representatives and permitted assigns. You shall not assign or transfer your rights or obligations hereunder or otherwise in respect of the Service without our prior written consent.

Unenforceable Provisions

If any part of these terms and conditions is found to be invalid or unenforceable under applicable law, such part shall be ineffective to the extent of such invalid or unenforceable part only, without in any way affecting the remaining parts of these terms and conditions.


Acceptable Use Policy for Residential Internet Subscribers

 

Introduction

SwitchWorks is committed to protecting the usefulness and enjoyment of the Internet. The Internet is a shared resource that must be used reasonably, responsibly, and within the law.

As a SwitchWorks customer, you agree to abide by the terms of this Acceptable Use Policy (AUP). Any violation of this AUP will constitute a violation of the terms of your Service Agreement and may result in the termination of such Service Agreement and/or suspension of your Service.

General

The Customer is solely responsible for all access to, and use of, the Services through the Customer’s account and connection, including any breach of the Service Agreement by the Customer or any user of the Customer’s account or connection.

The Service is solely for personal and non-commercial use.

Acceptable Use

The Service may not be used:

  • In any way that creates an unusually large burden on our network, including, without limitation, use of the Services in an abusive manner in connection with any unlimited plans.

  • In any way that restricts or inhibits any other user from using or enjoying the Service or the Internet.

  • To post or transmit messages constituting "spam", which includes, but is not limited to, unsolicited email messages, inappropriate postings to news groups or forums, false commercial messages, libel, or any other abuse of Internet media.

  • To post or transmit any information or software that contains a virus, malware, or other harmful or disruptive component.

  • For any use that constitutes a criminal offence or violation of law.

  • To violate copyright, intellectual property rights, or other proprietary or other contractual rights.

  • In such a manner so as to avoid incurring charges for use of the Service.

  • To disrupt any backbone network nodes or network service, or otherwise restrict, inhibit, disrupt or impede our ability to monitor or deliver the Services, our transmissions or data.

  • To interfere with computer networking or telecommunications service to or from any Internet user, host, provider, or network.

  • To violate or attempt to violate any system or network security measures.

Traffic Management

SwitchWorks reserves the right to manage our network in order to optimize its efficiency for the benefit of our customers.

As a condition of service, the Customer gives explicit consent to the use of Internet traffic management practices.

Violation of the Acceptable Use Policy

SwitchWorks may take any responsive actions we deem appropriate. Such actions may include, without limitation, the immediate suspension or termination of all or any portion of the Services, the implementation of Internet traffic management practices.

If the Customer exceeds reasonable usage limits, as determined by SwitchWorks, SwitchWorks may take any responsive actions it deems appropriate. Such actions may include, without limitation, a reduction of the Customer’s bandwidth capacity and/or the immediate suspension or termination of all or any portion of the Services or the Customer’s account. Any reduction in bandwidth capacity will not degrade the Service to the extent that it will interfere with the transmission of time-sensitive audio or video traffic; nor will it slow the transmission of non-time-sensitive traffic to the extent that it would amount to blocking or controlling the content, or influencing its meaning and purpose. Any reduction in bandwidth capacity shall be limited to profiles (i.e. download/upload speed) in the range of the Service currently subscribed to by the Customer.

SwitchWorks shall have no liability for any such responsive actions. The above described actions are not exclusive remedies and SwitchWorks may take any other legal or technical action deemed appropriate. Upon termination of an account, SwitchWorks is authorized to delete any files, programs, data and e-mail messages associated with such account. The failure to enforce this AUP, for whatever reason, shall not be construed as a waiver of any right to do so at any time. If any portion of this AUP is held invalid or unenforceable, that portion will be construed consistent with applicable law as nearly as possible, and the remaining portions will remain in full force and effect.

If you subscribe to our residential home phone services, the Service and the hardware are provided to you solely for residential use. You shall not resell or transfer the Service or the hardware to another party without our prior written consent. You are prohibited from using the Service or the hardware for auto-dialing, continuous or extensive call forwarding, telemarketing (including charitable or political solicitation or polling), fax or voicemail broadcasting, or fax or voicemail blasting. We reserve the right to immediately disconnect or modify your Service if we determine, in our sole and absolute discretion, that your use of the Service or the hardware is, or at any time was, inconsistent with normal residential usage patterns. In addition, you will be required to pay our rates for business service for all periods in which your use of the Service or the hardware was inconsistent with normal residential use.