This Master Services Agreement is entered into between Portal Network Co. Corporation, having its principal office at 200 Bathurst Drive, Waterloo, Ontario,N2V 2L7, a company incorporated under the laws of the Dominion of Canada (“Portal Network Co.”) and the Customer as defined in a Schedule attached hereto and signed by the parties.
The Customer agrees to subscribe to the services (“Services”) offered by Portal Network Co. and its affiliates and subsidiaries as set out in any
Schedules executed from time to time by the Customer in accordance with the terms and conditions set out and/or referenced in this Master Services Agreement and the applicable Schedule(s) (the “Agreement”).
Portal Network Co. is the owner of all right, title and interest in all facilities, networks and equipment provided by Portal Network Co. (the “Portal Network Co.’ Facilities”) or has obtained the right to make the Portal Network Co.’ Facilities available for use by the Customer from a
third party and the Customer shall have no rights therein.
It is the Customer’s responsibility to provide, prepare and maintain the locations and facilities for the installation of Portal Network Co.’Facilities necessary in order for Portal Network Co. to provide the Services to the Customer. Such provision, preparation and maintenance shall comply with Portal Network Co.’ specifications and shall be at the Customer’s expense. The Customer may choose to interconnect the Services with services or facilities of other authorized communications carriers, with underlying carriers, and with private systems where those services and facilities are compatible with Portal Network Co.’ services and facilities. Any special interface equipment or facilities necessary to achieve compatibility with Portal Network Co.’ facilities will be provided at the Customer’s expense and Portal Network Co. shall have no liability for any loss or damage resulting from such interconnection.
In the event that the Customer fails to provide, prepare or maintain the locations and facilities for the installation of Portal Network Co.’Facilities, or fails to do so in a timely manner as Portal Network Co. may deem necessary in the circumstances, Portal Network Co. shall not be liable for any resulting delay in commencing the Services or any service interruption and related damages, and the Customer shall be liable for any additional costs incurred by Portal Network Co. in order to install or restore the Services.
The Customer shall not, without Portal Network Co.’ written consent and then subject to such conditions as Portal Network Co. may require, make any alternation, addition or repair to Portal Network Co.’ Facilities or permit access to Portal Network Co.’ Facilities by any person not approved by Portal Network Co..
The Customer shall be responsible for the security of and any loss or damage to Portal Network Co.’ Facilities located on the Customer’s
If, in connection with a particular Service or under a specific Schedule, the Customer purchases any of the Portal Network Co. Facilities from Portal Network Co., the terms and conditions related thereto shall be specified in the Schedule. However, all Portal Network Co. Facilities remain the property of Portal Network Co. until Customer has paid for such Portal Network Co. Facilities in full.
Unless otherwise stated in this Agreement, on a monthly basis, Portal Network Co. will invoice the Customer by e-mail for Services to be provided in the said month. Recurring charges will be pro-rated for any month in which the Services are provided for only part of that month. Unless otherwise specified in this Agreement, any other charges associated with the provision of the Services, including but not limited to, one-time charges, installation charges, equipment charges and post-paid service charges, will be invoiced on Customer’s monthly invoice immediately following the time the charges were incurred (collectively, the advance and post billed charges, the “Charges”). Invoiced amounts are due thirty (30) business days from the invoice date.
Any under billed charge shall be payable when correctly billed, provided that Portal Network Co. provides a revised invoice to the Customer within one (1) year of the date when the Service was rendered.
Portal Network Co.’s invoice will include, and the Customer is responsible for, in addition to the Charges, any applicable taxes, any other charges imposed by law, interest on prior overdue invoices and charges for returned cheques.
Interest will accrue on any amount not paid for thirty (30) business days after the date of invoice as and from the invoice date at the rate of 2.5% per month (30.0% per annum), or the maximum legal rate, if less.
Third party charges incurred by Portal Network Co. in connection with the Services are subject to change and Portal Network Co. reserves the right to pass on such charges to the Customer.
