End User License Agreement

This Services Agreement (“Agreement”) is entered into between bluArc Communications Inc (“bluArc”) and you (“Customer”) for the purchase and provisioning of bluArc Hosted Business Phone & Internet services (“Hosted Services”).

bluArc provides you with, and you agree you have received, an express opportunity to accept or decline the terms and conditions set forth in this Agreement.  By using the bluArc Hosted Services, you agree to the following terms and conditions:

I. Service. Sale of bluArc Hosted services is contingent upon Customer subscribing to sufficient broadband data services from bluArc throughout the term of this Agreement.  Provision of desired level of service is subject to availability of appropriate broadband service.

II. Activation Date/Term. The Activation Date is the date on which Hosted service is available to Customer and Customer can receive inbound calls on its own phone numbers. bluArc will begin monthly billing to Customer for service on the Activation Date. The term of this Agreement shall commence on the Activation Date and end on the last day of the calendar month after the contract term length of this Agreement has passed (“Expiration Date”).

III. Payment.  All invoices are due and payable according to the payment terms on the Customer’s invoice or statement. Customer shall send payments to the address specified in the invoice, or may make payments through other arrangements (e.g. credit card, direct bill pay) that bluArc offers to the Customer. bluArc may, in addition to any other remedies available to it, impose a late fee for non-payment and may suspend service to accounts over ten (10) calendar days past due, however, such interruption does not relieve Customer of the obligation to pay its monthly charges for the remaining term of this Agreement. Customer agrees to pay bluArc its reasonable expenses, including legal and collection agency fees, incurred in enforcing its rights under this Agreement.

IV. Billing. bluArc will bill the Customer monthly for service charges up to and including the date of the invoice. Payment terms will be Net 21 days.

V. Service Level Objectives.  All Fibre (5/10/100/200/500/1000MB) and/or T1 DPLS services shall have a service level objective of an average four-hour mean time to repair (MTTR), determined on a monthly basis.

VI. Service Level Agreement (SLA).  The reliability of bluArc’s Hosted Business Phone service “Hosted Services” is measured on a monthly basis.  The Hosted Services shall meet a minimum of 99.9% uptime.

  1. SLA Credit – If bluArc has failed to meet the applicable SLA commitment in any given billing month, then the Customer must contact bluArc and apply for credit within fifteen (15) Business Days starting from the fifteenth (15th) day of the following billing month. Upon bluArc verification that the SLA commitment had not been met, bluArc will issue a credit to the Customer. The credit will equal one day of service per hour of outage not to exceed 7 days for any single service unplanned or unscheduled incident.   Further limitation of liability is set forth in Section XX.

VII. Installation.  Customer represents that it is either the owner of the Customer’s premises (the “Premises”), or, in the event Customer is a tenant or other occupant of the Premises, the Customer represents that the Customer has secured permission of the Customer’s landlord/building owner (“Landlord”) for the installation of all equipment to implement the terms of this Agreement, including, but not limited to, customer-premise equipment (“CPE”) connected to the Customer’s computers and telephone systems, LAN and telephone jacks installed in wall of Premises, power connections, and lines wired through interior and/or exterior walls of the Premises (the “Equipment”).  The Customer shall secure all licenses, permits, rights of way and other arrangements necessary for such installation.  The Customer also agrees to pay bluArc the full costs of early termination in the event Customer’s Landlord requires that the Equipment be removed.  Subject to the provisions of this Agreement, bluArc shall attempt to schedule and conduct installation and maintenance activities so as not to unreasonably interfere with any Customer business operations at the Premises. Customer agrees to pay a $100 Missed Appointment Fee if an Installation Technician arrives at the site and is unable to complete installation because Customer is not available and/or unable to grant access to all areas required for successful installation.  Customer shall furnish, without charge, space, electrical power, and environmental conditions reasonably required by bluArc for provision of the Hosted Services.  Customer shall allow bluArc continuous access and right-of-way to Customer’s Premises for provision and maintenance of the Equipment and CPE.

VIII. Moves, Service Upgrades, Service Downgrades.  If Customer moves locations at any time during the term of this Agreement and wishes to continue bluArc services at a new location, a new Site Form must be completed and a new Agreement may be required. Additional Installation and Move Fees may apply, depending on the new location and installation requirements, and will be solely at bluArc’s discretion.  If, during the term of this Agreement, Customer elects to change its service features and/or options, such as increasing the number of phones, lines, or long distance minutes, the new monthly rate will be effective as of the next billing period.  If any service change requires a technician dispatch or new equipment installation, a new Installation Fee and/or Equipment Charge may apply.