In the event Portal Network Co., at the request of the Customer, incurs unusual expense in the provision of a Service to the Customer, for example and without limitation, for special construction, the Customer shall be liable for such expenses.
Portal Network Co. shall bear the expense of maintenance and repairs required due to normal wear and tear to Portal Network Co.’ Facilities. Portal Network Co. may charge for additional expenses incurred when the Customer requires maintenance and repair work to be performed on the Customer’s facilities or any equipment or facilities leased to the Customer at Portal Network Co.’ standard prevailing rates.
If the Customer has any good faith disputes concerning any Portal Network Co.’ invoice, it shall make full payment of the undisputed portion of the invoice and shall give written notice to Portal Network Co. within thirty (30) business days of the invoice date, together with any supporting documentation substantiating the disputed amount. After that time, the Customer will be deemed to have agreed to the contents of the invoice and will have no right to challenge any element of the invoice. Portal Network Co. and the Customer agree to use their respective good faith efforts to resolve any dispute within thirty (30) business days after Portal Network Co. receives written notice of the dispute from the Customer. Any dispute resolved in favour of the Customer shall be credited to the Customer’s account on the next invoice following resolution of the dispute. Any disputed amounts determined to be payable to Portal Network Co. will be due within five (5) business days of the resolution of the dispute. Any dispute arising out of or relating to this Agreement that has not been resolved by the good faith efforts of the parties shall be settled by binding arbitration conducted in accordance with this Agreement. The Customer must pay any undisputed portion of an invoice and subsequent invoices in accordance with this Agreement.
The Customer shall be liable to Portal Network Co. for all costs and/or expenses incurred, including legal fees, in the collection or attempted collection of any unpaid Charges.
The Customer shall not resell the Services, or otherwise make the Services available to third parties for value.
The Customer shall ensure that its customers or potential customers or other users of the Services (collectively, the “End Users ”) comply with the terms of this Agreement, the applicable Schedules and Portal Network Co.’ Acceptable Use Policy which can be found at www.portalnetworks.ca. The Customer shall be responsible for the End Users’ use of the Services and the content of End User information passing through the Services to the same extent as the Customer would be liable hereunder.
The Customer will not, nor will it permit others or assist others to, tamper with, alter or rearrange the Services or the Portal Network Co. Facilities required to provide the Services, or otherwise abuse or fraudulently use the Services, including, without limitation, using the Services:
in any manner which interferes with Portal Network Co.’ facilities, network or equipment, or access thereto by other persons;
contrary to reasonable instructions communicated to the Customer by Portal Network Co.;
for any purpose or in any manner, directly or indirectly, in violation of applicable laws or in violation of any third party rights; or
in a manner to avoid the payment of Charges.
Notwithstanding anything to the contrary herein, if in Portal Network Co.’ sole judgment, the Customer or the End Users violate this Article, and such violation or failure to comply poses an immediate threat of harm to or destruction of Portal Network Co.’ Facilities or Services, violates existing law or regulation, or puts Portal Network Co.’s Facilities or Services at risk with its providers of network services or other customers, Portal Network Co. shall have the right to immediately take any all steps reasonably necessary to remove such threat, including but not limited to suspension or termination of the Services immediately and without notice.
The Customer shall indemnify and hold harmless Portal Network Co. for illegal activities caused by the End Users using Portal Network Co.’ Facilities and/or the Services. Portal Network Co. shall not: (i) have any obligation or liability to the Customer or any third party for any unlawful or improper use of the Services by a End User; nor (ii) have any duty or obligation to exercise control over the use or the content of information passing through the Services.
Portal Network Co. may, upon providing reasonable notice to the Customer, access the Customer’s premises and make such inspections, tests and adjustments as it may deem necessary to investigate, modify, repair or maintain the installation or operation of Portal Network Co.’ Facilities.