IX. Renewal.  At the conclusion of this term, this Agreement shall carry on under a month-to-month term and the prices shall remain in effect unless both parties agree to new terms and pricing.

X. Early Termination Liability. If Customer cancels this Agreement prior to the Activation Date, a $1500 order-processing fee will be applied and shall be due immediately.  If bluArc incurs additional fees from a third party for the cancellation of any facilities it has ordered on Customer’s behalf to support this Agreement, those charges will also be due immediately.

Customer may terminate this Agreement at any time prior to the Expiration Date by giving at least thirty (30) days notice prior to the proposed termination date.   Customer agrees to pay bluArc in full for all outstanding balances due up to the date of termination, plus 50% of remaining monthly charges. If bluArc incurs additional fees from a third party for the cancellation of any facilities it has ordered on Customer’s behalf to support this Agreement, those charges will also be due immediately.

bluArc reserves the right to suspend or terminate service without notice to accounts in violation of this Agreement or due to circumstances beyond bluArc’s control. If bluArc terminates this Agreement prior to the Expiration Date due to Customer violation, Customer agrees to pay bluArc in full for all outstanding balances due up to the date of termination, plus a $1500 early termination fee. If bluArc incurs additional fees from a third party for the cancellation of any facilities it has ordered on Customer’s behalf to support this Agreement, those charges will also be due immediately.

Upon termination of this Agreement for any reason, it becomes the Customer’s responsibility to make all of the arrangements for the return of any bluArc-owned equipment to bluArc, at Customer’s cost and expense.

XI. bluArc Network.  Customer shall be liable for any damages to bluArc network facilities if caused by (a) Customer, or Customer’s agents, employees or suppliers breach or default of the terms set forth in this Agreement; or (b) malfunction or failure of any equipment or facility provided by Customer or its agents, employees or suppliers.

XII. Customer-supplied CPE. In cases where bluArc may approve the use of existing customer CPE (e.g. routers, switches) for use with Hosted services, Customer takes full responsibility for any service degradation, outages, or loss of business caused by the installation, maintenance, or operation of such equipment.  Customer will provide bluArc full remote and administrative access to such equipment, to allow bluArc to ensure service delivery and proper operation of its services. If bluArc deems the equipment insufficient to support Hosted services at any time, Customer must replace the equipment when requested by bluArc. If Customer refuses to replace the equipment at bluArc’s request, Customer understands that it will be in violation of this Agreement and subject to any treatment and fees resulting from early termination.

XIII. Equipment Sales. Customer understands that any equipment sold by bluArc to Customer (“bluArc Provided Equipment”) may be refurbished, in order to minimize costs to the Customer. Such equipment will perform as comparable new equipment and will be sufficient to support bluArc’s service quality levels. Customer has the right to request new equipment for any or all service components, at the full (and likely higher) price for such equipment.

XIV. Customer Obligations.

  1. Rules. While using bluArc’s Hosted services, Customer may not knowingly or intentionally :
(a) post, transmit or otherwise distribute information constituting or encouraging conduct that would constitute a criminal offense or give rise to civil liability, or otherwise use the services in a manner which is contrary to law or would serve to restrict or inhibit any other user from using or enjoying the services or the Internet;
(b) post or transmit messages constituting “spam”, which includes but is not limited to unsolicited e-mail messages, inappropriate postings to news groups, false commercial messages, mail bombing or any other abuse of e-mail or news group servers;
(c) post or transmit any information or software which contains a virus, “cancelbot”, “trojan horse”, “worm” or other harmful or disruptive component;
(d) upload or download, post, publish, retrieve, transmit, or otherwise reproduce, distribute or provide access to information, software or other material which: (i) is confidential or is protected by copyright or other intellectual property rights, without prior authorization, from the rights holder(s); (ii) is defamatory, obscene, child pornography or hate literature; or (iii) constitutes invasion of privacy, appropriation of personality, or unauthorized linking or faming;
(e) use the services for an unattended automated operation, including but not limited to point of sales applications.  Customer further agree not to use Internet applications for the purpose of simulating network activity to avoid session inactivity disconnection;
(f) engage in accounting sharing, including, without limitation, permitting third parties to use your Service account and password;
(g) use the Service for simultaneous sessions using the same User ID and Password;
(h) tamper with, alter or otherwise rearrange the services.  The Customer shall not abuse or fraudulently use bluArc, or permit or assist others to do so (i) in any manner that interferes with the services or the provision thereof, or the network of bluArc or access thereto by other users of such network; or (ii) for any purpose or in any manner directly or indirectly in violation of applicable laws or in violation of any third party rights; or (i) for commercial purposes, resell or remarket all or any portion of the services provided under this Agreement.