Portal Network Co. may, from time to time and without notice to the Customer, update, maintain or migrate the Services or the Portal Network Co.’ Facilities, provided the Services are not impaired or interrupted. If required, the Customer shall provide reasonable cooperation to Portal Network Co. with respect to any such update, maintenance or migration.
In the event Portal Network Co. determines that it is necessary to interrupt the Services or that there is a potential for Services to be interrupted for the performance of system maintenance, Portal Network Co. will use good faith efforts to notify the Customer prior to such interruption. Portal Network Co. will schedule system maintenance during non-peak hours (midnight to 6 a.m. local time). Notwithstanding the foregoing, in the event of an emergency (as determined in Portal Network Co.’ sole discretion, including without limitation, network-affecting disruptions involving the Customer’s facilities, potential harm to Portal Network Co.’ Facilities or pursuant to a court order), Portal Network Co. may access the Customer’s premises and perform maintenance at any time and without notice. In no event shall interruption for system or emergency maintenance constitute a failure of performance by Portal Network Co.
Throughout the Term of this Agreement and any extension thereof, each party shall maintain, and upon written request, shall provide proof of adequate Commercial General Liability Insurance covering claims for injury, death or damage to property arising out of the Agreement. Limits must be no less than one million dollars ($1,000,000) per occurrence.
The Services will be provided for the period and pursuant to the terms set out in the applicable Schedules (the “Service Term”). The Schedules will be renewed for the period set out in the applicable Schedule (the “Renewal Period”) on the same terms and conditions set forth therein unless either party gives the other party written notice of its intention to terminate the applicable Schedule with sixty (60) days notice prior to the expiry of the Service Term or in any Renewal Term, as the case may be. This Agreement, as it applies to a Schedule, will continue so long as any Schedule remains in effect. If Services continue after expiration of the Service Term, Portal Network Co. may, upon fifteen (15) business days’ written notice to the Customer, adjust rates for Services hereunder to its then current rates. Without incurring liability, Portal Network Co. may at any time suspend, restrict or terminate any or all Services without penalty:
if the Customer fails to pay any undisputed amount when due and has not remedied such breach for a period of ten (10) business days following written notice from Portal Network Co.; or
if the Customer breaches a material obligation of this Agreement and/or a Schedule and has not remedied such breach within thirty (30) business days of receipt of written notice from Portal Network Co.;
immediately where any law or court order or other authority prohibits Portal Network Co. from furnishing such Services.
Either party may terminate this Agreement by notice in writing to the other party:
if the other party breaches a material obligation of this Agreement and has not remedied such breach within thirty (30) business days of receipt of written notice from the non-defaulting party;
Immediately if the other party commits an act of bankruptcy or insolvency, is placed into liquidation or receivership, passes a resolution for its winding up (otherwise than for the purpose of amalgamation or reconstruction) or makes any assignment or arrangement for the benefit of its creditors; or
upon sixty (60) business days’ prior written notice to other without cause, during any Renewal Term.
Upon termination or expiration of this Agreement:
all amounts owing by the Customer shall immediately become due and payable;
the Customer shall immediately cease using the Services;
the Customer shall return to Portal Network Co., at the Customer’s expense, and make no further use of, any Portal Network Co.’ Facilities at the Customer’s premises or in the Customer’s control, or any copies of any documentation or material or confidential information relating to the Services in the Customer’s possession or control.
Termination of a Schedule and/or this Agreement through any means for any reason shall not relieve either party of any obligation accrued prior to such termination.
In addition to the provisions of Section 7.4, if the Customer terminates this Agreement or a Schedule without cause, or if Portal Network Co. terminates this Agreement or a Schedule for cause, the Customer shall pay to Portal Network Co., as liquidated damages and not as a penalty, an amount which is equal to the sum of:
the greater of 50% of (i) the average monthly charges for the terminated Service(s) (as determined over the previous three months) multiplied by the number of months remaining in the Service Term from the effective date of termination or (ii) if applicable, the minimum monthly commitment for the terminated Service(s) for the balance of the Service Term (prorated, in the case of a yearly minimum monthly commitment) calculated from the effective date of termination;
any cost which Portal Network Co. is liable to continue to pay to third parties for the remainder of the applicable Service Term incurred by Portal Network Co. with the knowledge and/or approval of the Customer for the provision of the terminated Service(s); and
a lump sum representing the aggregated total of any installation, one-time or monthly recurring charges associated with the terminated Service(s) which have been waived or discounted by Portal Network Co. in consideration of the Customer’s commitment to the Service Term for such Service(s).
The Customer acknowledges that the termination fees described in this Agreement represent liquidated damages and not a penalty.
The Customer does not have property rights in dial numbers and in some cases “IP” numbers or domain names assigned to them. Portal Network Co. may change such numbers or domain names assigned to the Customer provided that Portal Network Co. is requested to do so by a legal or regulatory authority, including without limitation, the Canadian Radio-television and Telecommunications Commission (CRTC), the Federal Communications Commission (FCC) or a court order, and provided that Portal Network Co. promptly notifies the Customer of any such action.
Any software and accompanying documentation provided by Portal Network Co. to the Customer remains the property of Portal Network Co. or its licensors. The Customer shall take reasonable steps to protect such software or documentation from theft, loss or damage. The Customer must review and agree to any applicable end user license agreement (provided separately or in a Service Schedule) before installing or using the software or documentation. Unless otherwise provided in the applicable end use license agreement, all software licenses will terminate upon termination of this Agreement.
PORTAL NETWORK CO. DOES NOT GUARANTEE ERROR-FREE OR UNINTERRUPTED OPERATION OF THE SERVICES NOR SHALL IT BE LIABLE FOR ANY FAILURE, BREAKDOWN, INTERRUPTION OR DEGRADATION IN A SERVICE OR IN THE NETWORK OR ANY OTHER NETWORK OR CONNECTION INVOLVED IN THE PROVISION OR USE OF SERVICES WHATEVER THE CAUSE OF SUCH FAILURE, BREAKDOWN, DEGRADATION OR INTERRUPTION AND HOWEVER LONG IT LASTS. NEITHER PORTAL NETWORK CO NOR ANY OF ITS AFFILIATES, EMPLOYEES, AGENTS OR REPRESENTATIVES MAKES ANY WARRANTIES, REPRESENTATIONS, CONDITIONS OR GUARANTEES OF ANY NATURE WHATSOEVER REGARDING ANY SERVICE, PRODUCT OR FACILITIES PROVIDED BY Portal Network Co. TO THE CUSTOMER, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO: (I) FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY WITH RESPECT TO THE SERVICES; (II) NETWORK TRANSMISSION CAPACITY; (III) THE SECURITY OF ANY TRANSACTION; (IV) THE FAULT TOLERANCE OF THE SERVICES OR THE SUITABILITY OF SAME FOR HIGH RISK ACTIVITIES; OR (V) THE RELIABILITY OR COMPATIBILITY OF THE FACILITIES AND EQUIPMENT OR SOFTWARE OF THIRD PARTIES WHICH MAY BE UTILIZED BY Portal Network Co. IN PROVIDING, OR BY THE CUSTOMER IN USING, THE SERVICES, AND ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED, ARE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, HEREBY EXCLUDED. THE CUSTOMER ACKNOWLEDGES THAT IS HAS NOT RELIED UPON ANY REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE MADE BY Portal Network Co.
For the purposes of this Article 10 and Articles 11 and 12, “Portal Network Co.” shall include Portal Network Co., any affiliated or subsidiary companies of Portal Network Co., and the directors, officers, employees, consultants, contractors and agents of all of them.