The Customer shall be solely responsible for use of the services by any of its employees, officers, directors, agents and its Customers.  The Customer agrees to take all necessary measures to ensure that such persons use the services in accordance with the terms and conditions of this Agreement. The Customer agrees to comply with any third party software license terms and conditions in respect of software used by the Customer in connection with use of the services.

The Customer shall be solely responsible  for obtaining necessary licenses and/or authorizations for all software and equipment.  bluArc shall not be responsible if any changes in the services cause equipment, hardware or software provided by the Customer to become obsolete, require modification or attention, or otherwise affect performance of same.

bluArc reserves the right to take all actions, including immediate suspension of the services, which it considers necessary to assure compliance by the Customer with this Agreement.  The Customer will be responsible for all additional costs, liabilities and expenses incurred by bluArc resulting directly from a breach by the Customer of this Agreement.

  1. Your Equipment.  It is your responsibility to ensure that your computer system meets the minimum requirements stated by bluArc as being necessary to use the service.  From time to time, the computer equipment required to access  and use the Service may change.  Accordingly, your computer equipment may cease to be adequate to access and use the Service.
  2. Your Can Best Control the Risk and Therefore Are Responsible.  bluArc will not assume any responsibility for Customer’s acts or omission or of any individual who uses your account.  An individual with Internet access can cause damage, incur expenses and enter into contractual obligations while on the Internet.  All such matters are Customer’s responsibility.  As between bluArc and Customer is better able to put in place physical and procedural impediments to the inappropriate use of and to supervise Customer’s account.  Account and password protection will be Customer’s responsibility.  Any detriment that is caused to the network as a result of a failure to properly secure your computer system may result in the termination of the services.
  3. Monitoring.   bluArc monitors our network infrastructure equipment as well as customer premise equipment (CPE) in order to ensure connectivity and operations of the Hosted Service.  In order to protect itself and its subscribers, bluArc will be entitled to electronically monitor the services content from time to time for trouble shooting purposes, and to disclose any information concerning the Customer  required by regulation or lawful request or as necessary to operate the services or to protect itself or others.  bluArc will not intentionally monitor or disclose any private e-mail message unless required by law. .  bluArc reserves the right to refuse to post, or to remove any information or materials, in whole or in part, that it determines, in its sole discretion, are unacceptable, undesirable, or in violation or these policies.
  4. Content.  Customer acknowledges that some content, products or services available with or through the services (“Content”) may be offensive or may not comply with applicable laws.  Customer understands that neither bluArc nor any of its affiliates attempt to censor or monitor any Content. Customer also acknowledges that neither bluArc nor any of its affiliates have any obligation to monitor Customer’s use of the services and, except as provided herein, have no control over such use.  Customer understands, however, that such Content may be subject  to “catching” at intermediate locations on the Internet when being accessed through the services.  Customer assumes total responsibility  and risk for access to or use of Content and for Customer’s use of the services and the Internet.  bluArc and its affiliates assume no liability whatsoever for any claims or losses arising out of our otherwise relating to Customer’s access to or use of Content.
  5. Privacy.   bluArc cannot guarantee privacy. Customer’s messages may be the subject of unauthorized third party interception and review.  bluArc therefore recommends that the services not be used for the transmission of confidential information.  Any such use shall be at the sole risk and bluArc, its affiliates and its agents shall be relieved from all liability in connection therewith.
  6. E-mail.   Sending unsolicited, e-mail messages, including, without limitation, commercial advertising and informational announcements is prohibited.  Customers will not use another site’s mail server to reply mail.
  7. Usenet.   Customers shall not post ten (10) or more messages similar in content to Usenet or other newsgroups, forums, e mail mailing lists or other similar groups or lists.  Customers will not post any Usenet or other newsgroup, forum, email mailing list or other similar group or list articles which are off topic according to the charter or other owned published FAQ or description of the group or list.
  8. System or Network Security.   Customers are prohibited from violating any system or network security measures including but not limited to engaging in unauthorized access or use of bluArc’s or a third party’s network, data or information.

Customers are prohibited to interfere with service to any user, host or network including without limitation, mailbombing, flooding, deliberate attempts to overload a system and broadcast attacks.

Customers are prohibited to forge any TCP IP packet header or any part of the header information in an e-mail or newsgroup posting.

  1. Violation of Internet Use Policies.

bluArc considers the above practice to constitute abuse of its service.  Therefore, bluArc’s terms and conditions of service prohibit these practices.  Engaging in one or more these practices may result in termination or suspension of the Customer’s account and/or access to bluArc’s services in accordance with the Customer’s agreement with bluArc.