Except with regard to direct damages to real or tangible personal property, or for bodily injury or death proximately caused by Portal Network Co.’ negligence, Portal Network Co.’ entire liability to the Customer, the End Users or any third party in connection with the Services(s) and Portal Network Co.’ Facilities or the provision or non-provision thereof is limited to the Customer’s proven direct damages, such amount not to exceed per claim (or in the aggregate during any three (3) month period) the amount paid by the Customer for one month of the affected Service(s)) (such amount to be based on average monthly charges paid by the Customer over the six (6) months prior to the month in which the damages was incurred or the length of the Agreement, whichever is less).
Without limiting the generality of the foregoing, Portal Network Co. shall not be liable for:
defamation or copyright or trademark infringement or the violation of any third party rights arising from the use of the Services or material transmitted or received over Portal Network Co.’ network;
infringement of patents arising from combining or using Customer or End User equipment with the Services or Portal Network Co. Facilities;
any act or omission of any connecting carrier, underlying carrier, local exchange telephone company, local access provider, or acts or omissions of any other providers of connections, facilities (including equipment), or service other than Portal Network Co., which are used by Portal Network Co., the Customer or the End Users under this Agreement;
delays with respect to the installation of Services or the transfer of existing Services;
capacity shortages not directly caused by Portal Network Co.;
any unauthorized use of the Services;
Service interruptions, errors, delays or defects in transmission or failure to transmit caused by power fluctuations or power failure at the Customer’s or the End Users’ location(s);
Service interruptions, errors, delays or defects in transmission or failure to transmit caused by Portal Network Co. in the performance of system or emergency maintenance under Section 5.3 hereof; or
Service interruptions, errors, delays or defects in transmission or failure to transmit caused by an act of God, fortuitous event, war, insurrection, riot, strike, walkout, lockout or other labour unrest affecting Portal Network Co. or its suppliers, storm, fire, flood, explosion, lightning, government restraint, delays in producing supplies, shortages of suitable labour, equipment or materials, power shortages or interruptions or any other event beyond the reasonable control of Portal Network Co..
UNDER NO CIRCUMSTANCES SHALL PORTAL NETWORK CO BE LIABLE FOR ANY LOSS, COST, CLAIM OR DAMAGE (INCLUDING, BUT NOT LIMITED TO, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, LOST SAVINGS, LOST PROFITS, DAMAGES FOR HARM TO BUSINESS, ANTICIPATED REVENUE OR LOST REVENUE OR THE LOSS OF ANY DATA/INFORMATION) SUFFERED OR INCURRED BY THE CUSTOMER OR ANY THIRD PARTY (INCLUDING, BUT NOT LIMITED TO THE END USERS) AND ARISING OUT OF ANY FAULTS, INTERRUPTIONS OR DELAYS IN THE SERVICES OR OUT OF ANY INACCURACIES, ERRORS OR OMISSIONS IN THE INFORMATION CONTAINED IN THE SERVICES WHETHER OR NOT Portal Network Co. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Portal Network Co. will not be liable for any damages arising out of or relating to: facilities, equipment, software, applications, services or content provided by the Customer, the End Users or third parties; unauthorized access to or theft, alteration, loss or destruction of the Customer’s, the End User’s or third parties’ applications, content, data, programs, information, network or systems by any means (including without limitation viruses); or any act, omission or failure of the Customer.
In no event shall Portal Network Co. be liable for the use of the Services by the Customer, the End Users or any third party for unlawful or illegal purposes.
These limitations of liability shall apply regardless of the form of action, whether in contract, warranty, strict liability, or tort, including without limitation negligence of any kind, whether active or passive, or any combination thereof, and shall survive failure of an exclusive remedy.
For the purposes of this Article and Articles 10 and 12, “Customer” shall include the Customer and any affiliated or subsidiary companies of the Customer, and the directors, officers, employees, consultants, contractors and agents of all of them.
The Customer shall be liable to Portal Network Co. for all damages caused to real or tangible personal property, or for bodily injury or death caused by the Customer or a End User.