Nothing contained in this Agreement shall be construed to limit bluArc’s actions or remedies in any way with respect to any of the foregoing activities.  bluArc reserves the right to take any and all additional actions it may deem appropriate with respect to such activities, including without limitation taking action to recover the costs and expenses of identifying offenders and removing them from the bluArc services, and levying cancellation charges to cover bluArc’s costs.  In addition, bluArc reserves at all times all rights and remedies available to it with respect to such activities at law or in equity.

XV. Future Taxation. Customer understands that some of bluArc Hosted services are regulated or tariffed by governmental body, such as the CRTC. bluArc does incur governmental taxation from tariffed services it uses to provide service, but these taxes are not imposed on Customers. Customer understands that if future legal, governmental, or other related conditions force the imposition of additional taxation on Hosted services or if any governmental body increases the tariffs relating to certain services during the term of this Agreement, bluArc may be required to charge additional taxes and/or service fees to Customer. bluArc will make every effort to minimize the impact of any such taxes and fees on Customers, if they arise.

XVI. Force Majeure.  Neither party shall be liable for any delay or failure in performance due to Force Majeure, which shall include without limitation acts of God, earthquake, labor disputes, terrorist activities, changes in law, regulation or government policy, riots, war, fire, epidemics, acts or omissions of vendors or suppliers, third party non-performance, equipment failures, transportation difficulties, or other occurrences which are beyond the delayed party’s reasonable control, provided that the delayed party provides the other party with prompt notice of such delay.

XVII. Warranty.  All equipment including hardware sold by or provided by bluArc has a 1 (one) year warranty (‘warranty period”).  If there are any equipment failures including hardware and/or software failures or defects within the warranty period, bluArc will replace the equipment at no cost to the Customer.   Equipment will be replaced in accordance to the Service Level Agreement (SLA).  bluArc exercises no control over and accepts no responsibility for, the content of the information passing through bluArc host computers, network hubs and points of presence (the “bluArc Network”).  Use of any information obtained via the bluArc Network is at Customer’s own risk.  bluArc specifically denies any responsibility for the accuracy or quality of information obtained through its services.

XVIII. Acceptable Use.  Customer agrees to use bluArc services only for purposes for which they are intended. Customer shall only access bluArc network resources via bluArc-approved methods, hardware, and/or software. bluArc reserves the right to amend this Agreement, effective upon Customer notification of the revised Agreement.

XIX. Indemnification.  Each Party (the “Indemnifying Party”) will indemnify, defend and hold harmless the other Party and its officers, directors and employees (each, an “Indemnitee”) from all losses, liabilities and expenses (including reasonable legal fees) in connection with any claim, demand, action or proceeding (each, a “Claim”):

i. which arises from any injury or death to persons or physical damage to real or tangible personal property resulting from any willful or negligent act or omission of the Indemnifying Party or a person acting under its direction or control (including subcontractors and independent consultants); and
ii. in the case where the Customer is Indemnitee, which arises alleging that the Services infringe any Intellectual Property right of a third party.
a. Procedures. Each Party’s obligations pursuant to this Section (Indemnity) shall be subject to the following:
i. the Indemnitee(s) shall furnish prompt and timely written notice to the Indemnifying Party of any Claim for which indemnity is or may be sought;
ii. the Indemnifying Party shall have the right, at its option, to control any response thereto and the defense and/or settlement thereof; and
iii. the Indemnitee(s) shall provide reasonable assistance to the Indemnifying Party, at the Indemnifying Party’s cost and expense, in connection therewith. The Indemnitee(s) may participate, at their own expense, in the defense or settlement of any Claim with counsel of their own choice on a non-controlling basis. The Indemnifying Party shall not enter into any settlement that does not contain an unconditional release of any Indemnitee without obtaining such Indemnitee’s prior consent, which shall not be unreasonably withheld or delayed. No Indemnitee shall enter into a settlement of any Claim without the prior written consent of the Indemnifying Party.
b. Infringement Remedies. If a Claim for which bluArc is obligated to indemnify the Customer pursuant to Section XIX (a)(ii) is made or arises, or if bluArc reasonably believes such a Claim may be made, bluArc may, in addition to the indemnification, at its option, pursue one of the following remedial actions as selected by bluArc:
i. modify or replace the applicable Deliverables or other Services or part thereof so that they are no longer infringing or violative but provide equivalent functionality;
ii. obtain the right for the Customer to use such Deliverables or other Services upon terms that are commercially reasonable to both parties but without charge to the Customer;
iii. if neither option Section XIX (c)(i) nor Section XIX (c)(ii) are available or commercially reasonable, then bluArc may remove or cease the infringing or violative Deliverables or other Services and refund to the Customer an amount equal to all of the fees paid therefor.

XX. Limitation of Liability.

a. Except for either party’s obligations pursuant to Section XIX (Indemnification), the entire liability of either party, whether in contract, warranty, tort (including negligence), strict liability, or otherwise, shall not exceed the amount payable for the provision of the services under this agreement.
b. Except for either party’s obligations pursuant to Section XIX (Indemnification) neither bluArc or the Customer shall be liable for any special, indirect, incidental or consequential loss or damage of any kind or nature whatsoever, including without limitation, lost profits, or loss of records or data, regardless of whether arising out of breach of contract, tort (including negligence), strict liability, or otherwise, even if advised of the possibility of such loss or damage or if such loss or damage could have been reasonably foreseen.
c. bluArc and the Customer expressly agree that each of the liability limitations contained in this Section XIX shall remain in effect even if an exclusive remedy in this Agreement is determined to fail of its essential purpose.

XXI. Resale.  Connectivity and services are provided to Customer and Customer’s organization only.  Resale to or use by persons outside the Customer’s Premises or to persons outside the Customer’s organization, is prohibited.  bluArc may suspend the service or terminate this Agreement on notice of a violation of this Section.

XXII. Assignment.  Customer may not assign or transfer any of its rights or obligations under this Agreement without the express, prior written consent of bluArc which shall not be unreasonably withheld.  bluArc or its affiliates or subcontractors may perform some or all of the services provided hereunder.  bluArc may assign its rights and the benefit of this Agreement at any time.  Customer has right to be informed and consider assignment and has right to cancel agreement with no penalty in the case of no consent.

XXIII. No Waiver.  No failure on the part of either party to exercise, and no delay in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy hereunder preclude any further exercise thereof.

XXIV. Confidentiality. The terms of this Agreement shall be held confidential by each party, as shall each party’s confidential or proprietary information (“Confidential Information”).  Performance, discounts, and prices under this Agreement, the quality of bluArc Network performance, and any data provided by bluArc to Customer regarding performance of bluArc Network shall be deemed bluArc Confidential Information.  Neither party shall disclose the other party’s Confidential Information to third parties without the other party’s written consent, except as permitted pursuant to this Section.  Each party shall disseminate the other party’s Confidential Information among its employees, affiliates, or agents only on a need-to-know basis and shall use such Confidential Information only for the purpose of performing its obligations hereunder.  To the extent a party is required by applicable law, regulation, government agency or court order, discovery request, subpoena, or investigative demand to disclose the terms of this Agreement or the other party’s Confidential Information, such party shall use its reasonable efforts to minimize such disclosure and to obtain an assurance that the recipient shall accord confidential treatment to such Confidential Information, and shall notify the other party contemporaneously of such disclosure.  Either party in its discretion may terminate this Agreement for cause and without penalty upon ten (10) days’ written notice in the event of any breach of this Section.  The parties acknowledge that monetary damages may be an inadequate remedy for any breach of this Section and that either party may seek injunctive relief or specific performance as a non-exclusive remedy for such breach.  The confidentiality obligations set forth in this Section shall survive the termination or expiration of this Agreement.

XXV. Privacy. bluArc will not sell, distribute, or otherwise make public any of the Customer’s business or service information, without prior written consent from the Customer. bluArc reserves the right to use any and all service information without associating it specifically to the Customer, e.g. for statistical purposes.

XXVI. Governing Law. This Agreement shall be governed by the laws of the Province of Ontario without regard to its choice of law provisions, applicable federal laws and any applicable tariffs, rules and regulations.

XXVII. Amendments to Terms Conditions.   bluArc may at any time and from time to time change these terms and conditions and/or (unless otherwise expressly agreed with Customer) any fees, features or other aspects of Customer services upon notice to Customer.  Customer has the  right to cancel agreement with no penalty in the case of no consent.

Notification may be provided using one or more of the following methods:  (a) postcard or letter mailed to your billing address;  (b) e mail to one or more of your bluArc’s e mail accounts, if applicable;  or  (c) speaking to you or leaving a message for you. These terms and conditions apply to all bluArc Hosted services billed on your invoice.

This Agreement contains the entire understanding between the parties hereto and supersedes all other agreements of the parties, whether oral or written. Any modification to this Agreement is not binding unless approved in writing by bluArc.

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