UNDER NO CIRCUMSTANCES SHALL PORTAL NETWORK CO LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, OR SPECIAL DAMAGES, INCLUDING DAMAGES FOR HARM TO BUSINESS, LOST PROFITS, LOST SAVINGS OR LOST REVENUES, WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF SUCH DAMAGES.
Each party (the “Receiving Party”) undertakes and covenants to the other party (the “Disclosing Party”) that it will treat as confidential, and will use its best efforts to ensure that its directors, employees, professional advisers, contractors and agents will treat as confidential, the terms and conditions of this Agreement as well as all proprietary information received by it from the other party whether in oral or written format, including without limitation, data, summaries, rates, reports, pricing, customer lists , financial information and all other confidential information relating in any manner to the business or affairs of the Disclosing Party (“Confidential Information”) which it may receive in connection with this Agreement. The Receiving Party will not, except with the written permission of the Disclosing Party, use or disclose such Confidential Information to its employees, agents, contractors or professional advisers other than those who have a need to know such Confidential Information, and strictly for the purposes of this Agreement. The Receiving Party shall protect the Confidential Information from disclosure using the same degree of care used to protect its own confidential information, but in no event less than a reasonable degree of care.
The Receiving Party may disclose Confidential Information pursuant to judicial or governmental request, requirement or order; provided that the Receiving Party take all reasonable steps to give the Disclosing Party prior notice sufficient to contest such request, requirement or order.
The restriction on use and disclosure of Confidential Information shall not apply to information held by the Receiving Party which:
is in or comes into the public domain other than by breach of this Agreement;
is in the possession of or is known to the Receiving Party prior to the date of this Agreement;
is rightfully received from a third party without knowledge of any confidentiality obligation; or
is approved for release by written authorization of the Disclosing Party.
Unless the Customer provides express consent or disclosure is pursuant to a legal power, all information kept by the company regarding the Customer, other than the Customer’s name, address, and listed telephone number, is confidential and may not be disclosed by Portal Network Co. to anyone other than;
a person who, in the reasonable judgment of Portal Network Co., is seeking the information as an agent of the Customer;
another telephone company, provided the information is required for the efficient and cost-effective provision of telecommunication service and disclosure is made on a confidential basis with the information to be used only for that purpose;
a company involved in supplying the Customer with telephone or telephone directory related services, provided the information is required for that purpose and disclosure is made on a confidential basis with the information to be used only for that purpose;
an agent retained by Portal Network Co. to evaluate Customer’s creditworthiness, to assist in the collection of the Customer’s account, or to perform other administrative functions, provided the information is required for and is to be used only for that purpose;
a law enforcement agency whenever Portal Network Co. has reasonable grounds to believe that the Customer has supplied false or misleading information or is otherwise involved in unlawful activities;
a public authority or agent of a public authority, for emergency public alerting purposes, if a public authority has determined that there is an imminent or unfolding danger that threatens the life, health or security of an individual and that the danger could be avoided or minimized by disclosure of information; or
an affiliate of Portal Network Co. involved in supplying the Customer with telecommunications and/or broadcasting services, provided the information is required for that purpose and disclosure is made on a confidential basis with the information to be used only for that purpose.
Confidential Information shall remain the property of the Disclosing Party and shall be returned to the Disclosing Party or destroyed upon request by the Disclosing Party.
Because monetary damages may be insufficient in the event of a breach or threatened breach of the foregoing provisions, the Disclosing Party may be entitled to seek an injunction or restraining order in addition to such other rights or remedies as may be available under this Agreement, at law or in equity.
Prior to initiating arbitration, the parties shall first use good faith efforts to resolve any dispute informally and confidentially. If a dispute cannot be resolved or settled informally, it shall be settled and determined by arbitration pursuant to the laws of Ontario. Either party may at any time given written notice to the other of its desire to submit the dispute to arbitration stating with reasonable particularity the subject matter of the dispute. Within five (5) business days after receipt of such notice, the parties shall appoint a single arbitrator to arbitrate the dispute. If the parties are unable to agree upon an arbitrator, the parties shall apply to a court of competent jurisdiction to appoint an arbitrator and the parties agree to be bound by such appointment. The costs of the arbitration shall be paid as determined by the arbitrator. The award of the arbitrator shall be final and binding upon the parties.
Force Majeure. Neither party is liable to the other by reason of any failure in performance under this Agreement (other than a failure to pay money) if such failure arises out of causes beyond the reasonable control of such party, provided the parties make reasonable efforts to limit or remedy such effect. Such causes may include, but are not limited to, acts of God, acts of the public enemy, acts of civil or military authority, fires, strikes, unavailability of energy source, delay in transportation, riots or war.
Notice. Any communication required to be given under this Agreement must be given in writing and either delivered personally, or sent by prepaid registered post, overnight and/or express courier, or facsimile or other electronic communication to the person at the relevant address detailed as follows:
Portal Network Co. Regulatory Board
200 Bathurst Drive
Waterloo, ON N2V 2L7
Tel No.: 519-804-1234
The Customer : as set out in the applicable Schedule signed by the parties or to such other person or address as notified in writing by a party from time to time.
Any notice or other communication is deemed to be received:
(a) if delivered personally or by overnight and/or express courier, on delivery;
(b) if sent by prepaid registered post, five (5) business days after the date of posting unless actually received earlier;
(c) by facsimile or electronic communication, the day following transmission.
Governing Law. This Agreement shall be governed by the laws of Canada applicable therein, without reference to its principles of conflict of laws, and the parties shall attorn to the jurisdiction of the Courts of Ontario for all matters arising under this Agreement.
Entire Agreement. This Agreement together with all schedules attached hereto from time to time contains the entire contractual arrangements between the parties with respect to the subject matter of this Agreement and supersedes all other communications, negotiations, correspondence, arrangements, understandings, or representations, oral or written, between the parties relating to same.
Amendment. This Agreement may be amended only by agreement in writing and signed by each party. Notwithstanding the foregoing, in the event Portal Network Co. is compelled to revise a term or condition of the Agreement as a result of an applicable statutory or regulatory rule, decision or order, including without limitation any rules or regulations of the CRTC, the Customer agrees to be bound by such statutory rule, decision or order and both parties shall work together in good faith and in a timely manner to minimize any adverse impact to the Customer.
Severability. Any provision of this Agreement that is unenforceable at law will be ineffective to the extent of such unenforceability without invalidating the remaining provisions of this Agreement. It is the intention of the parties that any provision found to be illegal or unenforceable should not be terminated but should be amended to the extent necessary to render it valid and enforceable.
Relationship of Parties. The relationship between Portal Network Co. and the Customer is that of independent contractors. Neither this Agreement nor the provision of Services by Portal Network Co. creates, nor shall be deemed to create, an agency, partnership, joint understanding or joint venture between Portal Network Co. and the Customer. The Customer does not have, and will not hold itself out as having, any authority to act for or create any obligation of, or make any representation on behalf of or in the name of, Portal Network Co. No agents or employees of the Customer shall be deemed to be agents or employees of Portal Network Co..
Waiver. No failure by Portal Network Co. to exercise any right under this Agreement or to insist upon full compliance by the Customer with its obligations under this Agreement will constitute a waiver of any provision of this Agreement.
Assignment. Neither party may assign this Agreement without the prior written consent of the other, except that Portal Network Co. may without the Customers consent assign: (i) its right to receive payment hereunder; (ii) this Agreement to an affiliate; or (iii) this Agreement in connection with the sale of all or substantially all of its assets. This Agreement will be binding upon, and will enure to the benefit of, the parties and their respective successors and permitted assigns.
Order of Preference. In the event of conflict between this Agreement and any other Schedule attached hereto by reference, the terms and conditions of the applicable Schedule will prevail to the extent of the conflict.
Language. This Agreement has been drawn up in the English language at the express request of the parties.